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Israel v. Morton

ELR Citation: 7 ELR 20376
Nos. No. 73-3181, 549 F.2d 128/(9th Cir., 01/19/1977)

The Ninth Circuit affirms application of the reclamation laws' restrictions on sales of excess lands and access to irrigation water in the columbia Basin Project. Appellants, owners of land within the project, sought a judicial declaration of their right to sell land in excess of the 160-acre limit on single-owner farm units without restriction on sale price and the right of the new landowner to receive irrigation water from the project.

Federal reclamation laws generally have restricted the rights of owners of land in excess of 160 acres to receive reclamation project water. This restriction was echoed in the Columbia Basin Project legislation, 16 U.S.C. §§835 et seq., and all lands within the project area were appraised by the Secretary of the Department of the Interior in order to limit the sale price of excess lands. Appellants acquired their excess lands (greater than the 160-acre limitation) when there were no restrictions against selling the land at greater than the Interior-appraised value and when the excess lands were entitled to receive project water. Subsequent amendments to the project legislation, however, imposed the general restrictions of the reclamation laws. Appellants argued that the right to sell excess lands without regard for the Department of the Interior appraisal and the right of the excess lands to receive project water became vested when they purchased the excess lands and that denial of the rights would constitute a taking of property without due process.

Affirming the lower court's decision, the Ninth Circuit holds that rights to project water and restrictions on the sale of excess lands must be governed by the federal statutes even with subsequent amendments. Rights in the West to natural-flow water vest when obtained, but because project water exists only because it has been developed by the United States, vesting can occur only on terms fixed by the federal government. Project contracts covering water and land within the project must remain subject to subsequent amendment.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1119).

Counsel for Appellants
Thomas W. Huber
Helsell, Paul, Fetterman, Todd & Hokanson
Washington Bldg., P.O. Box 21846, Seattle WA 98111
(206) 292-1144

Counsel for Appellees
Robert M. Sweeney, Ass't U.S. Attorney
P.O. Box 1494, Spokane WA 99210
(509) 456-3811

Merrill, J., joined by Kennedy & Enright, JJ.