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Yellen v. Hickel

ELR Citation: 1 ELR 20609
Nos. No. 69-124, 335 F. Supp. 200/3 ERC 1534/(S.D. Cal., 11/23/1971)

Plaintiffs' motion for partial summary judgment declaring that Section 5 of the Reclamation Act of 1902 is still in effect is granted. Section 5 makes residency a condition precedent to the right to receive water from federal irrigation projects. The government's contention that the residency requirement was superceded by the Omnibus Adjustment Act of 1926, which recognizes local irrigation districts and provides for the sale of land in excess of 160 acres by each recipient of water, must fail. The acts are not mutually exclusive on their face and can both be enforced without detriment to the other. Further, they contain no legislative history implying any congressional intent to repeal the earlier act.The government's contentions that the acts of 1912 and 1922 repealed the residency requirement are unconvincing, because Congress specifically suspended the residency requirement only for the duration of World War I and because the purpose of the 1922 modification was simply to eliminate bureaucratic complexity in applying for water rights through irrigation districts. A ruling by the Interior Department in 1916 that residency may be abandoned as soon as water rights are obtained has no effect, because an administrative agency cannot, through an erroneous ruling, repeal an act of Congress. Moreover, Congress never manifested an intention to repeal the 1902 Reclamation Act or depart from its purpose to discourage monopolistic ownership of or absentee speculation in arid western lands.

Counsel for Plaintiff:
Arthur Brunwasser
445 Sutter Street
Suite 501
San Francisco, CA 94108
(415) 391-2203

Counsel for Defendant:
Robert H. Filsinger U.S. Attorney
325 West F Street
Annex A
San Diego, CA 92101
(714) 293-5662