United States v. Gerlach Live Stock Company/Concurrence Douglas
Mr. Justice DOUGLAS, concurring in part and dissenting in part.
I think it is clear under our decisions that respondents are not entitled to compensation as a matter of constitutional right. For we have repeatedly held that there are no private property rights in the waters of a navigable river. See United States v. Appalachian Electric Power Co., 311 U.S. 377, 424, 61 S.Ct. 291, 307, 85 L.Ed. 243; United States v. Commodore Park, Inc., 324 U.S. 386, 390-391, 65 S.Ct. 803, 805, 89 L.Ed. 1017; United States v. Willow River Power Co., 324 U.S. 499, 510, 65 S.Ct. 761, 767, 89 L.Ed. 1101. That is true whether the rights of riparian owners or the rights of appropriators are involved. See Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. As the Appalachian Power case makes plain, 311 U.S. 424, 427, 61 S.Ct. 307, 308, 85 L.Ed. 243; the existence of property rights in the waters of a navigable stream are not dependent upon whether the United States is changing the flow of the river in aid of navigation or for some other purpose.
Nor can respondents' rights to recover be founded on the Acts which appropriated money for the Central Valley project. They created no independent right in any claimant against the United States. That is the teaching of Justice Brandeis' opinion for the Court in Mitchell v. United States, 267 U.S. 341, 345-346, 45 S.Ct. 293, 294, 69 L.Ed. 644. The appropriation in that case was for, inter alia, 'losses to persons, firms and corporations, resulting from the procurement of land.' In denying a claim for the loss of a business resulting from a taking of land, the Court said: 'By including in the appropriation clause the words 'losses to persons, firms, and corporations, resulting from the procurement of the land for this purpose,' Congress doubtless authorized the Secretary of War to take into consideration losses due to the destruction of the business, where he purchased land upon agreement with the owners. But it does not follow that, in the absence of an agreement, the plaintiffs can compel payment for such losses. To recover, they must show some statutory right conferred.'
The same is true in this case. For example, § 2 of the Rivers and Harbors Act of August 26, 1937, 50 Stat. 844, 850, provided that the Secretary of Interior 'may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes.' Authority to pay for water rights is, of course, not to be construed to mean an assumption of liability to pay.
Congress, to be sure, has full power to relinquish its immunity from suit for the taking. See Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 377, 50 S.Ct. 140, 141, 74 L.Ed. 483; United States v. Realty Co., 163 U.S. 427, 440, 16 S.Ct. 1120, 1125, 41 L.Ed. 215. And I think it has done so-not by the Acts appropriating funds for the project but by the Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371 et seq., 43 U.S.C.A. § 371 et seq.
The Act applies solely to the 17 western States. It deals with reclamation projects as its title indicates. The Central Valley project is such a project.
Section 7 of the Act authorizes the Secretary of the Interior to purchase any rights necessary to the carrying out of the Act.  Section 8 provides: 'That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' 43 U.S.C.A. § 383.
Section 8 thus respects 'any vested right' acquired under state water laws relating to irrigation, in 'any interstate stream or the waters thereof.' When such rights will be destroyed or interfered with by a proposed reclamation project, authority is found to acquire them under § 7. The customary method of acquiring the water rights is to file a notice of appropriation pursuant to state law.
Petitioner seeks to avoid the force of these Sections by asserting that they are not applicable to lands riparian to navigable streams.
The legislative history of the Act is not particularly instructive. The House Committee reporting the bill said that 'Section 8 recognizes State control over waters of non-navigable streams such as are used in irrigation.' H.R.Rep.No.1468, 57th Cong.1st Sess., p. 6. There is no other evidence, however, that the framers thought the scope of the bill so narrow. When the Act was recommended in 1901, President Theodore Roosevelt was careful to suggest that there should be protection for 'vested rights' and respect for state laws. 35 Cong.Rec. 6677, 6775-6776. There are statements to the same effect by Representative Mondell, who was in charge of the Bill in the House (35 Cong.Rec. 6678-6679) and by Senator Clark of Wyoming (35 Cong.Rec. 2222). The clause in § 8 according protection to 'any vested right acquired' under state laws was added to the Bill by Committee amendment on the floor of the House. 35 Cong.Rec. 6762.
Whether § 8 authorizes payment for water rights riparian to navigable waters has not been authoritatively determined by the courts.  This Court has recognized, however, that administration of the Act is to be in conformity to state laws. See California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 164, 55 S.Ct. 725, 731, 79 L.Ed. 1356; State of Nebraska v. State of Wyoming, 325 U.S. 589, 614, 65 S.Ct. 1332, 1348, 89 L.Ed. 1815. That was the assumption in Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 223, 82 L.Ed. 187, a case involving the navigable waters of the Columbia River.
Whatever doubts there may be are for me dispelled by the administrative practice under the Act, as summarized by the Commissioner of Reclamation in a memorandum dated April 19, 1950. Reports from the seven regional counsel and a review of the files in the Bureau of Reclamation formed the basis for the memorandum.
The Commissioner concluded that it has been the almost invariable practice of the Bureau to file notices of appropriations under state law without regard to whether the stream involved was navigable or nonnavigable.  Such filings were made pursuant to state law on water rights riparian to at least 13 navigable or probably navigable rivers. This administrative practice is too clear to be contradicted by the Bureau of Reclamation documents cited by petitioner.  Moreover, the Commissioner of Reclamation has drawn our attention to recent public statements by Department of Interior officers confirming this practice.
This Court has often emphasized that weight is to be given to the interpretation of a statute made by the administering agency. See United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170. This long course of practice by the Bureau of Reclamation resolves any doubts and ambiguities that arise from the history and wording of the statute.
I conclude that Congress by § 8 of the Reclamation Act agreed to pay (though not required to do so by the Constitution) for water rights acquired under state law in navigable as well as nonnavigable streams. As the Court holds, respondents under California law have a water right. Section 8 therefore recognizes it as the basis for payment in connection with this federal project.
I do not think the claimants are entitled to interest. When the Government assumes a liability by statute, interest is not allowable unless specific provision is made for it. United States v. Goltra, 312 U.S. 203, 207, 61 S.Ct. 487, 490, 85 L.Ed. 776; United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521. A different rule obtains when the United States takes property protected by the Fifth Amendment. Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed. 664. The present water rights, though not protected by the Fifth Amendment, are ones which the United States has agreed to pay for under §§ 7 and 8 of the Reclamation Act. Sections 7 and 8 contain no provision for the payment of interest. The Act refers to state law to determine whether a water right exists not to ascertain the measure of damages for the taking.
^1 Section 7 provides: 'That where in carrying out the provisions of this Act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney-General of the United States upon every application of the Secretary of the Interior, under this Act, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the Department of Justice.' 43 U.S.C.A. § 421.
^2 A United States District Court for the Southern District of California has recently held, however, that § 8 of the Act provides for the purchase of water rights taken in connection with the Central Valley Project. Rank et al. v. Krug, 90 F.Supp. 773.
^3 The memorandum records the following data: Region 1 (Washington, Idaho, northern Oregon, western Montana) reported the filing of appropriations under state law in 12 projects involving navigable rivers. In Region 2 (northern California, Oregon), § 8 has been construed to include rights in navigable as well as nonnavigable waters, although the exact number of filings was not revealed. Although some filings for appropriation under state law have been made in Region 3 (southern California, Arizona, southern Nevada), the lower Colorado River projects are the single exception to the otherwise consistent administrative practice. In Region 4 (northern Nevada, Utah, western Wyoming, western Colorado), water rights on at least two navigable rivers have been acquired pursuant to state law. No occasion has yet arisen in Region 5 (Texas, New Mexico, Oklahoma, southern Colorado) making necessary the acquisition of water rights on navigable streams. In the only instance in Region 6 (eastern Montana, northern Wyoming, North and South Dakota) where a federal project interfered with private water rights on a navigable river, the rights were paid for by the United States. Water rights on three apparently navigable rivers in Region 7 (eastern Colorado, southern Wyoming, Nebraska, Kansas) were acquired by the United States in accordance with state laws.
The Commissioner notes that there are special circumstances concerning the lower Colorado River projects which explain the single exception. The Act authorizing Hoover Dam required that it be used first for 'river regulation, improvement of navigation, and flood control,' and only thereafter for irrigation. 45 Stat. 1061, 43 U.S.C.A. § 617e. Moreover, the Colorado River Compact assures an adequate supply of water for the project. The Commissioner points out that while no rights have been acquired on the lower Colorado under § 7, 'a search of Bureau records fails to disclose any instance on that River in which the Bureau in connection with any of its projects failed or refused to recognize or make compensation for water rights validly established under state law.'
Another possible exception is the decision of the Department of Interior not to purchase a power right on the Spokane River on the ground among others, that the right affected navigable waters. Yet in the past, the Bureau instituted appropriations on that river also.
^4 The unpublished Manual of the Bureau of Reclamation, printed for the guidance of its employees, supports petitioner's position in its 1913, 1917, and 1927 editions, and to a lesser extent in its 1938 edition. A new manual is now in preparation. These statements may have been based on an early decision of the Secretary of the Interior (California Development Co. 33 L.D. 391), which also provides some support for the petitioner's position. The Commissioner of Reclamation, however, has explained that 'despite the statement in earlier manuals based upon the California Land Development opinion * * *,' the Bureau's practice has been to make no distinction between navigable and nonnavigable waters.