B-114868, JAN. 25, 1961

B-114868, JAN. 25, 1961

TO THE SECRETARY OF THE INTERIOR:

BY LETTER OF MARCH 11, 1960, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR FURNISHED US YOUR DEPARTMENT'S COMMENTS ON CERTAIN MATERIAL AND LEGAL CONTENTIONS SUBMITTED TO US BY THE ATTORNEY FOR THE SAN CARLOS IRRIGATION AND DRAINAGE DISTRICT, HEREINAFTER REFERRED TO AS THE DISTRICT, CONCERNING OUR DECISION OF APRIL 14, 1958, B-114868. THIS DECISION HELD THAT THE COSTS OF ELECTRIC POWER USED IN PUMPING OPERATIONS OF THE SAN CARLOS INDIAN IRRIGATION PROJECT, ARIZONA, LEGALLY COULD BE INCLUDED IN THE OPERATION AND MAINTENANCE COSTS OF THE PROJECT AND RECOVERED FROM THE WATER USERS. THE DISTRICT, BY LETTER OF DECEMBER 30, 1960, SUBMITTED TO US ITS COMMENTS ON THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF MARCH 11.

THE COOLIDGE DAM WAS AUTHORIZED TO BE CONSTRUCTED ACROSS THE GILA RIVER WITHIN THE SAN CARLOS INDIAN RESERVATION BY THE ACT OF JUNE 7, 1924, 43 STAT. 475, AS PART OF THE WORKS OF THE SAN CARLOS INDIAN IRRIGATION PROJECT. THE ACT PROVIDES THAT THE TOTAL COST OF THE PROJECT BE DISTRIBUTED EQUALLY PER ACRE AMONG THE LANDS IN INDIAN OWNERSHIP AND THE LANDS IN PRIVATE OWNERSHIP THAT ARE SERVED BY THE PROJECT. OPERATION AND MAINTENANCE CHARGES, ON ACCOUNT OF LAND IN PRIVATE OWNERSHIP OR OF LAND IN INDIAN OWNERSHIP OPERATED UNDER LEASE, UNDER THE PROVISIONS OF SECTION 3, ARE PAYABLE ANNUALLY IN ADVANCE. THE RECORD SHOWS THAT THE PROJECT AS PLANNED CONTEMPLATED THE IRRIGATION OF 80,000 ACRES OF LAND FROM NATURAL FLOW WATER OF THE GILA RIVER AND WATERS IMPOUNDED BY THE COOLIDGE DAM AND THAT IT WAS CONTEMPLATED THAT THE BALANCE OF THE PROJECT ACREAGE, CONSISTING OF 20,000 ACRES, WOULD RECEIVE ITS WATER SUPPLY FROM RETURN FLOW AND UNDERGROUND WATER OBTAINED THROUGH PUMPING OPERATIONS. PROVISION WAS MADE IN THE ACT OF JUNE 7, 1924, FOR POWER DEVELOPMENT. THERE IS NO QUESTION BUT THAT THE COST OF THE PUMPING OPERATIONS CONTEMPLATED UNDER THIS ACT WOULD HAVE BEEN A PART OF THE OPERATION AND MAINTENANCE CHARGES PAYABLE BY THE WATER USERS, REGARDLESS OF THE SOURCE OF THE POWER USED. ANY ELECTRIC ENERGY USED IN THE PUMPING OPERATIONS WOULD HAVE HAD TO BE PURCHASED.

DEVELOPMENT OF ELECTRICAL POWER AT THE COOLIDGE DAM "AS AN INCIDENT TO THE USE OF THE COOLIDGE RESERVOIR FOR IRRIGATION" WAS AUTHORIZED BY THE ACT OF MARCH 7, 1928, 45 STAT. 200, 210. AFTER REQUIRING, AS A PREREQUISITE, THAT THE SECRETARY OF INTERIOR EXECUTE A CONTRACT WITH THE FLORENCE-CASA GRANDE WATER USERS' ASSOCIATION (SAN CARLOS IRRIGATION AND DRAINAGE DISTRICT) PROVIDING FOR REPAYMENT OF THE COST OF CONSTRUCTION OF THE POWER PLANT BY THE ASSOCIATION, THE ACT PROVIDED IN PART:

"* * * PROVIDED FURTHER, THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO SELL SURPLUS POWER DEVELOPED AT THE COOLIDGE DAM IN SUCH MANNER AND UPON SUCH TERMS AND FOR SUCH PRICES AS HE SHALL THINK BEST, AND THE NET REVENUES FROM SUCH AND ALL SALES OF POWER AT THAT PLANT SHALL BE DEVOTED, FIRST, TO REIMBURSING THE UNITED STATES FOR THE COST OF DEVELOPING SUCH ELECTRICAL POWER AS THAT COST SHALL BE DETERMINED BY THE SECRETARY OF THE INTERIOR; SECOND, TO REIMBURSING THE UNITED STATES FOR THE COST OF THE SAN CARLOS IRRIGATION PROJECT; THIRD, TO PAYMENTS OF OPERATION AND MAINTENANCE CHARGES, AND THE MAKING OF REPAIRS AND IMPROVEMENTS ON SAID PROJECT: * *

WE HAVE AGAIN CAREFULLY CONSIDERED THIS MATTER AS WELL AS THE ADDITIONAL BACKGROUND MATERIAL AND LEGAL CONTENTIONS FURNISHED US BY THE DISTRICT AND FIND NOTHING WHICH WOULD CHANGE THE CONCLUSIONS REACHED IN OUR DECISION OF APRIL 14, 1958, B-114868. THE CITED 1924 AND 1928 ACTS CLEARLY PROVIDE FOR THE RECOVERY OF ALL MAINTENANCE, OPERATIONS, AND CONSTRUCTION COSTS AND VAST DISCRETIONARY AUTHORITY IN THE SECRETARY OF THE INTERIOR TO DETERMINE SUCH COSTS. SINCE THERE IS NO SPECIFIC PROVISION IN THE ACTS RELATING TO THE SUPPLYING OF ELECTRIC ENERGY FOR PUMPING OPERATIONS EITHER WITH OR WITHOUT COST TO THE WATER USERS, WE MUST CONCLUDE THAT YOU LEGALLY COULD INCLUDE SUCH COSTS AS A PART OF THE MAINTENANCE AND OPERATION COSTS RECOVERABLE FROM THE WATER USERS. MOREOVER, SINCE THERE WAS NOTHING IN THE LEGISLATIVE HISTORIES OF SUCH ACTS WHICH INDICATED THAT ANY COSTS WHATEVER WOULD NOT BE RECOVERED FROM THE WATER USERS OR MADE LIENS UPON THE LAND INVOLVED, AND SINCE SUCH COSTS ON ALL OTHER SIMILAR IRRIGATION PROJECTS WERE BEING RECOVERED, UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW, WE FELT SUCH COSTS AT THE SAN CARLOS INDIAN IRRIGATION PROJECT SHOULD BE RECOVERED.

THE DISTRICT CONTENDS THAT THE SECRETARY IS AUTHORIZED BY THE PROVISO TO THE 1928 ACT QUOTED ABOVE TO SELL ONLY "SURPLUS POWER.' IT ATTEMPTS TO SUPPORT SUCH CONTENTION BY A LETTER DATED APRIL 22, 1935, WRITTEN ON STATIONERY OF THE DISTRICT AND SIGNED BY J. T. TRUESDELL, THE ATTORNEY IN THE BUREAU OF INDIAN AFFAIRS WHO PREPARED THE LANGUAGE WHICH WAS ENACTED AS THE 1928 ACT, BUT WHO HAD SINCE RETIRED. WE AGREE WITH MR. TRUESDELL'S INTERPRETATION OF "SURPLUS POWER" AS BEING ,THE POWER LEFT AFTER THE PROJECT HAS USED SUCH POWER AS IT NEEDS FOR ITS OWN PURPOSES, WHICH ARE MAINLY FOR PUMPING WATER FOR IRRIGATION.' SUCH INTERPRETATION IS SUPPORTED BY PAGES 303, 315 AND 316 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS IN CHARGE OF THE INTERIOR DEPARTMENT APPROPRIATION BILL, 1929, ENACTED AS THE 1928 ACT CITED ABOVE, WHICH INDICATES THAT THIS AUTHORITY TO SELL SURPLUS POWER WAS BEING INCLUDED BECAUSE OF SOME DOUBT AS TO THE AUTHORITY UNDER THEN EXISTING LAW TO SELL POWER TO INDIVIDUAL OWNERS. NOT ONLY WAS THE SPECIFIC AUTHORITY GRANTED, BUT BROAD DISCRETIONARY AUTHORITY WAS ALSO GRANTED TO DETERMINE THE PRICES AT WHICH THE POWER WOULD BE SOLD AND TO DETERMINE THE COST OF DEVELOPING THE ELECTRICAL POWER WHICH SHALL BE REIMBURSED TO THE UNITED STATES. THIS LANGUAGE, HOWEVER, DOES NOT AFFECT THE AUTHORITY TO DETERMINE THE PROPER CHARGE TO THE WATER USERS FOR COSTS OF OPERATION AND MAINTENANCE OF THE PROJECT.

IT ALSO WAS CLEARLY DISCRETIONARY WITH THE THEN SECRETARY AS TO WHETHER HE WOULD CHARGE THE DISTRICT FOR THE COST OF THE ELECTRICAL POWER USED IN THE PUMPING OPERATIONS OR TO REQUEST THE CONGRESS TO FINANCE SUCH COST BY DIRECT APPROPRIATIONS. HE CHOSE THE LATTER COURSE OF ACTION WHICH HAS BEEN CONTINUED TO THE PRESENT TIME. THE FACT THAT THE CONGRESS ACQUIESCED AND APPROPRIATED REVENUES TO FINANCE SUCH COSTS OVER A LONG PERIOD OF TIME IS THE PRIMARY BASIS FOR THE DISTRICT'S CONTENTION THAT THE 1928 ACT DOES NOT AUTHORIZE YOU TO CHARGE THE COSTS TO IT. THE DISTRICT RELIES UPON A RULE OF STATUTORY CONSTRUCTION TO THE EFFECT THAT A LONG CONTINUED CONTEMPORANEOUS INTERPRETATION OF A STATUTE, ACQUIESCED IN BY THE CONGRESS, IS ENTITLED TO GREAT WEIGHT AND CITES THREE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES WHERE THAT RULE WAS APPLIED. THE FACTS INVOLVED IN THOSE DECISIONS, HOWEVER, ARE ENTIRELY DIFFERENT FROM THE FACTS IN THE INSTANT CASE.

THE FOREGOING RULE OF STATUTORY CONSTRUCTION IS A MERE EXTRINSIC AID TO CONSTRUCTION OF A STATUTE AND EXTRINSIC AIDS TO CONSTRUCTION ARE PERMITTED TO BE USED ONLY WHERE THE LANGUAGE IS AMBIGUOUS. NOT ONLY IS THERE NO AMBIGUITY IN THE LANGUAGE OF THE STATUTE HERE INVOLVED, BUT THE DETERMINATION TO FINANCE THE COSTS IN QUESTION THROUGH APPROPRIATION OF POWER REVENUES WAS NOT EVEN THE RESULT OF AN INTERPRETATION OF THE 1928 ACT. AS STATED ABOVE, SUCH DETERMINATION WAS A MERE EXERCISE OF DISCRETIONARY AUTHORITY BY THE SECRETARIES OF THE INTERIOR, AND THE ACQUIESCENCE THEREIN BY THE CONGRESS WOULD NOT RESTRICT THE FUTURE EXERCISE OF SUCH DISCRETIONARY AUTHORITY.

THE APPROPRIATIONS OF POWER REVENUES FROM THIS PROJECT ADMITTEDLY ARE AVAILABLE TO FINANCE THE COSTS OF THE POWER USED IN THE PUMPING OPERATIONS. WHILE THIS IS NOT A CONGRESSIONAL MANDATE THAT SUCH COSTS MUST BE FINANCED THEREFROM INDEFINITELY, WE BELIEVE YOU SHOULD INFORM THE APPROPRIATE COMMITTEES OF THE CONGRESS OF ANY PROPOSED CHANGE IN THE METHOD OF FINANCING THESE COSTS. OF COURSE YOU ARE AWARE OF THE STATEMENT IN THE REPORT ON THE SECOND SUPPLEMENTAL APPROPRIATION BILL, 1960 (SENATE REPORT NO. 1161, 86TH CONGRESS) OF THE SENATE COMMITTEE ON APPROPRIATIONS THAT IT IS THE VIEW OF THAT COMMITTEE THAT NO CHANGE SHOULD BE MADE IN THE OPERATION AND MAINTENANCE CONTRACT OF THE SAN CARLOS IRRIGATION AND DRAINAGE DISTRICT UNTIL THE CONGRESS HAS HAD AN OPPORTUNITY TO CONSIDER LEGISLATION TO AUTHORIZE THE CONSTRUCTION OF THE BUTTES DAM AND RESERVOIR.

IT THEREFORE IS OUR VIEW THAT YOU HAVE STATUTORY AUTHORITY TO RECOVER THE COSTS OF THE IRRIGATION PUMPING OPERATIONS FROM THE WATER USERS AND OUR DECISION OF APRIL 14, 1958, B-114868, IS SUSTAINED.