Amending the act of June 13, 1962, with respect to the Navajo Indian Irrigation Project


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Source: 91st Congress, 1st Session, Senate, Report No. 91-363

AMENDING THE ACT OF JUNE 13, 1962, WITH RESPECT TO THE NAVAJO INDIAN IRRIGATION PROJECT


AUGUST 7 (legislative day, AUGUST 5), 1969.--Ordered to be printed


Mr. ANDERSON, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany S. 203]

The Committee on Interior and Insular Affairs, to which was referred the bill (S. 203) to amend the act of June 13, 1962, with respect to the Navajo Indian irrigation project, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.

The amendment is as follows:

Delete lines 4 to 14 on page 2 and insert instead the following language:

(d) Any permits, licenses, or leases that have been granted on lands acquired and declared to be held in trust for the Navajo Tribe pursuant to section 3(a) of this Act shall be cancelled on the effective date of this Act, except that permits, licenses, or leases whose term has not expired at the time of cancellation thereof by this Act, shall continue in effect for the term of the permit, license, or lease under regulations for Indian lands until the land is required for irrigation purposes. When such lands are required for irrigation purposes, the permittee, licensee, or lessee shall be compensated by the Navajo Tribe proportionately for the value of developments or improvements made by such permittee, licensee, or lessee and which such permittee, licensee, or lessee was unable to utilize fully because of the cancellation of the permit, license, or lease, as determined by the Secretary of the Interior.

PURPOSE OF THE MEASURE

The purpose of this legislation is to amend the act authorizing construction, operation, and maintenance of the Navajo Indian irrigation project in New Mexico to provide for the following:

1.Include additional townships in the area from which the project lands may be obtained.
2.Increase the amount of appropriations authorized for project construction.
3.Provide authority for the Secretary to make certain reimbursement to persons having grazing permits, licenses, or leases on lands which are taken for the project.

BACKGROUND

The Navajo Indian irrigation project was authorized by the act of June 13, 1962 (76 Stat. 96), as a participating project of the Colorado River storage project. The project was authorized for the principal purpose of furnishing irrigation water to approximately 110,630 acres of land.

The act provided that lands within certain townships in New Mexico which are outside of the Navajo Indian Reservation but which are necessary for economical irrigation development of the project may be acquired and held in trust for the Navajo Tribe. If such lands are public lands, the Navajo Tribe must pay the United States the appraised value. The tribe may also acquire non-Federal lands and convey title to the United States.

The Navajo Indian project which will obtain water from the existing Navajo Reservoir, includes a powerplant at Navajo Dam, a canal system, facilities for pumping water to a portion of the lands, a lateral distribution system, and a drainage system. Construction of the canal system began in May 1964. The appropriations for the construction of this project are made to the Bureau of Indian Affairs, which transfers funds to the Bureau of Reclamation to construct the project.

The Subcommittee on Water and Power held a hearing on July 15, 1969.

PRESENT LEGISLATION

The bill, S. 203, as introduced included the following provisions:

SUBSECTION (A)

To provide an efficient irrigation area of 110,630 acres, it will be necessary to incorporate lands from eight townships not included in the original authorization. Subsection (a) of S. 203 would amend the legislation to permit this.

SUBSECTION (B)

Detailed studies have shown that the authorized appropriations of $135 million (June 1961 prices) plus or minus indexing to reflect changes in construction cost indices are inadequate to complete the project as presently planned.

Studies completed in 1966 indicated that the authorization ceiling indexed to the 1966 price level was $148,200,000. Revised estimates of Federal project costs were found to be $175 million.

Subsection (b) of S. 203 would amend the authorizing act to authorize appropriations of $175 million (January 1966 prices) plus or minus cost indexing.

SUBSECTION (C)

Much of the land outside of the Navajo Indian Reservation which would be acquired for the project is presently under Taylor grazing permits. Subsection (c) would amend the authorizing act to require the Secretary to compensate persons whose grazing permits are canceled. The cost of such compensation would be paid by the Navajo Tribe.

However, the committee has amended this subsection as explained in detail below.

COMMITTEE AMENDMENT

The committee amended the bill by deleting the language of the new subsection 3(d) for the act of June 13, 1962, which was proposed in S. 203 as introduced, and substituting language recommended by the Department.

The amended language provides for the payment of compensation for the value of only that portion of developments or improvements made to grazing lands by the permittee, licensee, or lessee and which such permittee, licensee, or lessee was unable to utilize fully because of the cancellation of the permit, license, or lease, rather than payment of compensation for the loss of grazing privileges as a result of the cancellation as set out in the bill as introduced. The amendment further provides that recognition shall be given to those individuals holding unexpired grazing permits, licenses, or leases at the time of the cancellation thereof to continue the use of the land for grazing purposes for the duration of the period cited in the permit, license, or lease, provided that the land is not immediately needed for irrigation purposes. Such continued use of the land by the permittee, licensee, or lessee to be under regulations governing grazing on Indian-owned lands. Moreover, the continued use of the land by the permittee, licensee, or lessee may allow the scheduling of the phasing out of permittee operations and eliminate the necessity of the payment of any compensation.

COMMITTEE RECOMMENDATION

The Interior and Insular Affairs Committee recommends that S. 203, as amended, be enacted.

EXECUTIVE COMMUNICATIONS

The executive communications from the Department of the Interior dated July 14, 1969, recommending the legislation are set forth in full as follows:

U.S. Department of the Interior,
Office of the Secretary
Washington, D.C., July 14, 1969.

Hon. HENRY M. JACKSON,
Chairman, Committee on Interior and Insular Affairs,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of this Department on S. 203, a bill to amend the act of June 13, 1962 (76 Stat. 96), with respect to the Navajo Indian irrigation project.

We recommend the enactment of the bill if it is amended as discussed in this report.

The bill amends the act of June 13, 1962 (75 Stat. 96), with respect to the Navajo Indian irrigation project by providing for the acquisition of certain additional lands to be included in the Navajo Indian irrigation project in lieu of certain other lands now in the project, by increasing the total estimated cost of the project, and by authorizing the Secretary of the Interior to pay compensation to individuals for the loss of grazing privileges resulting from the cancellation of grazing permits, licenses, or leases.

The act of April 11, 1956 (70 Stat. 105), as amended by the act of June 13, 1962 (76 Stat. 96; 43 U.S.C., 620-620o), authorized the construction, operation, and maintenance of the Navajo Indian irrigation project as a participating project of the Colorado River storage project. Section 2 of the 1962 act, supra, provides that the Navajo Indian irrigation project is for the principal purpose of furnishing irrigation water to approximately 110,630 acres of land in New Mexico. A portion of this 110,630 acres is located outside the boundaries of the Navajo Indian Reservation and is federally owned. Section 3(a) of the act authorizes the acquisition of those lands outside the Navajo Indian Reservation, described by township and range, in order to provide for the most economical development of the Navajo Indian irrigation project.

Subsequent to the act of June 13, 1962, supra, the authorized restudy of the 110,630 acre Navajo Indian irrigation project indicated that certain reservation lands west of the Chaco Wash, and included in the original feasibility study, were not suitable for sustained irrigation. These lands were removed from the project. However, in order to maintain a project area of the size authorized, an equivalent, area of land was found east of the Chaco Wash. Part of these new lands is located on the reservation and the remainder in areas outside the reservation and outside the particular townships and ranges as set forth in the authorizing legislation. These alternate lands not only contain soils of an equal or better classification than the lands excluded from the original project area, but also provide a more compact project. Moreover, by the inclusion of the alternate lands within the project, such consolidation of lands will eliminate the necessity of the construction of a large 17 mile long siphon, which would otherwise be needed to carry the waters of the main canal and two small canals.

As the new areas outside the reservation are located in different townships and/or ranges than originally authorized, amendatory legislation is required before steps can be taken to acquire the necessary land.

The restudy mentioned above also indicated that the originally planned and authorized cost of $135 million (June 1961 prices) is no longer sufficient to complete the project. Based on January 1966 prices, the project will cost $175 million. While there is no immediate need for the additional funding authorization, it is believed that it is necessary for proper planning.

We suggest that the language of subsection (d) as it appears in page 2, lines 4 through 14, be deleted and the following language be substituted in lieu thereof:

‘‘(d) Any permits, licenses, or leases that have been granted on lands acquired and declared to be held in trust for the Navajo Tribe pursuant to section 3(a) of this Act shall be cancelled on the effective date of this Act, except that permits, licenses, or leases whose term has not expired at the time of cancellation thereof by this Act, shall continue in effect for the term of the permit, license, or lease under regulations for Indian lands until the land is required for irrigation purposes. When such lands are required for irrigation purposes, the permittee, licensee, or lesee shall be compensated by the Navajo Tribe proportionately for the value of developments or improvements made by such permittee, licensee, or lessee and which such permittee licensee, or lessee was unable to utilize fully because of the cancellation of the permit, license, or lease, as determined by the Secretary of the Interior.’’

The amendment provides for the payment of compensation for the value of only that portion of developments or improvements made to grazing lands by the permittee, licensee, or lessee and which such permittee, licensee, or lessee was unable to utilize fully because of the cancellation of the permit, license, or lease, rather than payment of compensation for the loss of grazing privileges as a result of the cancellation as set out in the bill. The amendment further provides that recognition shall be given to those individuals holding unexpired grazing permits, licenses, or leases at the time of the cancellation thereof to continue the use of the land for grazing purposes for the duration of the period cited in the permit, license, or lease, provided that the land is not immediately needed for irrigation purposes. Such continued use of the land by the permittee, licensee, or lessee to be under regulations governing grazing on Indian-owned lands. Moreover, the continued use of the land by the permittee, licensee, or lessee may allow the scheduling of the phasing out of permittee operations and eliminate the necessity of the payment of any compensation.

There is no legal obligation for payment of compensation for cancellation of grazing permits, licenses, or leases. However, there is an established practice recognized in Federal regulations (43 CFR 2311.2; 43 CFR 4111.4-3(f)) for payment for improvements when lands are disposed of by the United States. We follow this precedent in the amendment we propose. Further, we believe that the amendment is needed to avoid a precedent being established for the payment of compensation for the loss of grazing privileges, which privileges may be terminated at any time. The payment of any compensation for the loss of grazing privileges would recognize vested rights that do not exist.

We know of only two public laws which provide for payment for loss of grazing privileges--the act of September 2, 1958 (72 Stat. 1686), which involved the exchange of public land for Navajo tribal land needed for the Glen Canyon project, and the act of October 15, 1962 (76 Stat. 954), which involved the exchange of public lands for southern Ute Indian lands needed for the Navajo Dam and Reservoir project. These involved unusual situations where Indian lands needed for these projects were acquired by exchange for public lands which were under authorized grazing use. In reporting on the bills, 87th Congress, which were enacted on October 15, 1962, as Public Law 87-828, the Department pointed out that it regarded both cases as unique, and did not consider them as precedents for payment when a grazing privilege is extinguished because of changing land-use patterns.

The Taylor Grazing Act expressly provides that issuance of a grazing permit ‘‘shall not create any right, title, interest, or estate in or to the lands’’ (43 U.S.C. 315B (1964)). Grazing permits are only a privilege withdrawable at any time for any use by the sovereign without payment of compensation (McNeil v. Seaton, 281 F. 2d 931 (D.C. Cir. 1960)). A grazing permittee enters into a lease knowing that the land may at some time be needed for another use. However, war and national defense purposes were considered to be uses for which a permittee would not have contemplated he would be deprived of his grazing privilege. For this reason the act of July 9, 1942 (56 Stat. 654; 43 U.S.C. 315q), was passed during World War II to provide for compensation for grazing leases lost because the lands were being used for war purposes. Later, in 1948, payments were permitted where the land was used for national defense purposes.

The same reasoning was used in the Glen Canyon Act and the Navajo Dam and Reservoir Act. Here, too, were special circumstances, not to be expected by the grazing users; an exchange of public lands for Indian lands rather than a purchase of Indian lands. The public lands involved would not otherwise have been suitable for reclamation project purposes.

The bill provides that compensation shall be determined in accordance with the ‘‘standards’’ prescribed in the 1942 act. That act provides for payment of amounts determined to be ‘‘fair and reasonable for the losses suffered by such persons as a result of the use of such lands for war or national defense purposes.’’ In addition to being indefinite, these standards are not particularly applicable to the situation covered by this bill. The reference, therefore, appears meaningless.

Under the present rate of funding of the construction of the Navajo irrigation project, the first water will not be delivered to project lands until 1975, which would allow the use of such project lands for grazing purposes for at least 6 more years. A much longer period is possible if funds are not forthcoming to maintain the revised schedule of construction.

The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program.

Sincerely yours,

RUSSELL E. TRAIN,
Under Secretary of the Interior.

Changes in Existing Law

In compliance with subsection (4) of rule XXIX of the Standing Rules of the Senate, changes in existing law made by the bill, S. 203, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman):

Amendments to the Act of June 13, 1962 (76 Stat. 96)

SECTION 3(a)

SEC. 3. (a) In order to provide for the most economical development of the Navajo Indian irrigation project, the Secretary shall declare by publication in the Federal Register that the United States of America holds in trust for the Navajo Tribe of Indians any legal subdivisions or unsurveyed tracts of federally owned land outside the present boundary of the Navajo Indian Reservation in New Mexico in townships 28 and 29 north, ranges 10 and 11 west, [and] townships 27 and 28 north, ranges 12 and 13 west, townships 26 and 27 north, range 11 west, and townships 24, 25, and 26 north, ranges 12 and 13 west, New Mexico principal meridian, susceptible to irrigation as part of the project or necessary for location of any of the works or canals of such project: Provided, however, That no such legal subdivision or unsurveyed tract shall be so declared to be held in trust by the United States for the Navajo Tribe until the Navajo Tribe shall have paid the United States the full appraised value thereof: And provided further, That in making appraisals of such lands the Secretary shall consider their values as of the date of approval of this Act, excluding therefrom the value of minerals subject to leasing under the Act of February 25, 1920 (41 Stat. 437), as amended (30 U.S.C. 181-286), and such leasable minerals shall not be held in trust for the Navajo Tribe but shall continue to be subject to leasing under the Act of February 25, 1920, as amended, after the lands containing them have been declared to be held in trust by the United States for the Navajo Tribe.

SECTION 3(d) (ADDED)

(d) Any permits, licenses, or leases that have been granted on lands acquired and declared to be held in trust for the Navajo Tribe pursuant to section 3(a) of this Act shall be cancelled on the effective date of this Act, except that permits, licenses, or leases whose term has not expired at the time of cancellation thereof by this Act, shall continue in effect for the term of the permit, license, or lease under regulations for Indian lands until the land is required for irrigation purposes. When such lands are required for irrigation purposes. When such lands are required for irrigation purposes, the permittee, licensee, or lessee shall be compensated by the Navajo Tribe proportionately for the value of developments or improvements made by such permittee, licensee, or lessee and which such permittee, licensee, or lessee was unable to utilize fully because of the cancellation of the permit, license, or lease, as determined by the Secretary of the Interior.

SECTION 7

SEC. 7. There are hereby authorized to be appropriated to the Bureau of Indian Affairs such sums as may be required to construct the Navajo Indian irrigation project, including the purchase of lands under section 3, subsection (c), of this Act, but not more than [$135,000,000 (June 1961 prices)] $175,000,000 (January 1966 prices) plus or minus such amounts, if any, as may be required by reason of changes in construction costs as indicated by engineering cost indices applicable to the types of construction involved therein.

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