Full opinion text
OPINION MacBRIDE, Chief Judge. At the turn of the century, a burgeoning nation was in the midst of Western expansion. Hampering this expansion, however, was the simple geographical fact that great areas within the Western states and territories encompassed arid and semiarid lands. By the enactment of the Reclamation Act of 1902, Title 43 U.S.C. § 371 et seq., Congress concluded that much of these arid and semiarid lands could be made habitable and fruitful by the construction of federally-funded irrigation works. Now, 73 years, dozens of projects, and billions of dollars later, this court is asked to enter “the delicate area of federal-state relations in the irrigation field,” **and resolve the question whether a state may impose terms and conditions on the federal government’s acquisition of water for reclamation projects. The United States initiated suit in this court on October 15, 1973, against the State of California, the State Water Resources Control Board, and its members. Jurisdiction was grounded under Title 28 U.S.C. § 1345, conferring original jurisdiction to the district courts over all civil actions, suits or proceedings commenced by the United States. The amended complaint of the United-States seeks declaratory relief pursuant to Title 28 U.S.C. § 2201 as follows: (1) Declaratory judgment' that the United States can appropriate unappropriated water necessary for use in any federal reclamation project within the State of California, without the necessity of applying to the California State Water Resources Control Board; (2) Declaratory judgment that when the United States chooses as a matter of comity to submit applications to the California State Water Resources Control Board, that Board must grant such applications if unappropriated waters are available; (3) Declaratory judgment that when the United States chooses as a matter of comity to submit applications to the California State Water Resources Control Board, that Board cannot impose any terms or conditions in permits issued pursuant to such applications in contravention of federal law or which are not specifically authorized and required by federal laws, federal regulations, or federal administrative directives ; (4) Declaratory judgment that Decision 1422, an April 4, 1973, decision of the California State Water Resources Control Board, is void in all respects where that decision conflicts with or contravenes federal law or requires action not specifically authorized and required by federal laws, federal regulations, or federal administrative directives. By its answer, California raises the following legal issues in response: (1) The United States is required to comply with all terms and conditions imposed by California on permits issued to the United States Bureau of Reclamation to appropriate water for reclamation purposes in California, pursuant to Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383, 32 Stat. 390; (2) The United States is required to comply with all terms and conditions imposed by California on permits issued to the United States Bureau of Reclamation to appropriate water for reclamation purposes in California, pursuant to recent environmental legislation passed by Congress, including the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, 83 Stat. 852, and the National Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371, 84 Stat. 114; (3) The United States, by accepting assignments for permit applications and by submitting its own permit applications, has agreed to comply with California law in appropriating water for reclamation purposes in California; (4) The United States has accepted the benefits of the permits issued by California since 1938, and is thus estopped to deny the truthfulness of the statement that it must comply with all terms and conditions imposed by California’s permits; (5) The United States failed to file mandamus action or to seek judicial review in California of Decision 1422 in accordance with California law, and thus the doctrine of res judicata bars the United States from alleging the invalidity of Decision 1422. Oh September 3, 1974, California moved for summary judgment pursuant to FRCP 56 and for judgment on the pleadings in accordance with FRCP 12(c). By these motions, California contends that there is no genuine dispute of any material fact and that the case is purely one of interpretation of federal and California law. The case is here now for disposition on these motions. To fully understand the posture of this case and the nature of the questions presented herein, it is necessary to review its immediate history. •HISTORY OF THE CASE Following the enactment of the Reclamation Act of 1902, Congress from time to time has authorized specific reclamation projects by way of special reclamation acts. One such special project which was eventually authorized by Congress was the Central Valley Project [hereafter CVP] which envisioned the coordinated development of the Sac- ramento and San Joaquin Rivers and their tributaries through a system of physical works to regulate and distribute water needed for agricultural, industrial, and municipal uses in the Central Valley of California. The CVP was authorized by the State of California through the Central Valley Project Act of 1933, Cal.Stats. Ch. 1042. California thereafter sought and secured federal assistance through the Rivers and Harbors Act of August 30, 1935, P.L. 74-409, 49 Stat. 1028, 1038; the Act of June 22, 1936, P.L. 74-739, 49 Stat. 1597; and the Rivers and Harbors Act of August 26, 1937, P.L. 75-392, 50 Stat. 844, 850. The Act of October 17, 1940, 54 Stat. 1198 provided in pertinent part as follows: “. . . that the entire Central Valley Project, California, . . ., is hereby reauthorized and declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof, for construction under the provisions of the Federal reclamation laws of such distribution systems as the Secretary of the Interior deems necessary in connection with lands for which said stored waters are to be delivered, for the reclamation of arid and semiarid lands and lands of Indian reservations, and other beneficial uses, and for the generation and sale of electric energy as a means of financially aiding and assisting such undertakings and in order to permit the full utilization of the works constructed to accomplish the aforesaid purposes. . . . ” Construction of CVP was begun in 1937 and the initial units of CVP were placed into full coordinated operation in 1951. Speaking of the scope of the project, the Supreme Court of the United States noted in the case of Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958): “Central Valley is the largest single undertaking yet embarked upon under the federal reclamation program. It was born in the minds of far-seeing Californians in their endeavor to bring to that State’s parched acres a water supply sufficiently permanent to transform them into veritable gardens for the benefit of mankind. Failing in its efforts to finance such a large undertaking, California almost a quarter of a century ago petitioned the United States to join in the enterprise. The Congress approved and adopted the project, pursuant to repeated requests of the State, and thus far has expended nearly a half billion dollars.” 357 U.S. at 280, 78 S.Ct. at 1178. Over the years, water uses increased in the Central Valley and Congress continued to authorize additional units and funds for CVP. One such unit, and the subject matter of the instant case, was the New Melones Project. The New Melones Project was originally authorized by the Flood Control Act of December 22, 1944, P.L. 78-534, 58 Stat. 887, and reauthorized by the Flood Control Act of October 23, 1962, P.L. 87-874, 76 Stat. 1180, 1191. The Flood Control Act of 1962 reads in part as follows: “. . . That upon completion of construction of the dam and power-plant by the Corps of Engineers, the project shall become an integral part of the Central Valley project and be operated and maintained by the Secretary of the Interior pursuant to the Federal reclamation laws . . ..” The New Melones Project provides for á dam on the Stanislaus River, approximately 35 miles northeast of Modesto, California, to create a reservoir with a gross storage capacity of about 2,400,-000 acre-feet, for flood control, irrigation, municipal, industrial, domestic, power, recreation, water quality control, and fish and wildlife purposes. The New Melones Project provides also for the construction of a 300,000 kilowatt capacity hydro-electric powerplant immediately below the dam. The United States, through the Bureau of Reclamation, Department of the Interior [hereafter the Bureau], had regularly applied to the California State Water Resources Control Board [hereafter the Board], and its predecessor, in accordance with California law, for permits authorizing appropriations of water. Similarly, the United States, through the Bureau, sought to obtain permits to appropriate unappropriated water from the Stanislaus River for development of the New Melones Project. To this end the Bureau filed with the Board applications Nos. 19303 and 19304, and sought assignments of applications Nos. 14858 and 14859. The Board on April 4, 1973, rendered Decision 1422 which ruled on these applications. Although Decision 1422 granted the assignments and allowed permits to be issued for all the applications, it placed various terms and conditions on the permits. While California asserts that it has the authority to place terms and conditions on permits authorizing appropriations of water for reclamation projects, the United States counters that any imposition of terms and conditions by the state is impermissible. DECISION 1422. As noted above, the Bureau applied to the Board for permits in the New Melones Project in accordance with four separate applications: (1) Application 14858 was for a permit to appropriate 8,800 cubic feet per second [cfs] of water by direct diversion year round, and 980,000 acre feet per annum [afa] by storage to be collected from October 1 of each year to July 1 of the succeeding year for irrigation, domestic, municipal, industrial, fish culture, recreation, and water quality purposes from the Stanislaus River in Calaveras and Tuolumne Counties. (2) Application 14859 was identical to Application 14858 except its purpose was to use the water for power generation purposes. (3) Application 19303 was for a permit to appropriate 6,000 cfs by direct diversion and 2,400,000 afa by storage, both year round, for power generation from Stanislaus River in Calaveras and Tuolumne Counties. (4) Application 19304 was for a permit to appropriate 2,250 cfs by direct diversion, and 2,400,000 afa by storage both year round, for irrigation, domestic, municipal, industrial, fish culture, recreation, and water quality control purposes from the Stanislaus River in Calaveras and Tuolumne Counties. The primary point of diversion under all four applications is the proposed New Melones dam on the Stanislaus River, but there is also included a Knights Ferry division dam downstream from the New Melones dam. Numerous protests were filed in opposition to these applications by various individuals, companies, public agencies such as the Department of Fish and Game, and private associations such as the Environmental Defense Fund and the Sierra Club. These protests were concerned primarily with environmental matters or purported problems of diversion as related to prior users. California law requires the Board to evaluate the specific intended use of each proposed project and find that it is reasonable, beneficial, and in the public interest. The Board undertakes a balancing of competing demands and policy considerations and has broad discretion. Cal.Water Code § 1240; Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 280 P.2d 1 (1955). As a preliminary matter, it should be noted that the Board concluded that sufficient unappropriated water was available to supply the Bureau’s requests, other factors being equal. Beyond this determination, the Board in Decision 1422 expressed several concerns: (1) Perhaps of primary concern to the Board was the belief that the limited unappropriated resources of California should not be committed to an applicant in the absence of a showing of actual need for the water presently and within a reasonable time in the future. The Board noted: “The lack of evidence that the New Melones Project water will be needed for consumptive use outside the four basic counties [Tuolumne, Calaveras, San Joaquin, Stanislaus] for many years to come, if ever, or that it will be used within those counties at any definite time in the future, raises substantial doubt whether permits should be issued to impound more water in the New Melones Reservoir, at least at this time, than is needed for satisfaction of prior rights and non-consumptive purposes — protection and enhancement of fish and wildlife, water quality, recreation, and the generation of power.” Decision 1422 at page 17. The Board noted that the Bureau had presented no specific plan for applying project^ water for consumptive purposes at any particular location. Further, the Board noted that CVP has substantial quantities of water that are not being used and are not under contract. (2) The Board was further concerned that the reservoir which would be created by the New Melones dam would eliminate the use of the Stanislaus River for whitewater recreation and for stream fishing. The Board recognized that the reservoir would serve as a man-made lake for purposes of recreation and fishing, but did not consider this an equivalent substitute for the river’s natural sources of recreation and fishing. The Board concluded: “In view of the preponderance of the adverse consequences of maintaining a reservoir of the size proposed by the Bureau, the public interest requires that any permits issued pursuant to Applications 14858 and 19304 prohibit the impoundment of water in New Melones reservoir for consumptive purposes until further order of the Board following a showing that the benefit that will accrue from a specific proposed use will outweigh any damage that would result to fish, wildlife and recreation in the watershed above New Melones Dam and that the permittee has firm commitments to deliver water for such purposes.” Decision 1422 at page 18. (3) Another concern of the Board was the effect on the Stanislaus River salmon fishing resource — estimated to be worth $300,000 per year — by the granting of applications Nos. 14858 and 19304. Further study of this factor was felt to be necessary. (4) The final major issue concerning the Board dealt with the question of • granting the applications for the purpose of water storage. The question the Board posed to itself was whether the need for maintaining the river at its present regimen outweighed the need for additional power. Although the Board found that the annual benefits of the power function would be $5.5 million, it felt that the use of the river for recreation and environmental factors — especially whitewater uses and stream fishing— outweighed. In summary, the -Board concluded: “There is unappropriated water available to satisfy the demands of the project as proposed. However, the Bureau has no definite plan as to when or at what specific locations project water will be used for consumptive purposes outside the four basin counties, and it has sufficient surplus water from other sources to meet future increased demands outside these counties for a long period of years. Permits should not be issued for use of water outside these counties at this time. The public interest requires that the use of the Stanislaus River for whitewater boating, stream fishing and wildlife habitat be protected to the extent that water is not needed for other beneficial' uses. Therefore, although there is a demonstrated need for the full yield of the project for the four basin counties at some .time in the future, but for which no contracts have been negotiated, and in view of the adverse effect the proposed reservoir will have upon these recreational uses, impoundment of water to satisfy that need should not be permitted at this time. Instead, the Board should retain jurisdiction over the permits for the purpose of approving incremental appropriations for consumptive use up to the quantities covered by the applications when the need for the water is substantial.” Decision 1422 at pages 26-27. The Board thereupon approved assignment of applications Nos. 14858 and 14859 to the Bureau, and approved these applications and applications Nos. 19303 and 19304, in part. Permits were issued subject to 25 separate terms and conditions. It would serve no useful purpose at this stage to delve extensively into the particulars and requirements of these 25 terms and conditions. However, a summary of these terms and conditions will be helpful to an understanding of the posture of this case: (1) Conditions relating to impoundment — Conditions 1 and 2 defer full impoundment of all the waters sought by the Bureau until such time as the Bureau is able to demonstrate a plan or a firm commitment for the use of project water. (2) Conditions relating to reservation of jurisdiction — Conditions 6, 9, 13, 20, and 22 reserve jurisdiction to the Board to impose further conditions on the Bureau to protect the “beneficial use” of water involved. (3) Conditions relating to reporting requirements — Conditions 3, 7, 8, 12, and 21 impose requirements of further or continuing study or the filing of specified reports. (4) Conditions limiting or controlling the use of water — Conditions 4, 5, 14, 19, 23, 24, and 25 place various limits or ' controls on the use of water to or from the project. (5) Conditions relating to time— Conditions 10 and 11 impose various time constraints on completion of the project and application of water. (6) Conditions relating to aceessability — Conditions 15 and 16 discuss the access to be afforded to representatives of the Board and members of the public. (7) Conditions imposing mandatory requirements — Condition 17 imposes the requirement on the Bureau to install an outlet pipe “as near as practicable to the bottom of the natural stream channel”; condition 18 requires the Bureau to clear vegetation and structures from the side of the reservoir in accordance with California Water Code provisions. QUESTIONS PRESENTED Although the United States initiated this action in quest of declaratory relief, the legal issues presently before the court are framed by California’s motions for summary judgment and judgment on the pleadings. To facilitate analysis, it is possible to consolidate under three general categories, the questions presented by California’s motions: (1) Interpretation of federal law— Does Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383, require federal j agencies, in appropriating water for reclamation purposes, to comply with state law? In this regard, California has asked the court to consider (a) the plain language and the Congressional history of the Reclamation Act of 1902; (b) the cases which have considered the Act; (c) the analogies which might be drawn from other Acts of Congress enacted subsequent to the Reclamation Act of 1902; (d) and the administrative practice of the Bureau of Reclamation. (2) Contentions in the nature of estoppel — (a) Should the United States be equitably estopped to deny the validity of the Board’s jurisdiction and of Deci-' sion 1422 because the United States initiated proceedings before the Board? (b) What is the res judicata and collateral estoppel effect of Decision 1422 as to the United States arising from the failure of the United States to appeal that decision pursuant to California law? (c) Should the court find that as a matter of law Decision 1422 does not materially alter or conflict with the purposes of the New Melones Project? (d) Would the failure to enforce Decision 1422 be contrary to the public policy of the people of California? (3) Procedural considerations — Are the questions presented by this case appropriately determined and resolved by summary procedure ? INTERPRETATION OF FEDERAL LAW Both the United States and California have admitted to this court in oral argument that pursuant to the Supremacy Clause of the United States Constitution, U.S.Const. Art. VI cl. 2, and because of national implications inherent in reclamation of arid and semiarid lands, the Congress could afford all power and control over federal reclamation projects to the federal government, reserving no power or control for the states. See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 294, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). The United States has argued that Congress did just that when it enacted the Reclamation Act of 1902. By its reading of that Act, the United States contends that: (1) because all power and control over reclamation projects has been given to the federal government, it need not even apply to the states for permits to appropriate water for such projects, and (2) even if the federal government, because of comity, does apply to the states for permits to appropriate water, the states’ sole function is to determine whether there exists sufficient unappropriated water for the project. California, on the other hand, has argued that the Congress, by way of the Reclamation Act of 1902 and other federal legislation, intended that the federal government should physically operate reclamation projects, but that the federal government must comply with state law in the appropriation of water for projects. Thus, the essential dispute between the litigants here is not whether the Congress could preempt the field, but whether the Congress has chosen to do so. (1) The Reclamation Act of 1902. At the very heart of this inquiry is the Reclamation Act of 1902 [hereafter the 1902 Act]. In 1902 the Western states and territories contained nearly one billion acres of land and comprised somewhat more than half of the United States’ contiguous area. Great segments of this Western land, however, lay dry and fallow, either unnourished or undernourished by the nation’s waterways. Over one-third of North and South Dakota were within the arid and semiarid belts. The portions of the States of Oregon and Washington lying west of the Cascade Mountain Range were within the humid climate, while portions lying east of the range, comprising approximately one-half of the territory of the two states, were arid or semiarid. In California arid and semiarid conditions existed over two-thirds of the state. Nearly one-third of Oklahoma was semiarid in character. Although neither Kansas nor Nebraska contained lands which were strictly speaking arid, nearly one-third of the western portion of each state was considered semiarid. The other states and territories of the West were wholly within the arid region, with the exception of limited areas affected by local conditions. As the United States grew in population, demand for productive land grew proportionately. It was estimated that through proper irrigation, between 35,-000,000 and 70,000,000 acres of land in the West could be reclaimed. In 1900 the national platforms of the major political parties declared in favor of the undertaking by the federal government of the work of reclaiming arid and semiarid lands and holding such lands for settlers. President Theodore Roosevelt also favored development of the Western states and territories through irrigation and vigorously urged the enactment of legislation to this end: “It is as right for the National Government to make the streams and rivers of the arid region useful by engineering works for water storage as to make useful the rivers and harbors of the humid region by engineering works of another kind. The storing of the floods in reservoirs at the headwaters of our rivers is but an enlargement of our present policy of river control, under which levees are built on the lower reaches of the same streams. The reclamation and settlement of the arid lands will enrich every portion of our country, just as the settlement of the Ohio and Mississippi valleys brought prosperity to the Atlantic States. The increased demand for manufactured articles will stimulate industrial production while wider home markets and the trade of Asia will consume the larger food supplies and effectually prevent Western competition with Eastern agriculture. Indeed the products of irrigation will be consumed chiefly in upbuilding local centers of mining and other industries which would otherwise not come into existence at all. Our people as a whole will profit, for successful home making is but another name for the upbuilding of the nation.” Before enacting the 1902 Act, Congress carefully considered the alternatives that either private enterprise or the states themselves develop reclamation projects, rather than the federal government. It was recognized that private enterprise had constructed various irrigation projects in the past, but it was also recognized that such private projects were of a relatively simple character, intended to supply only single farms or limited areas of country. As to the various .states, the Congress considered lack of adequate funds for such extensive projects to be the most serious impediment. Congressman Mondell, the leading advocate in the House for passage of the 1902 Act, suggested other reasons why the federal government, rather than the states, construct the reclamation projects: “It has been suggested that if private enterprise can not properly develop large irrigation systems the work might be undertaken by the respective States. There are many reasons why the States are not so well equipped to carry on this work as the Federal Government. In the first place, were the work carried on by the States, the disposition would be to utilize all of the waters flowing through a State within the State, provided there was no prior appropriation lower down on the stream, regardless of the most beneficial and economical development of the irrigation possibilities of the entire region. Further, the constitutions of some of the States forbid the undertaking of works of internal improvement; and even were the States the proper agency through which to carry on this development, none of the States in the arid region, are financially able to do so.” Nevertheless, the Congress was mindful that the individual states had substantial and legitimate interests in the appropriation, use, and distribution of water used for irrigation. There were interests represented in the Congress which favored strong States’ rights and advocated legislation whereby the federal government would simply build the reclamation project works and then turn over to the states control of the waters. On the other hand, there were advocates of reclamation legislation which would be more limiting on the States’ authority, with power vested primarily in the federal government. Section 8 of the 1902 Act as originally drafted and passed by the Senate was a strong States’ rights provision: “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; but State and Territorial laws shall govern and control in the appropriation, use and distribution of the waters rendered available by the works constructed under the provisions of this act: 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.” [emphasis added]. The above-quoted provision was then amended in the House Committee on Irrigation of Arid Lands. It is the House amendment which was enacted into law and that amendement reads as follows: “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 land owner, 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 the beneficial use shall be the basis, the measure, and the limit of the right.” [emphasis added]. The change the House Committee made in the legislation apparently resulted from intervention by President Roosevelt, as noted by Representative Robinson of Indiana: “At the beginning of this session the arid-State members in committee assembled properly elected the gentleman from Nevada chairman and proceeded to draft an irrigation bill. The committee was composed of a large majority of Republicans, but politics was submerged to get some irrigation legislation. The committee, of course, was confronted with platforms and constitutions, national and State. Where they pointed their way, they adopted them; where they ran counter, they ran over them or passed them by. They took up first the Republican national platform of 1900, and upon that this bill was drafted and introduced in the Senate. After a little while the bill passed without a division in the Senate, and went to the House Committee on Arid Lands, a majority of whose members are from arid or semiarid States. The troubles then began. The President was for one kind of irrigation, with national control of canals and water distribution, and the Republican platforms, national, State, and Territorial, and some ‘State constitutions of States affected, were for another kind, with State control of canals and water distribution. The President told the committee that called on him that the Senate bill was not in consonance with his ideas of irrigation; that if the United States built canals it should, to keep the water supply from politicians, control the distribution.” This presidential intervention and its purpose was confirmed by President Roosevelt in his autobiography: “On the day the message was read, a committee of Western Senators and Congressmen was organized to prepare a Reclamation Bill in accordance with the recommendations. By far the most effective of the Senators in drafting and pushing the bill, which became known by his name, was New-lands. The draft of the bill was worked over by me and others at several conferences and revised in important particulars; my active interference was necessary to prevent it from being made unworkable by an undue insistence upon State Rights, in accordance with the efforts of Mr. Mondell and other Congressmen, who consistently fought for local and private interests as against the interests of the people as a whole.” Time and again during the Congressional debates, the supporters of the 1902 Act made clear the understanding that reclamation was a national project to be undertaken by the national government. To the suggestion that the federal government not itself reclaim the land in question but rather cede the land to the states, Congressman Reeder notes: “We have been told that the Government, which is the owner of these lands, should not reclaim them itself, but should cede them to the States. It is sufficient answer to that to say that many State grants have been already made of different amounts of land and for different purposes, and the experience of the past has demonstrated beyond any question that the States cannot be safely intrusted with the reclamation and settlement of these lands. No matter what conditions might be imposed on such a grant, schemers and speculators would find some way of manipulating the State legislatures and getting control of the lands in large tracts which would retard settlement.” And again Congressman Newlands notes as follows: “Nothing can be accomplished by conveying this land to the States. The State lines are arbitrary lines, not drawn with reference to the watersheds, but arbitrarily by the surveyors, straight north, south, east and west.. Were these States so bounded that each could compose an entire watershed, with all of its tributaries, then it would be possible to cede all the public domain to the States with the expectation of some just and proper result, but a river, with all its tributaries, may reach into four or five States. Scientific reclamation requires conservation regardless of State lines.” However, by the inclusion of Section 8, Congress recognized that notwithstanding the national scope of reclamation, state law had important, albeit limited, functions in the equation. Certainly, Section 8 on its face does not make crystal clear the role of state law, although it is apparent that state law does have a role in regard to federal reclamation projects. By a careful reading of the Congressional history, however, it is apparent that state law would have at least two functions under Section 8 of the 1902 Act. As to the first function, Congressman Martin indicated that Section 8 would be used to modify and complement Section 7, which latter section dealt with the federal government’s power of eminent domain: “[Section 7] should be read in connection with section 8, which is in the nature of a limitation upon this section. Section 8 provides that the Secretary of the Interior, when proceeding under this act, must proceed in conformity with the State laws. It therefore makes, taking the two sections together, simply an instruction to the Secretary of the Interior to invoke the aid of the State laws upon the subject of eminent domain where necessary.” Indeed, it was settled by the Supreme Court in Ivanhoe Irrigation District v. McCracken, 357 U.S. 466, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958) and in Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963), that Section 8 requires the federal government to look at state law to define the property interests for which compensation must be made pursuant to Section 7 eminent domain proceedings. Secondly, Section 8 is a reaffirmation of the doctrine that the states are free to apply their own rules of water law and the federal government cannot enforce any particular rule upon any state. Section 8 was not written upon a clean slate, but rather, on the overlay of prior federal law. As examples of the federal legislation upon which Section 8 was based, Congressman Mondell cited the Act of July 26, 1866 (14 Stat. 253); the Act of July 9, 1870 (16 Stat. 218); and the Act of March 3, 1877 (19 Stat. 377). In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935), and cases cited therein, the Supreme Court noted as follows: “For many years prior to the passage of the Act of July 26, 1866 [citations omitted], the right to the use of water for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. [citations omitted] The rule generally recognized throughout the states and territories of the arid region was the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well, [citations omitted]. This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation at the hands of Congress by the Act of 1866. [citations omitted]” The Supreme Court further explained that the Act of July 9, 1870, which amended the Act of 1866, was a reaffirmation of the doctrine that the states are free to apply their own rules of water law. See also Kansas v. Colorado, 206 U.S. 46, 94, 27 S.Ct. 655, 51 L.Ed. 956 (1907). Finally, the Supreme Court notes that the Desert Land Act of March 3, 1877, is fully consistent with this doctrine: “The Desert Land Act does not bind or purport to bind the states to- any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what might be an impediment to its full and successful operation.” Similarly, Section 8 does not bind or purport to bind the states to any policy, but recognizes and gives sanction, as far as the United States and its grantees are concerned, to the state law doctrine of appropriative rights to .water. In this regard, also, Section 8 guards prior rights granted by the individual states to individual water users. As noted by Congressman Mondell in his committee’s report to'the House: “The' American irrigator, beginning with the handicap of a woeful lack of knowledge of the subject, and an inherited common-law rule fatal to its solution, has acquired a vast fund of theoretic knowledge and practical experience. He has been instrumental in the adoption of rules and regulations, and the establishment of customs, relative to the use of water in irrigation to the arid region which, in some States, are well-nigh perfect, and in all are a distinct advance over former conditions. The bill recognizes the control of these local laws in matters of recording appropriations of water and in establishing and maintaining rights of users. . . .” California, however, discerns another meaning within the words of Section 8. In short, California reads Section 8 as requiring the federal government to apply to affected states for permits to appropriate water for reclamation projects and to comply with terms and conditions which the affected states might impose (as long as not expressly prohibited by other federal law), before the federal government can acquire the water necessary to construct the project. As an initial matter, it is at least arguable whether the United States, in acquiring water for the development of a reclamation project, should be considered an “appropriator” in the true legal sense of that term. Appropriation of a water right implies legal title thereto, and as the Supreme Court noted in Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525 (1937) : “Although the [federal] government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act [of 1902], for the use of the landowners.” Perhaps for clarity, it would be better to consider the federal government’s actions in obtaining water for the development of reclamation projects as the “acquisition” rather than the “appropriation” of water. However, even if the federal government is considered to be “appropriating” the water required to develop and operate the reclamation project, it is certainly not clear from the language of Section 8 nor from the Congressional history that the federal government must apply to states for permits to appropriate or that the federal government must comply with terms and conditions which states might impose on such permits. If anything, the Congressional history of Section 8 indicates the opposite interpretation: that reclamation is an undertaking of national concern, transcending the often arbitrary geographic boundaries of individual states and territories. Even a leading States’ rights advocate such as Senator Clark recognized the necessity of broad federal power in the development and construction of reclamation projects: “The question of the conversation of waters is one of national importance; the question of reservoir sites and reservoir building is one that appeals to the [federal] Government as a matter of national import, but the question of State or Territorial control of waters after having been released from their bondage in the reservoirs which have been provided is a separate and distinct proposition .... It is right that the General Government should control, should conserve, and should reservoir the headwaters of these streams. In this it is a national and not a State proposition. But in the distribution of these waters . it is right and proper that the various States and Territories should control in the distribution.” Of course, Senator Clark’s suggestions as to the power of the States in controlling distribution were rejected by the House and ultimately, by Congress as a whole. Nevertheless, his comments are relevant and useful on the question of federal power regarding the development and construction of reclamation works. The only comment within the Congressional history of the 1902 Act which might be supportive of California’s position is a statement by Congressman Mondell in response to a question seeking clarification of the federal-state relationship envisioned by the 1902 Act. Congressman Mondell noted that it was necessary for the federal government, after determining the need and feasibility for a particular reclamation project, to refer to the affected state by “giving the notice and complying with the forms of law of the State . in which the works [are to be] located.” On the one hand, this statement by Congressman Mondell supports California’s position that the federal government must apply to affected states before acquiring the water necessary to construct a reclamation project. On the other hand, however, this statement might also be read, as the United States has done, to require compliance with the forms, but not necessarily with the substance of state law. Indeed, while the Congressional history of the 1902 Act indicates broad federal purpose and authority in the operation and control of federal reclamation projects, the comity inherent in a federal system would not permit an overbroad usurpation of state sovereignty. Accordingly, the federal government is required, when acquiring water for federal reclamation projects, to comply with the forms of state law, including application to state water boards where necessary, for two purposes: (1) to enable the state to determine, according to its law, whether there is sufficient unappropriated water available for the project; and (2) to give notice to the state of the scope of the project. (2) Judicial Interpretation of the Reclamation Act of 1902. Both the United States and California rely on several judicial decisions relating to the 1902 Act. It is necessary to review these cases to determine if they provide any insight on the question presented by the instant case. (a) Nebraska v. Wyoming, 295 U.S. 40, 55 S.Ct. 568, 79 L.Ed. 1289 (1934) was a suit by Nebraska against the State of Wyoming for equitable apportionment of the waters of the North Platte River. The United States was not made a party to that suit and Wyoming, as part of its motion to dismiss, asserted that the United States was an indispensable party. In deciding that the United States was not an indispensable party, the Supreme Court stated: “The bill alleges, and we know as ' a matter of law [citing Section 8 of 1902 Act], that the Secretary and his agents, acting by authority of the Reclamation Act and supplementary legislation, must obtain permits and priorities for the use of water from the state of Wyoming in the same manner as a private appropriator or an irrigation district formed under the state law. His rights can rise no higher than those of Wyoming, and an adjudication of the defendant’s rights will necessarily bind him. Wyoming will stand in judgment for him as for any other appropriator in that state. He is not a necessary party.” Additionally, there is dicta in this opinion which is certainly supportive of the position California advances to this court: the Supreme Court notes that the Secretary of the Interior had applied to the state engineer of Wyoming for permission to construct reservoirs and impound water “pursuant to the [1902] act,” and also that the acts of the federal government in operating reservoirs are subject to the law of Wyoming. This dicta should not be afforded great weight, however, since the actions of the Supreme Court in 1935 should be considered procedural only. In 1938, the Supreme Court allowed the United States to intervene, over the objections of all the state parties, and stated that its order “shall be without prejudice to the determination on final decree of any of the substantive questions of law or fact advanced or to be advanced by any of the parties herein.” (b) Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945) was both a continuation and an extension of the 1935 case. At this time, however, the United States asserted that it owned all of the unappropriated water in the North Platte River at the time it acquired water rights for two federal reclamation projects, the North Platte Project and the Kendrick Project. The Supreme Court did not reach the question whether the United States did, in fact, own all the unappropriated water in the North Platte River because it determined that the United States’ acquisition of water rights for the North Platte Project and the Kendrick Project “have been obtaind in compliance with state law.” In fact, the United States had made filings with the state: “Initiation of both projects [North Platte Project and the Kendrick Project] was accompanied by filings made pursuant to § 8 [of the 1902 Act] in the name of the Secretary of the Interior for and on behalf of the United States. Those filings were accepted by the state officials as adequate under state law. They established the priority dates for the projects. There were also applications to the States for permits to construct canals and ditches. They described the land to be served. The orders granting the applications fixed the time for completion of the canal, for application of the water to the land, and for proof of appropriation. Individual water users contracted with the United States for the use of project water. These contracts were later assumed by the irrigation districts. Irrigation districts submitted proof of beneficial use to the state authorities on behalf of the project water users. The state authorities accepted the proof and issued decrees and certificates in favor of the individual water users. The certificates named as appropriators the individual landowners. They designated the number of acres included, the use for which the appropriation was made, the amount of the appropriation, and the priority date. The contracts between the United States and the irrigation districts provided that after the stored water was released from the reservoir it was under the control of the appropriate state officials.” Although the United States did submit the appropriate forms of law to the affected states and thereby gave notice of the construction of the reclamation projects, and also complied with the state law requirements in the construction of canals and ditches carrying water from the projects to users, the Supreme Court was careful to point out an important caveat: “Nor, as we shall see, is it important to the decree to be entered in this case that there may be unappropriated water to which the United States may in the future assert rights through the machinery of state law or otherwise.” [emphasis added] And again the Court noted as follows: “We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. No such attempt was made.” On the one hand, these quotations may only be a reference to the power of eminent domain which the United States might have exercised pursuant to Section 7 of the 1902 Act. Viewed broadly, however, the quotations indicate a recognition that in the particular case before the court the United States had followed state law, but that opinion is reserved whether, under the circumstances of that case, the United States was required to do so under the 1902 Act. And finally, the Supreme Court noted the narrow issues decided by the case, and indicated that its decision “in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities.” (c) Ivanhoe Irrigation District v. Mc-Cracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958) is not particularly helpful to either the United States or California in the disposition of the instant case. In Ivanhoe the United States Supreme Court reversed several decisions of the California Supreme Court which had refused to confirm certain contracts entered into between two state irrigation districts and a water agency on the one hand, and the United States on the other. The California Supreme Court had held that the language of Section 8 requiring compliance with state law overrode the requirements of Section 5, which provides generally that no project water should be sold for use on land parcels exceeding 160 acres in size. The California court found that Section 5 of the federal law would be contrary to California law because it would result in discrimination against owners of parcels exceeding 160 acres. This decision led the court to refuse to confirm the aforementioned contracts. The United States Supreme Court in reversing the California Court, stated as follows: “As we read § 8, it merely required the United States to comply with state law when, in the operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of federal projects. . . .We read nothing in § 8 that compels the United States to deliver water on conditions imposed by the State. . . . ” The California Supreme Court on remand in Ivanhoe Irrigation District v. All Parties, 53 Cal.2d 692, 3 Cal.Rptr. 317, 350 P.2d 69 (1960), recognized the scope of federal power in operating reclamation projects when it noted: “[The United State’s Supreme Court] expressly held that the United States may acquire, by condemnation if necessary, whatever water rights it may need to operate the project, so that after such acquisition such rights are not subject to state control.” However, this court feels that the true impact of the United States Supreme Court’s decision in Ivanhoe as it relates to this case is not so much what the court said, but rather, what the court did not say. While recognizing that Section 8 did not require the United States to violate Section 5 merely because state law was not consistent with the requirements of Section 5, the United States Supreme Court expressly noted that its decision should not be read as “passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field.” (d) City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963) is not particularly relevant to the inquiry in this case, although it is cited by both parties herein. Fresno merely stands for the proposition that while Section 8 of the 1902 Act requires compliance with California law when defining the property interests, if any, for which compensation must be made pursuant to the Section 7 eminent domain power, Section 8 cannot operate to prevent the United States from exercising the power of eminent domain. (e) Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), while primarily concerned with the construction of Section 14 of the Boulder Canyon Project Act, necessarily interpreted the applicability of Section 8 of the 1902 Act, since, under Section 14 of the Boulder Canyon Project Act, the reclamation law shall govern the management of the works, except as otherwise provided. The Boulder Canyon Project Act established a reclamation project on the Colorado River. Notwithstanding the federal government’s construction, ownership, operation, and maintenance of the Colorado River works and the broad power given by Congress to the Secretary of the Interior to make contracts for the distribution of water, it was argued that Sections 14 and 18 of the Boulder Canyon Project Act took away virtually all of the Secretary’s power by permitting the States to determine with whom and on what terms the Secretary would make water contracts. The Supreme Court disagreed with this argument. Section 18 of the Boulder Canyon Project Act states: “Nothing herein shall be construed as interfering with such rights as the States [now have] either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation, control, and use of waters within their borders.” The Supreme Court noted as follows : “Section 14 provides that the reclamation law, to which the Act is made a supplement, shall govern the management of the works except as otherwise provided, and § 8 of the Reclamation Act [of 1902], much like § 18 of the Project Act, provides that it is not to be construed as affecting or interfering with state laws ‘relating to the control, appropriation, use, or distribution of water used in irrigation.’ In our view, nothing in any of these provision affects our decision, stated earlier, that it is the Act and the Secretary’s contracts, not the law of prior appropriation, that control the apportionment of water among the States. Moreover . . . we hold that the Secretary in choosing between users within each State and in settling the terms of his contracts is not bound by these sections to follow state law. The argument that § 8 of the Reclamation Act requires the United States in the delivery of water to follow priorities laid down by state law has already been disposed of by his court in llvanhoe and Fresno] . . . . Since § 8 of the Reclamation Act did not subject the Secretary to state law in disposing of water in [Ivanhoe], we cannot, consistently with Ivanhoe, hold that the Secretary must be bound by state law in disposing of water under the Project Act.” ■ California has argued, however, that the Boulder Canyon Project differs significantly from the New Melones Project in that the former is an interstate development, whereas the latter is “wholely intra-state.” This contention ignores the fact that reclamation projects, as a whole, are of national importance, transcending state lines. And this is so even where the project works are located solely within the geographical confines of a single state. Crops raised by project water in California, for example, may feed families in Maine, or create processing jobs in Illinois. In Arizona it was clear that the federal government, as operator of the Boulder Canyon Project, could not be subject to the varying and possibly inconsistent commands of different state legislatures in the disposal of water from the project. That holding, of course, does not directly answer the question posed by the instant case: whether the federal government must submit to state law in acquiring the water for the project. In summary, it must be said that the cases cited and relied upon by both the United States and by California are more supportive of the position advanced by the United States, than of the position of California. (3) Other federal legislation. By analogy to acts of Congress passed into law subsequent to the 1902 Act, California contends that Congress has consistently intended to afford to the states the primary responsibility over “water distribution,” and that the role of the federal government is to cooperate and participate with the states, in reclamation projects. As an initial matter, it must be reiterated that the issue in this case does not revolve around “water distribution,” but rather, “water acquisition.” A thorough reading of the enactments cited by California does not, however, evince a Congressional abdication of the federal government’s role in developing, operating, and controlling, federal reclamation projects. (a) California contends that the policy declaration within the Federal Water Supply Act of 1958, 43 U.S.C. § 390b, is a reaffirmation of the primary responsibility of the states over “water distribution.” That section reads as follows: “It is declared to be the policy of the Congress to recognize the primary responsibilities of the States and local interests in developing water supplies for domestic, municipal, industrial, and other purposes and that the Federal Government should participate and cooperate with State and local interests in developing such water supplies in connection with the construction, maintenance, and operation of Federal navigation, flood control, irrigation, or multiple purpose projects.” Certainly, this section is a recognition of the individaul states’ primary obligations to develop water supplies for internal uses. On this basis the federal government is charged with participation and cooperation with the states in the development of such water supplies. It would be too broad a reading of this section to infer that the federal government is thereby subjected to individual state control in the development and operation of federal reclamation projects. (b) California also attempts to draw analogies to Section 5 of the Auburn-Folsom South Project Act, 43 U.S.C. § 616aaa — § 616fff. This act generally provides for the construction of the Auburn Dam on the American River and for distribution facilities in downstream areas. The Auburn-Folsom South Project Act imposes specific obligations on federal officials, similar to •those imposed in the New Melones Acts, including: provision for power generation, 43 U.S.C. § 616aaa; flood control, 43 U.S.C. § 616bbb; recreation, 43 U.S.C. § 616ccc; fish and wildlife enhancement, 43 U.S.C. § 616ccc; protection of the needs of counties and watersheds in which the water originates, 43 U.S.C. § 616eee. Additionally, the Auburn-Folsom South Project Act imposes a further obligation on the Secretary of the Interior to “give due consideration” to California’s water plan and to “consult” with local interests affected by the project, 43 U.S.C. § 616ddd. Specifically, Section 5 of the Auburn-Folsom South Project Act provides as follows: “Nothing contained in [this Act] shall be construed by implication or otherwise as an allocation of water, and in the studies for the purposes of developing plans for disposal of water as herein authorized, the Secretary shall make recommendations for the use of water in accord with State water laws, including but not limited to such laws giving priority to the counties and areas of origin for present and future needs.” Section 5 of the Auburn-Folsom Project Act mandates that the Secretary of the Interior shall make recommendations for the use of water in accord with State law in the studies for the purposes of developing plans for the disposal of water as authorized by the Act. It