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"It is further agreed that the irrigation district's applications Nos. 1035 (certificate No. 2046), 8989a, and 13334 shall be used subject to the conditions and limitations that are provided in this contract and not otherwise * * *
"A copy of this contract shall be filed in the office of the State engineer of Utah and, as between the irrigation district and the United States, shall be the basis, the measure, and the limit of the irrigation district's rights under applications Nos. 1035 (certificate No. 2046) 8989a, and 13334."
Although the Sanpete Water Users Association is not a signatory party to the "tripartitie" contract, it is a third party beneficiary thereof and is protected through the United States in its right to the additional storage of Scofield Reservoir to secure more complete utilization of the waters of Gooseberry Creek for diversion into Sanpete County. The Bureau of Reclamation has repeatedly affirmed the binding effect of this contract in protecting the rights of the Sanpete people.
In a letter dated December 1, 1960, to the State engineer of Utah requesting him to defer action on certain applications owned by the United States (Nos. 14025, 14026, 14475, 14476, 14477, and 14683) Mr. S. Rippon, acting regional director of the Bureau of Reclamation said that "All of these applications contemplate storage in the Mammoth Reservoir and/or use on the Gooseberry project."
He went on to say: "As you know, the Sanpete interests are investigating a watershed work plan, as outlined in our letter dated November 4, 1960. The Bureau of Reclamation has no intention of opposing this development or doing anything that might jeopardize the success of it.”
Perhaps the most persuasive argument in support of the claim that there is available water for the proposed storage reservoir comes from the actions of Carbon County water users themselves. Since July 1, 1960, not less than eight applications have been filed with the State engineer seeking to appropriate in excess of 35,000 acre-feet of water from the tributaries of Price River. In addition, many now have been filed prior to 1960 which are junior in time and therefore subordinate to application 9593. Five of the applications filed since July 1, 1960, have been filed by Price River Water Improvement District. One of such applications (No. 32134) is to appropriate 15,000 acre-feet of water from Gooseberry Creek by the construction of a reservoir on the creek just below the place where the north Sanpete watershed work plan proposes to build a resersoir. In other words Carbon County interests are satisfied there is available water; but they are hoping to be able to defeat the applications held by Sanpete water users in order to make a valid appropriation themselves.
Now a word about financing. Both the Bureau of Reclamation and the Soil Conservation studies have clearly demonstrated the economic feasibility of the Gooseberry project. But how do the local people expect to pay their proportion of the costs? Immediately it is proposed to borrow $1,500,000 from the Farmers Home Administration. Public Law 566 (under which law the project is being sponsored), further implements its authorization for the Federal Government to participate in water conservation and development measures by setting up a program whereby eligible organizations may borrow up to $5 million to carry out plans to protect and develop the land and water resources in small watersheds. The Sanpete County Water Conservancy District has authorized the chairman of its board to file such application, and the application is ready to be filed upon the project being finally approved.
Additional money to assist local irrigation companies in financing their system improvements will be sought from the Utah Water and Power Board on interest free loans. Ultimately, and over a period of approximately 50 years, the entire cost of the project, including any interest, will be paid by assessment upon the irrigation companies and through them upon the individual farmers and water users. This will be supplemented in a small way by an increased tax levy on all land situated in Sanpete County-which levy is authorized by law to assist in the payment of costs of constructing and maintaining works of improvement of water resources.
In conclusion, I submit:
1. Sanpete people hold legal and valid filings on the water which filings have been upheld by the courts.
2. The dam, reservoir, and the entire drainage area which will supply the water for storage are located in Sanpete County.
3. The construction of the Gooseberry Reservoir will in no way diminish or jeopardize prior existing rights to the use of the waters of the Price River and its tributaries, held by Carbon County interests.
4. The Sanpete County people cooperated in good faith with Carbon County for reconstruction of the Scofield Reservoir which cost approximately $1 million of which Carbon County was required to pay only $100,000 and Sanpete County will have to reimburse the Government in connection with the Gooseberry phase of the north Sanpete watershed project to the extent of $116,000 (for which provision is made in the work plan).
5. The Bureau of Reclamation and the Soil Conservation Service (with the cooperation and support of the field representatives of the Bureau) have made a thorough study and investigation of the economic feasibility of the proposed project and have determined that it is economically feasible. The report of the Soil Conservation Service shows an overall benefit-to-cost ratio of 2.7 to 1.
6. A plan for financing the entire project has been worked out; and the local water users, and in fact the entire county, have committed themselves to the payment of their share of the costs over a period of 50 years.
7. Although the Gooseberry Reservoir and tunnel constitute only a part of the north Sanpete watershed project, such development works are an integral part of the entire work plan so that rejection of the Gooseberry Reservoir will be tantamount to defeating the entire project to the immediate economic loss to the people of Sanpete County and to the general detriment of the best interests of the State of Utah.
8. The State of Utah and all interested State agencies have gone on record as approving the project.
9. The project has received the approval of those departments and agencies of the Federal Government precedent to its being submitted for final approval by Congress through the Public Works Committee of the House and Senate.
I again thank you for the opportunity to make this statement and for your interest in and attention to my remarks. I hope that what I have said will be helpful to you in reaching a favorable decision. If you have any questions or wish any further explanation I will be most happy to attempt to assist you in the matter.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., September 11, 1962. Hon. FRANK E. Moss, U.S. Senate, Washington, D.O.
DEAR TED: On August 31 you wrote concerning the hearings which were held by the House Interior Committee on the North Sanpete watershed project, Sanpete County, Utah. You asked for an interpretation of one of the sentences in our letter of February 9 to the Secretary of Agriculture concerning this proposed project. The sentence in question is:
“We believe, therefore, that further study of the possibilities of coordinated development of water resources of the entire area is required if a plan to meet the water requirements of both the North Sanpete watershed and the Price River Basin is to be developed."
You were correctly informed in regard to the Department's position respecting this project and as expressed to Jay Bingham and Arthur Nielsen. The Department is not opposed to the project, and did not intend to question the feasibility of or the availability of water for it.
The purpose of the sentence quoted was to emphasize that the Sanpete project would not solve all of the problems involved in the area. Further studies of water supply problems of both the Sanpete watershed and the Price River Basin are still necessary. Sincerely yours,
KENNETH HOLUM, A88istant Secretary of the Interior.
IN THE DISTRICT COURT OF CARBON COUNTY, STATE OF UTAH
IN THE MATTER OF THE GENERAL DETERMINATION OF THE RIGHTS TO THE USE OF
FINDING OF FACT AND CONCLUSIONS OF LAW
Alfred Ditch Company, a corporation, and others, heretofore filed herein a Petition for an Interlocutory Order. Thereafter, the Sanpete Water Users Association, a corporation, filed its Answer to said Petition, asserting among other things the defense that said Petition fails to state a claim upon which relief can be granted; the United States of America filed a Motion to Dismiss the Petition upon the ground that the Court lacks jurisdiction over the United States of America, and upon the further ground that said Petition fails to present a justiciable controversy between Petitioners and United States of America or the other Respondents; and the United States Steel Corporation filed an answer joining in the prayer of the Petition for an Interlocutory Order requested by Petitioners. Said matters came on regularly for hearing on the 5th day of December, 1962, E. J. Skeen, Esq., Stanley V. Litizzette, Esq., and Like G. Pappas, Esq., appearing for Petitioners; Duane A. Frandsen, Esq., and Therald M. Jensen, Esq., appearing for Price River Water Users Association and Carbon Water Conservancy District; Arthur H. Nielsen, Esq., appearing for Sanpete Water Users Association; Calvin A. Behle, Esq., and James B. Lee, Esq., appearing for the interpleaded Respondent, United States Steel Corporation : Therald M. Jensen, Esq., appearing for the interpleaded Respondent, Independent Coal and Coke Company; and Parker Nielson, Esq., Assistant United States Attorney for the District of Utah, appearing for United States Statements were made by counsel for Petitioners and the United States Steel Corporation in support of the Petition and by counsel for the United States of America and the Sanpete Water Users Association in opposition thereto, and in support of the defense raised by said respondents. Testimony was taken and evidence introduced, and the matter was thereafter fully argued and submitted to the Court, the Court being fully advised in the premises hereby makes and enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
C.C.A. 1953" ,
1. Heretofore, on October 27, 1960, in Civil No. 8219, pending in the aboveentitled Court, the Court made and entered its Order directing and requiring a general determination of the rights to the use of all the water, both surface and underground, be made and submitted as to the entire drainage area of the Price River and of the drainage area of the Green River from the confluence of the Price and Green Rivers to the confluence of the Green and Colorado Rivers, excluding the drainage area of the San Rafael River; "and the State Engineer of the state of Utah is hereby authorized and directed to proceed therewith with all due dispatch in accordance with Chapter 4 of Title 73,
2. The State Engineer for the State of Utah is now in the process of preparing a proposed determination of water rights in relation to said general adjudication in accordance with the provisions of said Chapter 4 of Title 73, Utah Code Annotated 1953, which will be submitted to this Court for determination in
3. All of the parties to the instant proceeding appear to be owners of certain rights to the use of water in the Price River or its tributaries, which said rights will be more fully declared, set forth, and determined in connection with said general determination proceedings.
4. Pending such general determination, Petitioners have filed herein a Petition for an Interlocutory Order declaring that a certain contract between the United States of America, the Carbon Water Conservancy District, and the Price River Water Conservancy District, hereinafter referred to as the “Tripartite Con
tract", is not binding upon Petitioners and the others not a party to it, and that said contract does not limit the flow of he Price River past the Heiner Gauge or grant the United States of America, its successors and assigns, the right to store or divert waters arising in Gooseberry Creek without regard for the rights of petitioners, or others not a party to said contract.
5. Said Petition seeks to invoke the authority of the Court to enter an Interlocutory Order under the provisions of Section 73-4-24, Utah Code Annotated, 1953.
6. Said Tripartite Contract was entered into for the purpose of providing for the reconstruction of the Scofield Reservoir by the United States of America under the terms and conditions therein set forth, including the reservation of thirty-five thousand acre-feet of storage for use for storage of water for replacement purposes upon construction of a Gooseberry Reservoir project upstream from said Scofield Reservoir. Said contract further provides that the rights of the United States of America under Article 12 of the agreement are dependent, among other things, upon “the principal works of the Gooseberry plan having been completed and made ready for operation".
7. Said Tripartite Contract further provides that the Scofield Reservoir "shall be operated to the end that, within the limits of the water supply, there will be available in Price River, at the Heiner station, enough water to permit the diversion, when required, of the amount needed to satisfy the existing rights below the Heiner station, but not in excess of the amount of water that can be beneficially used."
8. Said Gooseberry project has not been constructed as of this time, although local interests in Sanpete County have applied for Federal assistance for the construction of the Gooseberry Reservoir as a part of the North Sanpete Watershed Work Plan prepared under the authority of the Watershed Protection and Flood Prevention Act (Public Law 566, 83d Congress, 68 Stat. 666, 16 U.S.C., Section 1001, as amended), which project would employ the Gooseberry diver. sion and exchange plan as provided in said Tripartite Contract.
9. Neither the United States of America, Sanpete Water Users Association, nor any other party to this action has interfered with any valid rights of any of Petitioners to the use of any of the waters of the Price River or its tributaries, nor do Petitioners allege that there has been any such interference or imminent threat to interfere with any of their valid rights.
10. Petitioners disclaim any interest in said Tripartite Contract, and therefore lack standing to sue for a declaration of rights therein.
11. The respective claims and contentions of the parties hereto are not ad. verse to one another, nor do they present a real controversy between the parties which can be the basis for declaratory relief.
From the above and foregoing Findings of Fact, the Court now makes the following
CONCLUSIONS OF LAW 1. The Petition for an Interlocutory Order does not present a justiciable controversy or raise any issues which are ripe for determination by this Court.
2. The Petition and the evidence fail to disclose any dispute between these parties which requires or justifies the entry of an Interlocutory Decree “to control the rights of the parties . . . until the final decree in the general adjudication suit is entered” as provided by Section 73-4-24, Utah Code Annotated, 1953.
3. The Petition for Interlocutory Order on file herein does not raise matters which can be the basis for declaratory relief.
4. Petitioners have no standing to sue for a declaration of rights in said Tripartite Contract.
5. The Petition on file herein, joined in by United States Steel Corporation in its answer, should be dismissed. Dated this 10th day of January 1963.
MAURICE HARDING, Judge.
IN THE DISTRICT COURT OF CARBON COUNTY, STATE OF UTAH
IN THE MATTER OF THE GENERAL DETERMINATION OF THE RIGHTS TO THE USE OF
ORDER AND JUDGMENT
Allred Ditch Company, a corporation, and others, heretofore filed herein a Pe-
Statements having been made by counsel for the respective parties and evi-
MAURICE HARDING, Judge. Senator Moss. We will take 5 minutes to stretch our legs and give our reporter time to shake her fingers, and then we will go back at it.
Senator Moss. The hearing will now resume. We have heard from
Mr. Skeen, you may proceed in whatever manner you like at this