90TH CONGRESS 2d Session } HOUSE OF REPRESENTATIVES { REPORT No. 1859 RENDERING THE ASSERTION OF LAND CLAIMS BY THE UNITED STATES BASED UPON ACCRETION OR AVULSION SUBJECT TO LEGAL AND EQUITABLE DEFENSE TO WHICH PRIVATE PERSONS ASSERTING SUCH CLAIMS WOULD BE SUBJECT SEPTEMBER 4, 1968.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. BARING, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany H.R. 10256] The Committee on Interior and Insular Affairs, to whom was referred the bill (H.R. 10256) to render the assertion of land claims by the United States based upon accretion or avulsion subject to legal and equitable defense to which private persons asserting such claims would be subject, having considered the same, report favorably thereon with amendments and recommend that the bill do pass. The amendments are as follows: Page 1, lines 4, 5 and 6, strike out "within three miles of any portion of the Colorado River in Riverside County, California, between river points 13.00 and 13.20," and insert: in Riverside County, California, within three miles of any Page 2, line 2, after "avulsion," strike out the remainder of the section and insert: the defendant shall, except as otherwise provided in this Act, in any such suit by the United States but, in lieu thereof, the PURPOSE The purpose of H.R. 10256, as amended and approved by the committee, is to permit an equitable settlement in a court of competent jurisdiction of a dispute between private parties and the U.S. Government regarding title to certain tracts of land along the Colorado River in Riverside County, Calif. H.R. 10256 would accomplish this by giving the defendants the same legal and equitable defenses that would be available to them under California law if they were being sued by the State or by private parties with two exceptions. First, the private parties could not plead statutes of limitations under sections 318 and 319 of the California Code of Civil Procedure. Second, proof of adverse possession, under sections 321, 322, 325, and 326 of the California Code of Civil Procedure, for a period of 5 years would not be a defense. In lieu of these and any comparable statutory time limitations, the act would fix a just and reasonable period, but not less than 5 years. H.R. 10256 was introduced by Mr. Tunney for himself, Mr. Lipscomb, Mr. Rhodes (Arizona), and Mr. Steiger (Arizona). BACKGROUND H.R. 13955 of the 89th Congress covered the same lands as this proposal. The history leading to the dispute over ownership of these lands was treated extensively in the House and Senate reports at that time. However, a summary of the conditions and actions preceding the present proposal follows: The lands which are the subject of this proposal involve some 2,100 acres lying along the west bank of the Colorado River near Blythe, Calif. These lands are claimed and occupied by 19 groups of individ uals and corporations. Their claim is that these lands are either uplands to which patents were issued by the State of California to their predecessors in interest in the early 1870's or land which became attached to these and other patented uplands thereafter. About half the land is in the upland category; about half is in the accreted category. Until Hoover Dam was constructed and closed in 1935, the lower Colorado River was a constantly shifting stream. Floods and the normal action of the river caused many very substantial changes in its channel. At times differences of as much as a mile or more occurred in the course of a few years or even a few days. At other times, the changes were quite gradual. In either case, land was added from time to time first to one side of the river and then to the other with corresponding reductions elsewhere. The result has been continual uncertainty concerning both the ownership of land and the location of the boundary between the two States. Since detailed records of the river's day-by-day or even year-byyear location were not kept, it is impossible at this time to say with any degree of certainty where it was at any particular time in the past except in those few years (1874, for example, and 1917) in which at fresh survey was made. It is also impossible to say with much certainty whether any given change was the result of accretion or avulsion or both. Until 1962 the title of these claimants and their predecessors to the 2,100 acres with which H.R. 10256 is concerned was not disputed by any agency of the Government. In that year, the Department of the Interior concluded that the lands were owned by the United States and that the claimants were illegally occupying them. Prior thereto the claimants had been in quiet and peaceable possession of the land. For more than 40 years they and their predecessors have been clearing and leveling it, constructing irrigation canals, stabilizing and enriching the soil, seeking and obtaining title insurance, and installing fences and other improvements. Over 100 homes have been built by them. They have paid real estate taxes on these lands for over 20 years to Riverside County, Calif., and have paid taxes and assessments to the Palo Verde Irrigation District for an equal period. More than $1,500,000 has been expended by them and their predecessors to make productive what would otherwise be wasteland. The present position of the Department of the Interior is that these lands, although they are now on the California side of the river, were formerly on the Arizona side, that they had accreted to lands on that side which never passed out of the ownership of the United States, that they are now on the California side only because of a sudden shift in the river's course, that this shift was induced by three artificial cuts in the river-commonly referred to as the Raab, Hauser, and Comer cuts-made in 1923-24 to the east of its then location, and that the avulsion which resulted from these cuts did not cause title to the land between the cuts and the former east bank of the river to shift from the Government to the present claimants or their predecessors in interest. The claimants, on the other hand, deny that these lands accreted to upland on the Arizona side of the river and that they were thrown onto the California side by an avulsion. The three principal points in dispute, as far as the present controversy is concerned, are the location of the river just before the cuts referred to above were attempted, the manner in which the river reached that location (i.e., by avulsion or accretion), and the effectiveness of the cuts in causing a shift in the river channel. It was the contention of the Interior Department witnesses that they could locate and had located the probable course of the river just before the cuts were made, that it lay to the west of the lands in dispute (in other words, that these lands were then in Arizona), that the cuts made to the east of the river as it then was were effective, and that it was only because they were effective that the land is now on the California side. The location of the river prior to the cuts was based primarily on an analysis of an aerial photograph taken 6 years later. The contention that the cuts were effective was supported by certain contemporary documentary evidence. The claimants' witnesses, on the other hand, maintained that the aerial photograph showed a highly corrugated area and that it was completely impossible to determine where the 1924 channel was from the photograph. They also maintained that the cuts were ineffective and supported this by testimony of individuals who lived in the area and worked on the river at the time the cuts were made, and by certain documentary evidence. The question that confronted the committee in these circumstances is what degree of certainty of Government ownership is required before the Government can properly seek to oust persons who have peacefully occupied the land in good faith as long as these claimants have and who, as recited above, have paid taxes on it for years and made very substantial improvements on it. It is clear to the committee that the claimants are not mere squatters without any semblance of rights and it believes that, absent much clearer proof of Government ownership than has been presented or probably could be presented in this case, they ought not to be treated as such. As the equity which the claimants have built up in the land and the long period of inaction on the part of the Government in testing the validity of their claims are matters which ought to be taken into account but which a court cannot take into account under present law. the committee is of the opinion that enactment of H.R. 10256 is essential and necessary if a grave injustice is to be prevented. NEED As previously indicated, H.R. 10256 deals with the same land and title uncertainty as that covered by H.R. 13955, 89th Congress, which was vetoed by the President. That bill provided that, in order to settle the dispute between the private parties and the Federal Government with respect to the ownership of land along the Colorado River between river points 13.00 and 13.17, the location of the river as determined by the interstate compact between Arizona and California, approved by the act of August 11, 1966 (Public Law 89-531; 80 Stat. 340), would be recognized as the present boundary of the river, and that all changes in the course of the river prior to the date of enactment of H.R. 13955 would be conclusively presumed to be accretive changes. The net effect of H.R. 13955 would have been to invalidate the claims of the Federal Government to approximately 2,100 acres of disputed land and to confirm title in 19 individuals and corporations. In his veto message of November 14, the President concluded with the following statement: The courts are the traditional forum for determining legal questions relating to landownership and I see no reason for making a special exception here and interfering with the orderly judicial process. If the case is resolved in favor of the claimants, they will receive title to the land without the present bill. If the case is resolved against the claimants and the Congress believes that the equities were so compelling that relief should have been granted, the Congress can act after the factual issues have been fully litigated and a complete record has been assembled. Unfortunately, however, in the absence of enabling legislation, the claimants would be unable to fully litigate the factual issues and a complete record could not be assembled because, in an action brought by the Government with respect to land claimed by it, they have no recourse to the legal and equitable defenses that would apply in an |