action brought by a private litigant. For example, they cannot assert the defenses of statutes of limitation, laches, equitable estoppel or adverse possession. In short, they cannot demonstrate their equities in court.

As to equities, Congress found them to be overwhelmingly in favor of the private parties and so stated when considering H.R. 13955, 89th Congress. However, in view of the Presidential message regarding the determination of the issues in court and notwithstanding the previous finding of Congress that the equities were so overwhelmingly in favor of the private parties as to have justified relief, the present proposal, H.R. 10256, proposes that the parties to the dispute proceed with the litigation in court. H.R. 10256, as amended, and approved by the committee, would permit the private parties to plead their equities, if any, including but not limited to, adverse possession for a reasonable period, as determined by the court, laches and equitable estoppel. Thus, a full and complete record could be developed for the consideration of the court, and the record deemed to be essential by the President could be completely developed. A decision by the court would be based upon consideration of a full and complete record.

COMMITTEE AMENDMENTS

In testimony given before the committee, the Department of the Interior pointed out that H.R. 10256, as introduced, would make effective against the United States the 5-year statute of limitations and period of adverse possession contained in California Code of Civil Procedure. As all claimants to this land have asserted title for periods much longer than 5 years the retention of this provision would preclude adjudication of the title on its merits. For this reason the committee adopted amendments which modify the bill in the following ways:

(1) Statutes of limitations: Sections 318 and 319 of the California Code of Civil Procedure provides that with respect to cases of the type with which H.R. 10256 deals, failure to initiate a legal action for a period of 5 years constitutes a forfeiture of the right to initiate such an action thereafter. Thus the retention of the provision allowed by the California statute of limitations would have permitted the private parties to obtain a decision without reference to the merits of the case. The entire intention of the bill, namely to provide an opportunity for the development of a complete court record, including the presentation of equities, would have been voided.

(2) Adverse possession: Sections 321, 322, 325, and 326 of the California Code of Civil Procedure provide that proof of adverse possession for a petriod of 5 years is an absolute defense for landowners. As in the preceding situation the retention of this feature, without modification, would have permitted a decision not necessarily related to the merits of the case. It was the opinion of the committee that the 5-year period may be unreasonably short to apply against the Federal Government. However, the committee did not wish to eliminate the defense of adverse possession in its entirety. Therefore, it felt that the court should be given latitude to determine what period of years may be reasonable provided that such period is not less than 5 years.

In summary, the amendments adopted by the committee would allow the litigation to continue in the courts as stated in the President's

veto message. The private parties would be required to defend themselves in the same manner as if being sued by individuals or by the State but statutes of limitation and adverse possession for a period of 5 years would not be absolutely determinative.

The amendment would permit the development of the record desired by the President but would not prevent the defendants from showing their equities.

A second amendment adopted by the committee limits the coverage of this bill to the area between river points 13.00 to 13.17, as defined in the interstate compact defining the boundaries between Arizona and California.

COST

Enactment of H.R. 10256 will not require additional budgetary expenditures.

DEPARTMENTAL REPORTS

The unfavorable reports of the Departments of Justice and Interior and the Bureau of the Budget follow:

U.S. DEPARTMENT OF JUSTICE,
Washington, D.C., May 2, 1968.

Hon. WAYNE N. ASPINALL,

Chairman, House Committee on Interior and Insular Affairs,
Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on H.R. 10256, 10732, and 10733, each bill entitled 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.

These three bills affect land adjacent to the Colorado River in Arizona and California. Changes in the channel of the river have resulted in conflicting claims of ownership to these lands. The U.S. District Courts for the District of Arizona, the Southern District of California, and the Central District of California now have under active consideration the complex factual and legal issues involving the ownership of these lands. The claims of the United States are based upon the well-established doctrines involving accretion and avulsion. Stated briefly, when changes in the location of the riverbed have been accretive, the United States claims title to all accretions to federally owned uplands. Conversely, when the river changes have been avulsive, title to Federal lands would not be affected by such changes in the course of the river. In either event, the nature of the change is a factual issue that should be resolved by appropriate court action."

These three bills would affect the pending actions by subjecting the United States to "all legal and equitable defenses which are available against a private party litigate under the law of the State in which the subject real property is located ***."

The 89th Congress passed legislation (H.R. 13955) with respect to the lands covered by the pending bills. The President withheld his approval from that legislation. In his statement of disapproval, after

noting that litigation with respect to the lands was pending, the President stated:

"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."

The same considerations supporting disapproval of H.R. 13955 are equally applicable to the pending bills.

Accordingly, the Department of Justice opposes the enactment of these bills.

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

Sincerely,

U.S. DEPARTMENT OF THE INTERIOR,
Washington, D.C., May 1, 1968.

Hon. WAYNE N. ASPINALL,

Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: Your committee has requested this Department's report on H.R. 10256, a bill 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.

We strongly recommend against the enactment of this bill.

H.R. 10256 is a successor to H.R. 13955 which passed both the House of Representatives and the Senate during the 89th Congress and was disapproved by the President on November 14, 1966. In withholding his approval, the President said:

"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."

The issues involving the ownership of the lands covered by this bill are still being litigated in the Federal courts. The situation which existed when H.R. 13955 was disapproved remains the same today. Accordingly, H.R. 10256 should not be enacted.

H.R. 10256 would benefit the 19 Palo Verde color-of-title applicants who were the beneficiaries of H.R. 13955 in the 89th Congress. The reference in the bill to interstate compact point 13.20, however, enlarges the area affected to include the following additional trespass parcels now in litigation:

Ehlers and Rothenberger, U.S. District Court, Arizona (Civ. 5707-Phx).

Gossett, U.S. District Court, Central District, California (641758 HW).

The 160-acre Gossett parcel, except for a 2-acre area in its southeast corner, has, according to the official surveys, been fast land unaffected by movements of the Colorado River since 1879. Assuming, arguendo, that persons who might have been confused by movements of the Colorado River should receive congressional relief, Gossett would qualify as a beneficiary only for an insignificant part of his occupancy.

The bill would subject the United States, in litigation involving title to land referred to in the bill, to all legal and equitable defenses which are available to private parties under State law. If enacted, persons seeking ownership to these lands could, for example, seek to apply the doctrines of equitable estoppel, adverse possession, and laches against the United States. We believe legislation of this type would establish an undesirable precedent and would be contrary to sound public policy.

There are sound reasons of public policy why the doctrines of equitable estoppel, adverse possession, and laches should not run against the Government. Land belonging to all of the people should not be lost by the people merely because an agent of the Government did not act promptly in a given case of encroachment. Well over 450 million acres of land are owned by the Federal Government. Its agents cannot possibly police each of these areas against invasion by a private party.

Usually, unauthorized occupancy is not contested until the Government has some immediate need for the land for a particular Federal program or purpose. Open and free use of the public lands is in the great tradition of the West, where, until 1934, cattlemen and sheepherders grazed their stock on the public domain at will, and to this day a prospector may enter on any unreserved public lands for the purpose of exploring minerals.

The Department has firmly maintained that title claims adverse to those of the United States should be litigated in the courts. The proposed legislation is, however, calculated to prevent the Government's successful protection of the rights of the public generally by the elimination of long-established immunities developed by well-reasoned judicial precedents for the protection of the interests of the public.

We are not aware of any basis on which the proponents of this bill would be entitled to the proposed special treatment. If it were granted it is reasonable to expect that other occupants and users of Federal land, not only in the lower Colorado River area but elsewhere, would seek similar treatment.

We believe that the bill would establish a most undesirable precedent and seriously erode longstanding judicial doctrines for the benefit of just a few people. We see no justification for giving them special

defenses that are not available to the general public, particularly when the lands in question are needed for the benefit of a national program. As the President said, if the court decides in favor of these individuals, they will obtain title to the lands. If the court decides in favor of the United States on the law "and the Congress believes that the equities were so compelling that relief should have been granted," referral by the House of Representatives under 28 U.S.C. 1492 and 2509 might be an appropriate means of considering the claims of equities. Both approaches preserve the longstanding doctrines above discussed and avoid the precedents of this legislation.

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,

HARRY R. ANDERSON, Assistant Secretary of the Interior.

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET,

Washington, D.C., May 2, 1968.

Hon. WAYNE N. ASPINALL,

Chairman, Committee on Interior and Insular Affairs, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This responds to your letter of July 3, 1967, requesting a report on H.R. 10732, H.R. 10733, and H.R. 10256.

The Bureau of the Budget concurs in the views expressed by the Department of the Interior in its report to your committee. For the reasons expressed in that report the Bureau of the Budget recommends against the enactment of H.R. 10732, H.R. 10733, and H.R. 10256. Sincerely yours,

WILFRED H. ROMMEL, Assistant Director for Legislative Reference.

COMMITTEE RECOMMENDATION

The Committee on Interior and Insular Affairs recommends that H.R. 10256, as amended, be enacted.