source: Caselaw Access Project

author: Justice White Justice O’Connor,

license: Public Domain

text:
    PHILLIPS PETROLEUM CO. et al. v. MISSISSIPPI et al.
    No. 86-870.
    Argued November 9, 1987
    Decided February 23, 1988

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, and Blackmun, JJ., joined. O’Con-nor, J., filed a dissenting opinion, in which Stevens and Scalia, JJ., joined, post, p. 485. Kennedy, J., took no part in the consideration or decision of the case.

      Eugene Gressman argued the cause for petitioners. With him on the briefs were Joel Blass, William G. Paul, John L. Williford, and Elizabeth A. Harris.

      Kathy D. Sones, Special Assistant Attorney General of Mississippi, argued the cause for respondents. With her on the brief were Edwin Lloyd Pittman, Attorney General, Robert Franklin Spencer, Assistant Attorney General, and Jean R. Swift. Charles Ed Harper and Boyce Holleman filed a brief for respondent Saga Petroleum U. S. Inc.

      Briefs of amici curiae urging reversal were filed for the American Land Title Association by Louis F. Claiborne, Edgar B. Washburn, and Sean McCarthy; for the city of Elizabeth, New Jersey, et al. by John R. Weigel; and for Robert E. Longino, Jr., by Robert S. Marsel.

      Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, N. Gregory Taylor, Assistant Attorney General, Jan Stevens, Supervising Deputy Attorney General, and Michael L. Crow, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Don Siegelman, of Alabama, Grace Berg Schaible, of Alaska, Robert K. Corbin, of Arizona, Robert A. Butterworth, of Florida, Warren Price III, of Hawaii, William J. Guste, Jr., of Louisiana, Lacy H. Thornburg, of North Carolina, Dave Frohnmayer, of Oregon, Jim Mattox, of Texas, Kenneth 0. Eikenberry, of Washington; and for the 13 Original States by David C. Slade, and by the Attorneys General of their respective States as follows: Joseph I. Lieberman of Connecticut, Charles M. Oberly III of Delaware, Michael J. Bowers of Georgia, J. Joseph Curran of Maryland, James M. Shannon of Massachusetts, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Robert Abrams of New York, James G. Martin, Jr., of North Carolina, LeRoy S. Zimmerman of Pennsylvania,
        James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, and Mary Sue Terry of Virginia.

   Justice White

delivered the opinion of the Court.

The issue here is whether the State of Mississippi, when it entered the Union in 1817, took title to lands lying under waters that were influenced by the tide running in the Gulf of Mexico, but were not navigable in fact.

> — 1

As the Mississippi Supreme Court eloquently put it: “Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit.” Cinque Bambini Partnership v. State, 491 So. 2d 508, 510 (1986). More specifically, in question here is ownership of 42 acres of land underlying the north branch of Bayou LaCroix and 11 small drainage streams in southwestern Mississippi; the disputed tracts range from under one-half acre to almost 10 acres in size. Although the waters over these lands lie several miles north of the Mississippi Gulf Coast and are not navigable, they are nonetheless influenced by the tide, because they are adjacent and tributary to the Jourdan River, a navigable stream flowing into the Gulf. The Jourdan, in the area involved here, is affected by the ebb and flow of the tide. Record title to these tracts of land is held by petitioners, who trace their claims back to prestatehood Spanish land grants.

The State of Mississippi, however, claiming that by virtue of the “equal-footing doctrine” it acquired at the time of statehood and held in public trust all land lying under any waters influenced by the tide, whether navigable or not, issued oil and gas leases that included the property at issue. This quiet title suit, brought by petitioners, ensued.

The Mississippi Supreme Court, affirming the Chancery Court with respect to the lands at issue here, held that by virtue of becoming a State, Mississippi acquired “fee simple title to all lands naturally subject to tidal influence, inland to today’s mean high water mark . . . Ibid. Petitioners’ submission that the State acquired title to only lands under navigable waters was rejected.

We granted certiorari to review the Mississippi Supreme Court’s decision, 479 U. S. 1084 (1987), and now affirm the judgment below.

II

As petitioners recognize, the “seminal case in American public trust jurisprudence is Shively v. Bowlby, 152 U. S. 1 (1894).” Reply Brief for Petitioners 11. The issue in Shively v. Bowlby, 152 U. S. 1 (1894), was whether the State of Oregon or a prestatehood grantee from the United States of riparian lands near the mouth of the Columbia River at Astoria, Oregon, owned the soil below the high-water mark. Following an extensive survey of this Court’s prior cases, the English common law, and various cases from the state courts, the Court concluded:

“At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation. . . . Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution of the United States.
“The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them, within their respective jurisdictions.” Id., at 57.

Shively rested on prior decisions of this Court, which had included similar, sweeping statements of States’ dominion over lands beneath tidal waters. Knight v. United States Land Association, 142 U. S. 161, 183 (1891), for example, had stated that “[i]t is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original States were reserved to the several States, and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original States possess within their respective borders.” On many occasions, before and since, this Court has stated or restated these words from Knight and Shively.

Against this array of cases, it is not surprising that Mississippi claims ownership of all of the tidelands in the State. Other States have done as much. The 13 original States, joined by the Coastal States Organization (representing all coastal States), have filed a brief in support of Mississippi, insisting that ownership of thousands of acres of tidelands under nonnavigable waters would not be disturbed if the judgment below were affirmed, as it would be if petitioners’ navigability-in-fact test were adopted. See Brief for 13 Original States as Amici Curiae 3-5, 26-27.

Petitioners rely on early state cases to indicate that the original States did not claim title to nonnavigable tidal waters. See Brief for Petitioners 23-29. But it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Shively v. Bowlby, supra, at 26. Some of the original States, for example, did recognize more private interests in tidelands than did others of the 13 — more private interests than were recognized at common law, or in the dictates of our public trusts cases. See n. 12, infra. Because some of the cases which petitioners cite come from such States (i. e., from States which abandoned the common law with respect to tidelands), they are of only limited value in understanding the public trust doctrine and its scope in those States which have not relinquished their claims to all lands beneath tidal waters.

Finally, we note that several of our prior decisions have recognized that the States have interests in lands beneath tidal waters which have nothing to do with navigation. For example, this Court has previously observed that public trust lands may be used for fishing — for both “shell-fish [and] floating fish.” See, e. g., Smith v. Maryland, 18 How. 71, 75 (1855). On several occasions the Court has recognized that lands beneath tidal waters may be reclaimed to create land for urban expansion. E. g., Hardin v. Jordan, 140 U. S. 371, 381-382 (1891); Den v. Jersey Co., 15 How. 426, 432 (1854). Because of the State’s ownership of tidelands, restrictions on the planting and harvesting of oysters there have been upheld. McCready v. Virginia, 94 U. S. 391, 395-397 (1877). It would be odd to acknowledge such diverse uses of public trust tidelands, and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them.

Consequently, we reaffirm our longstanding precedents which hold that the States, upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide. Under the well-established principles of our cases, the decision of the Mississippi Supreme Court is clearly correct: the lands at issue here are “under tidewaters,” and therefore passed to the State of Mississippi upon its entrance into the Union.

1 — 1 l-H I — I

Petitioners do not deny that broad statements of public trust dominion over tidelands have been included in this Court’s opinions since the early 19th century. Rather, they advance two reasons why these previous statements of the public trust doctrine should not be given their apparent application in this case.

A

First, petitioners contend that these sweeping statements of state dominion over tidelands arise from an oddity of the common law, or more specifically, of English geography. Petitioners submit that in England practically all navigable rivers are influenced by the tide. Brief for Petitioners 19. See The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454 (1852). Thus, “tidewater” and “navigability” were synonyms at common law. See Illinois Central R. Co. v. Illinois, 146 U. S. 387, 436 (1892). Consequently, in petitioners’ view, the Crown’s ownership of lands beneath tidewaters actually rested on the navigability of those waters rather than the ebb and flow of the tide. Cf. ibid. English authority and commentators are cited to show that the Crown did not own the soil under any nonnavigable waters. Petitioners also cite for support statements from this Court’s opinions, such as The Genesee Chief, supra, and Martin v. Waddell, 16 Pet. 367, 413-414 (1842), which observed that it was “the navigable waters of England, and the soils under them, [which were] held by the Crown” at common law (emphasis added).

The cases relied on by petitioners, however, did not deal with tidal, nonnavigable waters. And we will not now enter the debate on what the English law was with respect to the land under such waters, for it is perfectly clear how this Court understood the common law of royal ownership, and what the Court considered the rights of the original and the later entering States to be. As we discuss above, this Court has consistently interpreted the common law as providing that the lands beneath waters under tidal influence were given States upon their admission into the Union. See Shively v. Bowlby, 152 U. S., at 57. See also cases cited in n. 2, swpra. It is true that none of these cases actually dealt with lands such as those involved in this case, but it has never been suggested in any of this Court’s prior decisions that the many statements included therein — to the effect that the States owned all the soil beneath waters affected by the tide — were anything less than an accurate description of the governing law.

B

Petitioners, in a related argument, contend that even if the common law does not support their position, subsequent cases from this Court developing the American public trust doctrine make it clear that navigability — and not tidal influence — has become the sine qua non of the public trust interest in tidelands in this country.

It is true that The Genesee Chief, supra, at 456-457, overruled prior cases of this Court which had limited admiralty jurisdiction to waters subject to tidal influence. Cf. The Thomas Jefferson, 10 Wheat. 428, 429 (1825). The Court did sharply criticize the “ebb and flow” measure of admiralty inherited from England in The Genesee Chief, and instead insisted quite emphatically that the different topography of America — in particular, our “thousands of miles of public navigable water[s] ... in which there is no tide” — required that “jurisdiction [be] made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide.” 12 How., at 457. Later, it came to be recognized as the “settled law of this country” that the lands under navigable freshwater lakes and rivers were within the public trust given the new States upon their entry into the Union, subject to the federal navigation easement and the power of Congress to control navigation on those streams under the Commerce Clause. Barney v. Keokuk, 94 U. S. 324, 338 (1877). See also Illinois Central R. Co. v. Illinois, supra, at 435-436.

That States own freshwater river bottoms as far as the rivers are navigable, however, does not indicate that navigability is or was the prevailing test for state dominion over tidelands. Rather, this rule represents the American decision to depart from what it understood to be the English rule limiting Crown ownership to the soil under tidal waters. In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 374 (1977), after recognizing the accepted doctrine that States coming into the Union had title to all lands under the tidewaters, the Court stated that Barney v. Keokuk, supra, had “extended the doctrine to waters which were nontidal but nevertheless navigable, consistent with [the Court’s] earlier extension of admiralty jurisdiction.”

This Court’s decisions in The Genesee Chief and Barney v. Keokuk extended admiralty jurisdiction and public trust doctrine to navigable freshwaters and the lands beneath them. But we do not read those cases as simultaneously withdrawing from public trust coverage those lands which had been consistently recognized in this Court’s cases as being within that doctrine’s scope: all lands beneath waters influenced by the ebb and flow of the tide. See Mann v. Tacoma Land Co., 153 U. S. 273 (1894).

C

Finally, we observe that not the least of the difficulties with petitioners’ position is their concession that the States own the tidelands bordering the oceans, bays, and estuaries — even where these areas by no means could be considered navigable, as is always the case near the shore. Tr. of Oral Arg. 6. It is obvious that these waters are part of the sea, and the lands beneath them are state property; ultimately, though, the only proof of this fact can be that the waters are influenced by the ebb and flow of the tide. This is undoubtedly why the ebb-and-flow test has been the measure of public ownership of tidelands for so long.

Admittedly, there is a difference in degree between the waters in this case, and nonnavigable waters on the seashore that are affected by the tide. But there is no difference in kind. For in the end, all tidewaters are connected to the sea: the waters in this case, for example, by a navigable, tidal river. Perhaps the lands at issue here differ in some ways from tidelands directly adjacent to the sea; nonetheless, they still share those “geographical, chemical and environmental” qualities that make lands beneath tidal waters unique. Cf. Kaiser Aetna v. United States, 444 U. S. 164, 183 (1979) (Blackmun, J., dissenting).

Indeed, we find the various alternatives for delineating the boundaries of public trust tidelands offered by petitioners and their supporting amici to be unpersuasive and unsatisfactory. As the State suggested at argument, see Tr. of Oral Arg. 22-23, and as recognized on several previous occasions, the ebb-and-flow rule has the benefit of “uniformity and certainty, and . . . eas[e] of application.” See, e. g., Cobb v. Davenport, 32 N. J. L. 369, 379 (1867). We are unwilling, after its lengthy history at common law, in this Court, and in many state courts, to abandon the ebb-and-flow rule now, and seek to fashion a new test to govern the limits of public trust tidelands. Consequently, we hold that the lands at issue in this case were within those given to Mississippi when the State was admitted to the Union.

IV

Petitioners in passing, and amici in somewhat greater detail, complain that the Mississippi Supreme Court’s decision is “inequitable” and would upset “various . . . kinds of property expectations and interests [which] have matured since Mississippi joined the Union in 1817.” They claim that they have developed reasonable expectations based on their record title for these lands, and that they (and their predecessors-in-interest) have paid taxes on these lands for more than a century.

We have recognized the importance of honoring reasonable expectations in property interests. Cf. Kaiser Aetna v. United States, supra, at 175. But such expectations can only be of consequence where they are “reasonable” ones. Here, Mississippi law appears to have consistently held that the public trust in lands under water includes “title to all the land under tidewater.” Rouse v. Saucier’s Heirs, 166 Miss. 704, 713, 146 So. 291, 291-292 (1933). Although the Mississippi Supreme Court acknowledged that this case may be the first where it faced the question of the public trust interest in nonnavigable tidelands, 491 So. 2d, at 516, the clear and unequivocal statements in its earlier opinions should have been ample indication of the State’s claim to tidelands. Moreover, cases which have discussed the State’s public trust interest in these lands have described uses of them not related to navigability, such as bathing, swimming, recreation, fishing, and mineral development. See, e. g., Treuting v. Bridge and Park Comm’n of City of Biloxi, 199 So. 2d 627, 632-633 (Miss. 1967). These statements, too, should have made clear that the State’s claims were not limited to lands under navigable waterways. Any contrary expectations cannot be considered reasonable.

We are skeptical of the suggestions by the dissent, post, at 485, 493, that a decision affirming the judgment below will have sweeping implications, either within Mississippi or outside that State. The State points out that only one other case is pending in its courts which raises this same issue. Tr. of Oral Arg. 19. And as for the effect of our decision today in other States, we are doubtful that this ruling will do more than confirm the prevailing understanding — which in some States is the same as Mississippi’s, and in others, is quite different. As this Court wrote in Shively v. Bowlby, 152 U. S., at 26, “there is no universal and uniform law upon the subject; but. . . each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy.”

Consequently, our ruling today will not upset titles in all coastal States, as petitioners intimated at argument. Tr. of Oral Arg. 32. As we have discussed supra, at 475, many coastal States, as a matter of state law, granted all or a portion of their tidelands to adjacent upland property owners long ago. Our decision today does nothing to change ownership rights in States which previously relinquished a public trust claim to tidelands such as those at issue here.

Indeed, we believe that it would be far more upsetting to settled expectations to reverse the Mississippi Supreme Court decision. As amici note, see, e. g., Brief for State of California et al. as Amici Curiae 19, many land titles have been adjudicated based on the ebb-and-flow rule for tidelands —we cannot know how many titles would have to be adjusted if the scope of the public trust was now found to be limited to lands beneath navigable tidal waters only. If States do not own lands under nonnavigable tidal waters, many state land grants based on our earlier decisions might now be invalid. Cf. Hardin v. Jordan, 140 U. S., at 381-382. Finally, even where States have given dominion over tidelands to private property owners, some States have retained for the general public the right to fish, hunt, or bathe on these lands. See n. 12, supra. These long-established rights may be lost with respect to nonnavigable tidal waters if we adopt the rule urged by petitioners.

The fact that petitioners have long been the record title holders, or long paid taxes on these lands does not change the outcome here. How such facts would transfer ownership of these lands from the State to petitioners is a question of state law. Here, the Mississippi Supreme Court held that under Mississippi law, the State’s ownership of these lands could not be lost via adverse possession, laches, or any other equitable doctrine. 491 So. 2d, at 521. See Miss. Const., Art. 4, § 104; Gibson v. State Land Comm’r, 374 So. 2d 212, 216-217 (1979); City of Bay St. Louis v. Board of Supervisors of Hancock County, 80 Miss. 364, 371-372, 32 So. 54 (1902). We see no reason to disturb the “general proposition [that] the law of real property is, under our Constitution, left to the individual States to develop and administer.” Hughes v. Washington, 389 U. S. 290, 295 (1967) (Stewart, J., concurring). See Davies Warehouse Co. v. Bowles, 321 U. S. 144, 155 (1944); Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 22 (1935). Consequently, we do not believe that the equitable considerations petitioners advance divest the State of its ownership in the disputed tidelands.

V

Because we believe that our cases firmly establish that the States, upon entering the Union, were given ownership over all lands beneath waters subject to the tide’s influence, we affirm the Mississippi Supreme Court’s determination that the lands at issue here became property of the State upon its admission to the Union in 1817. Furthermore, because we find no reason to set aside that court’s state-law determination that subsequent developments did not divest the State of its ownership of these public trust lands, the judgment below is

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

Justice O’Connor,

with whom Justice Stevens and Justice Scalia join, dissenting.

Breaking a chain of title that reaches back more than 150 years, the Court today announces a rule that will disrupt the settled expectations of landowners not only in Mississippi but in every coastal State. Neither our precedents nor equitable principles require this result, and I respectfully dissent from this undoing of settled history.

I — I

As the Court acknowledges, ante, at 478, this case presents an issue that we never have decided: whether a State holds in public trust all land underlying tidally influenced waters that are neither navigable themselves nor part of any navigable body of water. In holding that it does, the majority relies on general language in opinions that recognized state claims to land underlying tidewaters. But those cases concerned land lying beneath waters that were in fact navigable, e. g., Shively v. Bowlby, 152 U. S. 1 (1894) (Columbia River in Oregon), or beneath waters that were part of or immediately bordering a navigable body of water, e. g., Mann v. Tacoma Land Co., 153 U. S. 273 (1894) (shallow tidelands in Commencement Bay in Washington). Until today, none of our decisions recognized a State’s public trust title to land underlying a discrete and wholly nonnavigable body of water that is properly viewed as separate from any navigable body of water.

In my view, the public trust properly extends only to land underlying navigable bodies of water and their borders, bays, and inlets. This Court has defined the public trust repeatedly in terms of navigability. E. g., Utah Div. of State Lands v. United States, 482 U. S. 193 (1987); Montana v. United States, 450 U. S. 544, 551 (1981); Utah v. United States, 403 U. S. 9, 10 (1971); United States v. Oregon, 295 U. S. 1, 14 (1935); United States v. Utah, 283 U. S. 64, 75 (1931); United States v. Holt State Bank, 270 U. S. 49, 54-55 (1926); Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 84-85 (1922); Oklahoma v. Texas, 258 U. S. 574, 583 (1922); Pollard’s Lessee v. Hagan, 3 How. 212, 230 (1845). It is true that these cases did not involve waters subject to the ebb and flow of the tide. But there is no reason to think that different tests of the scope of the public trust apply to saltwater and to freshwater. Navigability, not tidal influence, ought to be acknowledged as the universal hallmark of the public trust.

The public trust doctrine has its roots in English common law. Traditionally, all navigable waterways in England were by law common highways for the public. M. Hale, De Jure Maris et Brachiorum ejusdem, cap. iii (1667), reprinted in R. Hall, Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, App. v (2d ed. 1875). Furthermore, the King held title to the soil beneath the sea and the arms of the sea, “where the sea flows and reflows.” Hale, cap. iv, reprinted in Hall, supra, at App. vii, ix. When the first American States became sovereign after our Revolution, their governments succeeded to the King’s rights with respect to waters within their borders. Martin v. Waddell, 16 Pet. 367, 410 (1842). New States like Mississippi, upon entering the Union, acquired equivalent rights under the equal-footing doctrine. Pollard’s Lessee v. Hagan, supra, at 228-229. Hence both petitioners and respondents have made an effort to ascertain the extent of the King’s rights under English common law.

Unfortunately, English cases of the late 18th and early 19th centuries did not directly address whether the King held title to lands underlying tidally influenced, nonnavigable waters. Certainly the public’s right of navigation was limited to waterways that were navigable in fact, and did not extend to every waterway subject to the ebb and flow of the tide. As Lord Mansfield explained:

“How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make it so, for there are many places into which the tide flows that are not navigable rivers; and the place in question may be a creek in their own private estate.” Mayor of Lynn v. Turner, 1 Cowp. 86, 98 Eng. Rep. 980, 981 (K. B. 1774).

This principle of British law has proved enduring. See Rex v. Montague, 4 B. & C. 598, 602, 107 Eng. Rep. 1183, 1184 (K. B. 1825); S. Hobday, Coulson & Forbes on the Law of Waters 100-101 (6th ed. 1952). It appears, however, that the King’s title to submerged land was not coextensive with the public’s right of navigation. Thus in Murphy v. Ryan, 2 Ir. R.-C. L. 143, 152 (1868), the court explained that the King did not hold title to the land underlying navigable waters, unless they were influenced by the tide. Accord, Earl of Ilchester v. Raishleigh, 61 L. T. R. (n. s.) 477, 479 (Ch. 1889); Hobday, supra, at 102. It may be that the King also did not hold title to land underlying tidally influenced waters, unless they were navigable. Certainly there are cases that describe the King’s proprietary rights as pertaining to land underneath navigable water. Rex v. Smith, 2 Dougl. 441, 446, 99 Eng. Rep. 283, 285 (K. B. 1780); Lord Advocate for Scotland v. Hamilton, 1 Macq. 46, 49 (H. L. 1852); Le Roy v. Trinity House, 1 Sid. 86, 82 Eng. Rep. 986 (K. B. 1662). This strongly suggests that English common law did not authorize the claims that Mississippi makes in this case.

American cases have developed the public trust doctrine in a way that is consistent with its common-law heritage. Our precedents explain that the public trust extends to navigable waterways because its fundamental purpose is to preserve them for common use for transportation.

“It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon [navigable waterways], and consequently to the exclusion of private ownership, either of the waters or the soils under them.” Packer v. Bird, 137 U. S. 661, 667 (1891).

Similarly, the Court has emphasized that the public trust doctrine “is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment.” Illinois Central R. Co. v. Illinois, 146 U. S. 387, 436 (1892).

Although the States may commit public trust waterways to uses other than transportation, such as fishing or land reclamation, this exercise of sovereign discretion does not enlarge the scope of the public trust. Even the majority does not claim that the public trust extends to every waterway that can be used for fishing or for land reclamation. Nor does the majority explain why its tidal test is superior to a navigability test for the purpose of identifying waterways that are suited to these other uses.

Because the fundamental purpose of the public trust is to protect commerce, the scope of the public trust should parallel the scope of federal admiralty jurisdiction. This Court long ago abandoned the tidal test in favor of the navigability test for defining federal admiralty jurisdiction, describing the ebb and flow test as “purely artificial and arbitrary as well as unjust.” The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457 (1852). The Court recognized that whether waters are influenced by the tide is irrelevant to the purposes of admiralty jurisdiction, which are to facilitate commerce in times of peace and to administer the special rules of war. Id., at 454. Subsequent admiralty cases confirm that “the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters.” The Daniel Ball, 10 Wall. 557, 563 (1871).

Having defined admiralty jurisdiction in terms of navigability, the Court applied the same reasoning to the problem of defining the public trust. The Court explained that “the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience.” Barney v. Keokuk, 94 U. S. 324, 338 (1877). And it sweepingly concluded that the tidal test “had no place in American jurisprudence since the decision in the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. 443.” McGilvra v. Ross, 215 U. S. 70, 78 (1909). These cases defined the public trust in the context of inland waterways. But the same reasoning applies to waterways influenced by the tide. Navigability, not tidal influence, characterizes the waterways that are suited to the purposes of the public trust.

Congress also has evidenced its belief that the States’ public trusts are limited to lands underlying navigable waters. In 1953, Congress passed the Submerged Lands Act, 43 U. S. C. §§ 1301-1315. Congress intended to confirm the States’ existing rights to lands beneath navigable waters. S. Rep. No. 133, 83d Cong., 1st Sess., pt. 1, p. 8 (1953); H. R. Rep. No. 1778, 80th Cong., 2d Sess., p. 3 (1948); Bonelli Cattle Co. v. Arizona, 414 U. S. 313, 324 (1973). The Act defines “lands beneath navigable waters” as including lands “covered by tidal waters.” 43 U. S. C. § 1301(a)(2). If tidal waters included discrete bodies of non-navigable water, this definition would be self-contradictory. Thus it appears that Congress understood “tidal waters” as referring to the boundaries of the navigable ocean. As Senator Cordon explained, “lands beneath navigable waters” identifies lands “as being under nontidal waters in the upper areas or being in tidal waters and — and I want this emphasized — outside inland waters.” 99 Cong. Rec. 2632 (1953). Although the Submerged Lands Act is not at issue in this case, it is evidence of Congress’ interpretation of the public trust doctrine, and that interpretation is entitled to consideration.

In sum, the purpose of the public trust, the analogy to federal admiralty jurisdiction, and the legislative history of the Submerged Lands Act all indicate that the States hold title only to lands underlying navigable waters. The term “navigable waters” is not self-defining, however. It must be construed with reference to cases in which this Court has described the boundaries of the public trust.

For public trust purposes, navigable bodies of water include the nonnavigable areas at their boundaries. The question whether a body of water is navigable is answered waterway by waterway, not inch by inch. The borders of the ocean, which certainly is navigable, extend to the mean high tide line as a matter of federal common law. United States v. Pacheco, 2 Wall. 587, 590 (1865); see Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 376 (1977). Hence the States’ public trusts include the ocean shore over which the tide ebbs and flows. This explains why there is language in our cases describing the public trust in terms of tidewaters: each of those cases concerned the shores of a navigable body of water. See, e. g., Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 16 (1935); United States v. Mission Rock Co., 189 U. S. 391, 404-405 (1903); Knight v. United States Land Assn., 142 U. S. 161, 183 (1891). This does not imply, however, that all tidally influenced waters are part of the sea any more than it implies that the Missouri River is part of the Gulf of Mexico.

The Court holds today that the public trust includes not only tidewaters along the ocean shore, but also discrete bodies of water that are influenced by the tide but far removed from the ocean or any navigable tidal water, such as the separate little streams and bayous at issue here. The majority doubts whether a satisfactory test could be devised for distinguishing between the two types of tidally influenced waters. Ante, at 481. It therefore adopts a test that will include in the public trust every body of water that is interconnected to the ocean, even indirectly, no matter how remote it is from navigable water. This is wholly inconsistent with the federal law that identifies what inland freshwaters belong to the public trust. For example, if part of a freshwater river is navigable in fact, it does not follow that all contiguous parts of the river belong to the public trust, no matter how distant they are from the navigable part. Conversely, federal law does not exclude from the public trust all nonnavigable portions of a navigable river, such as shallow areas near the banks.

“The question here is not with respect to a short interruption of navigability in a stream otherwise navigable, or of a negligible part, which boats may use, of a stream otherwise non-navigable. We are concerned with long reaches with particular characteristics of navigability or non-navigability . . . .” United States v. Utah, 283 U. S., at 77 (footnote omitted).

See Oklahoma v. Texas, 258 U. S. 574 (1922) (applying the navigability test to identify what parts of the Red and Arkansas Rivers belong to the public trust). To decide whether the tidewaters at issue in this case belong to the public trust, the Court should apply the same fact-specific navigability test that it applies to inland waters. It should distinguish between navigable bodies of water and connected, but discrete, bodies of tidally influenced water. To this end, Justice Field once applied the headland to headland test, a “universal rule governing the measurement of waters,” and drew a boundary dividing the navigable waters of San Francisco Bay from the tidally influenced waters of Mission Creek. Knight v. United States Land Assn., supra, at 207 (concurring opinion). Only waterways that are part of a navigable body of water belong to the public trust.

I — Í

The controversy in this case concerns more than cold legal doctrine. The particular facts of this case, to which the Court’s opinion gives short shrift, illustrate how unfortunate it is for the Court to recognize a claim that appears belated and opportunistic.

Mississippi showed no interest in the disputed land from the time it became a State until the 1970’s. Petitioners, or prior titleholders, recorded deeds on the land and paid property taxes throughout this period. App. to Pet. for Cert. 41a. In 1973, Mississippi passed the Coastal Wetlands Protection Law. Miss. Code Ann. §§49-27-1 to 49-27-69 (Supp. 1987). This statute directed the Mississippi Marine Resources Council to prepare maps identifying state-owned wetlands. The maps, drawn from aerial photographs, were intended to show the probable scope of state-owned wetlands in order to aid state agencies in planning to protect them. § 49-27-65. But the Mineral Lease Commission decided to use the maps as a basis for issuing oil and gas leases on what appeared to be state-owned lands. The Commission leased 600 acres to respondent Saga Petroleum U. S., Inc.

Petitioners, holders of record title, filed a complaint in Chancery Court to quiet title to the 600 contested acres and an additional 1,800 acres in the area. The Chancery Court decided that the public trust included lands underlying all tidally influenced waters. Even under this test, only 140.863 acres of the land belonged to the State of Mississippi. On appeal, the Supreme Court of Mississippi reduced Mississippi’s claim by another 98 acres to account for land underlying two artificial lakes. The land now claimed by Mississippi consists of slightly more than 42 acres underlying the north branch of Bayou LaCroix and 11 small drainage streams.

These waterways are not used for commercial navigation. None of the drainage streams is more than a mile long; all are nameless. Mississippi is not pressing its claim for the sake of facilitating commerce, or even to protect the public’s interest in fishing or other traditional uses of the public trust. Instead, it is leasing the land to a private party for exploitation of underlying minerals. Mississippi’s novel undertaking has caused it to press for a radical expansion of the historical limits of the public trust.

The Court’s decision today could dispossess thousands of blameless record owners and leaseholders of land that they and their predecessors in interest reasonably believed was lawfully theirs. The Court concludes that a decision favoring petitioners would be even more disruptive, because titles may have been adjudicated on the assumption that a tidal test defines the public trust. Ante, at 483. There is no way to ascertain, as a general matter, what assumptions about the public trust underlie existing property titles. What evidence there is suggests that the majority’s rule is the one that will upset settled expectations. For example, the State of New Jersey has decided to apply the Court’s test. It now claims for its public trust all land underlying nonnavigable tidal waters, and all land that has been under tidal waters at any time since the American Revolution.

“Due to this attempted expansion of the [public trust] doctrine, hundreds of properties in New Jersey have been taken and used for state purposes without compensating the record owners or lien holders; prior homeowners of many years are being threatened with loss of title; prior grants and state deeds are being ignored; properties are being arbitrarily claimed and conveyed by the State to persons other than the record owners; and hundreds of cases remain pending and untried before the state courts awaiting processing with the National Resource Council.” Porro & Teleky, Marshland Title Dilemma: A Tidal Phenomenon, 3 Seton Hall L. Rev. 323, 325-326 (1972) (footnotes omitted).

See also Brief for the City of Elizabeth, New Jersey, et al. as Amici Curiae 17-20 (confirming that these problems have not abated). The Court’s decision today endorses and encourages such action in other States.

Although there is no way to predict exactly how much land will be affected by the Court’s decision, the magnitude of the problem is suggested by the fact that more than 9 million acres have been classified as fresh or saline coastal wetlands. S. Shaw & C. Fredine, Wetlands of the United States, United States Department of the Interior, Fish & Wildlife Service, Circular 39, p. 15 (1956). The Federal Government conveyed these lands to the States, which have conveyed many of them to individuals. To the extent that the conveyances to private parties purported to include public trust lands, the States may strike them down, if state law permits. Illinois Central R. Co. v. Illinois, 146 U. S., at 452-454; see Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339, 342-343 (Fla. 1986), cert. denied sub nom. Mobil Oil Corp. v. Board of Trustees of Internal Improvement Trust Fund of Fla., 479 U. S. 1065 (1987); Brief for American Land Title Association as Amicus Curiae 2-3. The Court’s broad definition of public trust lands will increase the amount of land that is vulnerable to such challenges.

The Court’s suggestion, ante, at 484, that state law might honor the equitable considerations that support individual claims to public trust lands, is not persuasive. Certainly the Mississippi Supreme Court’s decision in this case attached little weight to petitioners’ equitable claims. Although Mississippi collected taxes on the land and made no mention of its claim for over 150 years, the Mississippi Supreme Court held that Mississippi was not estopped from dispossessing petitioners. Cinque Bambini Partnership v. State, 491 So. 2d 508, 521 (1986). The stakes are high when the land lies over valuable oil, gas, or mineral deposits.

The Court’s decision departs from our precedents, and I fear that it may permit grave injustice to be done to innocent property holders in coastal States. I dissent.

       The Chancery Court had held that 140 acres of the lands claimed by petitioners were public trust lands. The Mississippi Supreme Court reversed with respect to 98 of these 140 acres, finding that these tracts were artificially created tidelands (caused by road construction), and therefore were not part of the public trust created in 1817. Since these lands were neither tidelands in 1817, nor were they added to the tidelands by virtue of natural forces of accretion, they belonged to their record titleholders. 491 So. 2d, at 520.
      Because the State did not cross-petition, this portion of the Mississippi Supreme Court’s decision is not before us. The only issue presented here is title to the 42 acres which the Mississippi Supreme Court found to be public trust lands.

         E. g., Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 15 (1935); Appleby v. City of New York, 271 U. S. 364, 381 (1926); Illinois Central R. Co. v. Illinois, 146 U. S. 387, 435 (1892); Hardin v. Jordan, 140 U. S. 371, 381 (1891); McCready v. Virginia, 94 U. S. 391, 394 (1877); Weber v. Harbor Comm’rs, 18 Wall. 57, 65 (1873); Goodtitle v. Kibbe, 9 How. 471, 477-478 (1850).

       See, e. g., Wright v. Seymour, 69 Cal. 122, 123-127, 10 P. 323, 324-326 (1886), which held that the State of California owned the bottom of the Russian River as far as the tide affected it, even where the River was not navigable in fact.
      Earlier, the Connecticut Supreme Court had held that the tidal flats adjoining an arm of the sea were in public ownership. Simons v. French, 25 Conn. 346, 352-353 (1856). The South Carolina Supreme Court reached a similar conclusion concerning “salt marshes.” State v. Pinckney, 22 S. C. 484, 507-509 (1885). Both of these cases, and many others like them, recognize state dominion over lands beneath nonnavigable tidal waters.

       See, e. g., Rowe v. Granite Bridge Corp., 38 Mass. 344, 347 (1838); Commonwealth v. Charlestown, 18 Mass. 180, 185-186 (1822). Massachusetts abrogated the common law for tidelands in 1641. See Shively v. Bowlby, 152 U. S. 1, 18-19 (1894); Storer v. Freeman, 6 Mass. 435, 437-439 (1810).
      Petitioners also rely quite heavily on two Connecticut cases, Groton v. Hurlburt, 22 Conn. 178, 185 (1852), and Wethersfield v. Humphrey, 20 Conn. 218, 227 (1850). See Brief for Petitioners 27. However, we think these cases are inapposite. Groton merely held that the erection of a highway over a tidally influenced, but not commercially navigable, creek did not offend federal control over navigable waterways (and did not require a special grant of power under state law). 22 Conn., at 185-189. The decision’s interest in the navigability of the creek, therefore, is unremarkable. Moreover, the Groton decision noted that construction of the highway put the lands to a publicly beneficial use, and that any navigation of the creek (by small boats or skiffs) was not impaired by the construction. Id., at 187-189. The decision in Wethersfield involved similar considerations. 20 Conn., at 227.

       These cases lead us to reject the dissent’s assertion that “the fundamental purpose of the public trust is to protect commerce,” post, at 488.

       We reject petitioners’ contention that our cases concerning “tidelands” are not applicable here because the term “tidelands” includes only shore-lands or those lands beneath tidal waters which are immediately adjacent to the sea. Reply Brief for Petitioners 14-17. We find no basis for petitioners’ restriction of this term from its more common meaning, i. e., that “tidelands” are lands “over which the tide ebbs and flows . . . land as is affected by the tide.” Black’s Law Dictionary 1329 (5th ed. 1979).
      Furthermore, we note that this Court previously rejected a similar contention almost a century ago. See Mann v. Tacoma Land Co., 153 U. S. 273, 278, 283 (1894).

       See Brief for Petitioners 19-22 (citing, e. g., Mayor of Lynn v. Turner, 1 Cowp. 86, 98 Eng. Rep. 980, 981 (K. B. 1774); M. Hale, De Jure Maris et Brachiorum ejusdem, cap. iii (1667), reprinted in R. Hall, Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, App. v (2d ed. 1875).
      As we note in the text, infra, at 478, we do not intend to get involved in the historical debate over what the English common law was with respect to nonnavigable tidal streams, if any such law existed — our concern is with how that law was understood and applied by this Court in its eases.

        Mann appears to be the only previous case from this Court concerning lands beneath nonnavigable, tidal waters. In Mann, the lands at issue were “tide-flats” or “mud flats” located about one mile from the shore of Commencement Bay “covered to a uniform depth of from two to four feet (according to the run of the tides) at high water, and . . . entirely bare at low water.” See Appellant’s Motion to Advance in Mann v. Tacoma Land Co., O. T. 1893, No. 375, pp. 1-2.
      Appellant contended in Mann, much as petitioners argue here, that while the ebb-and-flow test may have been the measure of sovereign ownership at English common law, “the [American] courts have, by the adoption of the rule of ‘navigability in fact’ as the test of ‘navigability in law,’ discarded the common law. . . [and held that w]here there is no navigation in fact, there is no State ownership by virtue of sovereignty.” Supplementary Brief for Appellant 41. See also Mann, 153 U. S., at 277-279. Appellee, like respondents here, argued that cases such as Barney v. Keokuk extended the public trust doctrine to cover navigable-in-fact freshwaters, without reducing the scope of the public trust in tidelands. Brief for Appellee 2-4.
      The Court, without commenting on the fact that the lands in question were beneath nonnavigable tidal waters, held the lands to be within the public trust, and within the scope of its earlier decision in Shively. Mann, supra, at 283. Thus, the Court implicitly rejected the argument being advanced by petitioners here: that navigability in fact determined the scope of public trust tidelands.

       See, e. g., Tr. of Oral Arg. 6-7; Brief for American Land Title Association as Amicus Curiae 6-7, and n. 4.

       Brief for Petitioners 37. See also Tr. of Oral Arg. 31-32; Brief for City of Elizabeth, New Jersey, et al. as Amici Curiae 17-20; Brief for American Land Title Association as Amicus Curiae 1-3.

       See also State ex rel. Rice v. Stewart, 184 Miss. 202, 230, 184 So. 44, 49 (1938); Martin v. O’Brien, 34 Miss. 21, 36 (1857).

       See, e. g., Bradford v. The Nature Conservancy, 224 Va. 181, 195-198 (1982); Tinicum Fishing Co. v. Carter, 61 Pa. 21, 30-31 (1869); Bickel v. Polk, 5 Del. 325, 326 (1851); Storer v. Freeman, 6 Mass., at 437-439.
      It is worth noting, however, that even in some of these States— i. e., even where tidelands are privately held — public rights to use the tidelands for the purposes of fishing, hunting, bathing, etc., have long been recognized. See, e. g., Bradford, supra, at 191, 197; Bickel, supra, at 326. Limiting the public trust doctrine to only tidelands under navigable waters might well result in a loss to the public of some of these traditional privileges.


author: Justice White

text:
    ETSI PIPELINE PROJECT v. MISSOURI et al.
    No. 86-939.
    Argued November 3, 1987
    Decided February 23, 1988

      White, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case.

      Jeffrey P. Minear argued the cause for petitioners in both cases. With him on the brief for petitioners in No. 86-941 were Solicitor General Fried, Acting Assistant Attorney General Flint, Deputy Solicitor General Wallace, Fred R. Disheroon, and Ralph W. Tarr. James A. Hourihan, Walter A. Smith, Jr., and Mary Anne Sullivan filed briefs for petitioner in No. 86-939.

      Elizabeth M. Osenbaugh, Deputy Attorney General of Iowa, argued the cause for respondents in both cases. With her on the brief for respondents State of Missouri et al. were Thomas J. Miller, Attorney General of Iowa, Eliza Ovrom, Assistant Attorney General, William L. Webster, Attorney General of Missouri, Curtis F. Thompson, Assistant Attorney General, Robert M. Spire, Attorney General of Nebraska, and Le Roy W. Sievers, Assistant Attorney General. Stephen E. Roady, Ronald J. Wilson, and William E. Walters III filed a brief for respondents Kansas City Southern Railway Co. et al.

      Together with No. 86-941, Hodel, Secretary of the Interior, et al. v. Missouri et al., also on certiorari to the same court.

         Roger A. Tellinghuisen, Attorney General of South Dakota, Charles J. Meyers, Joseph B. Meyer, Attorney General of Wyoming, Michael T. Greely, Attorney General of Montana, and Nicholas J. Spaeth, Attorney General of North Dakota, filed a brief for the State of Montana et al. as amici curiae urging reversal.

   Justice White

delivered the opinion of the Court.

We must decide whether in the circumstances of this case the Secretary of the Interior has exceeded the authority Congress delegated to him by the Flood Control Act of 1944.

I

The dispute centers on Lake Oahe, an enormous reservoir located on the Missouri River in South Dakota, with a capacity of more than 23 million acre-feet of water. In 1982, ETSI Pipeline Project entered into a contract with the Secretary of the Interior to withdraw up to 20,000 acre-feet of water from Lake Oahe per year for 40 years. South Dakota already had granted ETSI a state permit to use this water in a coal slurry pipeline that would transport coal from Wyoming to the southeastern United States. Soon after the contract was signed, the States of Missouri, Iowa, and Nebraska brought suit in District Court to enjoin performance of the contract, alleging that the manner in which the contract was approved violated several federal statutes. In particular, the plaintiffs contended that the Interior Secretary lacks statutory authority under the Flood Control Act of 1944 (Act), 58 Stat. 887, to execute a contract to provide water from Lake Oahe for industrial uses without obtaining the approval of the Secretary of the Army.

The District Court ruled for the plaintiffs. Missouri v. Andrews, 586 F. Supp. 1268 (Neb. 1984). It concluded that the Oahe Dam was not a reclamation or power development that was undertaken by the Interior Secretary, pursuant to clear statutory authority. Instead, the dam was built by the Corps of Engineers, now part of the Department of the Army (formerly the Department of War, but renamed by Act of July 26,1947, 61 Stat. 495), which has always maintained and operated the reservoir. No block of water in Lake Oahe has been specifically set aside for use by the Interior Department, and the Interior Secretary has not constructed any works at Lake Oahe. On these facts, the District Court held that the Act does not empower the Interior Secretary to furnish water from Lake Oahe for industrial use.

The Court of Appeals affirmed, with one judge dissenting. Missouri v. Andrews, 787 F. 2d 270 (CA8 1986). It upheld the District Court’s conclusion that Lake Oahe is not a reclamation development undertaken by the Interior Secretary, primarily because the Army built the reservoir and controls its operation. Accordingly, the Interior Secretary cannot contract on his own to withdraw water from the reservoir for industrial use. Neither the language nor the legislative history of the Act was thought to support the claim that the Interior Secretary was ceded broad authority over water in this reservoir, even water that it claims has been designated as available for future irrigation purposes. Indeed, the language of the Act and its legislative history were found to be convincing enough on this point that the Court of Appeals refused to defer to the Interior Secretary’s contrary interpretation.

The Court of Appeals denied a petition for rehearing en banc by an equally divided vote of the judges. We granted certiorari, 480 U. S. 905 (1987), and we now affirm.

II

A

The Missouri River Basin is a watershed that covers a vast area in the midwestern United States. The topography of this area, however, reveals two distinct regions that experience very different water problems. The upper part of the Basin, which includes large sections of Montana, Wyoming, North Dakota, and South Dakota, is mostly arid or semiarid; there, the Missouri River and its tributaries are important because they represent a major resource for developing the agricultural and industrial potential of the area. The lower part of the Basin, which includes territory in Nebraska, Kansas, Iowa, and Missouri, is more humid, and there the rivers are used chiefly for navigation, though the critical problem in this region is to control flooding. See generally M. Ridge-way, The Missouri Basin’s Pick-Sloan Plan 47-55 (1955). In the early 1940’s, Congress focused its attention on the water problems of the Missouri River Basin, prompted especially by severe floods that had devastated the lower Basin in 1943 and 1944.

At the behest of Congress, the Army Corps of Engineers prepared a report that described a comprehensive plan to develop the entire Basin, known as the Pick Plan for its author, a colonel in the Corps. The Pick Plan proposed the construction of 12 multiple-purpose reservoirs and related works, including 5 reservoirs on the main stem of the Missouri River, at an approximate initial cost of $480 million, though it was estimated that to carry out the entire proposal might cost close to $1 billion. The Pick Plan stressed flood control as its primary objective, but noted that its comprehensive list of projects “would also provide for the most efficient utilization of the waters of the Missouri River Basin for all purposes, including irrigation, navigation, power, domestic and sanitary purposes, wildlife, and recreation,” as well as other intangible benefits. H. R. Doc. No. 475, 78th Cong., 2d Sess., 29 (1944) (H. R. Doc.). The report estimated the gross storage capacity of the Oahe Reservoir at about 6 million acre-feet of water.

At almost the same time, the Interior Department’s Bureau of Reclamation independently completed its own plan to develop the Basin, which it had begun earlier, known as the Sloan Plan after the Montana engineer who prepared much of its analysis. The Sloan Plan proposed a total of 90 reservoirs, many of them on the smaller tributary streams, and included 3 reservoirs on the main stem of the Missouri River, at a projected cost of $1.2 billion, with much of that figure to be repayable. The Sloan Plan was also a comprehensive proposal, though it emphasized use of the water for irrigating land, especially in the upper part of the Basin. It estimated that the Oahe Reservoir would hold 19,600,000 acre-feet of water. The Sloan Plan also contained a section comparing its provisions to those in the Pick Plan and suggesting modifications to the Pick Plan “which appear necessary to satisfy water-use requirements throughout the Missouri River Basin.” S. Doc. No. 191, 78th Cong., 2d Sess., 120 (1944) (S. Doc.). This section concluded that though “the capacity of individual reservoirs, as well as aggregate capacities, remain to be determined in greater detail,” the “Army and Reclamation plans on storage needs for all purposes can be composed.” Id., at 122-123.

The Pick and Sloan Plans differed with one another not only in their primary objectives, but also in several other important respects, such as the amount of expenditures and the number of projects. The engineering features of the two plans also were dissimilar. On the main stem of the Missouri River, the two plans called for different numbers of reservoirs of divergent sizes, and thus for inconsistent amounts of total water storage. Even where the two plans agreed on the need for a particular reservoir at a particular location, which they did at Oahe and at Fort Randall, they envisioned those projects very differently; as noted above, for example, the Sloan Plan proposed that Lake Oahe would hold more than three times as much water as called for in the Pick Plan, at an additional cost of more than $20 million.

Obviously Congress could not proceed with both plans at once. In order to arrive at a single set of projects for development of the Basin, a Committee composed of two representatives each from the Corps of Engineers and the Bureau of Reclamation was appointed to review the engineering features of the two plans. This Committee essentially combined the determinations made by the Corps about the projects that would be needed for flood control and navigation and the determinations made by the Bureau about the additional projects that would be needed for irrigation. After meeting for two days, the Committee produced an engineering report that recommended most of the specific developments that had been set out in the Sloan Plan, but provided for six main-stem reservoirs on the Missouri River. The Oahe Reservoir was to be created by construction of a high dam and to have a gross storage capacity of 19 million acre-feet of water. The stated purposes of Lake Oahe were to allow “the irrigation of 750,000 acres of land in the James River Basin as well as to provide useful storage for flood control, navigation, the development of hydroelectric power, and other purposes.” S. Doc. No. 247, 78th Cong., 2d Sess., 3 (1944). As had been proposed in the Sloan Plan, the irrigation of the James River Basin was to be made possible by construction of a system of long canals, including one canal approximately 125 miles long. See S. Doc., at 115-116. With a single set of projects before it at last, Congress enacted the Flood Control Act of 1944 less than two months later.

B

In the Act, Congress accomplished three distinct tasks. First, it authorized certain specific projects to be undertaken by approving the “general comprehensive plans set forth in [the Pick and Sloan Plans] as revised and coordinated by Senate Document 247.” §9(a), 58 Stat. 891. It directed that “the initial stages recommended are hereby authorized and shall be prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements.” Ibid. Second, Congress appropriated funds to pay for the initial work done on those projects. Two separate allotments were authorized: $200 million “for the partial accomplishment of the works to be undertaken under said expanded plan by the Corps of Engineers,” § 9(d), and another $200 million “for the partial accomplishment of the works to be undertaken under said plans by the Secretary of the Interior.” § 9(e).

Third, Congress adopted an administrative framework within which these projects were to go forward. This task involved several areas of potential controversy. The Act evoked federalism concerns because the States were anxious to keep control over the development of their lands and the use of valuable water resources. In response, Congress declared a policy of “recognizing] the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control.” §1, as set forth in 33 U. S. C. § 701-1 (1952 ed.). The Act also implicated the tensions between the Upper Basin States and the Lower Basin States, whose interests in the use and control of the water were markedly different. Congress addressed this problem by providing that when the Department of War undertook additional works not authorized by the Act it would be required to consult and share information with the affected States and the Secretary of the Interior, depending on whether the works were located west of the 97th and 98th meridians. §§ 1(a) and (b). All projects proposed by the Interior Secretary that would involve construction of “works for irrigation” were made subject to a similar requirement, without regard to geographical location. § 1(c).

Finally, and most directly relevant to this case, the Act required Congress to deal with the administrative jurisdictions of several agencies of the Federal Government. Among the interested agencies were not only the Departments of War and Interior, but also the Department of Agriculture and the Federal Power Commission, both of whom joined the Interior Department in submitting comments on the Pick Plan, and both of whose interests were also touched on by the Act. H. R. Doc., at 1-3, 10-13; Act, §§2, 5, 11-15, 58 Stat. 889, 890, 903-907. The crucial provisions here, however, were the sections that set forth the specific authority allotted to War and Interior, the two key Departments affected by the Act. In relevant part, those five central sections of the Act state as follows:

(1) “The Chief of Engineers, under the supervision of the Secretary of War, is authorized to construct, maintain, and operate public park and recreational facilities in reservoir areas under the control of the War Department, and to permit the construction, maintenance, and operation of such facilities. The Secretary of War is authorized to grant leases of lands, including structure or facilities thereon, in reservoir areas for such periods and upon such terms as he shall deem reasonable.” §4, 16 U. S. C. §460d (1946 ed.).

(2) “Electric power and energy generated at reservoir projects under the control of the War Department and in the opinion of the Secretary of War not required in the operation of such projects shall be delivered to the Secretary of the Interior, who shall transmit and dispose of such power and energy.” §5, 16 U. S. C. §825s (1946 ed.).

(3) “That the Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department.” §6, 33 U. S. C. §708 (1946 ed.).

(4) “Hereafter, it shall be the duty of the Secretary of War to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes, and the operation of any such project shall be in accordance with such regulations.” §7. See 33 U. S. C. §709 (1946 ed.).

(5) “Hereafter, whenever the Secretary of War determines, upon recommendation by the Secretary of the Interior that any dam or reservoir project operated under the direction of the Secretary of War may be utilized for irrigation purposes, the Secretary of the Interior is authorized to construct, operate, and maintain, under the provisions of [the Federal reclamation laws,]. . . such additional works in connection therewith as he may deem necessary for irrigation purposes. . . . Dams and reservoirs operated under the direction of the Secretary of War may be utilized hereafter for irrigation purposes only in conformity with the provisions of this section.” §8. See 43 U. S. C. §390 (1946 ed.).

Ill

A

In light of these specific provisions, as well as the general background to the Act, it is beyond question that the Interior Secretary does not possess the authority that is claimed in this case: to execute a contract to provide water from an Army reservoir for industrial uses without obtaining the approval of the Secretary of the Army. Nobody has disputed that Lake Oahe, one of the six main-stem reservoirs on the Missouri River, was constructed by, and has been operated and maintained by, the Army Secretary, and the District Court found this to be true as a matter of fact. 586 F. Supp., at 1273-1274. The Act says explicitly that such reservoirs are “under the control of” or “under the direction of” the Army Secretary. §§ 4-6, 8. Only two provisions of the Act provide for the Interior Secretary to exercise any authority whatsoever at Army reservoirs, and in both instances the Act clearly states that the Interior Secretary’s authority is subordinate to that of the Army Secretary, who does after all “control” those reservoirs. The Interior Secretary is authorized to “transmit and dispose of” electric power and energy generated at Army reservoirs, but only when that energy is “in the opinion of the Secretary of [the Army] not required in the operation of such projects.” §5. The Interior Secretary is also authorized to recommend to the Army Secretary that an Army reservoir “be utilized for irrigation purposes,” and to “construct, operate, and maintain . . . such additional works in connection therewith as he may deem necessary for irrigation purposes.” § 8. But this authority only comes into play if the Army Secretary “determines” that “any dam or reservoir project operated under [the Secretary’s] direction” may be used for such purposes. Ibid. The language of the Act is plain in every respect, and the conclusion is unavoidable that if the Interior Secretary wishes to remove water from an Army reservoir for any purpose, the approval of the Army Secretary must be secured.

The precise authority claimed by the Interior Secretary in this case is to enter into a contract, without the approval of the Army, to remove from Lake Oahe water that is claimed to be available for irrigation, and to allow that water to be devoted to industrial use. Nowhere does the Act provide any support for this claimed authority, and in fact it is directly inconsistent with §§6 and 8 of the Act, which show that only the Army Secretary has that independent authority in this instance. Section 6 gives the Army Secretary the authority “to make contracts with States, municipalities, private concerns, or individuals ... for domestic and industrial uses for surplus water that may be available at any reservoir” under the Secretary’s control, “Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water.” The language of the Act is plain enough: “surplus water” is all water that can be made available from the reservoir without adversely affecting other lawful uses of the water. As long as ample water remains in Lake Oahe for the purposes embodied in the Act, and absent any allocation for irrigation pursuant to § 8, the Army Secretary has exclusive authority to contract to remove water for industrial uses. In this light, two of the District Court’s factual findings take on special significance. First, the District Court found no evidence “which would show that specific storage space in Oahe Reservoir was assigned to irrigation,” and “there is no evidence that separate allocations were made at Oahe.” 586 F. Supp., at 1277. Second, “there is no evidence that any Oahe water ever has been used for irrigation or will be in the near future.” Id., at 1274. In light of these facts, and the plain provisions of § 8, the Interior Secretary had no authority to dispose of Lake Oahe water. The Army Secretary might have but has not done so.

Section 8 details the procedures for utilizing water from Lake Oahe for irrigation, and only when these procedures are followed does the Interior Secretary have any authority to deal with Lake Oahe water. The Interior Secretary may recommend to the Army Secretary that an Army reservoir be utilized at least in part for irrigation purposes. If the Army Secretary determines that the reservoir may be used for this purpose, then the Interior Secretary “is authorized to construct, operate, and maintain, under the provisions of [the Federal reclamation laws,]. . . such additional works in connection therewith as he may deem necessary for irrigation purposes.” Congress must grant “specific authorization” for the construction of any such additional works. Water from Army reservoirs “may be utilized hereafter for irrigation purposes only in conformity with the provisions of this section.” §8. It may be recalled at this point that the Sloan Plan, which had envisioned the use of a substantial amount of water from Lake Oahe for irrigation of the James River Basin, was consistent with this approach; the Sloan Plan provided for the construction of massive additional works for irrigation comprising a system of long canals. S. Doc., at 115-116. By this means, Interior would be permitted to withdraw water from Army reservoirs through these additional works for use in irrigation, which would then bring that water under its control, and under the federal reclamation laws the Interior Secretary may reallocate irrigation water from irrigation projects to other purposes when he sees fit, as long as “it will not impair the efficiency of the project for irrigation purposes.” 43 U. S. C. §485h(c) (1946 ed.). In this case, the District Court found that the Interior Department did begin initial construction on irrigation works at Lake Oahe, but Congress later authorized the Department to cancel construction, which it did. 586 P. Supp., at 1274. As already stated, the District Court found that no water from Lake Oahe has ever been used for irrigation, ibid., and we are unaware of any such plans in the near future. Under these circumstances, the Interior Secretary is not “in conformity with the provisions of” § 8, and therefore has no authority under the Act to withdraw water from Lake Oahe, whether for irrigation or otherwise. It is likely that Lake Oahe contains surplus water, but that water is subject to disposal by the Army, not by Interior.

B

The petitioners seek to avert this conclusion by pointing to §§ 9(a) and (c) of the Act. Section 9(a) approves the “general comprehensive plans” set out in the Pick Plan and the Sloan Plan, as revised and coordinated by the final Senate Document, and authorizes the initial stages of those projects to be “prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements.” The petitioners contend that this statement represents congressional approval of various aspects of the functional division of authority between the Army and Interior Departments that had been suggested in those plans; in particular, the petitioners suggest that this provision allows the Interior Secretary unilaterally to remove water from Army reservoirs for irrigation purposes and for other related uses.

This contention is both wide of the mark and grounded on a misuse of the legislative history. To begin with, it would be surprising if Congress had followed up the five sections of the Act in which it explicitly established the jurisdiction of Army and Interior over specific uses of Army reservoirs, the last section of which established jurisdiction over the use of those reservoirs for irrigation, with a provision in which it indirectly made further refinements in how water could be used for irrigation, and yet did not offer the slightest indication that it was doing so. In any event, there is no reason to think that § 9(a) incorporates into the Act any additional indications about the proper division of authority between Army and Interior. On the contrary, its location in § 9 of the Act indicates that this provision was not intended as anything more than authorization for the two Departments to begin working on the projects listed in the final Senate Document. The other parts of § 9 merely harmonize the Act with existing laws and set out separate appropriations for Army and Interior to begin “the partial accomplishment of the works to be undertaken under said expanded plans,” § § 9(d) and (e), which indicates that this entire section of the Act encompasses only the necessary ministerial details to allow action to begin on the specified projects.

If there were any room for believing that § 9(a) implicitly modified the jurisdictional provisions that were plainly set forth in the preceding sections of the Act, or for doubting that it instead approved a different division of authority from that suggested in the Pick Plan and the Sloan Plan, one item in the legislative history puts this supposition entirely to rest. The original House version of the Act included language almost identical to the suggestions made in the two plans, see infra, at 511-512, which obliged the Interior Secretary “to prescribe regulations” for the use of water stored in Army reservoirs for irrigation. Hearings on H. R. 4485 before a Subcommittee of the Senate Committee on Commerce, 78th Cong., 2d Sess., 2 (1944). Secretary Ickes testified at the Senate Hearings on the proposed bill that this approach did not relate very well to the reclamation laws because it “disregards the problem of allocating costs for multiple-purpose facilities serving other uses in addition to irrigation.” Id., at 458. He proposed replacing that approach instead with the language currently contained in § 8 of the Act, which was eventually enacted by Congress. Id., at 313. As noted above, §8 now provides that Army controls the main-stem reservoir projects and Interior controls all such additional irrigation works as it may “construct, operate, and maintain” at the site of those main-stem projects. One need not draw all the inferences that may be justified by this piece of legislative history in order to make it decisive here, for at the very least it directly refutes the notion that the other sections of the Act were intended to effect no changes in the division of authority between Army and Interior that had been suggested in the Pick Plan and the Sloan Plan.

Moreover, even if § 9(a) had been intended to adopt every aspect of the functional division of authority between the two Departments that had been proposed in the Pick and Sloan Plans, this section would not provide Interior with the authority to withdraw water unilaterally from Lake Oahe for irrigation and other uses in flat contradiction of § 8 of the Act. Contrary to the petitioners’ argument in this case, nothing in those two plans indicates that control over individual reservoirs was to be divided among various departments of the Federal Government. The Pick Plan, for example, emphasized that although the Department of War was willing to coordinate its activities with Interior in order to serve “the broad and important interests and responsibilities” of both agencies, “[i]t is essential, however, that the main-stem projects be built, operated, and maintained by the Corps of Engineers.” H. R. Doc., at 3-4. The War Department noted that although it would retain control of those reservoir projects, it accepted that “utilization of storage reserved for irrigation” in those reservoirs “should be in accordance with [Interior] regulations.” Id., at 4. But this accession is not at all the same as dividing control between the two agencies over the reservoir projects or the water stored in those projects, which was not contemplated in the Pick Plan. The Sloan Plan basically agreed with the approach set out in the Pick Plan, recognizing that the agency “with primary interest in the dominant function of any feature proposed in the plan should construct and operate that feature, giving full recognition, in the design, construction, and operation, to the needs of other agencies with minor interests.” S. Doc., at 11. The Sloan Plan recognized that the “dominant function” of Lake Oahe and the other main-stem reservoir projects would be flood control and navigation, and therefore these projects would come under the jurisdiction of the Army and its Corps of Engineers. Id., at 4. Even if Congress had intended to write the jurisdictional structure suggested in the Pick Plan and the Sloan Plan directly into law, therefore, it would not have extended to Interior the unilateral authority that has been claimed in this case.

The petitioners also point to §9(c) of the Act as lending support to its argument. That section states that “the reclamation and power developments to be undertaken by the Secretary of the Interior under said plans shall be governed by the Federal Reclamation Laws.” As noted already, under the reclamation laws the Interior Secretary is authorized to reallocate water under his control for industrial use as he sees fit. See n. 4, supra. By its terms, however, § 9(c) applies only to “the reclamation and power developments” undertaken by the Interior Secretary under the Act: that is, to the “transmission lines and related facilities” that §5 authorizes the Interior Secretary “to construct or acquire” for transmitting and disposing of electric power, and to the “irrigation works” that § 8 authorizes the Interior Secretary “to construct, operate, and maintain” under the reclamation laws. This provision merely stipulates that the reclamation laws, which typically apply to other Interior projects, see 43 U. S. C. §371 et seq. (1946 ed.), also apply to all the projects that Interior may undertake under the Flood Control Act. But as the District Court found, and as is readily apparent, the reservoir project engineered by the Army at Oahe is neither a “power development” nor a “reclamation development” that has been undertaken by the Interior Secretary. 586 F. Supp., at 1273-1278. On the facts of this case, § 9(c) clearly does not extend any authority to Interior to withdraw water from Lake Oahe by other means than those stated in the Act.

Not only do the language, structure, and legislative history of the Act fail to support the petitioners in this case, but the substance of their position is also difficult to fathom. The petitioners claim that the administrative structure established in the Act divides authority over Lake Oahe between Army and Interior in a novel fashion that is considerably different from what appears on the face of the Act. One possibility, which the petitioners disavow, is that Interior has the ultimate authority to use water from the reservoir for irrigation purposes and Army has the ultimate authority to use water from the reservoir for flood control and navigational purposes. This approach obviously would founder, and could give rise to endless squabbles, unless the water in the reservoir has been allocated between these uses, yet the District Court explicitly found “no evidence that separate allocations were made at Oahe,” and “one wonders how the Interior Department is to control what cannot be identified.” 586 F. Supp., at 1277. The position actually urged by the petitioners is even less straightforward than the foregoing: they argue that the Act requires Interior to consult with Army before withdrawing any water for industrial use from Lake Oahe, and does not allow Interior to withdraw water if Army objects, and yet the Act does not require Interior to obtain the approval of Army in order to withdraw water for industrial use. Tr. of Oral Arg. 14-15. The Army’s authority over Lake Oahe is thus to be understood as most closely analogous to an executive veto over legislation: Interior must offer its proposal to the Army, and cannot proceed on its own if the Army objects, but can proceed even without Army approval as long as Army does not object. This would be, to say the least, a most unusual approach to administrative jurisdiction, one that gains no support from the text of the Act, and one that we are unwilling to read into the Act as an implicit modification of its otherwise sensible and intelligible provisions.

C

The petitioners finally contend that this Court should defer to the Interior Secretary’s interpretation of the authority granted to him under the Act, which the Army apparently has acquiesced in at least for the purposes of this litigation. The petitioners also point to what they describe as a tradition of cooperation between these two Departments in the Missouri River Basin, including a period between 1975 and 1978 when they entered into a joint agreement that allowed the Interior Secretary, “both on his own behalf and as agent for the Secretary of the Army, [to] contract for the marketing of water for industrial uses” from the six main-stem reservoirs. The District Court disagreed with this historical account of the relations between Interior and the Army on this subject, and concluded that when “the chief attorneys for the two departments affected by a statute disagree, neither enjoys any deference.” 586 F. Supp., at 1280. The Court of Appeals discussed this issue very briefly, but the gist of its holding was simply that Interior’s interpretation did not even constitute a reasonable reading of the Act. 787 F. 2d, at 287.

It is unnecessary to consider the petitioners’ contention that deference to the Interior Secretary is appropriate in this case and their related arguments about the history of relations between Army and Interior under the Act, for even if Interior’s interpretation of the Act would be entitled to any deference in these circumstances, the Executive Branch is not permitted to administer the Act in a manner that is inconsistent with the administrative structure that Congress enacted into law. As this Court has stated in a recent opinion on the proper limits of deference to an agency’s construction of the statute which it administers: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). The Flood Control Act speaks directly to the dispute in this case, and congressional intent as expressed in the Act indicates clearly that the Interior Secretary may not enter into a contract to withdraw water from an Army reservoir for industrial use without the approval of the Department of the Army. That is “the end of the matter.” Id., at 842.

The decision of the Court of Appeals is therefore affirmed.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

       Although the contract states that the Interior Secretary entered into it “after consultation with the Secretary of the Army,” App. 226, no party has disputed the fact that the Secretary of the Army did not expressly approve or sign the contract, which was signed on behalf of the United States by a regional director for the Interior Department’s Bureau of Reclamation. Id., at 234.

       This case also has involved several procedural issues, as well as ancillary issues about the validity of the contract. Those other issues are not before this Court. Neither is there any issue presented here as to the relative interests of the United States and South Dakota in Lake Oahe water.

       At one time, the Army took the view that the only “surplus water” in the main-stem reservoirs was the water that neither was held in the reservoirs nor was run through the generators to produce hydroelectric power — in other words, that no “surplus water” existed in the reservoirs themselves — apparently because it assumed that all water contained in the reservoirs “is otherwise being used” for specified purposes. Army Memorandum, Marketing of Missouri River Water for Coal Gasification, AR900407 (Dec. 16, 1974), App. 183. More recently, however, the Army has abandoned this assumption and recognized that “this interpretation of what constitutes surplus water is unnecessarily narrow.” Memorandum from Susan Crawford, General Counsel of Army, to Assistant Secretary of Army, Proposed Contracts for Municipal and Industrial Water Withdrawals from Main Stem Missouri Reservoirs 2 (March 13, 1986), App. to Brief for Respondent States 14a. Its current position is that § 6 of the Act gives the Army Secretary the same authority over “water he determines is not needed to fulfill a project purpose in Army reservoirs” that the Interior Department possesses over water contained in its own reservoir projects, namely, the authority to withdraw water for industrial use if to do so would not impair the efficiency of the project for its other stated purposes. Memorandum of Crawford 4, App. to Brief for Respondent 16a. See also Army Circular EC 1105-2-181, pp. 3-4 (Oct. 30,1987). This view is consistent with the language of the Act, for if the term “surplus water” could never include any of the water stored in the reservoirs themselves, then the caveat Congress enacted in § 6 — that this grant of authority shall not “adversely affect then existing lawful uses of such water” — would have been irrelevant because this grant of authority could never adversely affect any existing or projected uses of such water.

       See also 43 U. S. C. § 521 (1946 ed.). Under that section the Interior Secretary “in connection with the operations under the reclamation law is hereby authorized to enter into contract to supply water from any project irrigation system for other purposes than irrigation . . . : Provided . . . , That no water shall be furnished for the uses aforesaid if the delivery of such water shall be detrimental to the water service for such irrigation project.” The Interior Secretary’s determination that the sale of water does not impair the irrigation purpose of a project under his control has been accorded broad deference. See, e. g., Environmental Defense Fund v. Morton, 420 F. Supp. 1037 (Mont. 1976), aff’d in part and rev’d in part, Environmental Defense Fund v. Andrus, 596 F. 2d 848 (CA9 1979).

       Nothing in today’s decision, it should be emphasized, prevents the water in Lake Oahe from being put to beneficial use for industrial or other purposes. Of the 23 million acre-feet of water stored in this reservoir, by far the most part was projected for potential use in irrigation. As the District Court found, however, none of this water has been allotted for irrigation, no works have been constructed to make use of this water for irrigation, and none of this water has ever been used for irrigation or is likely to be used for that purpose in the foreseeable future. 586 F. Supp., at 1274, 1277. On these facts, there is considerable leeway for the Army Secretary to designate some of this water for industrial use without “adversely affectpng]” the “existing lawful uses of such water.” Act, §6. Certainly if the Executive Branch as a whole wishes to put the water in this reservoir to beneficial use, it may do so simply by complying with the terms of the Act.

       In its comments on the Pick Plan, Interior endorsed this approach, stating that the Army “Corps of Engineers should construct, operate, and maintain any feature in which flood control and navigation are dominant considerations, and the [Interior’s] Bureau of Reclamation should construct, operate, and maintain any feature in which the functions of irrigation, restoration of surface and ground water levels, and power are dominant,” though the two Departments would “advise and consult with” one another to the extent that these interests overlapped in features controlled by one or the other Department. H. R. Doc., at 7.

       The self-styled “joint engineering report” contained in the final Senate Document that effected a reconciliation of the Pick and Sloan Plans did not shed any further light on how the administrative jurisdictions of the two Departments were to be circumscribed, but merely observed that the engineering features of the two plans were brought into agreement by applying the principles that the Army Corps of Engineers “should have the responsibility for determining main stem reservoir capacities and capacities of tributary reservoirs for flood control and navigation,” and the Bureau of Reclamation “should have the responsibility for determining the reservoir capacities on the main stem and tributaries of the Missouri River for irrigation.” S. Doc. No. 247, 78th Cong., 2d Sess., 1 (1944). This passage seems to be nothing more than an explanation of how the final number of projects and the amount of their storage capacities were reached by the representatives of the two Departments.

       The petitioners contend that the term “reclamation. . . development]” in § 9(c) can encompass either the entire reservoir project at Oahe or the activities that Interior might undertake to dispose of water stored at Oahe for irrigation. Neither suggestion is tenable. The construction of the main-stem dam and reservoir project at Oahe was undertaken and controlled by the Army, and the District Court found this to be true as a matter of fact; thus Oahe cannot be a “reclamation . . . development] to be undertaken by the Secretary of the Interior.” And the suggestion that the term “reclamation . . . development]” may refer to activities rather than projects is wrong for several reasons. First, the whole term is “reclamation and power developments to be undertaken by the Secretary of the Interior.” These developments, which were set out more specifically in the Pick and Sloan Plans, plainly refer to the only developments that the Act identifies Interior as undertaking: the “power developments” (“transmission lines and related facilities”) identified in § 5, and the “reclamation developments” (“irrigation works”) identified in §8. Second, the term “reclamation . . . development]” used in § 9(c) of the Act is linked by petitioners to § 9(c) of the Reclamation Project Act of 1939, 53 Stat. 1193, as set forth in 43 U. S. C. §485h(c) (1946 ed.), which is said to give Interior the authority to contract to dispose of this water, yet that statutory section itself limits Interior’s authority by stating that such authority may not be used to “impair the efficiency of the project for irrigation purposes.” Ibid. (emphasis added). Thus this same account relates the terms “development” and “project.” Third, the integral nature of the relation between these two terms is shown by further consideration of the Reclamation Project Act §2©, 43 U. S. C. §485a© (1946 ed.), which defines the term “development unit” as “a part of a project which, for purposes of orderly engineering or reclamation development, is designated as a development unit by order of the Secretary.” Thus a “reclamation development” is a designated part of a “reclamation project” under the Reclamation Project Act, for administrative purposes, and the two terms are used almost synonomously in that Act. See § 485f(b).

       Petitioners suggest that their reading of the Act is supported by Congress’ enactment of §212 of the Reclamation Reform Act of 1982, 43 U. S. C. § 390M. That provision, however, works no change in any of the substantive provisions of the Flood Control Act, and specifically does not purport to modify § 8 of the Act, which states the manner in which water may be withdrawn from Lake Oahe for use in irrigation. Section 212(a) merely was intended “to eliminate the shadow of applicability of the reclamation law to Corps of Engineers projects in any case in which the intent of Congress concerning such applicability is not clearly and explicitly set forth in statutory language,” S. Rep. No. 97-373, p. 16 (1982), which it was not in § 8 of the Act. Section 212(b) simply ensures that the Interior Secretary’s “authority to contract with water user entities for the irrigation water deliveries from Corps of Engineers projects, and to collect appropriate charges for those deliveries, continues in effect.” Ibid. It says nothing about when and how the Interior Secretary possesses and exercises the authority to enter into such contracts, which is prescribed in § 8 of the Act. Even more to the point, § 212 does not indicate in any way that the Interior Secretary has the authority to enter into a contract to withdraw water from an Army reservoir for industrial use, which is the precise authority asserted in this case.

       This “Memorandum of Understanding” declared that the Army Secretary “shall retain all operational and managerial control over said reservoirs.” Memorandum of Understanding Between Secretary of Interior and Secretary of Army, AR900072 (Feb. 24, 1975), App. 136. Over the four years it was in effect, no contracts were executed under it, and the agreement was allowed to expire in 1978. It also appears, by all accounts, that the contract at issue in this case is the only instance of the Interior Secretary exercising unilateral authority to withdraw water for industrial uses from a reservoir project controlled by the Army.

       Both the District Court and the Court of Appeals mentioned various reasons why the Interior Secretary’s interpretation of the Act might not be entitled to deference even if it were a reasonable interpretation. But since in the end the District Court, like the Court of Appeals, concluded that the agency’s decision was not “reasonable,” 586 F. Supp., at 1280, its additional comments, like those of the Court of Appeals, were pure dictum, and there is no reason to address them here.