was rejected; and, for the first five months of 1964, 163,840 acre-feet were ordered, of which 13 per cent, or 21,380 acre-feet, was rejected.
12. Mr. Theodore H. Moser, Project Manager, Yuma Projects Office, Bureau of Reclamation, testified in open court that a large amount of water ordered by the Yuma County Water Users' Association is diverted into lateral wastes and is not applied to any farms, but is passed through the irrigation facilities and ultimately flows to Mexico. This waste, according to the undisputed testimony of Mr. Moser, amounted to 12.27 per cent of the total diversion in the last seven months of 1961, 12.49 per cent for the like period of 1962, and 13.25 per cent for the final seven months of 1963.
13. These statements by Mr. Kiernan and Mr. Moser can lead only to the conclusion that no injury has been established; and that the four affidavits by members of the Association, which were submitted by the plaintiff, are merely speculative as to possible damages which may be sustained in the future. However, in view of the statement of the Secretary that flexibility in the reduction will be accorded the users, and the statement by Mr. Moser that cases of individual hardship will be supplied with water, any possible crop damage would appear remote.
Conclusions of Law
1. This Court has jurisdiction over this act, if it is established that the order of the Secretary is in excess of his authority.
In Ickes v. Fox, 300 U.S. 82, 96-97, 57 S. Ct. 412, 417, 81 L. Ed. 525 (1937), an action to enjoin the Secretary of the Interior from enforcing an order which would limit the water rights of owners of irrigated lands under a Federal reclamation project, the Supreme Court stated:
'* * * (The suits) are brought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights not only acquired under Congressional acts, state laws and government contracts, but settled and determined by his predecessors in office. That such suits may be maintained without the presence of the United States has been established by many decisions of this court * * *'.
More recently, in Arizona v. California, 373 U.S. 546, 584-585, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963), the Supreme Court, in passing upon the question of judicial review of the Secretary's actions, cited Ickes v. Fox, supra, with approval.
2. The plaintiff has not established any irreparable injury and therefore is not entitled to the extraordinary remedy of a preliminary injunction.
3. This Court does not decide the question of whether or not any vested property rights of the members of the plaintiff association have been violated; or, whether the defendant Secretary has exceeded his statutory authority.
4. For the purposes of the motion for preliminary injunction, the plaintiff has not established any arbitrary action on the part of the Secretary.
In accordance with the foregoing Findings of Fact and Conclusions of Law, it is this 22nd day of July, 1964,
Ordered, that the plaintiff's motion for a preliminary injunction be, and the same hereby is, denied.
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