concurring in the judgment:

I join in Part II of the majority’s opinion addressing the constitutional issues adjudicated by the district court on remand. I agree with the majority’s conclusion in Part I that California v. United States, 438 U.S. 645 , 98 S.Ct. 2985 , 57 L.Ed.2d 1018 (1978), and Bryant v. Yellen, 447 U.S. 352 , 100 S.Ct. 2232 , 65 L.Ed.2d 184 (1980), do not affect our holding in Tulare I. I object, however, to the manner in which the majority has treated Tulare Lake Canal Company’s argument concerning section 8 of the 1902 Act, and write separately to emphasize that our decision should not be construed as permitting the 160-acre limitation to apply to the receipt of waters to which private landowners have riparian or appropriative rights previously vested under state law.

Along with the majority, I do not believe that California or Bryant undercut the Supreme Court’s holding in Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275 , 78 S.Ct. 1174 , 2 L.Ed.2d 1313 (1958) (Ivanhoe). I agree that the Flood Control Act of 1944 contains no express provision exempting “present perfected rights” comparable to that of the project statute involved in Bryant . I also join the majority’s holding in Part 1(B): Section 8 of the 1902 Act does not affect our decision because “[ojwners of excess lands may continue to receive all the water to which they were entitled prior to construction of the Pine Flat Project without executing contracts for the sale of excess lands.” Ante, at 718. Tulare Lake Canal Company admits that the contract in this case expressly applies only to water “stored by means of the Pine Flat Dam and Reservoir and thereafter . . . released at times when it would not have been available in the absence of such storage and release .. .. ” It is clear that the water subject to the acreage limitation simply would not have been available to the landowners if the project did not exist. Therefore, applying the acreage limitation to water covered by the contract does not interfere with the vested water rights of any of the parties. The landowners will continue to receive all the water to which they have pre-existing riparian or appropriative rights vested under California law free of the 160-acre limitation.

That disposes of the issue and it is unnecessary to venture beyond. But the majority opinion could be read to imply that Ivanhoe permits the acreage limitation to apply to the receipt of water stored by means of a federal reclamation or flood control project whether or not riparian or appropriative rights to that water had previously been *720 vested pursuant to state law. If that is what the majority means, I do not join the dictum. The definition of “project water” in the contract involved here, quoted previously, excludes vested state water rights from the 160-acre limitation. That is sufficient to establish that our holding does not “interfere with the laws of any State . . . relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder” or “affect any right of any . . . landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof” within the meaning of section 8 of the 1902 Act.

If forced to resolve this issue, I doubt I could agree with the extremely broad construction of Ivanhoe suggested by the majority. In Ivanhoe, the Court refrained from “passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field,” 357 U.S. at 292 , 78 S.Ct. at 1184 , and emphasized twice that if the United States finds it necessary to acquire water rights to operate a reclamation project, or if enforcement of the acreage limitation interferes with any compensable water rights, the government must pay just compensation for the vested rights so taken. 1 Id. at 291, 297 , 78 S.Ct. at 1183, 1186 . See also Dugan v. Rank, 372 U.S. 609, 625-26 , 83 S.Ct. 999, 1009-10 , 10 L.Ed.2d 15 (1963). The contracts involved in Ivanhoe, like those before us here, “applie[d] only to ‘project water’ and previously existing water supplies [were] unaffected thereby.” 357 U.S. at 285 , 78 S.Ct. at 1181 . Thus, in Bryant the Court wrote that Ivanhoe did not involve “perfected rights to water that the project there involved would furnish ....” 447 U.S. at 372 , 100 S.Ct. at 2243 . In other words, it appears that Ivanhoe involved only reclamation water to which no riparian or appropriative rights had vested under California law. 2 As the Court later explained in California , its holding in Ivanhoe was simply that the acreage limitation preempts any contrary state law, and thus section 8 of the 1902 Act did not require the United States to comply with “California law [which] forbade the 160-acre limitation on irrigation water deliveries expressly written into § 5 of the Reclamation Act of 1902.” 438 U.S. at 671 , 98 S.Ct. at 2999 . Citing section 8, however, the Court in California emphasized that the 1902 Act “clearly provided that state water law would control in the appropriation and later distribution of the [reclamation] water,” id. at 664 , 98 S.Ct. at 2995 , and that “[t]he legislative history . . . makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law.” Id. at 675 , 98 S.Ct. at 3001 .

None of this is particularly surprising. Conversely, it would be unusual if the Supreme Court in Ivanhoe had in fact allowed the acreage limitation to apply to water beneficially “owned” by private landowners without ever expressly addressing whether such application is an unconstitutional taking. See Ivanhoe, supra, 357 U.S. at 295-97 , 78 S.Ct. at 1185-87 (acreage limitation did not “deprive appellees of any rights to property or water”). In one of its earliest cases involving the federal reclamation *721-733 laws, the Court recognized that “Congress proceeded on the basis of full recognition of water rights having valid existence under state law,” United States v. Gerlach Live Stock Co., 339 U.S. 725, 734 , 70 S.Ct. 955, 960 , 94 L.Ed. 1231 (1950), and that the Court had never held “anything like” the proposition that “the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them.” Id. at 737, 70 S.Ct. at 962 . “Congress has recognized the property status of water rights vested under California law.” Id. at 736 , 70 S.Ct. at 961 .

Because the contracts involved here also recognize the property status of whatever riparian and appropriative water rights were previously vested in the landowners under California law, I concur in the judgment. But I must reject the majority’s sweeping and unnecessary dicta to the extent they suggest that Ivanhoe would allow elimination of those rights without compensation.

. In an earlier case involving the Pine Flat Project, Turner v. Kings River Cons. Dist., 360 F.2d 184 (9th Cir. 1966), we held that the Flood Control Act of 1944 incorporates those provisions of the reclamation laws which permit the United States to condemn and pay just compensation for vested water rights taken in connection with the construction or operation of the dam. See United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1096 (9th Cir. 1976).

. As the California Supreme Court pointed out in its Ivanhoe opinion, the United States had acquired by assignment all “riparian, appropriative and prescriptive rights” to the “domestic” waters necessary to operate the Central Valley Project. Ivanhoe Irrigation Dist. v. All Parties, 47 Cal.2d 597, 618-19 , 306 P.2d 824 (1957). See Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 285 , 78 S.Ct. 1174, 1180 , 2 L.Ed.2d 1313 (1958) (describing purchases and acquisitions of water rights by United States), rev’g, 47 Cal.2d 597 , 306 P.2d 824 (1957). The California court held that “[t]he water users of the state whose rights have not become vested ... have an inchoate right to [an adequate supply of water] subject to like enforcement and equal protection of the law,” Ivanhoe Irrigation Dist. v. All Parties, supra, 47 Cal.2d at 626, 306 P.2d 824 (emphasis added), as the beneficiary of a trust relationship into which the United States had stepped by executing the contracts. This is perfectly consistent with the conclusion that whatever water rights were involved in Ivanhoe had not been vested under state law. See also id. at 627, 306 P.2d 82 (conclusion with respect to title to “unappropriated domestic waters” in the state); cf. Bryant v. Yellen, 447 U.S. 352 , 371 n.23, 100 S.Ct. 2232, 2243 , 65 L.Ed.2d 184 (1980) (describing approach of California courts to Ivanhoe litigation).