dissenting:

This case involves a major reclamation project. 1 We are called upon to determine whether the government has lived up to the provisions of its contracts to supply project water to the appellants. The majority says that it has. I disagree.

The reclamation laws are found in Chapter 12 of Title 43 of the United States Code. As they have existed since long before the events that gave rise to this action, they provide for the construction of reclamation projects and the allocation of water from those projects. Reclamation projects are enormous undertakings, and the law reflects that fact. Before a project can be constructed, Interior must submit feasibility reports to Congress. 43 U.S.C. § 485h(a). The reports must set forth, among other things, an analysis of the cost of construction and an estimate of the portion of that cost “which can properly be allocated to irrigation and probably be repaid by the water users_” 43 U.S.C. § 485h(a)(3).

The Secretary of the Interior (“Secretary”) had the authority to enter into contracts with an appropriate organization for the delivery of water which would ultimately be redelivered to others for use on the land itself. 43 U.S.C. § 485h(d). An appropriate portion of the project construction costs was to be allocated to the organization to which the water was delivered, and spread over a period not to exceed 40 years. 43 U.S.C. § 485h(d). In lieu of that, the construction cost repayment could be accomplished by entering into contracts to supply water “at such rates as in the Secretary’s judgment” will produce revenue sufficient to cover an appropriate share of the maintenance and operating costs, and of fixed costs, including a consideration of costs of construction. These water supply contracts can last as long as forty years. 43 U.S.C. § 485h(e).

*827 Congress also adopted the policy that reclamation projects should not simply inure to the benefit of large landowners, whether individual or corporate. It desired that those benefits be spread more widely. It therefore decreed that before an owner of over 160 acres could receive project water for the excess lands, a recordable contract for the sale of those lands would have to be entered into between the landowner and the United States. 43 U.S.C. § 423e.

A. The Contracts.

It ultimately became apparent that the lands which are involved in this action, as well as other lands, would only be properly irrigated if an irrigation project were created. Without a project, it was likely that even existing land would ultimately return to desert, and it was clear that new land would not be developed. See H.Rep. No. 399, 86th Cong., 2d Sess. 2-3, reprinted in 1960 U.S.Code Cong. & Ad.News 2209. That realization led to the San Luis Unit Project, which was approved in 1960. Pub.L. No. 86-488, 74 Stat. 156 (1960).

On June 5, 1963, the United States entered into a forty-year contract with the District (“the 1963 contract”), in which it was agreed that water from the project would be supplied to the District. Paragraph 6 of the 1963 contract provided that water would be supplied at the price of $8 per acre foot. That included a $7.50 component for water service and a $.50 component for drainage service. 2 Paragraph 5 of the 1963 contract contemplated that the water would then be delivered to land within the District.

There were, however, limitations, and one of those was that the water would not be delivered to excess lands until the landowners had executed recordable contracts with the United States. Landowners had to agree that they would either sell their excess lands within ten years, or that the Secretary would do so after that time through the use of a power of attorney. Paragraphs 23, 24, and 25 of the 1963 contract. As the law provided, the terms and conditions of any sale of the excess lands was subject to the approval of the Secretary. 3 43 U.S.C. § 423e.

Between 1969 and 1974 all of the appellants entered into recordable contracts which conformed with the requirements of the 1963 contract.

Notwithstanding the assertions of the majority, there is not even a whisper of evidence that the contracts provided, or were intended to provide, that contract-priced water would be supplied to excess lands for a period of only ten years. One searches the contracts in vain for that language. It simply is not to be found. Instead, as already noted, it is contemplated that landowners who enter into the required contracts will receive water at the contract rate.

On its face, the 1963 contract provides that the District is entitled to receive water at the contract rate through the year 2007. The clear contemplation of that contract is that the District will then redistribute that water to the lands entitled to it, at a rate close to the contract price. This is confirmed by paragraph 17.6 of the district court’s judgment of December 30, 1986. Non-excess agricultural lands are entitled to the water at those rates. So too are excess lands, if the owners have entered into recordable contracts. See 1963 contract, ¶ 23(a) (“No water made available pursuant to this contract shall be furnished to any excess lands” unless owners *828 execute recordable contracts. Emphasis added). That applies to the appellants in this case, and the 1963 contract does not further restrict their rights.

It cannot be gainsaid that the appellants’ contracts required them to sell their excess lands within ten years. Thereafter the Secretary could exercise his power of attorney. However, neither the 1963 contract nor the recordable contracts themselves expressly provide for an adjustment in rates between the time that the owner’s own disposition period ends and the time that the Secretary exercises his power of attorney to sell the lands. From the end of the disposition period forward, the lands are certainly subject to disposition by the Secretary, if he has taken action. Many factors, including economic conditions, could cause that action to be delayed for a significant period. In the case at hand, we know that for a very substantial time the Secretary placed himself in a position where he could not even approve sales by the owners themselves; other kinds of delays are not difficult to imagine.

The lands remained thirsty throughout the delay time, and appellants assert that the thirst was to be slaked with water supplied at the 1963 contract price. Interi- or assumes that is incorrect, but offers little explanation for its position. The majority asserts that there is no explicit provision that water will be supplied beyond the initial ten year period. It then dubs that an ambiguity and resolves the ambiguity against the appellants. I fail to see that as an ambiguity. What the contract does provide is that water will be supplied at the contract rate during the whole term of the contract. There is not a single word limiting that. Just why the fact that the contracts initially contemplated that holders of excess lands would sell them within ten years should be held to create an ambiguity that must then be summarily resolved against the appellants is not at all clear to me. I fail to see why a party must insist upon having the right to water during the term of the contract reiterated in order to avoid a later claim of ambiguity when the other party decides that it did not make a good deal in the first place. 4

Still, I agree with the majority’s apparent assumption that the appellants could breach their contract if they improperly failed to sell during the time that they had to dispose of their excess lands. Appellants recognize that under their recordable contracts they were initially required to dispose of excess lands within ten years after the date that the contracts were entered into. They note that it was not possible to do so because the Secretary stopped approving sales in 1976. That is so, for the United States District Court for the District of Columbia enjoined the Secretary and the Bureau of Reclamation from approving any new contracts for the sale of excess lands until approval criteria and procedures were adopted. See National Land for People, Inc. v. Bureau of Reclamation, 417 F.Supp. 449 (D.D.C.1976). The district court decision was no mere bolt from the blue. It issued because the Secretary had not bothered to follow the procedures that the Administrative Procedure Act imposed upon him. That brought sales of excess land to a halt, since no such procedures were adopted for many years. In other words, the appellants did not breach their agreements. If anyone breached, it was the government. It refused to carry out its end of the agreement that established the procedure for sale of the excess lands. As the majority notes, “[cjontract obligations ordinarily are mutual.” At 822. The government did not fulfill its part of the disposal bargain.

*829 Nevertheless, the majority suggests that the Secretary can profit from his own lack of performance by demanding that appellants pay a higher price for water delivered to their excess lands, since they did not sell these lands within ten years. That is a most unusual result, and nothing in the contracts or the law compels it. Had the appellants breached, one could argue that the Secretary could sell the excess lands himself, or stop delivering water, or even, perhaps, refuse to deliver water unless a higher price was paid. See United States v. Quincy-Columbia Basin Irrigation Dist., 649 F.Supp. 487, 492 (E.D.Wash.1986) (Secretary may withhold water from users who fail to comply with reporting requirements). That is not this case, and we need not ruminate about the Secretary’s hypothetical remedies were it the case. Here it was the Secretary who was in default. 5

Congress recognized the problems that the Secretary’s dilatory conduct had caused. No doubt that is why RRA § 209(e) [43 U.S.C. § 390ii(e) ] allows extension of the period for disposition, an extension that the appellants embraced when they entered into agreements with the United States to extend the period during which they could dispose of their excess lands without the direct intervention of the Secretary.

The majority’s approach frustrates the policy underlying section 209(e). By enacting this provision, Congress conceded that the 1976-1982 period ought not be counted within the 10-year disposition period. The Senate Report stated: “This section provides for an extension of the 10-year time period for disposal of excess lands subject to existing recordable contracts which is equal to the period of time for which there has been a moratorium on the approval of sales of such lands by the Secretary of the Interior.” S.Rep. No. 373, 97th Cong., 2d Sess. 15, reprinted in 1982 U.S.Code Cong. & Ad.News 2570, 2579. The policy behind RRA § 209 assures landowners that they may have the benefit of a full ten years to dispose of their land, during which time the Secretary will continually be prepared to uphold his side of the agreements. The majority notes that one could extend the time to dispose of the land without extending the 1963 contract rate to that period. Slip op. at 2846-47. Of course one could. That position, however, would not consider the economic effects of vastly increasing the cost of water during that time. 6 It would not recognize that the increase could turn a viable agricultural enterprise into a losing proposition and, thus, punish the landowners for the Secretary’s own default by preventing them from selling while denying them contract-priced water. Appellants assert that their added cost will be as much as $5,000,000.

In sum, it can be said that if the owners themselves refused to sell their excess lands during the time that they had to dispose of those lands, they would be in breach of their contracts. However, there is no evidence that they would not be entitled to the water before that point was reached. Here the landowners could not be said to be in breach of their recordable contracts, as long as the extended period set forth in RRA § 209 [43 U.S.C. § 390ii] was applicable to them. At least during that time, the judgment directed the United States to perform the 1963 contract.

It is not necessary to decide whether appellants' right to water at the contract rate extends beyond the time that they will be required to dispose of their lands under the existing recordable contracts. There is no reason to assume that they will not *830 dispose of the lands in accordance with the terms of those contracts. This court need not reflect upon appellants’ rights under the 1963 contract, as confirmed and enforced by the December 30, 1986 judgment of the district court, should they fail to do so. 7

Therefore, at the time that Congress added section 224(h) to the RRA [43 U.S.C. § 390ww(h)] appellants had an existing contract right to receive water for their excess lands at the 1963 contract rate. More than that, they had a judgment which directed that the District and the United States “perform the 1963 Contract” (paragraph 4.1), and which further ordered the District to deliver water to the landowners at the price that it pays the United States, plus its overhead and delivery costs (paragraph 17.6).

B. The 1987 Legislation; Separation of Powers.

Since the appellants did have contractual rights to receive water, it is necessary to extend this dissent to a discussion of the effect, if any, of section 224(h) [43 U.S.C. § 390ww(h) ] 8 upon those rights.

As already noted, by the time section 224(h) was enacted, a judgment which directed the United States to abide by the terms of the 1963 contract had been entered in this case. One provision of that judgment made it clear that the water prices were to pass through to the landowners in the District, and nothing in the 1963 contract, the recordable contracts, or the judgment states that excess lands were not entitled to receive the benefits of that pricing.

The fact that the judgment was a consent judgment did not change its essential character. It was still a judicial act; it was as sacrosanct as if it had been entered after a full trial — no more, no less. See System Fed’n No. 91 v. Wright, 364 U.S. 642, 650-51 , 81 S.Ct. 368, 373 , 5 L.Ed.2d 349 (1961); and United States v. Swift & Co., 286 U.S. 106, 114-15 , 52 S.Ct. 460, 462 , 76 L.Ed. 999 (1932).

If in the face of the judgment requiring that the 1963 contract be carried out Congress adopted a statute for the purpose of overturning that result, we would be faced with a serious constitutional problem. Congress would then have “passed the limit which separates the legislative from the judicial power.” United States v. Klein, 80 U.S. (13 Wall.) 128, 147 , 20 L.Ed. 519 (1872). As the Court observed in Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421, 431 , 15 L.Ed. 435 (1856):

Were Congress to cross that line and attack a judgment that had fixed the rights of the parties, it could trench upon the powers of the judiciary in a manner unknown since the Reconstruction Era problems that spawned Klein . A court should be wary of an invitation to find that Congress has done just that. Rather, it should approach the issues as other courts have in the not far distant past.

In Daylo v. Administrator of Veterans’ Affairs, 501 F.2d 811 (D.C.Cir.1974), the Administrator claimed that a statute was intended to upset certain judgments which had become final. The court noted that were the administrator correct, it would be faced with a “serious constitutional dilemma.” Daylo, 501 F.2d at 816 . That was because the legislature simply lacks power to do such a thing, and “[a] contrary general rule would subject all judicial action to superior legislative review, a regime obvi *831 ously inconsistent with due process of law and subversive of the constitutional independence of the judicial branch of government.” Id. The court then went on to note that the judicial branch will construe a statute to avoid a finding of unconstitutionality if the statute can fairly bear that construction. Daylo, 501 F.2d at 819 . The court then added the following at page 819 of its Opinion:

A similar approach was taken by the district court in I.A.M. Nat’l Pension Fund v. Wakefield Indus., Inc., 612 F.Supp. 643 (D.D.C.1985). In that case, a defendant argued that amendment of the statutes regarding withdrawal liability from multi-em-ployer pension plans had overturned a judgment that determined liability in the ease before the court. The court noted the constitutional difficulty that would cause, but after applying the Daylo approach it found that it was “both reasonable and consistent to read this provision as excluding any such liability that is reduced to final judgment.” I.A.M., 612 F.Supp. at 647 (emphasis in original). It, therefore, had no reason to find that an unconstitutional statute had been adopted.

That is a proper approach to statutory construction. Nor can it be said that the judgment in this case is the kind that presents an exception to the general rule. The judgment was not inherently subject to modification by Congress in light of later events. This case is quite unlike Wheeling Bridge, 59 U.S. (18 How.) 421 , where the Court had declared that a bridge was an obstruction to interstate commerce and had ordered that it be removed. Congress could, and did, decide that the bridge would not be in violation of past statutes, and that it could be maintained in place. Since Congress was the ultimate competent authority to decide whether a structure would impede or facilitate commerce, it could hardly be said that Congress was not able to do so. Rather, as the Court noted, what used to be an obstruction in contemplation of the law no longer was. The Court, instead, said it was “quite plain the decree of the court cannot be enforced.” Wheeling Bridge, 59 U.S. (18 How.) at 432 .

Similarly, in Hodges v. Snyder, 261 U.S. 600 , 43 S.Ct. 435 , 67 L.Ed. 819 (1923), the Court approved of legislation that validated the consolidation of a school district after a prior court order had enjoined it. There, too, the law had not provided for the consolidation, but after a court had made its decree, the legislature closed that gap. The Court’s decision clearly separated the two aspects of the issue as it was presented. As the Court said in Hodges, 261 U.S. at 603-04 , 43 S.Ct. at 436 :

Here we are not dealing with some public right that Congress can change at will. We are dealing with a judgment arising out of very specific contracts, and the only public aspect is that the contracts were with the government. That aspect should make the contracts even less subject to the vicissitudes of legislation. See Perry v. *832 United States, 294 U.S. 330 , 55 S.Ct. 432 , 79 L.Ed. 912 (1935); Lynch v. United States, 292 U.S. 571 , 54 S.Ct. 840 , 78 L.Ed. 1434 (1934); The Sinking Fund Cases, 99 U.S. 700 , 25 L.Ed. 496, 504 (1879). Cf. Norman v. Baltimore & O.R. Co., 294 U.S. 240 , 55 S.Ct. 407 , 79 L.Ed. 885 (1935). There is no reason to find that the judgment ordering enforcement of the 1963 contract stands on shakier grounds. Rather, this case is more like Daylo, 501 F.2d 811 , and I.A.M., 612 F.Supp. 643 . Specific and valuable rights are involved, and the judgment deserves enforcement. Application of these principles to this case demonstrates that no constitutional infirmity is shown.

There can be little doubt that RRA § 224(h) [43 U.S.C. § 390ww(h)] was intended to have an effect upon contracts with the United States that existed before the date of its enactment. Its explicit terms make that clear. In that regard, it should be noted that the section refers to RRA § 205(c) [43 U.S.C. § 390ee(c) ]. The latter section did specifically appear to apply to pre-October 12, 1982 contracts, but RRA § 203(b) [43 U.S.C. § 390cc(b) ] made it equally clear that section 205(c) was not applicable to those contracts unless the provisions of section 203(a) or (c) were applicable. There can be no doubt that the appellants in this case did not become subject to those section 203 provisions. If there were a doubt, it has been removed by the parties’ stipulation to the contrary.

While RRA § 224(h), which was added in 1987, did purport to be a mere construction of the RRA adopted in 1982, it is parlous indeed to determine the intention of the 97th Congress on the basis of what the 100th Congress says that intention was. See Firestone Tire & Rubber Co. v. Bruch, — U.S. -, 109 S.Ct. 948, 956 , 103 L.Ed.2d 80 (1989); United States v. Price, 361 U.S. 304, 313 , 80 S.Ct. 326, 332 , 4 L.Ed.2d 334 (1960); and United States v. United Mine Workers, 330 U.S. 258, 282 , 67 S.Ct. 677, 690 , 91 L.Ed. 884 (1947). The structure of the statute, its very clarity, makes it apparent that its language must control at all times prior to the enactment of RRA § 224(h). Of course, I do not say that Congress was unable to amend the statute. Rather, I say that is precisely what Congress did in 1987. By that amendment, it expressed its intention that the RRA provisions for higher water rates apply to individuals who had contracts which existed before 1982. 9 That being so, I must consider whether the legislation also affected the judgment in this case. It did not.

As noted above, RRA § 224(h) was actually a part of the Omnibus Budget Reconciliation Act of 1987, a not unusual budgetary bill with a potpourri of provisions on various subjects. It was a result of many compromises hammered out in a conference committee of the United States Senate and the United States House of Representatives. Neither bill that went to that committee made any reference to this subject. See H.R. 3545, 100th Cong., 1st Sess., 10 U.S.Code Cong. & Admin.News 1987, 2313-I. I do not say this by way of criticism; I say it by way of noting that there is no material from which we could derive more precise knowledge of legislative intent than the statute itself provides. Certainly that history does not speak to the judgment in this case or to any other judgment entered by the courts of the United States.

I recognize that we have been referred to remarks made by Representative Miller at the time the Omnibus Budget Reconciliation Act of 1987 was being considered. 133 Cong.Rec. E4995-96 (daily ed. Dec. 22, 1987). His remarks are interesting. 11 However, they cannot change the construction of the statute. First, it would be quite dangerous to ascribe the opinions of Repre *833 sentative Miller to the whole Congress of the United States, and thereby determine that body’s intention on this subject when it passed an enormous budgetary act. Cf. Regan v. Wald, 468 U.S. 222, 237 , 104 S.Ct. 3026, 3035 , 82 L.Ed.2d 171 (1984). See also Green v. Bock Laundry Mach. Co., — U.S. -, 109 S.Ct. 1981, 1994 , 104 L.Ed.2d 557 (1989) (Scalia, J., concurring). Second, even Representative Miller did not expressly state that there was an intent to overturn any judgment of a court which had fixed the rights of the parties.

I would therefore hold that Congress did not intend to affect the judgment in this case when it enacted RRA § 224(h), and that the enactment of that section did not violate the constitutional provisions which allocate powers between the branches of government. 12 I would also eschew the Secretary’s interpretation of that statutory language insofar as he has attempted to apply it to these appellants. While I am aware of the fact that we should usually give deference to administrative interpretations, we do not do so if the interpretations are in conflict with the law. See Public Employees Retirement Sys. v. Betts, — U.S. -, 109 S.Ct. 2854, 2863 , 106 L.Ed.2d 134 (1989). That is particularly true where, as here, the interpretations would raise serious doubts about the constitutionality of the statute itself. See Daylo, 501 F.2d 811 , and I.A.M., 612 F.Supp. 643 .

It follows that the appellants were entitled to receive water at the rate set forth in the 1963 contract, without regard to the provisions of RRA § 224(h). Moreover, they should not be subject to the provisions of RRA § 205 [43 U.S.C. § 390ee] during the period that they have been given to dispose of their excess lands pursuant to their existing recordable contracts, unless they take action to bring themselves within those provisions in the manner provided in RRA § 203 [43 U.S.C. § 390cc], As I have already noted, we need not decide whether that right extends beyond the time that they would be required to dispose of their lands under the existing recordable contracts.

When these contracts were entered into the appellants had every reason to expect an irenic future in which their labor would combine with ample, reasonably-priced water to produce bountiful crops. That future was not to be. The Secretary’s various acts have caused delay, litigation, and greatly increased water prices for a portion of appellants’ lands. I would not permit the government to thus break faith with the appellants. I would hold it to its contracts.

For these reasons I must respectfully dissent.

. A partial history can be found in California v. United States, 438 U.S. 645 , 98 S.Ct. 2985 , 57 L.Ed.2d 1018 (1978). It need not be reiterated here.

. The price was intended to reimburse the government for its estimated costs, and was not meant to be a mere giveaway figure. Indeed, we are told that it was the highest price ever charged for water from a project of this sort. Perhaps the Secretary estimated poorly, as contracting parties often do; that should not affect our characterization of the arrangement.

. It is proper to note that the 1963 contract was not the result of some arrangement made in the back corridors of an administrative agency that was tricked into it by sly landowners. No one claims that it was. Quite the contrary, it was heralded at the time it was made. In fact, the final approval of the 1963 contract was the subject of a special ceremony at the White House on January 28, 1963. See Remarks at Signing of Water Resources Development Contracts, John F. Kennedy, 1963 Pub. Papers 104. In other words, there is no reason to treat the agreement with disrespect.

. If there were truly an ambiguity, I would be dubious about resolving that at our level and without the development of evidence in trial court proceedings. See International Bhd. of Elec. Workers, Local 47 v. Southern California Edison Co., 880 F.2d 104, 107 (9th Cir.1989). I do not believe that we could resolve it by simply relying on a maxim that ambiguities operate against adventurers. For example, there is a further maxim that ambiguous contract provisions are to be construed against the drafter even if the drafter is the government. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 , 1033 (9th Cir.1989) (citing United States v. Seckinger, 397 U.S. 203, 215-16 , 90 S.Ct. 880, 887-88 , 25 L.Ed.2d 224 (1970)). Here the drafter of the excess lands provisions was almost certainly the government.

. The majority’s suggestion that Interior did not default at all, because it simply disabled itself from performing when it failed to pass regulations that would enable it to do so is both intriguing and surprising. It opens up teneb-rous vistas of contractual perfidy. Horowitz v. United States, 267 U.S. 458 , 45 S.Ct. 344 , 69 L.Ed. 736 (1925) is distinguishable. There one Board agreed to ship goods, but another Board decreed that no one could ship that general type of goods. The Supreme Court held that the plaintiff could not claim a breach on the theory that a rule which bound everyone else should not affect his contract. Our case is quite different. Here the Secretary had to approve of sales and the Secretary failed to take proper steps to enable himself to do so.

. In this case, for example, the increase was over fivefold, $42 rather than $8.

. The question of whether that failure would actually be a breach of contract need not be mooted. Nor need we determine what the Secretary's remedies would be under that now hypothetical circumstance.

. Although the section was not originally part of the RRA, it will hereafter be referred to as RRA § 224(h).

.I need not and do not express an opinion on the propriety of legislation which sets out to affect contract rights between the United States and others. Suffice it to say that it presents knotty constitutional problems of its own. See Perry v. United States, 294 U.S. 330 , 55 S.Ct. 432 , 79 L.Ed. 912 (1935); Lynch v. United States, 292 U.S. 571 , 54 S.Ct. 840 , 78 L.Ed. 1434 (1934); and The Sinking Fund Cases, 99 U.S. 700 , 25 L.Ed. 496, 504 (1879).

.The Senate version started as S. 1920, 100th Cong., 1st Sess., but what it sent to the Conference Committee was a much changed version of H.R. 3545.

. Representative Miller provided the following rationale in support of the bill:

. The majority seems to suggest that this conclusion is little more than resolution of a claimed statutory ambiguity in the usual sense. See op. at 823 n. 15. I disagree. As the authorities cited in this portion of the dissent indicate, great clarity of purpose should appear before we attribute the intent to overturn judicial decrees to Congress. That is quite different from simply construing a statute to determine whether it applies to a certain set of facts.