Can a Secretary of State profit from his own failure to sell his excess lands?

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