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<br />. <br /> <br />. <br /> <br />The Solicitor states that the case law supports his assertion of <br />the existence of non-reserved federal water rights. Hcwever, an ex- <br />amination of the cases cited, in addition to the recent Supreme Court <br />pronoW1cenents on federal water rights, leads to the opposite conclusion. <br /> <br />. <br /> <br />The Solicitor relies heavily UjX>n the dictUIll of United states v. <br />Rio Grande Irrigation Co.: "... in the absence of specific authority frem <br />Congress the state cannot by its legislation destroy the right of the <br />United States, as the owner of land bordering on a stream, to the <br />continued flOl'i' of the water; so far at least as may be necessary for the <br />beneficial uses of the goverrnrent property." 93/ This represents a <br />simple statelrent of the supr611acy d=t:rine. It rreans if the United <br />States needs water to implerrent a federal statute, it has the consti- <br />tutional pa.ver to take it. <br /> <br />In the first case actually involving a reserved right, Winters v. <br />United States, 94/ the Court referred back to the dictum in Rio Grarxie <br />for the proposition that "the power of the goverJ1ll'ent to reserve the <br />waters ani exanpt them fran appropriation under state laws is not <br />denied, and could not l:e." 95/ In the case,of Arizona v. Califomia, 96/ <br />where the reservation doctrille was extended to non-Indian teservations;- <br />vations, the Court again spoke in terms of supraoacy: "we have no doubt <br />about the power of the United States under these clauses to reserve <br />water rights for its reservations and its property." 97/ Thus, the <br />Court itself has interpreted its earlier language to mean that the <br />United States has the constitutional power to reserve waters arxi exenpt <br />them fran state jurisdiction. This has always been the premise upon <br />which the reservation doctrine has been based. <br /> <br />. <br /> <br />On the other harrl, the Suprerre Court has never upheld a claim by <br />the federal governrrent to appropriate waters without canpliance with <br />state law and wit.'1out basis in the reservation doctrine. To the contrary, <br />recent decisions of the Supreme Court should have been dispositive of <br />this issue. <br /> <br />The Court in Califomia, in what was obviously intended as a <br />lanlrnark decision, discussed the Rio Grande case as follows: <br /> <br />"In United States v. Rio Granie Dam and Irrigation Co., supra for <br />exarrple, Na'i' Mexico's authority to adopt a prior appropriation system of <br />water rights for the Rio Grande river was challenged. The Court, <br />unhesitatingly, held that 'as to every stream within its daninion, a <br />state IIBY change the eamon-law rule arxi pennit the appropriation of the <br />flowing waters for such pw:poses as it deGlls wise.' The Court noted <br />that there are b"1O limitations to the States' exclusive control of its <br />streams - reserved rights "so far at least as IIBY l:e necessary for the <br />beneficial uses of the government property" ani the navigation servitude. <br />The Court, hONever, was careful to eIlq?hasize with respect to these <br />limitations on the states po.;er that, except where the reserved rights <br />or navigation servitude of the United States are invoked, the State has <br />total authority over its internal waters. " [eIlq?hasis added]. 98/ <br /> <br />. <br /> <br />-14_ <br /> <br />90. <br />