WSP11470

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 10/25/1979
• Author: WSWC
• Title: Response to the Solicitors Opinion on Federal Water Rights of June 25 1979
• Water Supply Pro - Doc Type: Report/Study

At the ~arre tirre.s the Suprerre Court handed d'this landmark
decision on the Reclamation Act, it detemJined another si,gni,:t;icant CG\se
concerning the reservation doctrine, entitled United States v. New M=xico 37/
or the Mirobres Valley case. The Supreme Court ruled that the United -
States, in setting the Gila National Forest in New Mexico aside fran other
public lands, reserved the use of water out of the Rio Mirobres only where
necessary to preserve the timber in the forest or to pnrlently manage the
, watershed in such a way as to maximize yield to appropriators llilder state
law, and hence the United States is not entitled to reserved rights for
aesthetic, recreation, wildlife-preservation, and stock watering purposes.
Justice Rehnquist writing for the majority, fourrl that "each tirre
this Court has applied the implied-reservation-of-water doctrine, it has
carefully examined toth the asserted water right and the specific
purposes for which the land was reserved, and concluded that without the
water the purposes of the reservation \\Quld be entirely defeated." 38/
This careful examination was required, according to the Court, because
of the history of congressional deference to state law whenever the
question was addressed as to whether federal entities must abide by
state water law.

.

The Court found that, despite this congressional deference, where
water is necessary to fulfill the very purposes for which a federal
reservation was created, it is reasonable to conclude that the united
States intended to reserve the necessary water. Ho.vever, the Court,
went on to determine that "where water is only valuable for a secondary
use of the reservation, there arises the contrary inference that Congress
intended, consistent with its other views, that the United States \\Quid
acquire water in the same rranner as any other public or private appropriator."
39/

The Suprem= Court's decisions in these cases carre on theheels of
another decision by the Court a rronth earlier in Andrus v. Charlestone Stone
PrcxJ.ucts 40/ reaffirming that private water rights on federal public
lands areto be governed by state and local law and that Congress, in
writing the Mining Act and subsequent amendments, had not set up a
carpeting, federally controlled systEm of assigning water rights.

.

Just prior to these landmark Supreme Court decisions reaffirming
the primary role of the states in water resources developnent and
allocation, President Carter annollilced his proposals to reform national
water policy. 41/ In his water policy message he instructed federal
agencies to \\Qricpranptly and expeditiously to inventory and quantify
reserved rights claims. The President directed the federal agencies to
"utilize a reasonable standard when asserting federal reserved rights
which reflects true federal needs, rather than theoretical and hypothetical
needs based on the full legal extension of all possible rights." 42/

Pursuant to the President's directive, a task force was established
with leadership delegated to the Solicitor of the Depart:Irent of the
Interior. 43/ One of the tasks assigned to each member agency of the
task force -was to describe the reserved rights cla:iJred by the agency. In
response, the Solicitor issued an opinion on June 25, 1979, identifying
and explaining the legal basis for the water rights for lands managed by
the Parks Service, Bureau of Land Managerrent, Fish & Wildlife Service,
and the Bureau of Feclamation. iYl

.

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