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<br />. <br /> <br />. <br /> <br />ANALYSIS <br /> <br />I <br /> <br />RESERIlED RIGHTS <br /> <br />. <br /> <br />No atteropt will be nade to resparrl canprehensively to all of the <br />rese:rved rights claims asserted by the Solicitor for the respective <br />federal agencies. However, it is sul:rnitted that the Solicitor's opinion <br />fails to ac=ately state the law in several areas. The following are <br />examples. <br /> <br />(1) Bureau of Iand Managerent <br /> <br />The Solicitor asserts the existence of rese:rved rights in springs <br />arrl water holes on lands withdrawn pursuant to the Executive Order of <br />April 17, 1926. 46/ This order was issued pursuant to the authority <br />granted by Congress in the Stockraising Hanestead Act of 1916. ~ The <br />term "spring" is said to include sources which are tributary to a water <br />course or other h:rly of surface water. 48/ According to the Solicitor, <br />the order operates to withdraw available public land.s upon abandOllllEl1t <br />or forfeiture of a state water right in a spring or water hole existing <br />prior to the date of the 1926 order. 49/ The purposes for which the <br />water is reserved is said to be stock watering, human consumption, <br />agriculture and. irrigation, including sustaining fish, wildlife and. <br />plants, and. flood, soil, fire and. erosion control. 50/ <br /> <br />No court has held, nor is there any evidence leading to the con- <br />clusion, that the Stockraising Hanestead Act of 1916, upon which the <br />Solicitor relies, involved a rese:rvation of water rather than llErely <br />land. Section 10 of the 1916 Act stated as follows: <br /> <br />. <br /> <br />"Iands containing water holes or other h:rlies <br />of water needed by the public for watering purposes <br />shall not be designated under Sections 291-301[for <br />stock raising hanesteads] of this title, rot my <br />be reserved under the provisions of Sections 141-143 <br />of this title [the picket Act]... g; <br /> <br />The Act thus authorized the withdrawal of lands containing water <br />holes lUlder a prior Act, namely the Picket Act. In a decision by the <br />Department issued on October 23, 1916, 52/ it was determined that such <br />withdrawals \>ere to prevent anyone fran ---entering on the withdrawn larrls <br />for the purpose of constructing \\Orks for the diversion of water without <br />the consent and approval of the proper officers of the governrrent. <br />However, to the extent that water is rising on or within such reserved <br />land.s flowed in such a way that they thereafter became subject to <br />appropriations and. use under state law outside of the reservation, the <br />Depa.rtm=nt conceded that a valid right thereto could be acquired: <br />... "There is in the withdrawal of these land.s nothing which prevents any <br />person filing such an appropriation under the laws of Utah at any <br />time." 53/ <br /> <br />Although the Depart:nEnt reversed this interpretation in a subsequent <br />Departrrent decision in 1947 54/ and in a 1950 Solicitor's opinion, 55/ <br />no court has upheld the rese:rved right claimed by the United States to <br />water in springs and. water holes located on land.s withdrawn pursuant to <br />the 1916 Act. <br /> <br />. <br /> <br />-8- <br />