Organizing for Endangered and Threatened Species Habitat Draft

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had seen the privatization of public lands in mountain watersheds as a threat, had argued for establishment of the U.S. Forest Service in order to achieve resource management practices that would increase water yields, not reduce them. (Gillilan and Brown 1997). They deeply resented the new twist in Forest Service policy that was threatening to reduce the yields of their long established water projects. For its part, the Forest Service noted that it was required by law to impose by-pass flow conditions on the two cities and a mutual irrigation company. The water users argued, in response, that federal demands for "by-pass" flows were prohibited by law. Reserved Rights Doctrine ? The Federal reserved rights doctrine has been a highly contentious in the West for most of . the twentieth century. The doctrine holds that the Federal government, when setting aside lands , for public purposes that require water, the very act implied a reserved right of water sufficient to fulfill those purposes (Arizona v. California, 373 U.S. 546 (1963)). This court-made position is ? traced back to the establishment of Indian reservations in 1888 (Winters v. United States, 207 ? U.S. 564 (1908)). The U.S. Supreme court has read this doctrine restrictively, to limit rights to • the minimum amount of water necessary to accomplish the Federal purpose (Cappaert v. United • States, 426 U.S. 128 (1976)). Reserved rights were interpreted as coming from unappropriated water at the time that the land was set aside, and that the right has an appropriation date back to ? the date of land reservation. The federal government began to set aside large tracts of land in the late 1800s, establishing a public domain of Indian homelands, Army forts, historical sites, monuments, and wilderness areas. However, water issues were seldom directly addressed at the time of reservation. For years after the Winters decision (1908), federal reserved water rights were seen as a minor part of Indian law that applied only to Indian reservations until 1963 (Gillilan and Brown 1997). In many watersheds, reserved water rights have constituted a serious threat to state water users because so many Federal reservations were made sufficiently early-in the late 19' and early 20`' centuries-that such priorities could be among the he more senior rights in a basin. In addition, the rights were rooted in federal law, not state law, and are presumably not subject to be diminished by states (Corbridge and Rice 1999 : 441-470). The entire concept of federal reserved water rights thus served as sufficient threat such that water users everywhere in the West organized to oppose federal actions that could potentially erode either their appropriations under state authority and their project water yields. Legal Battle In Arizona v. California (1963), the U. S. Supreme court, without appearing to invest as much consideration as some in the states would have liked, ruled that all Federal land reservations, not only Indian reservations, fall under the reserved rights doctrine. In this case, federal agencies claimed water for Lake Mead Natural Recreation Area, Havasu Lake National Wildlife Refuge, and the Gila National Forest. The Forest Service had been party to that decision because of its holdings of forest land within the lower Colorado basin watershed. The agency 34