23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

Ultimately, the Okanogan court concluded that that case was "not a controversy over water
rights, but over rights -of way through lands of the United States, which is a different matter, and
is so treated in the right -of -way acts before mentioned." Id. at 1086 (quoting Utah Power &
Light Co v United States, 243 U.S. 389, 411 (1917)).
The Tenth Circuit has recognized that the Forest Service's authority over its lands may be
exercised to limit a water right holder's use of water. See City and County of Denver v
Bergland, 695 F.2d 465 (10` Cir. 1982). There the Tenth Circuit rejected Denver's argument
that its water rights prevented the Forest Service from regulating the right -of -way upon which the
city was building a water transmission system. Id. at 483. The Court ;of Appeals held that
although the water decree, determining the priority of water rights, prohibited the Forest Service
from challenging Denver's right to appropriate those waters, it had no effect on the agency's
ability to regulate Denver's use of National Forest lands — despite Denver's claims that the Forest
Service was interfering with its right to divert and utilize the water. Id. at 483 -84. In doing so,
the Tenth Circuit recognized both that the law had long held that a water right did not include the
right to use another's land and that the Organic Act "conferr[ed] upon the Forest Service the duty
to protect the forests from injury and trespass, and the power to condition their use and prohibit
unauthorized uses." Id. at 483 -84 and 476 (emphasis added). See also Diamond Bar Cattle Co
v. United States, 168 F.3d 1209 (10`' Cir. 1999) (affirming a district court's finding that
"Whether Plaintiffs own certain water rights ... does not change the fact that such rights do not
deprive the Forest Service of its statutory authority and responsibility to regulate the use and
occupancy of National Forest System lands .... ").
Title V of FLPMA repealed over thirty statutes which had granted rights -of -way across
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