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<br />MAR-04-2003 TUE 09:54 AM TROUT WITWER & FREEMAN
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<br />FAX NO, 3038324465
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<br />PART U
<br />BACKGROUND
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<br />Attempts by federal agencies to av~id recogniti<1n of non. federal water righlS is not a new
<br />development in the relationship between s~tes and the federal government. However, Congress
<br />has addressed lhis issue repeatedly, and e~h time the is~ue has been resolved in favor of
<br />deference to the ability of the states todecjde who has ~ water right, how much it is and how and
<br />when it may be exercised. This deference '~lems, alleas~ in part, from the widely varied ways
<br />states have trealed the subject, based on dilfering legal frameworks adopted from antecedent
<br />cullures. And even when Congress has acted, directly or impliedly, to reserve unappropriated
<br />water on federal lands for use for federal pflTposes, it has still allowed state COUT!S to adjudicate
<br />the existence, quantity, and priority of the federal water rightS 50 that Ihe federal water rights
<br />could be established and administered in a way that protected previously existing rights
<br />established under st8te law. .' .
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<br />This defer,,"ce haa been longstanding and explicit. Beginning with the 1866 Mining Law,
<br />as amended by the Act oOuly 9, 1870, an~ followecl by the 1877 Desert Land Act, Congress
<br />severed water from the public lands and allpwed third panies to obtain vested rights to the use of
<br />that waler.'o These rights vest as against all other claitnanta, includini Ih~ United Slates.
<br />Otherwise, there would have been no reasan for the development of the concept offederal
<br />reserved rights, which were created in ordcir to remove~ Dr reserve, specified quantities of water
<br />from that which is otherwise available for appropriation and'use under state law. Even Solicitor
<br />of the Interior KrulilZ interpreted the 186$ and 1870 Acts to mean that "('",nRTf'''' In .ffect
<br />we.;v~d i,~ propnelllQ' and riparian rights ~o wQtp.r on: the public domain tn the ext~nt tngt water
<br />i. ~Pl1ronrialed hy members of the puhlic under state 'law in conformance with the grant of
<br />8uthority found in these two Act[s]. l'Il\1~ Ihe~ !wo' Acts confine .....'tion \If inchoate federal
<br />wat~r rip-hIS to unawropriated "",teu that: e'rist ~ any point in time. II U The relevant
<br />provisions of the 1866, 1870, and 1877 AC\s have not been repealed and thus remain valid federal
<br />law IOday.
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<br />The 1897 Organic Administration ~ct, which ~reated the National Forests, continued this
<br />deference, and took the additional step of mandating that the National Forests were 10 be
<br />established "principally as a means of enhaljcing the q1.lanlity of water that would be available 10
<br />the seulen of the arid west,"U Accordingly, the creation of the National Forests was not
<br />intended 10 interfere with or limit the el<<lrc\se of non.federal waler rights.
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<br />10 See C.lljarniQ o. Unl"d S/Q,,,. 438 U.S. 645 (1978).
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<br />II F.d.,.1 WQItT Risk.. a/1M NatloMJ Fork SO""",, F",k ..ld WlilIli/. s."'"'.. B..... rJj R.el.......n. rznJ 111.
<br />e.,... 0/ LrznJ Mana,._nl, 1"".25,1979, M.36'il14, 861.D. 553, 565-566 ("K,,";.. Op,") (.mphesi. Add.d).
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<br />\. c.:nired Sr.",". New M.xJco, 438 U.S. 696, 7:13 (1978). '
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<br />p, 10
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