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<br /> <br />. <br /> <br />. <br /> <br />. <br /> <br /> <br />& FREEMAN <br /> <br />FAX NO. 3038324465 <br /> <br />p, 11 <br /> <br />The principle that non-federal Water rights are recognized and protected under federal law <br />is proven by the factthatlhe exercise offederaJ authority 10 reserve Water for federal purposes is <br />limited 10 unappropriated waters, which means that federal claims to the use of water are legally <br />subordinate to previously established non-f~deral water rights. "Even If the 1960 Act expanded <br />the reserved water rights of the United Stat~s, of course the riihll would be subordinate to any <br />appropriation nfwater under state law dat,in,i to befnre 1960. "LJ The existence of the legal <br />distinctions between primary and secondary: purposes of the National Forests provides further <br />prooflhal federal law applicable to the use llfwater on National Forests protects non.federal uses <br />of water. A federal reserved water right exists for the primary purposes of the National Forests. <br />However, even this federal right is limiledt~ unappropriated water and subordinate to prior non. <br />federal water rights. Secondary purposes orthe National Forests, such as protection ofaquatic <br />habitat, do not give rise to a federal reserved water right, and water to achieve these purposes <br />must be "acquired in the same manner as an)' other public or private appropriator." ,. <br />Accordingly, since federal claims to the use 'of water for the primarv purposes of the National <br />Forests are subject to prior allocations of water to non.federal USes, federal claims to the use of <br />water for th~ secnnda.r:y purposes ofthe Nalional Forests are also likewise subject to, and cannot <br />interfere with, 'the allocation ofwater to nOli-federal uses. "Other public or private <br />appropriator[s]" must acquire water in prioiity under state law, and cannot take it from senior <br />wster rights through the use of bypass f1ow'requirements. <br /> <br />This conclusion is shared by even thj:)se who haVe asserted that "[T]he United States also <br />has the right to appropriate water on its own property for congressionally authorized uses [as a <br />maner of and subject to federal, and not state, law], whether or not such uses are pan of any <br />"reservation" of the land. This right to uSf' water for congressionally sanctioned purposes is <br />not. "reserved right. . .. Unlike the reserved right this federal right may not predate in <br />prinrity the date ac:non ig taken It'.:Rrli1'\f tq actua.l use whether cnnsumprivp. nr <br />n9nenn~nmptive and it may not adve.rMly aFfect other "ihr.c ~~tahlfshed unnp.r ~rate <br />I.lu!.:.. . . . . It is my opinion that, since Congress has vested only the public with the right to <br />appropriate water arising on, under, through or appul1enant to federally owned lands under <br />state Jaw. the United States therefore retains the power to utilile those unappropriated war..", <br />to carry OUt tbe management directives specified in congressional directives." II However, <br />subSequent Opinions of the Solicitor of the Depal1!nent of the Interior concluded that: <br />"FLPMA. . . does not give an indepentiellt statutory basis for claims for water uses <br />inconsistent in any way with the substBntiye requirements of state Jaw. 1010 While these <br />Opinions are by the Department of the lnti:rior, and nOllhe Department of Agriculture, they <br /> <br />" NifW Me"ico, 438 U,S. &1713, n.21 (emphasis :.ddcd), <br /> <br />U New M."ico. 438lJ.S, at 702, <br /> <br />II Krulil< Op.. 86 J.D. 553,574, 575 (1979) (ell1phasi. added). <br />'d Morn Op., 881.0. 253 (1981). CDl4i'Dn Op, 88 J.D. lOSS. 1062 (1981). <br /> <br />II - 2 <br />