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<br />0253. . <br />In the past, western states have found it difficult in ll'aIly cases <br />to adju:Hcate federal water rights because of the insistence of federal <br />attorneys claiming in court the !lOst "hypothetical" rights that can be <br />conceived, with the rope that a maximum right might be adjudicated to <br />the federal governrrent. These presidential pranises gave new hope to <br />the states that expedient determination of federal reserved rights could <br />be a=nplished. . <br /> <br />( <br /> <br />Following the President's premise, the SuprEme Court in the s\JllI!'er <br />of 1978 ruled on three ilTIportant cases, United States v. New Mexico, <br />Andrus v. Charlestone Stone PI'ooucts, and United States v. California, <br />am found the federal reserved right to be limited. The Suprerre Court <br />further found that federal agencies were to canply with state law in <br />establishing water dghts with the exception of reserved rights. <br /> <br />Recently, the Solicitor for the Depart:rrent of Interior released an <br />opinion as to the . -. '; :" ,. water rights held by the Depart:rrent of <br />Interior. The Solicitor's opinion flies in the face of the pranises of <br />. the President arxi stands as a potential major obstacle in the cooperative <br />and expedient determination of federal an:l state water rights in the <br />West. In fact, the western states view the document not as an opinion <br />impartially prepared, but rather, an advocate's statanent trying to do <br />what the President had pranised not to do; that is, to stretch the <br />theoretical arxi hypothetical claims of the federal government to their <br />maximum in preparation for extensive litigation. The !lOst repugnant <br />aspect of the Solicitor's opinion is the attEmpt to establish a new <br />federal right identified by the Solicitor as a federal non-reserved <br />water right. This new doctrine espoused by the Solicitor appears to be <br />an att€fiIPt to circumvent the clear determination of the Suprerre Coort <br />with respect to the limitation of federal water rights. (United States v. <br />New ~Exico, 438 U.S. 696,702 (1978) <br /> <br />.,.. <br /> <br />( <br /> <br />Governor Matheson of utah recently evaluated the effort of the <br />Solicitor of the Deparbnent of Interior with the following statement: <br />"In its assertions concerning non-reserved federal rights, the Solicitor's <br />opinion must at test be seen as espousing the kind of hypothetical and <br />theoretical claims which the President rejectEd. At worst, it is flatly <br />contEmptuous of the SuprEme Court's recent decisions on the issue." <br /> <br />We do not intend to address the Solicitor's many faceted opinion in <br />detail in this introductory statement. The Western States Water COlUlCil <br />is =rently preparing a detailed legal analysis of the positions taken <br />by the Solicitor in his recent "opinion." However, even though the <br />Solicitor's opinion must be limited to the Department of Interior which <br />he serves, it should be ilOted that the Departnent of Interior chairs the <br />Task Force on Non-Indian Reserved Rights. It should further be noted <br />that the Solicitor, when explaining the relationship between the Task <br />Force report and the Solicitor's opinion, stated that, "It is fran the <br />Solicitor's opinion that the Task Force report must flow. n <br /> <br />The Carter Mministration I s view that the establishment of new <br />water rights by the federal governrrent to satisfy federal purposes based <br />on state law is on the nark. However, the approach which contanplates <br />the establishnent of new non-reserved federal la\oI-based water rights <br />relying on general congressional directives on resources managanent, <br />should be abandoned imrediately. Use of this new federal device for <br /> <br />( <br /> <br />-2- <br /> <br />.. <br /> <br />.__~_~~~____~.. __.__ ___ _ _ _A___._. <br />