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<br />. e~~~g rights, evt applied in a limited fashion,' not only on <br />thin ice fran a legal base, but it vJOuld ad::l. further confusion arrl new <br />friction to an already strained federal-state relationship. Additionally, <br />it appears to be inconsistent with President Carter's policy directives. <br /> <br />A major emphasis of the . t.o s k force, report seems to be airred <br />at the establishrrEnt of "instream flON rights." Before the federal <br />goverrment attempts to establish such a right based on federal lal"s <br />and outside the state laws, the federal goverrurent should carefully <br />evaluate the laws of the various states to detennine if establishrrent <br />of such "rights" is required. <br /> <br />some <br />As a general observation, the Task Force report IT'akesjreasonable <br />recomrendations with respect to alleviating the nncertainty and acr:iJrony <br />surrounding reserved rights claims by the federal governrrent. HeMever, <br />the report should integrate the reserved rights portion of the Solicitor's <br />opinion of Jnne 23, 1979, and should reccmrend'that the assertion of <br />non-reserved rights for public larrls which appeared in that opinion be <br />withdrawn as a matter of policy, in keeping with the President I s directive <br />to end the nncertainty surrounding federal water claims \vi thin the states <br />and to "strengthen federal-state relations in the water JXllicy area." <br />~. - <br /> <br />The c:c:mrrents that folleM are made with respect to non-Indian <br />reserved rights. The determination to rerrove the federal reserved <br />Indian water rights fran this analysis was made by the federal governrrent <br />arrl in the western states' view was an error. Federal reserved Indian <br />water rights must be =nsidered as a part of the total problem and there- <br />fore, Task Force Sa has been forced to address only a JXlrtion of the <br />problem and has also been required to thread its way through the effort <br />wearing blinders. There is no basis in law upon vlhich to distinguish <br />the adjudication of federal proprietary reserved rights from those <br />held in trust for the Indians. In fact, the United States Supreme Court, <br />in lxlth the Fagle County. and Akin cases, specifically provided that the <br />McCarran Amendrrent allONs. the several states to adjudicate all fonns of <br />federal water rights, lxlth Indi~ and non"-Indian. I Constitutionally it is <br /> <br />not possible to adjudicate Indian ~ater rights and non-Indian water <br />rinhts in diff8rent forums. Due to the nature of Indi~n water right <br />cl~i~s those claims are by far the most threat0nlng tc existing . <br />state Nater users and their exclusion from state adjudication proceedings <br />would make a sham of the efforts of the federal government to settle <br />the controversy surrounding federal reserved water rights. Suggesting <br />that the federal government may determine that state adjudications may <br />result in "manifest unfairness to federal interests," constitutes an <br />affront to the ,./ostern states and thei r judicial systems. Those, systems <br />are governed by the same principles of federal constitutional law that <br />apply In federal courts and incl ude the additionel safeguards of state <br />constitutional law. <br /> <br />(r1aterial .,hich formerly constitut,'d nage 4 of the Task Force <br />Ohservations is included on this page.) <br /> <br />- 3- <br />