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<br />0253. . <br />In the past, western states have fourd it difficult in many 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 adju:licated to <br />the federal govermnent. These presidential pranises gave new hope to <br />the states that expedient deteJ:mination of federal reserved rights could <br />be a=rplished. <br /> <br />( <br /> <br />Following the President's promise, the Suprane Court in the surmer <br />of 1978 ruled on three :important cases, United States v. New Mexico, <br />Andrus v. Charlestone Stone Picducts, and United states v. California, <br />and fourrl 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 rights with the exception of reserved rights. <br /> <br />Recently, the Solicitor for the Deparbrent of Interior released an <br />opinion as to the --. -.;. water rights held by the Deparbrent of <br />Interior. The Solicitor's opinion flies in the face of the pJ:Crnises of <br />the President arrl stands as a potential major obstacle in the cooperative <br />and expedient detennination of federal and 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 and hypothetical claims of the federal governrrent to their <br />maximum in preparation for extensive litigation. 'J:'he !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 eSjX>used by the Solicitor appears to J:e <br />an attempt to circumvent the clear detennination of the Suprerre Ccurt <br />with respect to the limitation of federal water rights. (United States v. <br />New Hexico, 438 U.S. 696,702 (1978) <br /> <br />.,.. <br /> <br />c <br /> <br />Governor Matheson of Utah recently evaluated the effort of the <br />Solicitor of the Deparbrent of Interior with the following statanent: <br />"In its assertions concerning non-reserved federal rights, the Solicitor's <br />opinion must at best be seen as eSjX>using the kirrl 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 I s many faceted opinion in <br />detail in this introductory statement. The Western St-ates Water Council <br />is currently preparing a detailed le:;al 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 noted that the Department 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 arrl the Solicitor's opinion, stated that, "It is fran the <br />Solicitor's opinion that the Task Force report rnu<,t flow. n <br /> <br />The carter Mministration's view that the establishnalt of new <br />water rights by the federal governrrent to satisfy federal purposes based <br />on state law is on the mark. Ho.vever, the approach which contemplates <br />the establislTnent of new non-reserved federal la\'l-based '\later rights <br />relying on general congressional directives on resources managarent, <br />should be abardoned inm=diately. Use of this new federal device for <br /> <br />( <br /> <br />-2- <br /> <br />~. <br /> <br />... .._;-~-._~_.~---,_. --,---_. <br />