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<br />e~~~g rights, ev. applied in a limited fashion,' not only on <br />thin ice fran a legal base, but it vlOuld adi further confusion and new <br />friction to an already strained federal-state relationship. Ad:iitionally, <br />it appears to be inconsistent with President Carter's policy directives. <br /> <br />A rrajor errphasis of the - t-<l s k f o.j-- c e, report seems to be a:irred <br />at the establishrrent of "instream flON rights." Before the federal <br />governrrent attEIllpts to establish such a right based on federal laws <br />and outside the state laws, the federal government should carefully <br />evaluate the laws of the various states to determine if establishment <br />of such "rights" is required. <br /> <br />some <br />As a general observation, the Task Force report make~.Ireasonable <br />recorrrrendations with respect to alleviating the uncertainty and acr:iJrony <br />surrounding reserved rights claims by the federal goverrurent. HONever, <br />the report should integrate the reserved rights portion of the Solicitor's <br />opinion of June 23, 1979, and should recanrrend .that the assertion of <br />non-reserved rights for public lands which appeared in that opinion be <br />withdrawn as a rratter of policy, in keeping with the President's directive <br />to end the uncertainty surrounding federal water claims \vithin the states <br />and,!-o "strengthen federal-state relations in the water policy area." <br /> <br />The CCllirrents that follow are rrade with respect to non-Indian <br />reserved rights. The determination to rerrove the federal reserved <br />Indian water rights fran this analysis was rrade by the federal governrrent <br />and in the western states' view was an error. Federal reserved Indian <br />water rights must be considered as a part of the total problem and there- <br />fore, Task Force Sa has been forced to address only a portion 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 which 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 bath the Eagle County- and Akin cases, specifically provided tllat the <br />McCarran Arrendrnent allONs the several states to adjudicate all fonns of <br />federal water rights, bath Indi?TI and non-'- Indian. lea n s t -i t uti 0 n a I I y i tis <br /> <br />not pcssible to adjuJicate Indian water rights and non-Indian water <br />rinl,ts in different forums. Jue to the nature of Indi"n "ater ri~ld <br />cl~i~s those claims are by far the most threatening to existing - <br />state water users and their exclusion from state adjudication proceedings <br />would make a sham of the efforts of the federal government to sattle <br />the controversy surroundin~ 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 IH)storn states and their judicial systems. Those- systems <br />are governed by the same principles of federal constitutional law that <br />apply in federal courts and include the additional safeguards of state <br />constitutional law. <br /> <br />Ulat"lrial which formerly constitut8d nage 4 of the Task Force <br />Ohservations is included on this page.) <br /> <br />- 3- <br />