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<br />The third statute, the Desert Land Act of 1877, 19 Stat. 377, 43 U.S.C.
<br />~ 321 et ~. (1970), provides generally for the homesteading of the
<br />public domain In tracts larger than prior laws al lowed, If the homesteader
<br />Irrigated a~;-ed,a'lmed--the land. The Supreme Court's tr,eatment of the
<br />effect of t.~esert Land Att on federal water rights has been unclear
<br />and confl Ictlng;-as-dev~.c;ped below. The-pCoylslon of the Act with which
<br />we are here concerned (43 U,S.C. ~ 321) was a proviso T~a~ne-homesteader
<br />would have rights to use only that water "necessariiy used for the purpose
<br />of lrrlga'flon and reclamaTion," and went on to state:
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<br />aU_the_sucpJ.us water ver and above such actua I
<br />appropriation and use'together w ne wafer-of
<br />an-lakes, rivers, and other sources of supply
<br />upon the public lands and not navigable, s~
<br />.remaln_and_be_be.LtLtceeJor:....:l:.he aDpropr I at Ion and
<br />!l~e_o.f_t.hfLp.uhl k for Irrlg"tlon. mining ana-
<br />manufacturing purposes subject to existing rights,
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<br />The applicatIon of thIs part of the'Act to federal water rights re-
<br />quires some discussion, for several limitations appear on Its face.
<br />First, It applies only to non-navigable sources of water. Second,
<br />1t_il.~I_IJ's only to such sources on the public lands. Third, It
<br />applies to "surplus water over and above actual approprlati~n and
<br />use," (emphasis added). Fourth, It makes the water available only
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<br />for "Irrlg"tll"ln,-!ll1nJ.ng-'ln.d manufacturing purposes." Fifth, It does
<br />not directly address federal rights to use water for congresslonalfy-
<br />authorized purposes on the tederal -lands, but Instead 15 aimed at appro-
<br />priation and use by "the public." Finally, tlie Desert Land Act applies
<br />only to certain states, originally Callfo,-nla, Cregon and Nevada, and
<br />the then territories of Washington, Idaho, Montana, Utah, Wyoming,
<br />Arizona, New Mexico and Dakota (later to become the states of North
<br />and South Dakota). 43 U,S.C, ~ 323. Colorado was added later. (26
<br />Stat. 1096, March 3, 1891)
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<br />Several things can be saId about these limitations. First, the
<br />Supreme Court has been careful to repeat the Act's I Imitations to
<br />non-navigable waters In subsequent cases,6! Moreover, It has
<br />squarely held that the Act does not allow-the right to approprIate
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<br />~! See,~, United States v, Rio Grande Irrloatlon Co., 174 U.S. 690,'
<br />706 (1899); California Oreoon Power Co. v. Beaver Porrland Cement Co.,
<br />295 U.S. 142, 162 (1935); Ickes v, Fox, 300 U,S. 82, 95 (1937); Brush
<br />v, Commissioner, 300 U.S, 352, 367 (1937); Cappaert v. United States,
<br />426 U,S. 128, 143, 145 (1976); California v. United States, 438 U.S.
<br />645, 658 (1978),
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