<br />.
<br />
<br />.
<br />
<br />0008
<br />
<br />-6-
<br />
<br />non-navigable waters which are sources of navigable streams "to
<br />such an extent as to destroy their navigability. . . ."7./
<br />
<br />On the other hand, the two predecessor acts of the Desert land Act
<br />both recognized and ratIfIed a pre-exIstIng rIght to poss~sslon of
<br />water In accordance with local custom, laws and court decisions, see
<br />14 Stat. 251, 253 (1866); 16 Stat. 217, 218 (1870); Broder v. Natoma
<br />Water and Mlnlna Co.. 101 U.S. 274, 276 (/879), and neither statute was
<br />expressly limited to non-navigable waters,~/ Moreover, The Supreme Court
<br />has held that these two acts are not limited to rights acquired before
<br />1866, but "reach Into the future as wel I . . . ."9/ Therefore, the
<br />sIgnIfIcance of the Desert Land Act's I ImitatIon to non-navIgable waters
<br />Is unclear.
<br />
<br />Second, the Act's I imitation to sources on the public lands received
<br />express recognition In Federal Power Commission v. OreGon, 349 U.S.
<br />at 448 (1955), which held the Act Inapplicable to reservations of land
<br />from the public domain, see 349 U,S. at 448, without distinguishing be-
<br />tween whether the water Involved was needed to carry out the purposes
<br />of the reservation, see part III A, Infra, or was for congresslonally-
<br />authorized uses apart from the purposes of the reservation; see part
<br />III B.
<br />
<br />Third, the Act's limitation to unused, unappropriated waters means
<br />that to the extent the Federal Government was usln water In connection
<br />with federal land managemenT n t877, It was not free for "the appro-
<br />----
<br />prlatlon and use-ot-th-e-pab-!1-c7" Bul wl,,,llier H"-pr"evtiI1led llie Ft!treral
<br />Government from using addIT1Qilat-wa"ter after 1877 except In compliance
<br />with state law requires further scrutiny, provided belcw.
<br />
<br />Fourth, the Act's I Imitation to water for "Irrigation, mining and manu-
<br />facturing purposes" has not been found by the Supreme Court to te par-
<br />ticularly sIgnificant. In 1935 the Court, purportlng to give thIs
<br />
<br />71 United States v. Rio Grande Irriaatlon Co., supra, 174 U.S. at 706.
<br />As passed by the Senate, the prov I s I on read: "and The water I n a I I
<br />lakes, rivers, and other sources of water supply shal I remain and be
<br />held for the use of the public for purposes of Irrigation and mining."
<br />See Congo Rec. (Feb. 27, 1877), p. 1973. The language was changed to
<br />apply only to non-navigable waters In Conference, without explanation.
<br />Congo Rec. (March 3, 1877), p. 2156.
<br />
<br />81 Somewhat curiously, however, the Supreme Court In 1935 said these
<br />two statutes were the "test and measure of private rights In and to
<br />the non-navlaable waters on the publ Ie domain," California Oreaon
<br />Power Co" supra, 295 U.S. at 155 (emphasis added),
<br />
<br />2/ Ibid; see also CalIfornia v. UnIted States, suora, 438 U,S. at 657,
<br />n. l-r:--
<br />
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