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. -. -17- ~.' tl ..", . , .... -' ." "'~':F.~ federal property and/or programs by the Congress may only be exercIsed In a manner which Is "not Inconsistent with congressional directIves." See California v. United States, supra. 438 U.S. 645 at 672. ft seems plain, however, that most of the United States' approprIative (or non-reserved) water rIghts are recognized under the water law of most of the Western states, and therefore no conflIct with state systems should generally exist. There may, of course, be conflIcts between the Federal Government and provisions of state substantive iaw when federal agencies appropriate water for uses which are not recognIzed as "bene- ficial" under IndIvidual state water law systems, or where In-stream flows needed for federal purposes are not recognIzed as a "diversion" or "appropriatIon" of water under state law. The questIon remains, however, whether and to what extent the United States must conform Its assertion of non-reserved federal water rights to state law. The majorIty opinion In United States v. New MexIco. supra, suggests at one point that, If a reserved right does not exist, "there arises the contrary Inference that Congress Intended" federal agencies to "acquIre water In the same manner as any other public or prIvate appropriator." 438 U.S. at 702. It Is not clear whether the Court was referring generally to the concept of appropriation of water used ~y the Western states, or ful I compliance with procedural and substantive state water law, or only compliance with state proce- dures. If the Court Intended by this dictum that the United States could only assert water rights for purposes recognized as beneficIal under state law, then the federal land manager would have to manage the same kind of federal lands signifIcantly dIfferently In different states, dependIng on local law, The BLM, for example, may not be able to manage iands for recreation and fishery protection In one state to the same extent that It could In a neIghboring state because of differ- ences In what are regarded as "beneficial uses" under each state's law. ..:':2::!-,;] The majorIty In New MexIco does not discuss whether Congress Intended this anomalous result. As noted above, the Court had two years previ- ously statlJd In CaDpaert v. United States. supra, at 145, that "[f]ederal water rights are nOT dependent upon STaTe law or state procedures . " I must Interpret the dictum In UnIted States v. New Mexico In light of, and consIstent with, prior Supreme Court pronouncemenTs, especially since the Court dId not purport to limIt or overrule statements In prior de- cIsions. Therefore, It Is reasonable to conclude that although the majority In New MexIco believed that non-reserved federal water rights must be acquired through some form of appropriation and actual use, I cannot subscribe to the view that these non-reserved federal water rights, used In connection wIth congressionally-authorized land manage- ment programs, are dependent upon state law In defining their substantive contours. In my view, such a result would not comport comfortably with such Supreme Court decIsions as United States v. Little Lake Mlsere Land Co., ~, recognizing the authority of the Federal GovernmenT to rely on federal law where state law Interferes with congressionally-authorized programs. and Paul v. United States, ~, requiring an express actIon by Congress to delegate federal prerogatives to state authorities, and ."..:,: --<~~ . --