Laserfiche WebLink
<br />''-''~ <br /> <br />.:;.;:;j~ <br /> <br />. <br />" <br />-< <br /> <br />. <br /> <br />. <br /> <br />... l' ", <br />\ - . <br /> <br />-25- <br /> <br />need In providing water for human consumption, livestock watering, and <br />other purposes noted above, these uses may, In my opinion, be made of <br />the water other than simply on the wIthdrawn lands.351 <br /> <br />4. Types of Sprlnas and Water Holes Subject to the 1926 <br />WIthdrawal <br /> <br />a. Smal I Springs and Water Holes <br /> <br />/' <br /> <br />The 1926 ExecutIve Order was a blanket withdrawal of "every" parcel of <br />publIc domain land containing "a spring or waterhole." No dIstinctIon <br />was made on the face of the ExecutIve Order as to the quantIty of water <br />In the water source to be reserved. The legislative history of the acts <br />authorizing .the withdrawal, the events leading up to, and reasons expressed <br />for, the 1926 withdrawal, and the regulations promulgated by the Department <br />following the ExecutIve Order of Aprl I 17, 1926 are clear, however, that <br />"~<:Is_..h~~g smarf3~JQssoCwate(hoTes-a}fojdlng"orily-enough water <br />for the use of one famIly and Its domestic anlltals,"361 were to be excluded <br />from'the -w lthdr_awa I ~-The Execut I ve Order must be' consTrued 'I n II ght of, <br />and Is limited by, the congressional grant of withdrawal power In 43 <br />U.S.C, ~ 300. That Act and legislative hIstory are consistent with the <br />regulatlons.371 In my opinion, only Important sprIngs and water holes <br />provl ding enOUgh '.ater for genera I ...ater I ng purposes beyond the needs <br />of providing food and forage for just one fami Iy and Its domestic <br />animals were withdrawn by the 1926 Executive Order. <br /> <br />b. ArtIficially Developed Spr'lgs and Water Holes <br /> <br />Prior Interior decisions have reached somewhat differing conclusions on <br />the appl Icabl Ilty of the 1926 withdrawal to artifIcially developed water <br />holes. The fIrst of these decIsions, Sa~ta Fe Pacific Railroad Comoany <br />381, held that: <br /> <br />It Is not believed that saId order contemplated <br />the withdrawal of tracts containing mere dry de- <br />pressions or draws whIch do not, In their natural <br /> <br />351 This opInIon does not. deal with the authority by which private <br />persons may obtain authority to transport water off the withdrawn <br />lands. <br /> <br />361 43 CFR 2311.0-3(a)(2). Original Circular No, 1066, May 25, 1926. <br /> <br />371 See, ~.g., H. R. Rep. No, 35, supra, note 20. referrIng to <br />"Important water holes, springs, and other bodies of water <br />necessary for large surrounding tracts of country, . , ." <br /> <br />381 53 I,D, 210 (1930), <br />