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<br />O(~(W1G <br /> <br />-. <br /> <br />. <br /> <br />In the past. western states have fourd it difficult in many cases <br />to adjtrlicate federal water rights because of the insistence of federal <br />attorneys claiming in court the !lOst "hypothetical" rights that can be <br />conceived. with the rope that a maximum right might be adju::'licated to <br />the federal government. These presidential pranises gave new hope to <br />the states that expedient deteJ::IDination of federal reserved rights could <br />be acccnplished. <br /> <br />Following the President's promise, the Suprene Court in the sunrner <br />of 1978 ruled on three important cases, United states v. New Mexico. <br />1\ndrus v. Charlestone Stone Products, and United States v. California. <br />and found the federal reserved right to be limited. The SUprerre Court <br />further found that federal agencies were to canply with state law in <br />establishing water rights with the exception of reserved rights. <br /> <br />Recently. the Solicitor for the Deparbrent of Interior released an <br />opinion as to the . - -,;. -,. water rights held by the Depart:nent of <br />Interior. The Solicitor's opinion flies in the face of the pranises of <br />the President and stands as a potential major obstacle in the cooperative <br />and expedient determination of federal and state water rights in the <br />west. In fact, the western states view the document not as an opinion <br />impartially prepared. but rather. an advocate's statanent tl:ying to do <br />what the President had promised not to do; that is, to stretch the <br />theoretical and hypothetical claims of the federal governrrent to their <br />maximum in preparation for extensive litigation. The !lOst repugnant <br />aspect of the Solicitor's opinion is the attanpt to establish a new <br />federal right identified by the Solicitor as a federal non-reserved <br />water right. This neo;v doctrine espoused by the Solicitor appears to be <br />an attempt to cirCUIl1Vent the clear determination of the Suprerre COJrt <br />with respect to the limitation of federal water rights. (United states v. <br />New}Exioo, 438 U.S. 696.702 (1978) <br /> <br />Governor Matheson of Utah recently evaluated the effort of the <br />Solicitor of the Deparbrent of Interior with the following statement: <br />"In its assertions concerning non-rese:r;ved federal rights. the Solicitor's <br />opinion must at best be seen as espousing the kin:1 of hypothetical and <br />theoretical claims which the President rejected. At worst. it is flatly <br />contanptuous of the Supreme Court's recent decisions on the issue." <br /> <br />We do not intend to address the Solicitor's rrany faceted opinion in <br />detail in this introductory statement. The Western States Water Council <br />is =rently preparin3' a detailed legal analysis of the positions taken <br />at the Solicitor in his recent "opinion." HO\vever, even though the <br />Solicitor's opinion must be limited to the Department of Interior which <br />he serves, it should be noted that the DepartItEnt of Interior chairs the <br />Task Force on Non-Indian Reserved Rights. It should further be noted <br />that the Solicitor. when explaining the relationship between the Task <br />Force report and the Solicitor's opinion. stated that, "It is fran the <br />Solicitor's opinion that the Task Force report must flow." <br /> <br />The Carter 1\dministration' s view that the establish:nent of new <br />water rights by the federal govemrrent to satisfy federal purposes based <br />on state law is on the nark. Havever, the approach which contemplates <br />the establishrent of new non-reserved federal la\>l-based \vater rights <br />relying on general congressional directives on res=ces management, <br />should be abarrloned imrrediately. Use of this ~ federal device for <br /> <br />-2- <br /> <br />_ '__ '_', ._._,...______._:-__...______ - "'___'_"_1--'~_ _ ___._____. <br /> <br />.. <br /> <br />( <br /> <br />.... <br /> <br />( <br /> <br />( <br />