WSP05797 - Laserfiche WebLink

Home Browse Search

.(llJ2()77 establishing rights, eJt applied in a limited fashion,e not only on thin ice fran a legal base, but it ~JOuld add further confusion and nfM friction to an already strained federal-state relationship. Additionally, it appears to be inconsistent with President Carter's policy directives. A major enphasis of the . tesk lorce'; report seems to be a:irred at the establish 'Tent of "instrearn fla.v rights." Before the federal governrrent attempts to establish such a right based on federal la,~s and outside the state laws, the federal govemrrent should carefully evaluate the laws of the various states to deteIl1li.ne if establishment of such "rights" is required. some As a general observation, the Task Force report mkes,/reasonab1e recomrendations with respect to alleviating the uncertainty and acrim:>ny surrounding reserved rights claims by the federal gove=nt. HO\~ever. the report should integrate the reserved rights portion of the Solicitor's opinion of June 23. 1979. and should recarnend'that the assertion of non-reserved rights for public lands which appeared in that opinion be withdrawn as a matter of policy, in keeping with the President's directive to end the uncertainty surrounding federal ~later claims within the states and ~o "strengthen federal-state relations in the ,yater policy area." The canrnents that follow are rrade with respect to non-Indian reserved rights. The determination to rerrove the federal reserved Indian water rights fran this analysis was made by the federal goverrurent and in the western states' view was an e=or. Federal reserved Indian water rights IlUlst be considered as a part of the total problem and there- fore. Task Force Sa has been forced to address only a portion of the problem and has also been required to thread its ,~ay through the effort wearing blinders. There is no basis in law upon which to distinguish the adjudication of federal proprietary reserved rights from those held in trust for the Indians. In fact. the United states Supreme Court, in both the Eagle County and Akin cases, sp2cifically provided that the McCarran Arrendrrent alla.vs the several states to adjucllcate all founs of federal water. rights. both Indian and non-Indian. \ Co n 51' i t uti 0 c a I i y i tis not possible to adjudicate Indian '.':ater rights and non-Indian "ater r i nil t 5 i n d iff ere n 1 for U r:l S . :1 u e to 'r:' e n at u reo fin d i ('I n \" ate r rig h t cl;ins those claims are by far t~e Most threatening to existing . state "ater users and their exclusion from state adjudication proceedings' "auld make a sham of the efforts of the federal government to settle the controversy surrounding federal reserved wator rights. Suggesting that the federal government may determine that state udjudications may resu I tin "man i fest unfa j'rncss to fec<:lra I interests." const; tutes an affront to the western states and their judicial systeMS. Thbse'syst~ms are governed by the same prinCiples of federal constitutional law that apply in federal courts and include the additional safeguards of state constitutional law. (Material "hich formerly constitutRd nage 4 of the Task Force Ohservations is included on this rage.) -3-