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WSP05818
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Last modified
1/26/2010 2:20:01 PM
Creation date
10/12/2006 1:17:44 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8062
Description
Federal Water Rights
State
CO
Basin
Statewide
Date
5/1/1981
Author
WSWC Solicitor?
Title
Acquisition of Water Rights by the United States on Lands Administered by the Bureau of Land Management-Water and Power Resources Service-National Park Service-Fish and Wildlife Service
Water Supply Pro - Doc Type
Report/Study
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<br />iY 0228 <br /> <br />. <br /> <br />. <br /> <br />E. The Case Law <br /> <br />.. Despite these recent Supreme Court pronouncements, the <br />Opinion states that the caso law supports the assertion of <br />the existence of non-reserved federal water rights which are <br />independent of state substantive water law. However, the <br />cases cited lend no such support. <br /> <br />The Opinion relies heavily upon the dictum of United <br />States v, Rio Grande Irrigation Co.: "...in the absence of <br />specific authority from Congress the state cannot by its <br />legislation destroy the right of the United States, as the <br />owner of land bordering on a stream, to the continued flow <br />of the water; so far at least as may be necessary for the <br />beneficial uses of the government property." 54/ This <br />represents a simple statement of the supremacY-doctrine. It <br />means if the United States needs water to implement a <br />federal statute, it has the constitutional power to take it. <br /> <br />In the first case actually involving a reserved right, <br />Winters v. United States, the Court referred back to the <br />dictum in Rio Grande for the proposition earlier recited <br />that "the power of the government to reserve the waters and <br />exempt them from appropriation under state laws is not <br />denied, and could not be." ~/ <br /> <br />.. <br /> <br />In the case of Arizona v. California, where the <br />reservation doctrine was extended to non-Indian reserva- <br />tions, the Court again spoke in terms of supremacy: "We <br />have no doubt about the power of the United States under <br />these clauses to reserve water rights for its reservations <br />and its property." 56/ Thus, the Court itself has inter- <br />preted its earlier language to mean that the United States <br />has the constitutional power to reserve waters and exempt <br />them from state jurisdiction. This has always been the <br />premise upon which the reservation doctrine has been based. <br /> <br />On the other hand, the Supreme Court has never upheld a <br />claim by the federal government to appropriate waters <br />without compliance with state law and without basis in the <br />reservation doctrine. To the contrary, the recent decisions <br />of the-Supreme Court in the California and New Mexico cases <br />should have been dispositive of this issue. <br /> <br />~/ 174 U.s. 690, 703 (1899) . <br />55/ 207 U,S. 564, 577 (1908) , <br />56/ 373 U.S. 546, 598 (1963) . <br />. <br /> -14- <br />
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