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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 />. <br /> <br />. <br /> <br />. <br /> <br />0230 <br /> <br />. <br /> <br />. <br /> <br />The parcels, which were acquired in 1937 and 1939 reserved <br />to the grantor the right to extract minerals for 10 years. <br />The Court held that the United States had acquired mineral <br />rights in spite of a 1940 Louisiana statute that had pro- <br />vided that mineral rights reserved by the grantor in con- <br />veyances to the united States are "inprescriptable." <br /> <br />The Court noted that the United States is governed <br />generally in its ordinary proprietary relations by state <br />law, but it said that this case bore heavily upon a federal <br />regulatory program, and the choice of law here was a task <br />for federal courts. The Court declined to apply the Louisi- <br />ana Statute because it deprived the United States of an <br />interest for which it had specifically bargained. The Court <br />specifically declined t6 overturn the general rule that <br />state property law should govern federal land acquisitions. <br /> <br />It is difficult to see how the Little Lake Misere case <br />can be general authority for a non-reserved water right. <br />The case recognizes that state law generally applies to <br />property acquisition. Moreover, the case appears to be an <br />unusual exception to the general rule that there is no <br />federal common law, <br /> <br />The Court's opinion specifies that the decision was <br />affected by the clarity of the specific Congressional intent, <br />both in the words of the Act and in its legislative history. <br />The Court observed that its conclusion might be influenced <br />if the state law "served ligitimate and important state <br />interests the fulfillment of which Congress might have <br />contemplated through application of state law." 60/ While <br />no such finding was justified in the Lake Miserecase, the <br />Supreme Court has found such Congressional recognition of <br />state water law, Indeed, in the New Mexico case, the Court <br />referred to 37 statutes that contain explicit directives <br />that state water law be followed or not disturbed. g/ <br /> <br />The Opinion also cites the decision of a federal <br />district court in Nevada ex. rel. Shamberger v. United <br />States. 62/ The court held in that case that the federal <br />government could use underground waters located under a <br />naval depot without obtaining a permit from the state. The <br />court ~easoned that since the United States possessed both <br /> <br />~/ <br />61/ <br /> <br />g/ <br /> <br />Id. at 599, <br /> <br />438 U.S. 696, 702n.5 (1978). <br /> <br />165 F. Supp. 600 (D.Nev.1958) , aff'd on other grounds, <br />279 F. 2d 699 (9th Cir, 1960). <br /> <br />-16- <br />
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