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<br />'0234 <br /> <br />. <br /> <br />. <br /> <br />IV. POLICY CONSIDERATIONS <br /> <br />In my view, it is not the function of this office to <br />promote policies of the Interior Department or any of its <br />agencies, but rather to assist the Department and its <br />agencies in determining and being guided by the rule of law. <br />However, the Opinion dealt at length \"i th its implications <br />in terms of policy considerations, and indeed may have been <br />motivated by the decision adverse to the United States in <br />the New Mexico case. 74/ I believe it is therefore appropri- <br />ate to comment brieflyconcerning policy considerations, <br /> <br />The deference to state jurisdiction over water allo- <br />cation evidenced by the Supreme Court does not mean federal <br />agencies are powerless to acquire water to carry out federal <br />programs. Congress, in many instances, has granted federal <br />agencies authority to acquire water rights pursuant to state <br />laws to carry out federal programs on federal lands. As the <br />Opinion points out, the claims for appropriations therein <br />asserted would be "recognized under the water law of most of <br />the western states, and therefore no conflict with state <br />systems should generally exist." 75/ Furthermore, as the <br />Opinion itself concedes, the federal government has the <br />power to acquire water rights through purchase, donation, <br />and condemnation. No reliance on a theory of non-reserved <br />water rights is required. <br /> <br />The Opinion rejects the philosophy of deference to <br />state substantive law because "then the federal land manager <br />would have to manage the same kind of lands significantly <br />differently in different states, depending on local law." !..i/ <br /> <br />!..i/ <br /> <br />The Supreme Court in the New Mexico case denied <br />the governments claims to reserved rights for <br />instream uses on forest lands for aesthetic, <br />recreation, wildlife-preservation, and stock <br />watering privileges. Besides being a vital <br />source of timber, national forests system lands <br />are ~onsidered the most important watershed <br />areas under any agency of the United States. <br />In the eleven western states, more than half of <br />the stream flow comes from national forests. <br /> <br />Opinion at 576, <br /> <br />75/ <br />!..i/ <br /> <br />Id. <br /> <br />-20- <br />