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<br />d <br /> <br />0075 <br /> <br />253, codified at 50 V.S.C. S5 51, 52 and 43 U.S.C. 5 661 <br />(1976). Although the primary purpose-oI the Act~as to <br />allow open mining on federal lands, 361 Congress included a <br />provision that specifically disclaimed any intent to interfere <br />with water rights and systems that had developed under state <br />and local law: <br /> <br />Whenever, by priority of possession, rights <br />to the use of water for mining, agricultural, <br />manufacturing, or other purposes, have vested <br />and accrued, and the same are recognized and <br />acknowledged by the local customs, laws and <br />the decisions of courts, the possessors and <br />owners of such vested rights shall be maintained <br />and protected in the same; . . . and the <br />right of way for the construction of ditches <br />and canals for the purposes aforesaid is <br />hereby acknowledged and confirmed; . . . <br /> <br />43 V.S.C. 5 661 (1976). <br /> <br />Four years later Congress amended the Mining Act of 1866 <br />to extend its applicability to "placer" mines. Act of July 9, <br />1870, 16 Stat. 218, codified at 30 U.S.C. 55 51, 52, and <br />43 U.S.C. 5 661 (1976). In perhaps an overabundance or-caution, <br />Congress reaffirmed in the 1870 Act that water rights obtained <br />under applicable state or local law were not to be affected by <br />grants made under the Act: <br /> <br />All patents granted, or preemption or home- <br />steads allowed, shall be subject to any vested and <br />accrued water rights, or rights to ditches and <br />reservoirs used in connection with such water <br />rights, as may have been acquired under or <br />recognized by the [Mining Act of 1866]. <br /> <br />361 The 1866 Mining Act was passed to thwart legislative initiatives <br />calling for the sale of mining interests on federal lands. <br />Its effect was to legalize the system of "free mining" that <br />had been established by custom and local rules of the western <br />mining communities. The legislative history of the provision <br />indicates that proponents of the legislation believed it <br />would merely confirm the existing rules and customs. See R. <br />Grow' M. Stewart, "The Winters Doctrine as Federal Common <br />Law," 10 Natural Res. Law 457, App. at 486 n.16 (1980) (hereinafter <br />cited as "Grow & Stewart"). <br /> <br />- 19 - <br />