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<br />~~ <br /> <br />~ <br /> <br />0057 <br /> <br />u.s. Department of Justice <br />Office of Legal Counsel <br /> <br />Office of the <br />ASlisW\t Attorney GeMn1 <br /> <br />W.lhin"O', D,C, 20JJO <br /> <br />JUN 1 6 1~~~? <br /> <br />MEMORANDUM FOR CAROL E. DINKINS <br />Assistant Attorney General <br />Land and Natural Resources Division <br /> <br />Re: Federal -Non-Reserved- Water Rights <br />I. Introduction <br /> <br />You have asked us for our analysis and legal opinion <br />concerning the federal goverllI:1ent I s legal rights to unappro- " <br />priated water arising on or flowing across federally owned <br />lands in the western states. Specifically, you have asked us <br />to consider whether the federal government can assert rights <br />to unappropriated water, without regard to state laws governing <br />the use of such water, under what has come to be known as the <br />federal -non-reserved- water rights theory. For the reasons <br />set forth in detail in this opinion, we conclude that the <br />federal non-reserved water rights theory which we address in <br />this opinion does not provide an appropriate legal basis for <br />assertion of water rights by federal agencies in the western <br />states. <br /> <br />The question presented to us arose in your Division in <br />pending litigation in Wyoming State court involving, inter <br />alia, rights of the United States Department of Agriculture, <br />thrOugh the Forest Service, to water in the Big Horn and Shoshone <br />National Forests. The question presented to us initially was <br />whether an appropriate legal basis exists for the Forest Service <br />to assert amended claims in that litigation based on the federal <br />non-reserved water rights theory. At that time the Forest <br />Service supported assertion of such claims, at least for the <br />purposes of the Wyoming litigation. The Department of Agriculture <br />has since changed its position and decided as a matter of <br />policy that it will not assert claims based on the non-reserved <br />water rights theory, but rather will rely on state law to <br />obtain water rights, except where Congress has specifically <br />established a water right or where a federal reserved right <br />exists. See Letter from John B. Crowell~ Jr., Assistant Secretary <br />for Natural Resources and Environment, Department of Agriculture, <br />to the Honorable David H. Leroy, Attorney General, State of <br />Idaho (February 5, 1982). ' <br />