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0109 the federal government can acquire an interest in the water is if Congress withdraws certain lands from the ~cope of the acts, appropriates water under state law, or acquires existing water rights through purchase, exchange or condemnation. We believe that state and federal claims of title to or ownership of unappropriated water within the western states do not provide an adequate basis for either denial or assertion of federal water rights. Arguments made on either side of the issue are difficult to reconcile with the reserved rights doctrine, as it has been developed by the Supreme Court. With respect to state claims of ownership, the theory creates substantial questions concerning the constitutionality of the reserved water rights doctrine. That is, if Congress, either by the statehood acts or land management statutes, gave the states ownership of all unappropriated waters on the public domain, on what basis can the federal government reserve some of that water for a federal use, without compensation, by a withdrawal of land made after ownership of the waters passed to the states? On the other hand, with respect to federal claims, the Supreme Court has clearly limited. the reserved rights that the United States can assert to those which are minimally necessary to fulfill the explicit or necessarily implied congressional intent, and has recognized that the United ~/ (Continued) at 2 Clark, supra, S 102.6. The ratification and compact theories also suffer from several deficiencies. Most notably, the language and meaning of the various constitutional and statutory provisions relied upon by the states vary considerably, as do the admission procedures followed by the western states. It is impossible to construct a coherent theory that would apply to each state, especially as several of the western states either have no constitutional or statutory provision asserting ownership or passed such a provision only after admission. The ratification or compact theory would make a state's ownership of unappropriated water within its borders turn on the fortuitous language of its constitution and the circumstances of its admission into the Union. As several commentators have noted, the theory therefore provides little support for state claims of ownership. See, ~.~., Morreale, "Federal-State Conflicts," supra n.17, at 446-55; Trelease, "Federal-State Relations," supra n.6, at 117 n*; Goldberg, "Interposition -- wild Western Water Style," 17 Stan. L. Rev. 1, 12-16 (1964). -53-