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<br />UU1l87 <br /> <br />~ <br /> <br />250 <br /> <br />OREGON LAW REVIEW <br /> <br />[Vol.36 <br /> <br />qualified approval of the theory that water rights arise out of state law <br />and state law only. For years efforts have been made to secure judicial <br />recognition of the right of the United States to ownership of the un- <br />appropriated waters in the West. During the course of the ten-year <br />litigation over the waters of the North Platte River, it was strenuously <br />urged on the Supreme Court. No such right was recognized, though <br />the final opinion (Nebraska v. Wyo111ing96) did not exclude the possi- <br />bility of some sort of recognition. Such a determination was not im- <br />portant, it was stated, because, under the laws of the particular states <br />and as required by the Reclamation Act, "individual landowners" be- <br />came the "appropriators of the water rights, the United States being <br />the storer and carrier."97 <br />Further citation would be merely cumulative. It is manifest that, not <br />since 1877, if not since 1866, had the Supreme Court seen fit to chal- <br />lenge the basic law of property in water rights on nonnavigable streams <br />in the West us Whether or not the tenth amendment is out of fashion <br />should not change the rule-and for this reason: The government <br />should not be permitted to impeach its own conveyance-or rather <br />dedication-of waters and water rights any more than it should im- <br />peach its conveyance of land. <br />To argue that the Pelton decision recognizes all "vested rights" is <br />incorrect and mischievous. Any system of water law based on priorities <br />mnst have an adjudicatory and administrative framework to determine <br />and protect such rights. What protection is afforded on the Deschutes <br />where the Federal license does not even specify the amount of water <br />which the licensee may use to operate its plant? True, the license refers <br />to, and purports to protect, "vested rights" (though not without quali- <br />fication), but what authority determines the quantity and extent of <br />such vested rights? Is it the state engineer of Oregon? Nothing in the <br />decision or the license says so. Is it the licensee, or perhaps the Federal <br />Power Commission, or the courts? There is no indication in any of the <br />decisions from first to last. If a prospective appropriator should locate <br />a reservoir site on the headwaters of the Deschutes or any of its tribu- <br />taries, to what rights of the licensee would his appropriation be subject? <br />It is submitted that answers to the above questions are not and cannot <br />be available in advance of actual litigation or perhaps Congressional <br />action.99 <br /> <br />v <br /> <br />., <br /> <br />". <br /> <br />~ <br /> <br />96325 U.S. 589 (1945). <br />97Id. at 615. <br />98 Cf. MARTZ, CASES ON NATURAL RESOURCES (195]): "\\lith respect to the <br />waters of the west, the laws of ]866 and ]870. . . as well as the Desert Land Act <br />of 1877 (43 U.S.c. sec. 32]) and the Reclamation Act of 1902 (32 Stat. 388) left <br />the responsibility to the states to determine how individuals should acquire rights <br />to the public waters and what the nature' of such rights should be, .." P. 12. <br />99 The terms of the commission order provide that the license is subj ect to all <br />"existing rights, whether or not perfected." The extent of these rights is not set <br />