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<br />.-(NJ ~ II J J <br /> <br />I ;,.. / . . ~ ' <br /> <br />. <br /> <br />. <br /> <br />A GENERAL DISCUSSION OF <br />THE FEDERAL RESERVED RIGHTS DOCTRINE <br /> <br />Frank E. (Sam) Maynes <br />July 14, 1976 <br /> <br />Lawyers, particularly those lawyers who are employed by the United <br /> <br />States Government in the field of natural resources, will tell you that <br /> <br />the reserved rights doctrine is firmly based on concepts of real property <br /> <br />law. Harking back to the "King is God, all land is His" <br /> <br />philosophy, these bureaucrats argue the federal government originally <br /> <br />owned the lands through prior cession from other sovereigns, and they <br /> <br />claim title by the Constitution of the United States and that as an incident <br /> <br />of the ownership of the land they'have the right to utilize and dispose <br /> <br />of all natural resources pertaining thereto and conversely to prevent <br /> <br />interference by others with those resources. <br /> <br />The legal concept of ownership as a basis to the doctrine of reserved <br /> <br />rights has been fully recognized for nearly a century. However, I <br /> <br />submit that the federal reserved rights doctrine is founded on the <br /> <br />factual axiom that the western United States has a limited supply of <br /> <br />water. Multiple demands on the scarce water reserves forced the pioneers <br /> <br />to discard the riparian water allocation system, namely a system which <br /> <br />requires upstream users to maintain the quality and flow of water so as <br /> <br />not to lessen downstream users ability to utilize water. <br /> <br />The riparian system of water rights was rejected as unfeasible in <br /> <br />the drought-prone west and was replaced with the doctrine of prior <br /> <br />appropriation as expounded by the Colorado Supreme Court in Coffin v. <br />