CHAPTER 11 WATER RIGHTS AND THE PUBLIC LANDS
| Jurisdiction | United States |
(Nov 1997)
WATER RIGHTS AND THE PUBLIC LANDS
Melissa L. Hughes
Holland & Hart LLP
Denver, Colorado
TABLE OF CONTENTS
Page
I. FEDERAL RESERVED WATER RIGHTS
A. The Early Defining Cases
1. U.S. v. Winans
2. U.S. v. Winters
3. Federal Power Commission v. Oregon
4. Arizona v. California
B. Quantifying the Reserved Water Right
1. The Primary Purpose Test
a. Cappaert v. United States
b. United States v. New Mexico
2. The Practicably Irrigable Acreage Standard
a. Arizona v. California
b. Big Horn River Adjudication
3. The Sensitivity Doctrine
C. Wilderness Area Water Rights
D. National Forest Minimum Stream Flow Claims
II. WATER AS A CONSTRAINT ON PUBLIC LAND USE AND DEVELOPMENT
A. Ownership of Water Rights Used on Public Lands
B. Endangered Species Act Requirements
C. Hydropower Projects
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III. DEVELOPMENT OF WATER FROM PUBLIC LANDS (THE BYPASS FLOW CONTROVERSY)
A. Early Deference to State Water Allocations
B. Rights-Of-Way For Water Diversion Facilities
C. Bypass Flow Requirements
1. The McCarran Amendment
2. Other Authorizing Legislation
D. Possible Resolutions to the Controversy
IV. CONCLUSION
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Water from the federally owned lands within the United States has provided the key to settlement and development of the Western United States. The water supplies from mountain streams were diverted over many miles and at great expense to allow mining and agriculture and to provide power. The early adoption of the appropriation doctrine in many of the western territories compelled a deference by the federal government to the local water allocation systems when the territories became states and the federal lands became open to homestead and patent.
As the state based water law systems evolved, the U.S. government asserted its own interests in the water supplies in the form of federal reserved water rights. The existence and quantification of those reserved water rights for different types of federal lands continue to be a source of controversy. Recently, the conflict between the federal government as landowner and the private water right holder has come into sharper focus. The measure of, and the limitations on, both public and private water rights on the public lands will determine in large part the usage of those lands into the future.
I. FEDERAL RESERVED WATER RIGHTS
Reservations of federal land occur when lands otherwise in the public domain are removed and set aside by Congress for a particular purpose. Reservations can be effectuated by a variety of methods, including treaties, statutes, and executive orders.1 When the purpose for which the land is set aside requires water, the concept of the federal reserved water right comes into play.
The appropriation of water is, as a general rule, a matter of state law. Recognizing the superior ability of the states to handle the intricacies of water allocation, Congress acknowledged that the doctrine of prior appropriation was effective against the federal government and any subsequent grantees.2 However, when the need for water on
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federal reserved lands became apparent, the judicial doctrine of reserved water rights was carved out, creating an exception to the general rule of state law governance.
Because the first major withdrawals of federal lands came in the late 1800s in the form of Indian reservations,3 the origin of the reserved rights doctrine is based in the litigation that followed when attempts were made by diverters upstream of the reservations to deprive the downstream federal lands of water. The United States stepped in to protect the rights of the Indians, at first defending its treaties with the tribes, and later the statutes establishing reservations.4 It was in this context that the foundation cases of United States v. Winans5 and United States v. Winters6 first described and enunciated the doctrine of reserved water rights.7 The reserved water rights that developed were at first associated only with Indian reservations, but later the rights were extended to non-Indian lands, such as national forests, parks, and monuments.8
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A. The Early Defining Cases
1. U.S. v. Winans
In 1859, the United States entered into a treaty with certain Indians of the Yakima Nation.9 As part of that treaty, the Indians, who were historically salmon fisherman, were granted "the exclusive right of taking all fish in all streams where running through said reservation...as also the right of taking fish at all usual and accustomed places..." on the Columbia River.10
The defendants in the case claimed that they had acquired the lands bordering the Columbia River through patents from the United States and grants from the state of Washington. The defendants also held state licenses to operate and maintain fish wheels.11 The suit was brought to enjoin the defendants from obstructing the Indians in the exercise of their fishing rights and privileges on the Columbia River. The defendants argued that they had the power to exclude the Indians from the river because the title held by the Indians was good only until the United States had surrendered title to the state. They argued that the United States had not intended to tie up the development of the fishing industry along the Columbia.12 When Washington became a state, it held equal footing with the original states, and had all rights to the regulation and fishing within the state as belonged to the original states. The defendants contended that they were not bound by the terms of the treaty entered into between the United States and the Indians.13
The U.S. Supreme Court, in its opinion, explained that the right to fish in certain places on the Columbia River was a right possessed by the Indians, which was as crucial as "the atmosphere they breathed."14 New conditions caused by the arrival of white settlers in the region led to the need for the treaty, and certain limitations on the Indians' rights were inherent in those new conditions. However, the treaty did not effect a taking away of rights from the Indians. Rather, "the treaty was not a grant of right to the Indians but a grant of rights from them, — a reservation of those not granted."15 The Court found that
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surely it was within the competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised.16
The decision in Winans recognized that the Indians held an easement that not only ran against the federal government and subsequent grantees, but also against a subsequently created state.17 Therefore, the Court began developing the doctrine that reservations of land involved not only the physical soil, but also uses appurtenant to the land.
2. U.S. v. Winters
The Milk River of Montana runs along the northern boundary of the Fort Belknap Indian Reservation, created by treaty in 1888.18 Beginning in 1889, the Indians and the United States diverted water to encourage "habits of industry and to promote their civilization and improvement."19 However, in 1900, the Empire Cattle Company, the Matheson Ditch Company, and Cook's Irrigation Company entered onto the river upstream and built large and substantial reservoirs, canals, and ditches, depriving the Indians of the use of the water.20
The Fort Belknap Indians had once occupied a much larger territory as a "nomadic and uncivilized people." The federal government's policy was to change the lifestyle of the Indians, and to have them become "a pastoral and civilized people."21 The Indians therefore were thought to have no need for the larger territory, but in order to occupy the smaller tract, certain changes in the use of the land had to occur. Without irrigation, the smaller tract of land would be practically valueless.22
The companies using the upstream water argued that when the Indians had given up the larger tract of land, they had also given up any water rights they held. The Supreme Court disagreed with this reasoning, stating,
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the government did reserve them...and for a use which would be necessarily continued through the years. This was done May 1, 1888 and it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of the grant, leaving them a barren waste, took from them a means of continuing their old habits, yet did not leave them the power to change to new ones.23
The purpose of the reservation was to turn the Fort Belknap Indians into an agrarian society. In order to accomplish that purpose, the land had to be irrigated. "Winters extended the Winans concept of reserved rights from an implied easement necessary to effectuate express fishing rights to implied water rights necessary to effectuate government policy regarding the use of express reservations of land."24 Winters has come to represent the doctrine of federal reserved rights, although the effect of the actual holding of Winters was solely to affirm a decree enjoining diverters from disrupting the flow of 5000 miners inches of water.25
3. Federal Power Commission v. Oregon
This case,26 decided in 1955, did not involve water rights per se, but its implications acted as a "real bombshell, and it certainly lit a fire under western water lawyers."27 The Federal Power Commission had issued a license to the United States to construct a power project on federal reservations in Oregon. Oregon argued that the Commission did not have the authority to issue the license, and that proper measures were not included for the conservation of anadromous fish. The state contended that the
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Desert Lands Act28 severed...
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