PROTECTING FEDERAL RESERVED WATER RIGHTS ON MILITARY INSTALLATIONS.

• Author: Hawkins, Jeffrey T.

1. INTRODUCTION II. JUDICIAL RECOGNITION OF THE FEDERAL RESERVED WATER RIGHTS DOCTRINE III. STATE APPLICATION OF THE FEDERAL RESERVED WATER RIGHTS DOCTRINE IV. THE DOD'S PROTECTION OF THE WATER RIGHTS DOCTRINE V. CONCLUSION I. INTRODUCTION

   The federal reserved water rights doctrine, first recognized by the U.S. Supreme Court over one hundred years ago, (1) dictates that when the federal government reserves land, it retains sufficient water, not previously appropriated, to achieve the reservation's primary purposes. (2) In arid western states, where water is scarce, state courts must frequently allocate water rights amongst thousands of parties in "general stream adjudications." (3) In these cases, the federal government, through the McCarran Amendment, has waived sovereign immunity and consented to being joined as a party. (4) State courts have issued diverse opinions, but generally tend to construe federal reservations' purposes very narrowly, often rejecting the federal government's claims. (5) This constrictive reading, combined with the scarcity of water resources, especially in western states, has prompted the Department of Defense (DoD) to develop a policy to protect water rights necessary to achieve its military mission. (6) This paper will examine the history of the federal reserved water rights doctrine, its application in state courts, and the DoD's efforts to protect water rights. (7)

2. JUDICIAL RECOGNITION OF THE FEDERAL RESERVED WATER RIGHTS DOCTRINE

   In 1908, the Supreme Court first recognized the federal reserved water

   rights doctrine. (8) In Winters v. United States, Congress had set aside a large land area in 1874 for several Indian tribes. (9) However, in 1888, the tribes agreed to transfer the land back to the United States, except for a small tract which became known as the Fort Belknap Indian Reservation. (10)

   In 1889, the United States constructed houses and other buildings on the reservation and diverted 1,000 inches of water from the Milk River for the Indians' domestic and irrigation needs. (11) Prior to the United States or the Indians diverting any water, except for 250 inches pumped by a small water plant, non-Indians settled upstream along the Milk River. (12) They established homesteads following all applicable federal and state laws. (13) In July 1898, the Fort Belknap Indians diverted 10,000 inches of water to irrigate 30,000 acres of cropland. (14) In 1900, in compliance with federal and state laws, the non-Indian settlers built dams and reservoirs and diverted 5,000 inches of water from the Milk River. (15) This left the Indians with insufficient water to support their agricultural needs. (16) Consequently, the United States sought to enjoin the settlers from diverting water from the Milk River. (17) The Court found there was an implied reservation of the water from the Milk River for irrigation purposes in the 1888 agreement, which established the Fort Belknap Indian Reservation. (18) The Court looked to the purpose of the agreement and reasoned that Congress could not have intended to take away the large tract of arid land the Indians had used to maintain a nomadic lifestyle only to leave them with a small tract of arid land that required water if a civilized community were to be established. (19)

   In 1955, the Supreme Court hinted the reserved water rights doctrine may also apply to non-Indian lands. (20) In Federal Power Commission v. Oregon (commonly referred to as the Pelton Dam case), (21) the Federal Power Commission granted a license to build and operate a power facility and dam on the Deschutes River flowing through federal reserved land in Oregon. (22) The State of Oregon, and others, challenged the federal government's authority to grant the license. (23) The Court held that the Federal Power Commission did in fact possess such authority. (24) It reasoned that under the Federal Power Act, the Commission has the authority to grant such licenses on federal reservations as long as the water's use does not interfere with others' vested rights. (25) The case did not explicitly address implied water rights, but did support the idea that state water laws were not necessarily applicable to federal reservations. (26)

   In 1963, the Supreme Court explicitly extended the federal implied water rights doctrine to non-Indian lands. (27) In Arizona v. California, at issue were the water rights of Arizona, California, Nevada, New Mexico, Utah, and the United States to water from the Colorado River and its tributaries. (28) The United States asserted its claim for water to support recreational areas, wildlife refuges, Indian reservations, and other public lands. (29) In resolving the dispute, the Court held that the federal government had reserved water rights for Indian reservations and other federal lands. (30) The Court explicitly stated the implied water rights reservation was equally applicable to non-Indian federal lands. (31)

   In 1976, the Supreme Court expounded upon the implied water rights doctrine. (32) In Cappaert v. United States, the issue was whether Nevada ranchers could permissibly pump water from wells near federally reserved land. (33) In 1952, President Truman, by proclamation, had reserved land surrounding Devil's Hole, noting that Devil's Hole contained a subterranean pool that was home to a very rare desert fish. (34) He stated that the "pool is of such outstanding scientific importance that it should be given special protection...." (35) In 1968, Nevada ranchers began pumping water from wells two and half miles from Devil's Hole. (36) The water they were pumping was from an underground source hydrologically connected to the Devil's Hole pool. (37) As a result of the ranchers' pumping activity, water level at Devil's Hole decreased to such a level to inhibit the rare desert fish's spawning activity, thereby threatening extinction. (38) In affirming both the District Court and Ninth Circuit's decisions, the Supreme Court explained "that when the [fjederal [government withdraws its land from the public domain and reserves it for a federal purpose, the [government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." (39) The Court noted that the "issue is whether the [government intended to reserve unappropriated and thus available water." (40) Intent is inferred from the purpose for which the land was reserved. (41) The Court explained that the federal government's reserved water rights vest at the time of the reservation and are superior to future appropriai ors' rights. (42) It said reserved water rights do not depend on equity requiring courts to balance competing interests. (43) Therefore, in 1976 the scope of the reserved water rights doctrine appeared to be expansive. (44)

   However, in 1978, the Supreme Court reduced the doctrine's scope. (45) In United States v. New Mexico, the United States asserted the implied water rights doctrine in an effort to protect water from the Rio Mibres that originated in the Gila National Forest. (46) The federal government argued "that Congress intended to reserve minimum instream flows for aesthetic, recreational, and fish-preservation purposes." (47) In rejecting the government's argument, and upholding the New Mexico Supreme Court's decision, the Court found Congress did not reserve national forests for recreational, wildlife-preservation, environmental, and aesthetic purposes. (48) The Court looked to the Organic Administration Act of 1897 and found Congress had reserved national forests for only two purposes--a supply of timber and water flow conservation. (49) The Court reviewed the implied water rights jurisprudence and stated that "[e]ach time this Court has applied the 'implied-reservation-of-water doctrine,' it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated." (50) It stated that when water is valuable only for a secondary purpose, the implication is Congress intended the United States to secure water rights as any other private or public appropriator would. (51) Although the Court did not reject the implied water rights doctrine, it did note Congress could explicitly reserve water for aesthetic, wildlife, and recreational purposes, as it did in legislation creating the Lake Superior National Forest and Yosemite National Park. (52) The New Mexico Court instructed that the legislation reserving federal lands and the specific purposes for which the lands were reserved will determine the existence and quantity of federal reserved water rights. (53) The Supreme Court has not provided further guidance on this issue. (54)

3. STATE APPLICATION OF THE FEDERAL RESERVED WATER RIGHTS DOCTRINE

   Since 1978, most of the litigation involving federal water rights has taken place in western state courts through their all-inclusive and continuing "general stream adjudications," which allocate scarce water resources among thousands of users. (55) Pursuant to the McCarran Amendment, the federal government has consented to being joined as a party in "a general adjudication of all of the rights of various...