In re Hallett Creek Stream System

No. Civ. 24355 (232 Cal. Rptr. 208, 187 Cal. App. 3d 863) (Cal. Ct. App. December 5, 1986)

The court holds that water on federal lands in excess of that necessary for the purposes of the original land reservation is free for appropriation, but the United States may assert a defeasible riparian water right to unused and unappropriated water under which it may use the water for secondary nonessential uses. The United States asserted rights to water crossing national forest lands in a statutory administrative water rights adjudication. The state agency recognized the federal government's reserved water right for purposes of maintaining the national forest land, but rejected the claim of a riparian water right for wildlife purposes. The court first holds that the federal government may assert a riparian right to water crossing public lands, as may any private landowner. California recognizes both appropriative and riparian water rights, and there is no justification for recognizing riparian rights on some lands but not others based solely on the landowner's identity. Recognition of a federal riparian right will not allow the United States to forego compliance with state water law, since the Supreme Court and Congress have determined that with the exceptions of reserved water rights and the navigational servitude, the United States must comply with state water laws. The court holds that water on federal lands in excess of that reserved under the reservation doctrine remains subject to state appropriation laws. Recognition of the federal riparian right will not destroy private appropriative water rights established subsequent to the United States' purchase of the land or its reservation of the land from the public domain. The government consented to the appropriation of its water rights in several federal statutes and California allows the alienation of riparian water rights. Moreover, the reservation doctrine is construed narrowly, and a reservation of land is implied to have reserved only that water that is essential to the purposes of the reservation. The court holds that the United States is free to use unappropriated, unused water for any beneficial purpose, as might any other riparian.

Counsel for Appellants
John K. Van De Kamp, Attorney General; R.H. Connett, Ass't Attorney General
Dept. of Justice, 1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Counsel for Respondent
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenor
Laurens H. Silver
Sierra Club Legal Defense Fund
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

CARR, Acting P.J., and SIMS, J., concur.

[17 ELR 20822]

SPARKS, Associate Justice.

The question in this case is whether the United States, as a landowner, may assert a riparian water right to a creek which crosses land reserved from the public domain for purposes of a national forest. The State Water Resources Control Board (Board) determined that the United States has no riparian water right in the creek. The Superior Court of Lassen County disagreed with the Board and entered a judgment holding that the United States has an unexercised riparian right in the waters of the creek. The Board appeals contending alternatively that the federal proprietary interest in federal lands does not include a riparian water right, or if it does, the United States has waived its riparian rights. We conclude that water on federal lands in excess of that reserved from public use is free for the appropriation and use of the public. We further hold that the United States may assert a defeasible riparian water right to that water to the extent that it has not been appropriated and is available. With this understanding we shall affirm the judgment.

FACTS

This proceeding commenced when a private claimant, George Bailey, petitioned for a statutory adjudication of water rights in Hallett Creek.¹ After a preliminary investigation the Board determined that the public interest and necessity would be served by a determination of the rights in Hallett Creek, and arrangements were made to proceed with the determination. (Wat. Code, § 2525.) A number of persons submitted proofs of claims to the water of Hallett Creek, including the United States, acting through the United States Department of Agriculture, Forest Service. The United States based its claim upon two distinct theories: (1) a reservation of a water right by presidential proclamation in 1905 and 1910, reserving water rights for firefighting and roadwatering; and (2) a riparian water right for wildlife purposes.

The Board conducted an investigation and issued a preliminary report. Thereafter a hearing was held at which claimants were permitted to present evidence and argument. The Board then issued its findings and an order of determination declaring and quantifying the rights of the claimants to the creek system. The Board recognized that the United States has a reserved water right for lands withdrawn from the public domain for purposes of maintaining the forest land. It rejected, however, the United States' claim of a riparian water right for wildlife purposes.

In a statutory adjudication of water rights, the Board serves as an administrative arm of the court. (See Wood v. Pendola (1934) 1 Cal.2d 435, 443, 35 P.2d 526.) Pursuant to Water Code sections 2750 and 2751, the Board filed a certified copy of its order of determination with the court, and obtained a hearing date. The United States filed a notice of exceptions to the order of determination, seeking the recognition of an unexercised riparian water right for wildlife purposes. (Wat.Code, § 2757.)² The trial court agreed with the claim of the United States, and entered a decree recognizing that the United States has an unexercised riparian right to water for wildlife purposes. The Board appeals from this determination.

DISCUSSION

The property clause of the federal Constitution provides: "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. . . ." (U.S. Const., art. IV, § 3, cl. 2.) Under this clause the United States is both a proprietor and a Legislature with respect to federal lands. (Kleppe v. New Mexico (1976) 426 U.S. 529, 540, 96 S. Ct. 2285, 2292, 49 L. Ed. 2d 34, 44.) As a sovereign the United States' right to control federal lands, including the water courses traversing them, is superior to state law. Consequently, in the absence of [17 ELR 20823] specific authority from Congress, a state cannot legislatively destroy a federal water right. (United States v. Rio Grande Dam & I. Co. (1898) 174 U.S. 690, 703, 19 S. Ct. 770, 775, 43 L.Ed. 1136, 1141.)

While the riparian theory of water rights may have been adequate to serve the needs of the eastern states, in the West it was found to be inappropriate. In order for the western states to be settled and developed it was essential that water be diverted from its normal course to lands where it could be beneficially used. For years the federal government silently acquiesced in the appropriation of water in the western states. (California Oregon P. Co. v. Beaver Port. C. Co. (1934) 295 U.S. 142, 154, 55 S. Ct. 725, 727, 79 L. Ed. 1356, 1360.) In 1866, Congress provided: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid is hereby acknowledged and confirmed. . . ." (14 U.S. Stat. at L. 251, 253, enacting former 43 U.S.C. § 661.) In 1870, this act was amended to provide that whenever federal land is granted by patent, or a preemption or homestead is allowed, the land is conveyed subject to vested and accrued water rights. (16 Stats. at L. 217-218; see 30 U.S.C. § 52.) By these acts the federal government recognized and approved the appropriation theory of water rights to the extent it is recognized by the local customs, rules, and the legislation and judicial decisions of the arid land states. (California Oregon P. Co. v. Beaver Port. C. Co., supra, 295 U.S. at p. 155, 55 S. Ct. at p. 728, 79 L. Ed. at p. 1360.)

If the acts of 1866 and 1870 did not constitute an abandonment of the common law riparian theory of water rights, they foreshadowed the more positive declarations of the Desert Land Act of 1877. (Ibid.) That act provided for the right of entry and reclamation of desert lands in the public domain, and provided that the right to use water thereon depends upon a bona fide prior appropriation. (43 U.S.C. § 321.) The Act further provided that "all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights." (Ibid.) The act declares that all persons with water rights which have vested and accrued and are recognized by local customs, laws and decisions, are to be protected in such rights, and patents, preemptions and homesteads are subject to vested and accrued rights. (43 U.S.C. § 661.)

It is said that the Acts of 1866, 1870 and 1877 operated as a severance of all waters on the public domain from the land itself. (California Oregon P. Co. v. Beaver Port. Co., supra, 295 U.S. at p. 158, 55 S. Ct. at p. 729, 79 L. Ed. at p. 1361; see also Federal Power Com. v. Oregon (1954) 349 U.S. 435, 447-448, 75 S. Ct. 832, 839-840, 99 L. Ed. 1215, 1226.) Such a statement, however, must be qualified. What was actually severed was the common law riparian right to water on public lands. (California Oregon P. Co. v. Beaver Port. Co., supra, 295 U.S. at p. 158, 55 S. Ct. at p. 729, 79 L. Ed. at p. 1362.) The acts do not affirmatively forbid a state from recognizing riparian water rights; instead they constitute a deferral to state and local law as the means by which the right to water is determined. (Id., at p. 155, 55 S. Ct. at p. 728, 79 L. Ed. at p. 1360.) The United States Supreme Court made it perfectly clear that the states affected by the acts are free to determine for themselves whether they shall recognize the rule of appropriation or adhere to the common-law rule of riparian rights. (Id., at pp. 163-164, 55 S. Ct. at pp. 731-732, 79 L. Ed. at p. 1364.)

A majority of the western states adopted the appropriation theory of water rights. (1 Wiel, Water Rights in the Western States (3d ed. 1911) §§ 117-118, pp. 137-144.) A pure appropriation theory of water rights operates on a first-in-time, first-in-right basis. (Hutchins, the California Law of Water Rights, supra, at pp. 119-120.) These rights adhere at least to the extent the prior appropriator continues to use the right for beneficial purposes. (Ibid.) In view of the majority rule in the western states that all water is subject to appropriation and the first appropriator obtains priority, the question arose whether the United States could reassert water rights on federal land withdrawn from the public domain. This gave rise to the "reservation theory" of federal water rights. Under this theory, when the United States reserves land from the public domain for particular purposes, it will also be deemed to have reserved sufficient unappropriated water for those purposes. (Arizona v. California (1963) 373 U.S. 546, 599-600, 83 S. Ct. 1468, 1497-1498, 10 L. Ed. 2d 542, 577-578.) The reserved rights doctrine is limited in scope: it encompasses only that amount of water necessary to fulfill the purpose of the reservation and without which the purposes of the reservation would be entirely defeated. (United States v. New Mexico (1978) 438 U.S. 696, 700, 98 S. Ct. 3012, 3014, 57 L. Ed. 2d 1052, 1057.)

In this case the federal land in question was withdrawn from the public domain by presidential proclamation for purposes of a national forest. It is established that in such circumstances the reserved water right does not include a right to water for wildlife purposes. (Id., at pp. 711-712, 98 S. Ct. at pp. 3019-3020, 57 L. Ed. 2d at p. 1064.) Accordingly, for the United States to claim a water right for such secondary purposes, it must establish its right in the same manner as any other public or private party. (Id., at p. 702, 98 S. Ct. at p. 3015, 57 L. Ed. 2d at p. 1058.)³ And because the United States has deferred to state law as the basis for determining water rights, it must claim a right to use the water of Hallett Creek for wildlife under state law, if it is to do so at all.

Unlike most of the other western states, California recognizes the riparian doctrine of water rights. (Hutchins, supra, pp. 40-41.) In fact, our Constitution expressly recognizes both the riparian and appropriation doctrines. (Cal. Const., art. X, § 2.)⁴ The right to use water under either theory is limited to the reasonable and beneficial use of the water. (Ibid.) In this case the waters of Hallett Creek are used by riparians and there is no conflict between riparians and appropriators.⁵ [17 ELR 20824] Moreover, it is notcontended that the use the United States wishes to make of the water is not a reasonable and beneficial use. The sole question presented in this appeal is whether the United States, as the owner of land abutting a water course, may assert a riparian water right under state law.

Although a number of courts have made gratuitous comments on the possibility of a riparian right in federal land, the question has not been squarely presented before. In McKinley Bros. v. McCauley (1932) 215 Cal. 229, at page 231, 9 P.2d 298, the court said: "The Gunning patent, under which the appellant claims, being subsequent in point of time to the Davis patent and appropriation under which the respondent claims, gave rise to no riparian rights as against it, for it is settled that riparian rights do not attach to lands held by the government until such land has been transmitted to private ownership." This statement has been taken by some to mean that there are no riparian rights attached to federal land. (See 62 Cal.Jur.3d Water, § 59, p. 95.) The statement, however, was dictum. That action involved a dispute between a prior appropriator and a subsequent patentee of public land. Pursuant to the express provisions of the Acts of 1866, 1870, and 1877, the subsequent patentee took his land subject to the prior appropriation. California courts have upheld the rights of an appropriator from federal land on the theory that by the Acts of 1866, 1870, and 1877, and by the perfection of the appropriation, the United States granted its riparian rights to the appropriator. (See Duckworth v. Watsonville Water, etc., Co. (1915) 170 Cal. 425, 432, 150 P. 58.) Accordingly, it was unnecessary for the McKinley Bros. court to consider whether there is a riparian right in federal land before an appropriator has perfected an interest.

The cases which the McKinley Bros. court said "settled" the question would not appear to have done so. In Canal & Irrigation Co. v. Worswick (1922) 187 Cal. 674, at page 686, 203 P. 999, the court noted that state courts have upheld the rights of a prior appropriator against a subsequent patentee of federal land but that the decisions did not fully explain their reasons. The court continued: "It is apparent, however, that they must be based on the hypothesis that the reservation provided for by section 17 of the act of 1870 in favor of accrued and vested rights runs to the appropriator of water upon land of the United States and creates in him a right superior to that of the riparian right of the United States pertaining to the land it then owns situated above the place of diversion, so that a subsequent purchaser of such upper lands takes subject to the lower appropriation." (Emphasis added.) In Rindge v. Crags Land Co. (1922) 56 Cal.App. 247, at pages 252-253, 205 P. 36, the Court of Appeal upheld the right of a prior appropriator against a subsequent grantee of federal land. The Court spoke of a riparian right attaching to federal land when it is transmitted to private ownership, but the court also somewhat inconsistently said that an appropriation "affects and divests the riparian rights otherwise attaching to public lands of the United States solely because the act of Congress declares that grants of public lands shall be made subject to all water rights that may have previously accrued to any person other than the grantee." These latter two decisions thus seem to support the idea that the United States does have a riparian water right in its lands until it is divested of such right by an authorized appropriation. In the final analysis, however, none of these cases was actually concerned with the assertion of a riparian right to unappropriated water on federal land, and thus cannot be regarded as authority for the issue we are considering.

Our research has also disclosed decisions which, again in dicta, have indicated the opposite of the McKinley Bros. dictum. In Palmer, etc. v. Railroad Commission (1914) 167 Cal. 163, at page 168, 138 P. 997, the Court said: "The United States, with respect to the lands which it owns in this state, is a riparian proprietor as to the streams running through such lands. It is only by virtue of that fact that it has any right or power of disposition over the waters thereof. And its right and power in that respect is no greater and no less than that of any other riparian proprietor." (See also Lux v. Haggin (1886) 69 Cal. 255, 338-340, 4 P. 919, 10 P. 674.) This statement has been taken to mean that the United States does have riparian rights in streams on its land. (Hutchins, The California Law of Water Rights, supra, pp. 204-205.) But this statement was also dictum. In Palmer, the issue was whether an appropriator of water held the water dedicated to public use. The court held that the rights of riparians and of appropriators are private interests whether the owner of the right be the United States, the State of California, or a private party, and in reaching that conclusion it was not necessary for the court to determine whether the United States may assert a riparian water right on federal lands.

The federal courts have also voiced opinions on the issue through dicta. InUnited States v. Central Stockholders' Corporation (9th Cir.1930) 43 F.2d 977, the United States, as an upper riparian, brought an action to quiet title against lower riparians. The action was brought in federal court in an effort to avoid adverse precedent of the California Supreme Court. The federal district court dismissed the action, noting "[p]lainly, the United States can have no different nor superior right as a riparian proprietor to that assigned private ownership." (At p. 980.) The Court of Appeals noted but did not decide the question. It affirmed the judgment of dismissal after modifying it to provide that it was without prejudice to the proprietary rights of the United States in and to its public lands and water rights appurtenant thereto. (United States v. Central Stockholders' Corporation (9th Cir.1931) 52 F.2d 322, 329.) In People of the State of California v. United States (9th Cir.1956) 235 F.2d 647, at page 656, the court said with regard to a federal claim for water rights on a federal enclave: "The government, as regards all claimants to water outside the enclave, is not in the position of sovereign, but [is] in the position of a lower riparian which is compelled to make beneficial use within the watershed and for other than proper riparian uses must show an appropriation according to law." However, there the vast majority of the land in the enclave was acquired from the state and from private parties and thus was not reserved from the public domain as was the land in this case.

The riparian water right as recognized in our law begins ex jure naturae, that is, by the law of nature. (Lux v. Haggin, supra, 69 Cal. at p. 390, 4 P. 919, 10 P. 674.) The right "is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it." (Ibid.) In the absence of grant, license, or prescription, all riparian proprietors are entitled to the use of water in a stream adjacent to their land. (Id., at p. 391, 4 P. 919, 10 P. 674.) Although California could have abandoned the riparian theory of water rights, it did not do so. The riparian theory is recognized both in judicial decision and in our Constitution. We can discern no justification for holding that riparian water rights inhere in some lands, but not in others, based solely upon the identity of the owner of the land.

We have already noted that the United States is both a legislature and a proprietor with respect to its public lands. In its sovereign capacity the United States has deferred to state and local law with respect to water rights in the western states. But the right the United States now asserts is based upon its proprietary capacity as a landowner. It is settled that with respect to federal lands the United States has the rights of an ordinary proprietor and may deal with such lands precisely as a private individual may deal with his lands. (Camfield v. United States (1896) 167 U.S. 518, 524, 17 S. Ct. 864, 866, 42 [17 ELR 20825] L.Ed. 260, 262.) It follows that in respect to such lands the United States may assert the same proprietary interests, including a riparian water right, that a private individual could assert.

The Board insists that recognition of a federal riparian right in the UnitedStates will have calamitous consequences. If we accepted the premises of the Board's argument we might agree, but we cannot accept those premises. First, the Board asserts that recognition of a riparian water right in federal land would enable the United States to forego compliance with our state water law. This is not so. If anything can be regarded as settled with regard to water in the western states, it is that with the exceptions of reserved water rights and the navigation servitude, the states have total authority over their internal waters and the United States must comply with state law. (California v. United States (1978) 438 U.S. 645, 662-663, 98 S. Ct. 2985, 2994-2995, 57 L. Ed. 2d 1018, 1030-1031.) In fact, in order to facilitate state adjudications, the United States has expressly consented to be made a party to such actions. (43 U.S.C. § 666.) Recognition of a riparian right in the United States' land does not enable the federal government to ignore our water law with respect to those lands.

The Board next asserts that because the United States acquired its land from Mexico in 1848, its title would predate virtually all private water rights. Consequently, the Board warns, recognition of a riparian right in federal land would result in the destruction of private appropriative rights which have been exercised for years in reliance on a belief that the United States has no riparian right. We disagree. By the Acts of 1866, 1870, and 1877, the United States consented to the appropriation of its water rights. These Acts not only recognized and confirmed such rights as then existed, they reach into the future as well. (California Oregon P. Co. v. Beaver Port. C. Co., supra, 295 U.S. at p. 155, 55 S. Ct. at p. 728, 79 L. Ed. at p. 1360.) By those acts, all sources of water on federal lands which are not navigable and have not been reserved are held free for the appropriation and use of the public. (43 U.S.C. § 321.) It is competent under our law for a riparian proprietor to sever his water right from his land and to convey it to another. (Hutchins, The California Law of Water Rights, supra, p. 193, and cases cited there.) Such a grant is binding upon the grantor and his successors in interest in the land. (California, etc., Co. v. Madera, etc., Irr. Co. (1914) 167 Cal. 78, 86, 138 P. 718; Duckworth v. Watsonville, etc., Co. (1907) 150 Cal. 520, 526, 89 P. 338.) On such a theory our courts have always upheld the rights of an appropriator as against a subsequent grantee of federal lands. (McKinley Bros. v. McCauley, supra, 215 Cal. at p. 231, 9 P.2d 298; Rindge v. Crags Land Co., supra, 56 Cal.App. at p. 252, 205 P. 36.) The appropriator's rights are valid against the United States as well, both under our law and by virtue of the Acts of 1866, 1870 and 1877. Thus, any assertion of a federal riparian right in federal land is subject to the rights of appropriators and if the water has been appropriated then the United States is precluded from asserting its riparian right. (See Carlsbad, etc., Co. v. San Luis Rey, etc., Co. (1947) 78 Cal. ApP.2d 900, 913, 178 P.2d 900.)

The Board asserts that even if the United States' riparian rights did not obtain priority in 1848, they must inevitably be held to have acquired priority when the federal land was reserved. Since most reserved federal land was reserved many years ago (in this case 1905), the Board argues that many subsequent appropriative rights will be disturbed. This point constitutes the major dispute between the parties. The Board insists that appropriations from reserved federal land should be upheld because there are no federal riparian rights on the land. The United States and the intervenor Sierra Club argue that by reserving federal land from the public domain the United States also reserved its riparian water rights on the land, and therefore subsequent appropriators will not have priority. In our view, neither position is accurate.

It is clear that by the Acts of 1866, 1870 and 1877, Congress severed the rights to water from federal land and intended that water should be held available for appropriation separately from the land. (California Oregon P. Co. v. Beaver Port. Co., supra, 295 U.S. at p. 158, 55 S. Ct. at p. 729, 79 L. Ed. at p. 1361.) It is also clear that the United States may reserve both land and water from the public domain. (Arizona v. California (1963) 373 U.S. 546, 597-598, 83 S. Ct. 1468, 1496-1497, 10 L. Ed. 2d 542, 576.) When the United States reserves land from the public domain without expressly reserving water rights, it will be implied to have reserved sufficient water for the purposes of the land reservation. (United States v. New Mexico, supra, 438 U.S. at p. 700, 98 S. Ct. at p. 3014, 57 L. Ed. 2d at p. 1057.) Because the reservation doctrine is strictly limited, a reservation of land will be implied to have reserved only so much water as is essential to the purposes of the reservation. (Ibid.) It necessarily follows that water in excess of the reserved water right remains severed from the land and available for appropriation. This was the express holding of the United States v. New Mexico case.

The trial court believed that the severance doctrine was limited in Federal Power Com. v. Oregon, supra, 349 U.S. 435, 75 S. Ct. 832, 99 L. Ed. 1215. In that case the Supreme Court considered whether a federal hydraulic power project to be built on federal land and licensed by the Federal Power Commission would also be subject to licensing requirements of the State of Oregon. The Court held that federal law precluded such duplication of regulatory control. (349 U.S. at 445, 75 S. Ct. at 838, 99 L. Ed. at 1224.) The Court also held that the Desert Land Act of 1877 did not give the state regulatory control over the project because the land had been reserved. (Id., at p. 448, 75 S. Ct. at p. 840, 99 L.Ed. at p. 1226.) That decision did not limit the "severance" doctrine because there the land was expressly reserved for power purposes and thus the reservation would include sufficient water for such purposes. (Id., at pp. 438-439, 75 S. Ct. at pp. 834-835, 99 L. Ed. at p. 1221.) Moreover, the project was approved "subject to all existing rights to the use of the waters of the river, whether perfected or not." (Id., at p. 441, 75 S. Ct. at p. 836, 99 L. Ed. at p. 1222.) Thus the dispute involved the regulation of the project and not the source of the water to be used. In any event, to the extent the discussion in that case would support a claim that a reservation of federal land also reserves all unappropriated water on the land, it is inconsistent with the clear holding of United States v. New Mexico, supra, and the latter decision must be regarded as determinative.

While we believe that this discussion makes it clear that water on federal reserved land in excess of that which is reserved under reservation doctrine remains available for the appropriation and use of the public, this is particularly true of the reserved land in this case. As noted, the land involved here is national forest land. One of the primary reasons for the establishment of the national forest system was to preserve the water supply for appropriators. (United States v. New Mexico, supra, 438 U.S. at p. 712, esp. fn. 20, 98 S. Ct. at p. 3020, esp. fn. 20, 57 L. Ed. 2d at p. 1064.) In the Organic Administration Act of 1897, Congress specifically provided that waters within the boundaries of national forests may be used for domestic, mining, milling or irrigation purposes under state law. (16 U.S.C. § 481. See United States v. New Mexico, supra, 438 U.S. at p. 717, fn. 24, 98 S. Ct. at pp. 3022-3023, fn. 24, 57 L. Ed. 2d at p. 1067.) Thus a reservation of land for national forest purposes manifestly does not reserve excess water from the public domain.

Our conclusion that water on federal [17 ELR 20826] lands in excess of that which is reserved under the reservation doctrine remains subject to the appropriation and use of the public does not convince us that the United States must be forbidden to use such water until it is appropriated. Pursuant to the Acts of 1866, 1870 and 1877, the United States holds unreserved water on its lands open for the free appropriation and use of the public and its riparian right must be regarded as secondary to all other approved uses. However, to the extent that there is available unappropriated and unused water the United States must be regarded as free to use such water as any other riparian might. The trial court's decree recognized that the United States has an unexercised riparian right to use the waters of Hallett Creek. In order to exercise this right the United States must apply to the Board, or to the court. (See In re Waters of Long Creek Stream System (1979) 25 Cal. 3d 339, 359, fn. 15, 158 Cal. Rptr. 350, 599 P.2d 656.) When and if the United States should apply for the exercise of its right, the Board and the court must apply the principles we have set forth in this opinion. The decree of the trial court recognizing the unexercised riparian right of the United States, as construed in this opinion, is therefore entitled to be affirmed.

The judgment is affirmed.

1. The procedure for a statutory adjudication of water rights had its genesis in the Water Commission Act of 1913. (Stats. 1913, ch. 586, § 1, p. 1012.) "The major purpose of the Water Commission Act was fourfold: (1) to vest in the Commission broad powers to investigate and develop the facts concerning water sources; (2) to regulate the acquisition of rights to appropriate water; (3) to provide a feasible method for the comprehensive determination of existing rights; and (4) to provide for distribution of water among those entitled to its use in accordance with the determined right of each user under state supervision." (Ferrier, Administration of Water Rights in California (1956) 44 Cal.L.Rev. 833, 834, fns. omitted.) The act, as amended, is now codified in the Water Code and the provisions dealing with statutory adjudications are presently found in Water Code section 2500 and following. Under this procedure the Board may determine "all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right." (Wat.Code, § 2501.) The procedure is initiated by a petition of one or more claimants to water of any stream system, requesting a determination of the rights of various claimants. If the board finds that the public interest and necessity will be served by such a determination, it enters an order granting the petition and then proceeds with the determination. (Wat.Code, § 2525.) The statutory scheme provides for an investigation, notice, filing of proof of claims, and a hearing procedure for contests of the proof of claims. (Wat.Code, §§ 2550, 2575, 2600, 2650.) The Board then makes its "order determining and establishing the several rights to the water of the stream system." (Wat.Code, § 2700.) Thereafter a certified copy of the order of determination "shall be filed with the clerk of the superior court of the county in which the stream system or some part thereof is situated." (Wat.Code, § 2750.) A hearing is then held in the superior court. (Wat.Code, § 2751.) "After the hearing, the court shall enter a decree determining the rights of all persons in the proceeding." (Wat.Code, § 2768.) It is from such a decree that the Board is appealing in this case.

2. There are two primary water rights doctrines in California. "The two doctrines that govern rights to the use of watercourses in California are (1) the appropriation doctrine and (2) the riparian doctrine. . . . [P] The appropriation doctrine contemplates the acquirement of rights to the use of water by diverting water and applying it to reasonable beneficial use for a beneficial purpose, in accordance with procedures and under limitations specified by constitutional and statutory law or acknowledged by the courts. The water may be used on or in connection with lands away from streams, as well as land contiguous to steams. . . . [P] The riparian doctrine accords to the owner of land contiguous to a watercourse a right to the use of the water on such land. The use of the water is limited to riparian land." (Hutchins, The California Law of Water Rights (1956) p. 40; emphasis omitted.)

3. In fact the Board recognized the United States' reserved water right for forestry purposes and confirmed its right to use 95,000 gallons annually for purposes of firefighting and roadwatering. No contention is raised with regard to this water right.

4. Article X, section 2 of the California Constitution provides in relevant part: "Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such land are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled." In general, "[t]he riparian doctrine confers upon the owner of land contiguous to a watercourse the right to the reasonable and beneficial use of water on his land." (People v. Shirokow (1980) 26 Cal. 3d 301, 307, 162 Cal. Rptr. 30, 605 P.2d 859.) An historical overview of the California water rights system was recently recounted in National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, 441-444, 189 Cal. Rptr. 346, 658 P.2d 709, and need not be repeated here.

5. It appears that one of the riparian claimants, George Bailey, also has an appropriative right in another stream system and the appropriated water reaches his land by being diverted into the Hallett Creek system. Bailey was adjudicated to have the entire right to use the appropriated water. No issue is raised with respect to the Bailey diversion, and no claimant asserts an appropriative right to divert water from Hallett Creek.