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In re In re Water of Hallett Creek Stream Sys.

ELR Citation: 18 ELR 20690
Nos. No. S.F. 25133, 283 Cal. Rptr. 887/749 P.2d 324/44 Cal. 3d 448, (Cal., 02/18/1988) Aff'd in part, rev'd in part

The California Supreme Court rules that the federal government has riparian water rights in national forests within the state, and that these rights are no more subordinate to appropriative water rights than the riparian rights of other landowners. The United States had asserted rights to water crossing national forest lands in a statutory administrative water rights adjudication. The state agency recognized the government's federal reserved water right for purposes of maintaining water flows on national forest lands, but rejected the claim of a state riparian water right for wildlife enhancement. The court first rules that the United States has riparian water rights in the national forests. The court rejects the state's argument that the United States holds land in its sovereign capacity and thus may not exercise proprietary rights, such as riparian water rights, that arise under state law. Although the water rights disputes between states and the federal government that have been the subject of decisions from the United States Supreme Court have involved the federal government's sovereign rights, the Court has also recognized that the United States may exercise the common-law rights of an ordinary proprietor under state law. The Court has also adhered to the long-established principle that Congress nearly always has deferred to state law in determining rights to water on federal lands. The court next holds that Congress did not affirmatively relinquish all proprietary claims to water rights in the western states through the enactment of several mining and homesteading statutes in the late 19th century. The mining acts of 1866 and 1870 simply confirmed the validity of water appropriations on public lands recognized under state and local law. A United States Supreme Court decision holding that a federal patentee of public lands received no common-law riparian rights under the Desert Land Act did not suggest that Congress had relinquished water rights on land retained by the federal government. The court holds that the Desert Land Act's subordination of federal riparian rights to the rights of subsequent appropriators applies only to lands in the public domain, and not to lands reserved for a particular purpose such as national forests. There is no suggestion in the case law or the Forest Service's Organic Administration Act that Congress intended water rights, once acquired by the United States for secondary purposes such as wildlife enhancement, to be subject to defeasance by subsequent claimants, and the concept is without precedent in California law. The court holds that, pursuant to California case law, the state agency may place certain limits on the federal government's riparian right. The United States must apply to the agency whenever it proposes to exercise its riparian right, and the agency may evaluate the proposed use in light of other existing uses.

[The court of appeals decision is published at 17 ELR 20821. The United States' petition for review in the California Supreme Court is digested at ELR PEND. LIT. 65953.]

Counsel for Appellants
Roderick E. Walston
Office of the Attorney General
Department of Justice, 1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Counsel for Claimant and Respondent
Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

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

LUCAS, C.J., and MOSK, BROUSSARD, PANELLI, ARGUELLES, and EAGLESON, JJ., concur.