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In re In re Water of Hallett Creek Stream Sys.

Citation: 17 ELR 20821
No. No. Civ. 24355, 232 Cal. Rptr. 208/187 Cal. App. 3d 863, (Cal. Ct. App., 12/05/1986)

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.