Supreme Court clarifies how federal water rights are to be determined in United States v. District Court in and for the County of Eagle and United States v. District Court in and for Water Division No. 5

Two brief companion decisions of a unanimous Supreme Court, decided March 24, 1971, are of great importance to the determination of federal water rights in western states. Although deceptively simple on the surface, the opinions reaffirm the right of the United States to reserve water for federal lands independent of state water law. The opinions also set out the manner in which the water rights of national forests, wildlife preserves, parks, reservations and other federal enclaves will be decided by holding that state courts may adjudicate all federal water rights, through varied forms of general adjudications, but that the definition of federal water rights nevertheless is a "federal question" which may always be reviewed in federal courts, including when necessary the Supreme Court. The Court defined "stream system" narrowly enough to allow courts to decide the water rights of various parties along limited segments of larger river systems and held that such limited determinations are nevertheless "general adjudications," even though rights in the larger system are not redetermined. The Court also partially resolved the conflict between western states and the federal government over water rights dating to the states' entry into the Union and dampened states' attempts to erode federal reserved water rights and to establish a late priority for federal water claims as against state claims. Finally, these decisions have probably insured that the Supreme Court will again have federal water rights before it for adjudication in the near future.

The importance of federal water rights in arid western states may be better understood by examining the extent of federal land holdings in those states. The following data make their own argument and are presented without discussion:

Comparison of federally-owned land with total acreage of selected states

State % of state's total acreage

owned by federal government

Arizona 44.6

Colorado 36.3

Nevada 86.4

New Mexico 33.9

Utah 66.5

Wyoming 48.2

Alabama 3.4

Alaska 95.3

Arkansas 9.4

California 49.3

Connecticut 0.3

Delaware 3.0

Florida 9.8

Idaho 63.9

Maine 0.7

Montana 29.6

New York 0.8

North Carolina 1.2

Texas 1.8

Washington 29.4

West Virginia 6.4

All States 33.3

[1 ELR 10057]

Source:

One Third of the Nation's Land, Report of the Public Land Law Review Commission, June, 1970. See also Inventory Report on Real Property Owned by the United States Throughout the World as of June 30, 1965, prepared by the General Services Administration, GPO, 1966.

In the west, the United States owns rights to water for federal lands of two kinds:

(1) Appropriation rights. After foreign governments — Mexico, France, Great Britain — ceded western territory to the United States, the United States acquired rights in the waters of ceded territory as part of the public domain. Without the United States' permission, no one could subsequently acquire property rights in such waters. Nevertheless, settlers did use water for varied purposes, including mining and irrigation, and acquired customary rights to its use. These appropriations of water were ratified from time to time by Congress, which after a decade of partial legislative solutions to the problem passed the Desert Land Act of 1877, 43 U.S.C. § 321 et seq., which for 13 western states authorized the acquisition of property rights by appropriation against the United States under law or custom. Finally, over the years the United States has itself acquired water rights under the Desert Land Act much as do private parties through the operation of state law and custom.

(2) Reserved rights. As the owner of the remaining public domain, and as owner of federal parks, forests, Indian reservations and other federal land already withdrawn from the public domain, the United States retains the power to reserve unappropriated waters from future private appropriations for its own use or for the utilization of such waters by others in connection with federal lands and projects. Reservation of water need not be and usually is not explicit; it may be implied when federal lands are set aside for a particular purpose. See 1 ELR 50021-2.

The question may arise, why should the United States ever obtain its water rights through appropriation when it can usually underpin its claims with the doctrine of reserved water rights? A completely satisfactory answer to this question does not yet exist; however, a desire to avoid unnecessary friction with western states which are sensitive about assertions of federal sovereignty partially explains why the United States frequently chooses to prove its claims under state law. Also, in some cases earlier priorities apparently are available under state principles governing appropriation than under the federal doctrine of reserved rights.

United States v. District Court In and For the County of Eagle, 1 ELR 20189, began in Colorado's state courts under a Colorado statute governing supplemental water adjudications. Both the state district court and the Colorado Supreme Court (458 P.2d 760) held that the United States could be joined as a defendant in the state court proceedings initiated for the determination of owners' and claimants' water rights in the Eagle River, a tributary of the Colorado. The Colorado courts relied upon 43 U.S.C. § 666(a), which allowed the United States to be joined "in any suit … for the adjudication of rights to the use of water of a river system or other source. …" In the United States Supreme Court the United States pointed out that in Colorado water rights are based on the appropriation system, which fixes rights to the use of water at the time of binding adjudication, with no provisions for future needs, such as those which the United States seeks to protect in the case of reserved water rights. The United States thus relied on language in 43 U.S.C. § 666(a) which appeared to focus the statute on appropriated water rights only. The Court, however, did not accept the United States' reasoning.

In the state district court and in the Colorado Supreme Court arguments were made challenging the soundness and even the existence of the federal doctrine of reserved rights. Similar arguments were made in several states' amicus curiae briefs in the United States Supreme Court. Mr. Justice Douglas for the Court relied upon Arizona v. California, 373 U.S. 546, rejecting the Colorado courts' oblique attempts to distinguish that case, and held that reserved rights can in fact arise when the United States withdraws lands from the public domain. However, he does not determine that in this case the United States in fact has reserved waters for the White River National Forest, which would have been withdrawn from the public domain in 1905 when the Forest was created, Colorado having been admitted to the Union in 1876.

The companion case, United States v. District Court in and for Water Division No. 5, 1 ELR 20191, disposes of another of the United States' objections to state adjudication of reserved water rights. In this case [1 ELR 10058] the government argued that statutory proceedings which contemplated monthly hearings before a water referee on water rights applications filed for that particular month for a tributary (the Eagle River) of a much larger river system (the Colorado River), were not "general adjudications" of water rights under 43 U.S.C. § 666, because all users and all rights were not involved in the referee's determinations. The Supreme Court found that the monthly determinations affecting limited numbers of owners of water rights were nevertheless "general adjudications." Thus the Supreme Court achieved the practical result of limiting the geographic area which must be reviewed, without requiring the review of water rights for the entire Colorado River.

The two cases together provide the Supreme Court's solution to a long-standing issue arising from Colorado's attempts to join the United States in water adjudications to obtain definite quantification of all federal and private or state water rights and to establish a late priority for all United States' forests, reservoirs and other holdings in Colorado. An exaggerated instance of the attempt to curtail federal water rights by legislation, originally known as the "Barrett Bill," would have effectively destroyed reserved rights and the federal navigational servitude. In somewhat modified form, the legislation has become a perennial on Capitol Hill. In the 92d Congress it is S.28 (Mr. Moss).

These two recent cases, speaking as they do to an unsettled issue of law, confirm the right of state courts to adjudicate all federal water rights claims, apparently in a wide variety of general adjudications. However, by reaffirming the right of the United States to reserve water and by making the definitions of federal rights a federal question, as the Court explicitly does, it both underpins the reservation doctrine and guarantees access to review in federal courts of water rights over which national and local interests may conflict.