Can't Get No Satisfaction: Securing Water for Federal and Tribal Lands in the West

Reed D. Benson

The author is Executive Director of WaterWatch, a nonprofit environmental group that works at both state and federal levels to restore and protect streamflows. Prior to joining WaterWatch, Mr. Benson worked with the Land and Water Fund of the Rockies in Bolder, Colorado; the U.S. Environmental Protection Agency in Washington, D.C.; and a private law firm in Colorado. He holds a B.S. in economics and environmental studies from Iowa State University, and a law degree (magna cum laude) from the University of Michigan.

[30 ELR 11056]

In recent years, the western states have often struggled with the federal government over control and management of natural resources, particularly water. For its part, federal law defers to states in many matters of water resource allocation.¹

Reserved water rights are a major exception to this general policy of federal deference to state water law. The reserved rights doctrine provides that when the United States designates land for a particular use, it also claims enough water to fulfill the primary purposes of that designation.² The reserved rights doctrine evolved in the federal courts through the 20th century, beginning with Indian reservations³ and later extending to other federal areas such as national forests and national monuments.⁴ By ensuring an adequate long-term water supply for these public lands, reserved water rights provide vitally important protection for ecological values and other national interests.

In most respects, federal reserved water rights are compatible with water allocation systems of the western states based on the doctrine of prior appropriation. Under prior appropriation, the states issue "water rights" allowing the holder to use a certain quantity of water from a certain source for a specified purpose, subject to certain terms and conditions. These water rights generally last forever, and in times of shortage the oldest rights are entitled to their full share before new rights get any water. Like state water rights, federal reserved rights have a definite priority date, purpose, source, and (usually) quantity of water. In theory, federal reserved water rights should fit rather easily into state water administration systems.

In reality, however, the western states are very reluctant to recognize and protect reserved water rights. The basic reasons for this position are:

* most rivers in the arid West don't have enough water to meet all human uses and still maintain a healthy flow⁵

* particularly in the summer and fall months, most water in western streams is already being used for some purpose—primarily irrigation, which accounts for about 80% of water withdrawals in the West⁶

* reserved rights carry a priority date based on the date the federal government designated an area for a particular purpose,⁷ and in many cases these priority dates are older than those of established uses under state water rights;

* in water-short areas, recognizing reserved water rights with senior priorities would effectively reduce the water supply available to existing users with junior rights⁸; and

* states are very reluctant to curtail an established water use for any reason,⁹ especially where the purpose for doing so would be to supply water to the federal government or an Indian tribe.

In light of these factors, state opposition to federal reserved water rights is hardly surprising. What is surprising, at least for those unfamiliar with western water issues, is that the federal government has left the determination and administration of reserved water rights almost entirely to the states. This policy has left most reserved water rights unrecognized and unfulfilled, as the states have routinely allowed existing uses to continue unimpaired while moving very slowly, if at all, to resolve federal and tribal claims. Thus, as this Dialogue discusses, many federal and tribal reservations are not actually getting the water they need, effectively undermining the whole purpose of the reserved rights doctrine.

[30 ELR 11057]

Roots of the Problem

Until the 1950s, reserved water rights had to be adjudicated in federal court, as the states had no jurisdiction over federal or tribal claims. That changed when Congress passed the McCarran Amendment in 1952. Codified at 43 USC § 666, McCarran provides in relevant part,

Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.

The McCarran Amendment waived federal and tribal immunity to state court jurisdiction, but it did not deprive the federal courts of jurisdiction to determine reserved right claims.¹⁰ Thus, several western tribes in the 1970s filed for adjudication of their claims in federal court.

A 1976 U.S. Supreme Court decision fundamentally changed the dynamics of federal reserved water rights, shifting the balance of power dramatically to the states. In Colorado River Water Conservation District v. United States,¹¹ the Court upheld the district court's dismissal of an action to quantify federal and tribal reserved rights, in deference to an adjudication in Colorado state court. The Court acknowledged the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,"¹² but nonetheless held that the federal case should be dismissed to avoid piecemeal litigation of water rights in separate state and federal proceedings. "The consent to jurisdiction given by the McCarran Amendment bespeaks a federal policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals."¹³

In the wake of Colorado River, nearly all reserved right claims have proceeded in state court,¹⁴ to the extent that they have gone anywhere at all. In many instances these claims have languished, unsatisfied, and they seem likely to remain in that status indefinitely.

The remainder of this Dialogue identifies and briefly discusses some of the problems with the current system of establishing federal and tribal reserved water rights. To illustrate these problems I will generally point to the Klamath River Basin of southern Oregon and northern California, where an ongoing controversy over reserved rights highlights many of the common issues. I make no attempt to provide in-depth legal analysis or extensive documentation of the issues surrounding reserved water rights. Rather, my purpose is to identify and briefly discuss some of the practical problems facing federal and tribal water claims, from the perspective of one who supports greater recognition and protection of reserved rights and the interests they serve.

Pre-Adjudication Problems

Federal reservations automatically carry reserved water rights as a matter of law (with certain exceptions), but not as a matter of fact. As a practical matter, most reserved rights are not honored or satisfied.

States Refuse to Recognize Unadjudicated Rights

Most, if not all, western states do not honor reserved rights until they have been quantified through an adjudication. In contrast, established water uses under state law are allowed to continue, more or less unabated, until an adjudication takes place.¹⁵ In the Klamath Basin, which is currently being adjudicated, Oregon has stated a policy of refusing to regulate water use either for or against unadjudicated water rights.¹⁶ Oregon thus refuses to recognize the existence of the Klamath Tribe's reserved water rights, even though the federal courts have already established that these rights exist with priority dates of 1864 and "time immemorial."¹⁷ Such policies effectively favor established offstream water users, who can continue taking water without interference until an adjudication is completed.

States Are Slow to Begin Adjudications

State court general stream adjudications are often incredibly lengthy, costly, complex, and contentious.¹⁸ Moreover, adjudications may result in cutting back unsupportable water right claims, and potentially changing existing water uses if senior reserved rights are recognized. As noted by one commentator:

Irrigated agriculture stands to lose most from final adjudication. Agricultural pursuits account for 83 percent of [30 ELR 11058] fresh water consumptively used in the United States. Most irrigation water rights in the Northwest are junior to federal and Indian reserved water rights. In many watersheds, Indian and federal rights threaten to divest these agricultural interests, or at least put them in a more tenuous position by virtue of their junior status.¹⁹

Thus, it is not surprising that states are reluctant to commence stream adjudications absent some compelling reason. South Dakota, for example, launched an adjudication of the Red River Valley about 20 years ago, but abandoned it almost immediately, apparently believing that the water conflicts there were not so pressing as to justify a long, costly, and difficult court case.²⁰

States and Users Oppose Federal Court Actions to Establish Reserved Rights

Several of the West's ongoing general stream adjudications were triggered, at least in part, by the assertion of tribal reserved rights in federal court.²¹ The states launched their own proceedings in an effort to have the tribal claims heard in state courts. For example, Oregon commenced the Klamath Adjudication in January 1976, just months after the United States had filed in federal court for a determination of water rights in a portion of the Klamath Basin.²² Oregon and some individual water users argued strongly for complete dismissal of the federal case in deference to the state adjudication, but without success.²³ Thus, United States v. Adair²⁴ confirmed the existence and priority dates of tribal reserved water rights in 1983, but left the quantification of those rights to the Oregon adjudication, where they are still pending.

States and Users Oppose Federal Efforts to Satisfy Unadjudicated Rights

Slowed by jurisdictional disputes, the Klamath Adjudication was still far from completion by the mid-1990s. At that time, the U.S. Bureau of Reclamation (Bureau) took steps to change its historic operation of the Klamath Project, providing more water to meet tribal needs and support endangered fish species. The state of Oregon, in an effort to protect its own authority—and the water supplies of Klamath Project irrigators—issued an opinion stating that the Bureau had no authority to take these actions pending the completion of the adjudication.²⁵ The U.S. Department of the Interior (DOI) responded by asserting that the Bureau had both the authority and the duty to operate the Klamath Project to meet unquantified but senior tribal water rights.²⁶ The issue has not yet been litigated, largely because a series of wet years have kept the Klamath conflict from coming to a head, but Oregon continues to assert that the DOI lacks authority to manage the project for tribal and endangered species needs.²⁷

Adjudication Problems

State general stream adjudicationsunder the McCarran Amendment provide a forum where reserved water rights can be determined and established. Even after these adjudications are commenced, however, federal and tribal water claims may be a very long way from fulfillment.

State Adjudications Are a Hostile Forum for Federal and Tribal Claims

As stated by the Ninth Circuit Court of Appeals, "while courts have traditionally been sympathetic to the fear that tribal treaty rights will receive 'inhospitable treatment' in state courts, the Supreme Court has held that this danger in itself is not enough to warrant reading the McCarran Amendment to exclude Indian water rights from comprehensive state adjudications."²⁸ The Klamath Tribe raised a due process challenge to Oregon's jurisdiction over tribal reserved rights in the Klamath Adjudication, but lost. The Ninth Circuit found that, despite past actions by Oregon agencies adverse to the tribe's water claims, the tribe's evidence did not "sufficiently show an unacceptable probability of actual bias by the actual decisionmakers" in the Klamath Adjudication.²⁹ Federal claims, too, may be highly politicized in state court, as shown by the recent Idaho controversy over reserved water rights for wilderness. The state supreme court upheld the federal claims on a 3 to 2 vote, then agreed to rehear the case after their decision provoked a political firestorm.³⁰ Shortly after the decision, the justice who wrote the majority opinion lost her bid for reelection, becoming the first sitting Idaho Supreme Court justice to be rejected by voters since 1944.³¹

General Stream Adjudications Take Decades to Complete

The Klamath Adjudication was launched in 1976, but the case is really just now getting started; "contests" challenging [30 ELR 11059] the pending federal, tribal, and private water claims were not filed until recently, in April and May 2000. The Klamath case was held up for years by jurisdictional battles in federal court. But many other general adjudications throughout the West have also proceeded glacially since the 1970s, including Arizona's, Montana's, and the Yakima Adjudication in Washington. The sheer size and complexity of these cases is mind-numbing—the Idaho and Montana cases combined have almost 400,000 water claims—so to a certain extent, it is understandable that these cases are measured in geologic time.³² Given that the states do not recognize reserved rights until they are quantified, however, the ponderously slow pace of adjudications benefits existing users and hurts federal and tribal interests.

Results in State Courts Can Frustrate Protection of Federal Interests

Perhaps the ultimate example of reserved right claims being stymied in state court is Wyoming's Big Horn Adjudication. The Wyoming Supreme Court refused to award reserved rights to the Wind River Indian Reservation for any purpose other than irrigation and related uses.³³ Much of this water right could not immediately be used for irrigation, however, and the tribes sought to dedicate a portion of it for instream use in the Big Horn. The court ruled 3 to 2 that the tribes could not take this action without state approval.³⁴ Federal efforts to establish reserved rights for instream flows on national forests in Colorado have similarly been stymied in the state courts.³⁵ One U.S. Department of Justice attorney, describing how efforts to protect instream flows for federal lands have repeatedly been frustrated in state adjudications and other forums, has described the experience as a "shell game."

Adjudications Offer Little or No Real Public Participation

Among their many faults, general stream adjudications essentially foreclose participation by anyone who does not hold or claim a water right. The Klamath Adjudication, for example, is open only to those who claim or hold water rights in the basin.³⁶ Defenders of this members-only system sometimes say that it is appropriate because adjudications do not create new water rights, but only confirm existing ones. Why consider the public interest, they say, when the only issue is whether Joe Homesteader irrigated 100 acres beginning in 1896, or 90 acres in 1897? Whatever the validity of this argument as it pertains to existing private water usesunder state law, it is not compelling where reserved rights are concerned. Reserved rights usually have never been established or exercised, and provide water for more-or-less public purposes. Citizens clearly should have a voice in determining how much water ought to flow, say, through the Black Canyon of the Gunnison National Monument. Thus, public involvement is particularly appropriate and important in the establishment of reserved rights, but adjudications are inhospitable to citizens. To the extent that reserved right settlement talks also occur behind closed doors with no citizen involvement, the public is further disserved.

Suggestions for Addressing the Problems

In light of these realities, one must acknowledge that the current system, which leaves the states largely in control of the water supply for federal and tribal lands, has serious and fundamental problems. It has been nearly 50 years since the McCarran Amendment was enacted, and nearly 40 since the reserved rights doctrine was expanded beyond Indian reservations to cover other federally designated areas. Still, most of these lands have water rights that have never been quantified or satisfied, and existing users continue taking water unaffected by senior tribal and federal claims. The current system serves these existing users very well, but does little to protect the public interest in national parks, forests, wildlife refuges, wild and scenic rivers, or tribal lands.

These results are not surprising. It would be naive to expect the western states to do a thorough and effective job of delivering water to federal and tribal lands, especially when doing so could curtail water uses established under state law. By subjecting federal and tribal claims to state jurisdiction, the McCarran Amendment and the Colorado River decision inevitably put these claims in a disadvantaged position. Still, the three branches of the federal government could take certain steps (short of repealing the McCarran Amendment) that could significantly improve the situation.

Congress should recognize that the current system gives the western states no real incentive to move forward in quantifying or honoring reserved rights. Thus, not only does this leave vital federal and tribal interests in state hands, it provides no meaningful check on state discretion. In addition, state adjudications get no financial help from the federal government, since the Supreme Court has interpreted the McCarran Amendment to bar the United States from paying filing fees in these cases.³⁷ State adjudications thus limp along with limited funding, and the federal government has no effective leverage, financial or otherwise, to move them forward expeditiously. The western states have sought to amend the McCarran Amendment to allow federal [30 ELR 11060] payment of filing fees,³⁸ and Congress should consider a state incentives program that provides financial assistance for adjudications in return for clear commitments on swifter recognition of federal and tribal claims.

The federal courts should recognize that state adjudications may not provide an effective forum for prompt and fair handling of reserved right claims. Contrary to popular belief, the McCarran Amendment does not require reserved right claims to be heard in state court. Rather, the Colorado River case provides for consideration of several factors in determining whether a federal court should exercise its jurisdiction over a reserved rights case despite a competing state adjudication.³⁹ Today, few if any reserved right claims are being filed in federal court, although there have been calls to do so. If federal and tribal claims are filed in the U.S. district courts, judges should seriously consider retaining jurisdiction consistent with Colorado River, recognizing the states' record of inertia on reserved rights over the past quarter century. Concerns over possible "piecemeal litigation" must be balanced against the certain harm caused by decades-long delays in recognition and satisfaction of reserved water rights.

Federal agencies should take affirmative steps under their authority to provide an adequate water supply for federal and tribal lands, in those areas where reserved rights remain unrecognized by the states. In some situations, the agencies may be able to obtain water rights under state law that serve the same purpose as reserved rights, although this option is often unavailable or unsatisfactory.⁴⁰ Other steps may include imposing minimum "bypass flows" to be maintained as a condition of special use permits for water diversion facilities on public lands,⁴¹ or changing the operations of federal water projects to provide water for senior (unquantified) reserved rights.⁴² These efforts are likely to generate controversy from water users and the states. Still, they may provide an effective means of protecting federal and tribal interests in water, and may nudge the states to move forward in making final decisions on reserved water rights. As more aquatic species are listed as threatened or endangered under federal law, the Endangered Species Act⁴³ will bring additional authority and urgency to such actions.⁴⁴

Finally, all sectors of the federal government—and just as importantly, the states—should seek to provide meaningful public involvement in the establishment of reserved water rights. The current system provides citizens (other than competing water users) little or no say in determining reserved rights. Thus, the process effectively is open only to those whose interests are hostile to reserved rights, while potential supporters are forced to wait outside. It simply is not good government to exclude people from such crucial long-term decisions about public resources; there is a much better public process for many decisions that are arguably "smaller," such as mineral leases, grazing permits and water supply contracts. The adjudication context obviously presents special problems and considerations for citizen involvement, but should not preclude it.⁴⁵

In the arid West, conflict over scarce water resources is often unavoidable. The McCarran Amendment and the Colorado River decision, as interpreted and implemented, have severely disadvantaged efforts to secure sufficient water supplies for federal and tribal lands. Federal policy gives unfettered discretion to the western states, and the results predictably benefit existing water users. Until the U.S. government takes steps to address this situation, many reserved rights will continue indefinitely to be just paper claims, failing to protect national interests in federal and tribal lands.

1. See, e.g., Section 8 of the 1902 Reclamation Act, 43 U.S.C. § 383; Section 101(g) of the Clean Water Act, 33 U.S.C. § 1251(g), ELR STAT. FWPCA § 101(g).

2. Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (1976).

3. Winters v. United States, 207 U.S. 564 (1908).

4. Arizona v. California, 373 U.S. 546 (1963).

5. Even "wet" western states, such as Oregon, have nowhere near enough water to satisfy all demands, especially when instream flow needs are taken into account. In the words of the state water resource agency:

Each year the State's water supply falls far short of the demands placed on it. Across Oregon, many streams are dry in the summer and fall months. . . . Put very simply, there is not enough water where it is needed, when it is needed, to satisfy existing out-of-stream and instream uses.

OREGON WATER RESOURCES COMM'N & DEP'T, 1995-1999 STRATEGIC WATER RESOURCE MANAGEMENT PLAN 2 (1995).

6. See WAYNE B. SOLLEY ET AL., ESTIMATED USE OF WATER IN THE UNITED STATES IN 1995 (U.S. Geological Survey 1998).

7. Cappaert, 426 U.S. at 138.

8. "The implied-reservation doctrine should be applied with sensitivity to its impact on those who have obtained water rights under state law and to Congress' general policy of deference to state water law." United States v. New Mexico, 438 U.S. 696, 718, 8 ELR 20564, 20570 (1978) (Powell, J., dissenting in part).

9. See generally Reed D. Benson, Maintaining the Status Quo: Protecting Established Water Uses in the Northwest, Despite the Rules of Prior Appropriation, 28 ENVTL. L. 881 (1998).

10. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 809 (1976).

11. 424 U.S. 800 (1976).

12. Id. at 817.

13. Id. at 819.

$=S

14. In effect, Colorado River marks the end of litigation about the how and where of federal reserved rights adjudications. A few cases will find their way into the federal court system, but most of the western states are now beginning the arduous and frightfully expensive process of conducting general stream adjudications in their state court systems.

JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES 833 (2d ed. 1991).

15. See Rettkowski v. Department of Ecology, 858 P.2d 232 (Wash. 1993).

16. See Letter from Steve Sanders, Assistant Attorney General, Oregon, to Martha Pagel, Director, Oregon Water Resources 5 (Mar. 18, 1996) (on file with author). Oregon's refusal seems to be a matter of policy, rather than law:

While the state has the authority under the McCarran Amendment to both adjudicate and then administer, i.e., regulate between, water rights, it is less clear how water must be managed pending completion of the adjudication. Oregon has taken the position that it regulates neither in favor of nor against unadjudicated water rights. Accord Rettkowski v. Department of Ecology, 858 P.2d 232 (Wash. 1993); South Delta Water Agency v. Department of the Interior, 767 F.2d 531 (1985) (quantification of federal reserved water rights must occur before authority to administer those rights conferred under [the] McCarran Amendment).

Id. No rationale was given in support of this policy, and neither of the two cases cited would prevent Oregon from recognizing the Klamath Tribe's reserved water rights during the adjudication.

17. United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1254 (1984).

18. See DAR CRAMMOND, NORTHWEST WATER LAW AND POLICY PROJECT, COUNTING RAINDROPS: PROSPECTS FOR NORTHWESTERN WATER RIGHTS ADJUDICATIONS 31-36 (1996) (completed for the Northwest Water Law and Policy Project, Northwestern School of Law of Lewis & Clark College).

19. Id. at 25-26 (citations omitted).

20. "That experience answers the little asked question, 'If we ignore water right adjudications, what will happen?' Apparently, not much." Id. at 37.

21. For example, both Washington's Yakima Adjudication and Montana's statewide adjudication were launched largely in response to tribal assertions of reserved water rights in federal court. Id. at C-1, C-2 (Yakima), D-3, D-4 (Montana).

22. Adair, 723 F.2d at 1398-99.

23. Id. at 1400-07.

24. 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1254 (1984).

25. Sanders letter to Pagel, supra note 16.

26. Memorandum to DOI officials from David Nawi, Regional Solicitor, U.S. DOI, Pacific Southwest Region and Lynn Peterson, Regional Solicitor, Pacific Northwest Region (Jan. 9, 1997) (on file with author).

27. In commenting on the Bureau's draft 1998 operations plan for the Klamath Project, the state of Oregon wrote: "By unilaterally reallocating project water to non-project purposes, we believe the preferred alternative exceeds federal authority and is contrary to state water law." Comments of the State of Oregon Submitted on the U.S. Bureau of Reclamation's Draft 1998 Klamath Operations Plan Environmental Assessment, at 2 (attached to a letter to Interior Secretary Bruce Babbitt from Oregon Governor John Kitzhaber M.D., Mar. 2, 1998) (on file with author).

28. United States v. Oregon, 44 F.3d 758, 772, 25 ELR 20531, 20537-38 (9th Cir. 1994), cert. denied, 116 S. Ct. 378 (1995) (citing Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 566-67, 13 ELR 20817, 20828 (1983)).

29. "Contrary to the apparent position of the Tribe, it is not enough to show that the State of Oregon, through the acts of certain departments or officials, has taken position adverse to the Tribe's claims in this case." Id.

30. See Rocky Barker, High Court Rehears Water Suit, IDAHO STATESMAN, Feb. 15, 2000, at 1.

31. See Ken Miller, Politics Under Scrutiny After Court Election, IDAHO STATESMAN, May 27, 2000, at 1; Bill Roberts, One Decision Could Swing Justice Race, IDAHO STATESMAN, May 19, 2000, at 1.

32. In the words of one commentator:

Size and complexity are only the obvious reasons for the slow pace. Other dilatory forces are at work, but they are difficult to pinpoint and eliminate. Some lay the blame at the feet of the attorneys, accusing them of milking their clients at a generous hourly wage. Other point to large water interests, who show extreme reluctance to divulge the intimacies of their water use practices before a court and completing claimants. The United States has consistently resisted state court adjudication, despite the intent of the McCarran Amendment to treat federal rights in that forum. Another phenomenon is the "batter up" syndrome: no one wants to go first. Some claimants hope that they can postpone the inevitable inspection of their claims with dilatory practices. States themselves contribute to the problem, sometimes through excruciatingly detailed inspections [of the validity of water claims], other times by providing claimants multiple layers of notice and opportunity to object, literally drowning the adjudications in due process.

CRAMMOND, supra note 18, at 32-33 (citations omitted).

33. In re Big Horn River Sys., 753 P.2d 76 (Wyo. 1988), aff'd sub nom. Wyoming v. United States, 492 U.S. 406 (1989).

34. In re Big Horn River Sys., 835 P.2d 273 (Wyo. 1992).

35. See United States v. Denver, 65 P.2d 1 (Colo. 1982); Memorandum of Decision and Order, No. W-8439 (Colo. Dist. Ct. Water Div. No. 1, Dec. 29, 1993).

36. OR. ADMIN. R. 690-028-0010(15), 690-028-0075(2) (1999).

37. United States v. Idaho, 508 U.S. 1, 23 ELR 20821 (1993).

38. See H.R. 3557, 105th Cong. (1998), the "Water Adjudication Fairness Fee Act of 1998," introduced by then-Rep. Bob Smith (R-Or.), in an effort to secure federal filing fees for the Klamath Adjudication.

39. United States v. Adair, 723 F.2d 1394, 1400-07 (9th Cir. 1983), cert. denied, 467 U.S. 1254 (1984) (interpreting Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 13 ELR 20817 (1983) and Colorado River).

40. State programs for protecting instream flows, in particular, typically fall short of meeting federal requirements.

Almost all western states now provide for the protection of instream flows in some manner; the approaches taken, however, vary widely and generally do not appear adequate to meet the needs of federal agencies: the purposes for which instream flows may be protected typically are limited to protection of fish; the quantity of water protectable is likely to be the minimum necessary to protect the fishery; and in many states, instream flow rights or reservations can only be held by state agencies.

Larry J. MacDonnell & Teresa A. Rice, The Federal Role in In-Place Water Protection, in INSTREAM FLOW PROTECTION IN THE WEST 5-17 (Larry J. MacDonnell & Teresa A. Rice eds., 1993). An additional problem with state water rights is that they would carry a very late priority date, not the relatively senior date of the federal reservation, making them less reliable in times of water shortage.

41. See REPORT OF THE FEDERAL WATER RIGHTS TASK FORCE CREATED PURSUANT TO SECTION 389(d)(3) of P.L. 104-127 (Aug. 25, 1997) (one file with author). The task force ultimately split 4 to 3 along partisan lines, with the majority opining that the U.S. Forest Service has no authority to require such bypass flows, the minority asserting that the Forest Service does have bypass flow authority and should exercise it judiciously.

42. Since 1995, the Bureau has revised its operation of the Klamath Project, placing higher priority on protecting tribal rights and the needs of endangered fish species, and effectively shifting the risk of a dry year to irrigators that historically were the chief beneficiaries of the Project. See Nawi/Peterson memorandum, supra note 26.

43. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

44. See Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species Act as Applied to Endangered River Ecosystems, 40 ARIZ. L. REV. 197 (1998).

45. Oregon is experimenting with an Alternative Dispute Resolution (ADR) process in the Klamath Basin that is more open to citizen participation than the Klamath Adjudication itself. The ADR talks involve most, although not all, of the major water interests in the basin, including the Klamath Tribe and several federal agencies. There is wide interest in addressing water quality and endangered species issues as well as water allocation, so the ADR may well have a broader scope than the adjudication. Virtually all parties are hoping that these talks can provide a better approach for resolving Klamath Basin water issues, but in three years they have made little progress, and it is still too soon to tell how successful the ADR will be.