**The New National Defense Water Right --**

**An Alternative to Federal Reserved Water Rights**

**For Military Installations**[^1]

[Lieutenant Colonel Michael J. Cianci, Jr.]{.smallcaps}[^2]

[Mr. James F. Williams]{.smallcaps}[^3][^\*^]{.smallcaps}

[Technical Sergeant Eric S. Binkley]{.smallcaps}[^4][^\*\*^]{.smallcaps}

**INTRODUCTION**

The Air Force is a party to several ongoing judicial and administrative
state water adjudication proceedings throughout the west. These state
adjudications will determine the amount of water Air Force installations
will be able to use in the future. This article focuses on a
newly-recognized "National Defense Water Right" (NDWR), which was
recently granted to the Air Force in the Las Vegas Artesian Basin
Adjudication, on behalf of Nellis Air Force Base (AFB), Nevada. This new
water right will likely have a beneficial impact upon and support the
Air Force's position in future water proceedings. This article will
further evaluate the possibility of utilizing alternative water sources
to ensure western Air Force installations have future stable water
supplies. In this regard, the Department of Defense (DOD) has initially
directed military departments to develop plans for privatizing all
utility systems including electric, water, waste water, and natural gas
by 1 January 2000.[^5] Barely a year later, the January 2000 date was
recognized to be an unrealistic goal, so DOD reset the goal "to
accommodate award of privatization contracts for all utility systems no
later than September 30, 2003".[^6]

Both DRID #9 and DRID #49 called for studying the privatization of
utilities, including water systems. They also set forth organizational
requirements for conducting privatization and a workable timetable with
internal benchmarks for measuring privatization progress. It also wisely
recognizes exemptions from privatization due to economic or security
considerations.

Water is a scarce resource in the west. Future droughts and restrictive
state water laws may mean that the Air Force will not have enough water
to perform future missions. The Air Force could be forced to expend
considerable resources to "buy" new water allocations at premium prices,
cut back critical mission activities, or close high-water use
recreational facilities, such as base golf courses. The new NDWR\'s key
feature is that it ensures water will be available to meet national
defense operational activities and national security emergencies.

Part I of this article will examine the history of western water law and
provide an in-depth analysis of two installations to illustrate the
future privatization possibilities. In the process, the article will
discuss western water law and how it may affect Air Force water rights.
Part II of the article then analyzes the judicially created Federal
Reserved Rights Doctrine, which has been advocated by federal parties in
state water adjudication proceedings and also discusses how the doctrine
may be inadequate to protect Air Force water rights. Part III of the
article examines a new water right recognized by the state of Nevada,
the NDWR, and discusses how this right may be used to Air Force
advantage in lieu of Federal Reserved Rights. Part IV of the article
utilizes a case study approach to examine water rights issues for two
western Air Force installations, exploring how the existing law and
current trends might affect particular water issues pertinent to the
hydrologic dynamics of these installations.

### **I. Western Water Law**

In some form, all 20 of the contiguous United States west of the
Mississippi River adopted the prior appropriation water system,
prioritizing water rights by looking to their "beneficial usage," and
following the principle of "first in time, first in line."[^7] This
system of water law grants priority to senior historical water users.
Many states have litigated or are litigating the amount and priority of
competing water claims.[^8]

The Air Force has filed claims for water rights in several state
administrative and judicial water adjudication proceedings, including
Arizona, Idaho, Montana, and Nevada. Other proceedings exist in
Washington, New Mexico, and Texas.[^9] Some proceedings take place
within the applicable state applicable state water bureaucracy or state
court.[^10] These adjudications are in various stages of completion.
Eventually, they will grant a water decree to the Air Force which will
establish the following for each installation: (1) how much water the
Air Force can use, and (2) the priority date of the water, that is, when
it was first put to a beneficial usage. The priority date is critical
because in times of drought, senior water users can completely cut off
the water rights to those junior water users to fulfill the total
quantity of the senior water right.[^11]

In 1952, Congress enacted legislation which waived sovereign immunity
and allowed the federal government to be a party to "comprehensive"
state court water proceedings.[^12] This legislation was named for one
of its proponents, Senator Patrick McCarran of Nevada. Recent case law
has granted the states more flexibility in determining the nature and
extent of these comprehensive "McCarran Amendment" water adjudication
proceedings, which must include all water claims within the
watershed.[^13]

Western states utilize the prior appropriation water systems in some
form. Many states have a permit system for groundwater and or surface
water, which sets the priority dates. Some states allow reasonable usage
of groundwater, recognizing vested rights (rights put to use before a
particular date), or accept filings completed with local offices, such
as historical state agencies, or the local county recorders\'
office.[^14]

The Air Force has claims filed in the Arizona Gila River adjudication
for Luke AFB, Davis-Monthan AFB, Raytheon Plant 44, the Barry Goldwater
Range, and Tucson Air National Guard Base (as well as the former
Williams AFB).[^15] In Idaho, active claims are filed in the Snake River
Adjudication on behalf of Mountain Home AFB.[^16] In Montana, active
claims are filed for wells at 14 missile sites.[^17] In Nevada, claims
were filed for Nellis AFB in the Las Vegas Artesian Basin
adjudication.[^18] These claims represent valuable water usage property
rights, worth millions of dollars.[^19]

Most western states have rejected the common law doctrine of riparian
water rights, which gives water rights to those owners of land adjacent
to surface streams.[^20] Western surface water law (and in many states
some groundwater) incorporates this doctrine, called "prior
appropriation."[^21] Generally, whoever puts the water to a beneficial
use first is entitled to the highest priority.[^22] A military
installation's usage is often hard to analyze. Water usage fluctuates
depending upon the military mission, military training and exercises,
and the extent of recreational facilities, for example, whether the base
has a golf course, which traditionally uses a lot of water. Most states
have rigid laws that require permits, local filings, or continuous
beneficial usage.[^23] Most installations in the west were created
shortly before or after the start of World War II, and prior to
enactment of the 1952 McCarran Amendment.

Nellis AFB Nevada complied with existing state laws and obtained
"permits," as required. Others did not \-- Arizona, for instance, did
not have a groundwater code until 1980, thus, permits were not
historically required in order to pump groundwater.[^24] State statutes
generally do not expressly mention military water uses as beneficial
uses. Moreover, many military installations were encouraged to locate at
their present site by local officials, in order to bolster the economic
impact on the local economy. Indeed, Las Vegas city officials bought
Nellis AFB its first two wells, five miles west of the installation, to
assure its location in Las Vegas.[^25]

The Federal Reserved Rights Doctrine has generally been the first line
of defense for federal entities and Indian tribes in state water
proceedings. It is a judicial doctrine which allows Indian tribes and
other federal entities to claim that water necessary to fulfill the
Congressional purposes for which the federal reservations were created,
whether or not water has yet to be put to a beneficial use.[^26] In
fact, since the doctrine allows federal parties to claim yet unused
water for future federal purposes, some States felt compelled to
quantify these rights by initiating McCarran Amendment water
adjudications.

### 

### **II. The Federal Reserved Rights Doctrine**

The federal government has from time to time exerted its regulatory
authority over many areas touching on waters located within a state,
including: passing federal pollution laws, protecting endangered
species, restricting fish harvesting, enforcing treaty obligations, and
securing interstate commerce.[^27]

The federal government has also made its presence known by using the
Federal Reserved Rights Doctrine successfully. The doctrine was first
expressed in *Winters v. United States*.[^28] There the Supreme Court of
the United States held that, pursuant to its agreement with the Gros
Ventre and Assiniboine (and other) Native American Indians,[^29] there
was an implied reservation of a sufficient amount of water from the Milk
River for irrigation of reservation lands. As articulated by the Court,
the doctrine not only reserved a sufficient amount of water for present
irrigation purposes but also secured a sufficient amount for future
needs.[^30] It has been used in subsequent adjudication proceedings as a
basis for federal parties to claim a "federal water right."[^31]

The doctrine does not strictly apply state law requirements such as the
"forfeiture" doctrine (usually forfeiting water rights, which are not
used for a prescribed period of time).[^32] *Winters* immediately gave
the Native American Indians a paramount right over the defendant
settlers who had previously appropriated the water for a beneficial use
before the Indian Tribes but after the creation of the reservation.

Although *Winters* is the first case to expressly announce the Federal
Reserved Rights Doctrine, the Supreme Court cited two previous cases
which laid the foundation upon which *Winters* was decided. These cases
held that the federal government will, when necessary, reserve water and
exempt it from appropriation under state law.[^33]

In *United States v. Rio Grande Dam & Irrigation Company*, the Supreme
Court reversed the Supreme Court of the Territory of New Mexico, which
had affirmed the dismissal of a complaint filed by the United States.
The United States had sought to restrain the defendant from building its
dam across the Rio Grande River and from appropriating water for
irrigation. The Supreme Court ordered an inquiry into whether the
construction of the dam would interfere with navigation. In discussing
the power of the states to regulate water, the Court noted two
limitations upon the states:

> First, that in the absence of specific authority from Congress [a
> State cannot by its legislation destroy the right of the United
> States, as the owner of lands bordering on a stream, to the continued
> flow of its waters; so far at least as may be necessary for the
> beneficial uses of the government property.]{.underline} Second, that
> it is limited by the superior power of the General Government to
> secure the uninterrupted navigability of all navigable streams within
> the limits of the United States. . . . The power of the State to thus
> legislate for the interests of its own citizens is conceded ... until
> in some way Congress asserts its superior power (emphasis added).[^34]

In *United States v. Winans*, the United States brought suit to protect
the fishing rights of the Yakima Indians along the Columbia River in the
State of Washington, which were claimed under an 1859 treaty. The
respondents, landowners along the Columbia River contended that the
treaty conferred to the Native American Indians only those rights "as a
white man would have under the conditions of ownership of the lands
bordering on the river, and under the laws of the State," and therefore
as owners of the land, the respondents had the right to exclude the
Native American Indians from fishing on the river.[^35] In rejecting the
landowners\' argument, the Supreme Court held that the treaty was not a
grant of rights to the Indians but a reservation of rights which was
superior to the state law.[^36]

For the next 55 years after the Court's 1908 decision in *Winters*,
water scholars debated its impact. Some thought it to be applicable only
to Indian reservations. Two important cases were decided in the Ninth
Circuit Court of Appeals concerning water rights on Native American
Indian reservations. *Conrad Inv. Co. v. United States*,[^37] was
decided shortly after *Winters*. The *Conrad* court affirmed the lower
court's injunction against the defendant from obstructing the flow of a
stream providing water to the Blackfeet Indian Reservation. The court
held that the Indians had the paramount right to the water. In so
holding, the court stated that *Winters* clearly controlled.

In 1939, the Ninth Circuit Court of Appeals decided *United States v.
Walker River Irrigation District*[^38] finding that there should be an
implied reservation of water rights. In *Walker*, the United States
brought suit to restrain the defendants, an irrigation district and some
farmers, from diverting the flow of the Walker River for irrigation
purposes. The defendant farmers had actually been diverting water for
such purposes since 1860.[^39] The Government contended that the Indians
had a prior right to fifteen cubic feet per second ("cfs") pursuant to
an implied reservation under the *Winters* doctrine. The reservation in
this case had been set aside in November 1859 for use by the Paiute
Indian Tribe. The trial court had found *Winters* inapplicable because
the reservation had not been created pursuant to treaty. In reversing,
the Ninth Circuit held that *Winters* clearly controlled the disposition
of the case and that there was no logical reason why the doctrine should
not apply to a reservation created by an executive order.[^40]

In 1963 the Supreme Court decided the landmark case of *Arizona v.
California*,[^41] holding that implied Federal Reserved Water Rights
were not confined to Indian reservation lands. The basic controversy in
the case pertained to the amount of water each state in the lower
Colorado River Basin was to receive. The Court specifically affirmed the
United States' claim of reserved water for the Indian reservations, with
the priority date being the date the reservations were created.[^42]
Moreover, the Court approved the findings of the special master who had
upheld the water claims of the United States for use on the national
forests and national recreation areas.[^43]

Almost eight years later in *United States v. District Court in and for
the County of Eagle*,[^44] the Supreme Court reaffirmed *Winters*'
extension to other reserved federal lands and made it clear that the
federal government may reserve water for federal purposes both prior and
after a state's admission into the Union.

> It is clear from our cases that the United States often has reserved
> water rights based on withdrawals from the public domain. As we said
> in [Arizona v. California]{.underline}, the Federal Government had the
> authority both before and after a State is admitted into the Union
> \"to reserve waters for the use and benefit of federally reserved
> lands.\" The federally reserved lands include any federal enclave. In
> [Arizona v. California]{.underline} we were primarily concerned with
> Indian reservations. The reservation of waters may be only implied and
> the amount will reflect the nature of the enclave. (internal citations
> omitted)[^45]

The term \"federal enclave\" arguably includes any public land or
"private land within an enclave,"[^46] wherein the United States
exercises exclusive jurisdiction and legislative authority. One may
argue that a reserved right may be found on formerly held public land if
the government intended to accomplish a purpose that required water, or
on acquired parcels if sufficiently intermitted with withdrawn public
domain land.[^47] It is important to emphasize that, unlike state
appropriative water rights, a reserved right cannot be lost by nonuse
nor by the fact that it has not been diverted or put to a beneficial use
as normally required by western states' prior appropriation laws.[^48]

Another landmark reserved rights case was decided by the Supreme Court
in 1976, *Cappaert v. United States.*[^49] In 1952, President Truman
withdrew from the public domain a 40-acre tract of land surrounding
Devil's Hole, a deep limestone cavern within the State of Nevada,
designating the area as a National Monument. Below the opening of the
cavern is a pool, which contained a rare species of prehistoric
fish.[^50] In 1968, the Cappaerts started to pump groundwater on their
ranch two and one half miles away. The pumping resulted in the lowering
of the pool at Devil's Hole, thus endangering the rare fish. The Court
affirmed the lower court's issuance of a permanent injunction, which
enjoined the Cappaerts from lowering the water below a level, which
would provide a suitable habitat for the fish.[^51]

In applying the *Winters* doctrine, the Court held that the federal
government, by implication, had reserved an amount of water necessary to
accomplish the purpose of the reservation.[^52] The Court stated,
\"\[t\]he doctrine applies to Indian reservations and other federal
enclaves, encompassing water rights in navigable and non-navigable
streams. . . Intent is inferred if the previously unappropriated waters
are necessary to accomplish the purposes for which the reservation was
created.\"[^53] Consequently, the Court rejected the argument that the
federal government was required to perfect its implied water rights
according to state law because the Desert Land Act of 1877[^54] had
effectively severed non-navigable water from the public land.[^55] This
argument was based upon the holding in *California Oregon Power Co. v.
Beaver Portland Cement Co.,*[^56] *whic*h had held that the Desert Land
Act of 1877 ("if not before") subjected control of nonnavigable water
rights on the public domain to the "plenary" authority of the states. In
other words, a federal patentee acquired no water rights with their
federal patent. The water was construed to be severed from the land. The
patentee's water rights, if any, were to be determined in accordance
with the state or local law or custom.

Citing *Federal Power Commission v. Oregon*,[^57] the Court in
*Cappaert* reaffirmed that the Desert Land Act has no applicability to
federal reserved water rights.[^58] The Court noted,

> Nevada argues that the discussion of the implied-reservation doctrine
> in [FPC v. Oregon]{.underline} was dictum as that case involved the
> Supremacy of the Federal Power Act . . . over state law. To the extent
> that the Federal Power Act authorized reservation of unappropriated
> water for the electrical needs of the federal project, so too did the
> Antiquities Act authorize implicit reservation of unappropriated water
> for the purposes of the Devil's Hole reservation.[^59]

Indeed, there is now no question that the Desert Land Act of 1877[^60]
(and predecessor acts in 1866[^61] and 1870[^62] which had also
recognized water rights of settlers upon public land according to local
law) severed water rights from the land for purposes of "private
acquisition" only. The acts simply have no applicability to Federal
Reserved Water Rights.

Following the *Cappaert* decision, the Supreme Court next addressed the
Federal Reserved Rights Doctrine in *United States v. New Mexico*.[^63]
In that case, the United States had claimed reserved water rights for
use in the Gila National Forest. Citing its decision in *Cappaert*,[^64]
the Court reaffirmed its holding that the doctrine reserved only the
amount of water necessary to fulfill the primary purpose of the
reservation.[^65] In examining Congress' intent and limited purpose in
creating the National Forest system, the Court held that the 1897
Organic Act[^66] reserved only the amount of water necessary to protect
the forest, to secure favorable conditions of water flow, and to furnish
a continuous supply of timber.[^67] In doing so the Court affirmed the
decision of the New Mexico Supreme Court and rejected the expanded claim
of the United States. The Court specifically found that Congress had not
reserved water rights for aesthetic, recreational, wildlife, or
stockwatering purposes.[^68]

In reaching its decision the Court relied heavily upon the legislative
history of the 1897 Organic Act which revealed that one of the primary
reasons Congress created the National Forest system was to spur
development of the arid west. Thus, the Court found that the reservation
of water for the purposes as argued by the government was inconsistent
with the basic intent for the Organic Act:

As this provision and its legislative history evidence, Congress
authorized the national forest system principally as a means of
enhancing the quantity of water that would be available to settlers of
the arid West. The Government, however, would have us now believe that
Congress intended to partially defeat this goal by reserving significant
amounts of water for purposes quite inconsistent with this goal.[^69]

The Court also rejected the argument by the United States that the 1960
Multiple-Use Sustained-Yield Act[^70] could be applied retroactively or
be used to broaden the purpose for which the Gila National Forest had
been originally established, even though the Act expressly provides,
"\[i\]t is the policy of Congress that the national forests are
established and shall be administered for outdoor recreation, range,
timber, watershed, and wildlife, and fish purposes."[^71]

Further, the Court relied heavily upon the Organic Act's legislative
history in determining the true purpose of the reservation. The Court
found an implied reservation for those primary purposes as set forth in
the Organic Act but no reservation for the secondary or supplemental
purposes as provided in the Multiple-Use Sustained-Yield Act.[^72]

In *United States v. Anderson*,[^73] the Ninth Circuit reasoned that the
doctrine should be expanded in order for an Indian allottee to reap the
full value of the allotment by noting,

> \[t\]he court held that when title passed from an Indian to a
> non-Indian for an allotted parcel, the appurtenant right to share in
> tribal reserved waters passed with it. [Colville Confederated Tribes
> v. Walton]{.underline}, 647 F. 2d 42, 50 (9^th^ Cir. 1981). . . . The
> court's rationale in [Walton]{.underline} was that, in order for an
> Indian allottee to enjoy the full benefit of his allotment, he must be
> able to sell his land together with the right to share in the reserved
> waters. . . . The court determined that the non-Indian successor also
> inherits his predecessor's priority - - the date of the creation of
> the reservation. That priority date \"is the principal aspect of the
> right that renders it more valuable than the rights of competing water
> users, and therefore applies to the right acquired by a non-Indian
> purchaser.\" (internal citations omitted).[^74]

For more than ninety years, the *Winters* doctrine has survived as a
rule of fairness and has been applied in a flexible manner to provide
the federal government with the amount of water necessary to accomplish
a bona fide federal purpose. Despite the extensive precedential value of
*Winters* and its progeny, the Air Force may have a difficult time
effectively utilizing it. Without it, the Air Force lacks a sound legal
theory to protect its water rights as state water laws often fail to
recognize the military's water usage as beneficial uses.

Further, state laws often apply strict forfeiture requirements if water
rights are not used. These laws do not necessarily account for the
military's national defense mission. Some Air Force installations have
limited areas of public domain land and larger areas of "acquired lands"
(i.e., lands bought from state, city or private owners, or condemned by
eminent domain powers).[^75] The Federal Reserved Rights Doctrine has
not been extended to apply to acquired land. It only applies to water
sources located on "public domain" lands (*i.e.*, those federal lands
usually managed by the Bureau of Land Management and "reserved" or put
aside for a particular purpose, pursuant to federal legislation or
Executive Order).[^76]

Some installations may actually be entitled to dual state water rights
and Federal Reserved Rights. The question then becomes, how will state
courts treat those water sources on Air Force installations on acquired
lands, which have no (or later priority dates) state permits, or no
other state recognized historical recording of its usage.

Moreover, regardless of the extensive precedent of the Federal Reserved
Rights Doctrine, many state parties seem poised to vehemently argue
against any expansion of the doctrine. Even some proponents of the
Federal Reserved Rights Doctrine advocate for selective application of
the doctrine, specifically arguing that it should not apply to the
military.[^77] These critics are unwittingly advocating a position which
may weaken the Federal Reserved Rights Doctrine because of their own
biases to ensure water is provided to their preferred federal enclave,
at the expense of the military. Many state claimants have taken the
position that the doctrine does not apply to groundwater. These
litigants look for support to the Wyoming Supreme Court's decision in
*General Adjudication Of All Rights To Use Water In The Big Horn River
System* for support, wherein the Court pronounced the doctrine
inapplicable to groundwater.[^78]

The Nevada State Engineer decided in the Las Vegas Artesian Basin
adjudication not to apply the Federal Reserved Rights Doctrine to
groundwater.[^79] The Federal Reserved Rights Doctrine is based on the
need for water to carry out the purposes of the federal reservation. It
follows that the doctrine will apply with as much force when groundwater
is essential to carry out the purposes of the reservation as it does
when surface water is needed for those purposes.

Moreover, it appears that the Federal Reserved Rights Doctrine has been
expressly applied to groundwater sources by the holding in *Cappaert*
that groundwater is subject to federal reserved water rights.[^80] In
its decision in *Cappaert*,[^81] the Ninth Circuit held that the United
States may reserve not only surface water, but also water underground.
In affirming the Court of Appeals' judgment, the Supreme Court did not
reject the Ninth Circuit's assertion that the United States may reserve
groundwater, but simply noted that, "the water in the pool is surface
water."[^82] Moreover, the Wyoming Supreme Court's decision has been
extensively criticized, for example,

\[t\]he Wyoming court's exclusion of groundwater is suspect. First
groundwater and surface water are often hydrologically linked, and it
may be more efficient to drill a well than to divert surface waters.
Second, if tribes may not claim groundwater rights, they may also not be
entitled to claim other subsurface reservation resources, like oil and
gas and other minerals, which would seem to be inconsistent with the
rule of liberal construction, a fulcrum of implied reservation water
right. Third, a number of other decisions have indicated that
groundwater is included within those waters that may be claimed by
reserved rights. It would seem that where groundwater and surface waters
are hydrologically connected, or where

groundwater sources lie entirely on reservation land, reserved rights
should apply....[^83]

The *Big Horn River* decision has limited precedential value. State
court adjudications should respect federal law regarding Federal
Reserved Rights.[^84] The doctrine must be applied to groundwater to
fulfill the intended federal purposes of the federal reservations.[^85]

In the *State of Nevada ex rel. Shamberger v. United States*, the United
States District Court of Nevada addressed the issue of the use of
groundwater on federal reservations.[^86] The issue faced by the court
was whether the federal government must first secure permission of and
from the State Engineer's office before making use of underground or
percolating waters developed in its own wells, drilled at its own
expense, upon its reserved lands constituting a naval ammunition depot
situated in Nevada. The district court held that the government was not
required to obtain such permission by noting, "\[t\]here is no mandate
in constitutional, statutory, or decisional law that compels the Federal
Government to bend its knee to this type of state law and regulation,
whether it be arbitrary or benign."[^87] The decision also contained
strong dicta that recognized national defense interests may be paramount
to state water laws. The court further determined that because of
federal supremacy, the United States did not have to get a state permit
to use groundwater on their "reserved" land.[^88]

Moreover, the trial court in Arizona\'s statewide adjudication of rights
to the Gila River system likewise ruled that the Federal Reserved Rights
Doctrine does apply to groundwater.[^89] The decision of the Arizona
trial court relied heavily upon the *Cappaert* decision. The trial
court, citing the *Cappaert* decision, stated

> \[t\]here are two ways one can interpret this decision, but both lead
> to the same conclusion. [First]{.underline}, the implied reservation
> theory applies only to surface water, but since all surface water is
> interconnected to sources of groundwater, the right holder can prevent
> groundwater withdrawals that will decrease the amount of surface water
> available to fulfill the federally dedicated purpose. If you protect
> the groundwater pool to preserve the surface water flow, in effect you
> preserve the groundwater pool beneath the federal land available for
> withdrawal by federal right holders. [Second]{.underline}, that the
> United States Supreme Court doesn't care where the water comes from,
> as long as sufficient sources remain to fulfill that property's
> purpose on a priority basis. Both theories work to preclude
> groundwater diversion, which reduces water sources on the reservation,
> regardless of whether or not the diversion is on or off the
> reservation. In this Court's opinion, the second theory is more
> logical, reasonable \[sic\] and in line with scientific theories of
> the integrated hydrologic cycle. This Court finds that federal
> reserved water rights apply to both surface water and groundwater\'s
> sources on and off the reservation whose diversion affects reservation
> sources, to the extent that there is not enough water left to satisfy
> the reservation's purpose, or P.I.A. \[Practicable Irrigable Acreage\]
> if the land is an Indian reservation.[^90]

This decision is well-founded in federal law and is persuasive precedent
that the Federal Reserved Rights Doctrine applies to groundwater. It
must apply to groundwater or it becomes meaningless in arid states where
surface water is scarce.[^91] Nevertheless, state claimants will
continue to challenge the applicability of the Federal Reserved Rights
Doctrine to groundwater.

####### **III. The New National Defense Water Right Alternative**

States which are reluctant to grant the Air Force Federal Reserved
Rights to groundwater and/or water sources on acquired lands, now have
an alternative. The State of Nevada has recently recognized a National
Defense Water Right (NDWR) on behalf of Nellis AFB in the Las Vegas
Artesian Basin Adjudication.[^92] The new right shares many of the same
features of a Federal Reserved Right, yet with some key differences. The
NDWR was an illustration of cooperation and compromise at its best, and
is a case of first impression. The Nevada State Engineer agreed not to
issue a final ruling on the applicability of the Federal Reserved Rights
to groundwater and instead recognized the new NDWR.[^93] By its nature
the doctrine only applies to defense facilities. However, it offers
potential for early settlement and equitable resolution of these costly,
complex water adjudications.

This new water right is flexible and will accommodate the needs of all
water users in the Las Vegas Artesian Basin. It incorporates Nellis
AFB's existing state law permits, requires the Air Force to comply with
state water law so long as it is not inconsistent with federal law, and
grants the Air Force the right to use almost 5,000 acre feet of
groundwater.[^94] The right cannot be forfeited for "non-usage." The
NDWR applies to wells on both acquired lands and public domain lands.
The NDWR requires the Air Force to first use its existing contractual
surface water allocation from the Colorado River, if the Air Force
continues to purchase surface water.[^95] Because the Air Force has been
utilizing surface water and has started to utilize effluent and water
from other conservation measures, it is expected that the Air Force will
not use extensive groundwater in the future. This new right, however,
provides Nellis AFB with a future stable water supply which could be
utilized, if needed, in times of national emergencies or for other
operational contingencies. In securing this NDWR, the Air Force worked
with other state water claimants to ensure the agreement recognized that
equitable priority dates would be granted.[^96]

This new water right, while a state recognized right, has a sound legal
basis in the United States Constitution. The federal government has the
power to declare war, raise and support armies, provide and maintain a
Navy; exercise exclusive jurisdiction over forts, magazines, and
arsenals; and to protect every state against invasion.[^97] Upon
admission to the Union, each state formally adopts the United States
Constitution, including the aforementioned provisions. It can therefore
be argued that the Constitution likewise implies that water will be
available if necessary to accomplish these national defense
purposes.[^98]

The historical facts also support the recognition of this new water
right. Many local communities provided the impetus for the former War
Department to establish military bases within their states. Leasing
and/or selling land to the military for \$1.00 was the norm.[^99] Nellis
AFB best illustrates this. Local officials actually enticed the War
Department to build Nellis AFB by buying the base its first two wells,
five miles to the west of the installation. The military installed the
infrastructure to bring the water to the base (which was then the Army
Flexible Gunnery School) at a cost of \$50,000.00.[^100]

It is a reasonable inference from settled law and historic practice that
the Air Force is entitled to a quantity of water to fulfill its military
mission, whether or not it comes from wells on public domain land.[^101]
Furthermore, the military's beneficial usage of water in the West and
its priority date can be traced to the emergence of western forts in the
1800s to protect the frontier. Historical records indicate military
forts were created in Arizona, New Mexico, and Nevada to protect the
early settlements.[^102] Such forts consequently aided the development
of the non-Indian entities in economic growth, part of which included
water development. The argument is certainly as plausible as the "time
immemorial" claims raised by Native American Indians and the
bootstrapping claims of non-Indian parties upon prior landowners' use of
water to achieve earlier priority dates.[^103]

Moreover, many military installations have exclusive legislative
jurisdiction areas which again reasserts the national, federal purpose
for which they were established. These land areas within federal
reservations had legislative authority ceded to the federal government
from the states, with the usual exception of allowing service of process
on these reservations.[^104] This legislative jurisdiction, coupled with
the constitutional national defense requirements, and the aforementioned
*Schamberger* decision, which recognized the military's purpose in
providing a national defense, provide the Air Force with a sound legal
basis to assert water rights based on national defense needs.

Lending further support to the NDWR is *United States v. 319.88 Acres of
Land*,[^105] which dealt with a National Park regulation prohibiting
gambling on federal land of a park area and private lands therein.
Ruling that the regulation was valid, the court found it significant
that Nevada had properly ceded concurrent legislative jurisdiction to
the federal government. Citing *United States v. Petersen*,[^106] the
court further stated:

> As the Ninth Circuit did in [Petersen]{.underline}, the Supreme Court
> has treated the grant by the state and the acceptance by the United
> States as an agreement to adjust the respective jurisdictions to meet
> special circumstances that arise by virtual of federal ownership and
> control of property within the several states. The statutes and
> documents authorizing and evidencing such an adjustment determine the
> extent of the federal jurisdiction in a given situation.[^107]

*Arkansas Power and Light Co. v. Arkansas Public Service Company* is
another case helpful to those searching for support for the NDWR.[^108]
The court stated that even without exclusive legislative jurisdiction,
state laws or their administrators cannot interfere with the carrying
out of a national purpose.[^109]

In summary, the military has been present in the West since the
departure of Lewis and Clark. The military's presence, national defense
purpose, and past beneficial water usage should be more determinative in
deciding the extent of its water rights than whether military property
is public domain or acquired by fee. Strict state water laws which call
for forfeiture of water rights for non-usage should not be applied
against the United States because its water usage is for a national
purpose. The new NDWR allows military bases to receive an equitable
share of water and an appropriately high priority date in western water
adjudications. It can be argued on behalf of those bases which do not
contain large areas of withdrawn public domain land, that recognition of
a NDWR will conserve water, prohibit waste, and fulfill the military's
national defense obligations. States should likewise readily view this
new alternative as an equitable means to grant and quantify the future
water rights for military installations.

The Air Force would benefit from aggressively contesting these western
adjudications for established water use property rights under the
Federal Reserved Rights Doctrine, the NDWR, and state law. If maintained
consistently, these settled and emerging rights will be protected in the
future. Accordingly, water privatization may also be considered in
conjunction with the new NDWR and established Federal Reserved Rights,
and evaluated in terms of whether privatization can contribute to a
future stable water supply for western bases. Having established the
legal basis and the historical basis for asserting water rights, this
article will now focus on two installations as model case studies, where
questions remain about future water rights and supplies.

### **IV. Air Force Case Studies OF WATER RIGHTS ISSUES**

# 

**A. Case Study No. 1, Luke Air Force Base, Arizona**

Arizona is presently involved in two general water adjudication
proceedings in Arizona's general jurisdiction court.[^110] The
proceedings seek to determine the priority of water claims in the Gila
and Little Colorado watersheds.[^111] The United States is participating
in these proceedings on behalf of Native American Indian Tribes and
federal agencies. Up to 100,000 claims may be adjudicated in these two
proceedings.[^112]

Surface water in Arizona is governed by the doctrine of prior
appropriation.[^113] Water in Arizona has long been held to be a vested
property right subject to the beneficial use of a prior
appropriator.[^114] In items of state constitutional law, there are only
two provisions in the Arizona Constitution addressing water rights:

> Subsection 1. [Riparian water rights,]{.underline}
>
> Section 1. The common law doctrine of riparian water rights shall not
> obtain or be of any force or effect in the State[^115]
>
> Subsection 2. [Recognition of existing rights]{.underline}
>
> Section 2. All existing rights to the use of any of the waters in the
> State for all useful or beneficial purposes are hereby recognized and
> confirmed.[^116]

One explanation for the sparse provisions pertaining to water rights in
Arizona's Constitution has been attributed to the political maneuvering
which took place at the constitutional convention.[^117] The
conservative forces wishing to retain the status quo defeated several
proposals offered by the agricultural interests for more specificity and
certainty.[^118]

Groundwater in Arizona has always been governed by a different set of
rules. In a 1904 case, *Howard v. Perrin*, the Arizona Supreme Court
announced that groundwater was part of the soil and belonged to the
owner of the land.[^119] Due to economic necessity, however, this
doctrine eventually developed into a "reasonable use" rule.[^120] In
1980, the Arizona Legislature enacted a groundwater management code
which contains a comprehensive allocation system (administered by the
Department of Water Resources) and a plan to reduce depletion.[^121]

The Air Force Center for Environmental Excellence evaluated the
groundwater resources in and around Luke AFB, Arizona.[^122] The
objective was to investigate whether or not the groundwater system is
going to be physically capable of supplying water to the base over the
next 20 years.[^123] Initially, it is important to note that Luke AFB
encompasses approximately 4,198 acres, is a part of the lower Gila River
watershed adjudication, and falls within the Phoenix Active Management
Area (AMA) for water resources, pursuant to the state groundwater
code.[^124]

Currently, the entire water supply for Luke AFB is derived from
groundwater, but Luke AFB does not have grandfathered water rights under
the state statutes.[^125] Luke AFB is deemed to be a municipality,
meaning that it receives a per capita allotment of groundwater from its
wells at a rate set by the Arizona Department of Water Resources.[^126]
Luke AFB has applied for an Arizona Statutory Institutional Providers
Status Permit, which, if granted, will helpfully provide more
flexibility to the base in providing water to its facilities, but will
unfortunately entail implementation of costly conservation
measures.[^127]

The report further revealed that,

> \[t\]he groundwater serving Luke AFB is considered to be percolating
> groundwater, which is either water that passes through the ground
> without a definite channel or water that is stored in the pores of
> rock formations. Under Arizona law, percolating groundwater is subject
> to the "reasonable use" doctrine, which means that landowners may use
> groundwater as long as their use does not interfere with that of
> others. ... \[T\]he pending state-wide water adjudication in Arizona
> Superior Court \[ \] will decide whether waters withdrawn under Luke
> AFB are to be treated as percolating or surface water \["subflow"\].
> [^128]

The possible lack of Federal Reserved Rights, as defined by historical
case law, could therefore limit the base's water rights quantity and
priority date. Many of these critical legal issues are pending in
Arizona courts and will be key to determining needs and costs to future
water rights issues.[^129]

For the years 1994, 1995, and 1996, Luke AFB pumped 552 million gallons,
506.7 million gallons, and 513.55 million gallons, respectively.[^130]
Luke AFB will likely require an unrestricted water requirement to level
off at 491.3 MGY in the year 2000.[^131] The 1997 report assumed that if
it is possible to continue pumping 500 MGY from beneath Luke AFB
beginning in 1997 and continuing for the next twenty years while at the
same time only lowering the groundwater level an additional 100 feet,
that the availability of groundwater is more than sufficient to supply
the base's water needs.[^132]

There are factors that may affect the numbers determined by this case
study. For instance,

> the quantity of groundwater withdrawn by users outside the property of
> Luke AFB for the next twenty years is not yet known. Their withdrawals
> will have an effect on the water levels within Luke AFB. If
> groundwater growth around Luke AFB doubled during this time period
> then ground-water levels would definitely decline under Luke AFB,
> probably significantly. By constructing and using a groundwater
> computer model of the greater Luke AFB area, predictions of
> groundwater levels could be more accurately known. Presently,
> approximately 200 wells of various types are located within 1 mile of
> Luke AFB. In 1993, Luke AFB groundwater withdrawals only accounted for
> approximately 3% of the groundwater withdrawn within 3 miles of the
> base. The recent additional availability of surface water supplies
> through the Central Arizona Project canal system \[which now brings
> Colorado River surface water to Phoenix and Tucson\], as well as the
> older Roosevelt Lake system, has reduced the need for groundwater
> withdrawals across the Phoenix Active Management Area (AMA).
> Geographically, the switch from groundwater to surface water has been
> more pronounced in areas to the east of Luke AFB. However, with time,
> more opportunities to obtain surface water in areas to the west of
> Phoenix will likely present themselves. The importation of surface
> water will initially reduce the need for groundwater. This has already
> been demonstrated by rising groundwater levels in selected regions
> within the Phoenix AMA.[^133]

The 1997 Luke AFB Groundwater report also noted that,

> \[a\]nother unknown factor is that near the southeast boundary of Luke
> AFB is a zone of groundwater that is high in mineral (salt) content.
> It would not be advisable to stress the aquifer system to the degree
> that this zone of water is moved into the "cone of depression" caused
> by wells at Luke AFB. [^134]

Unfortunately, if the water moves into the cone of depression, any water
pumped would have to be treated in order for it to be potable. Notably,
one of the Luke AFB wells on the east side of the base already has a
high salt content.[^135]

Water usage on Luke AFB has increased since the base constructed a new
18-hole golf course with a large (28,000 square feet) clubhouse.[^136]
The golf course is being irrigated by using the effluent from the
base\'s wastewater treatment plant, but the clubhouses water needs will
come from groundwater sources.[^137] The 1997 report notes further that,
\"\[i\]t is probable that additional groundwater will be needed to
support the golf course, at least during summer months.\"[^138]

Turning to the hydrogeology in the Luke AFB area, it appears that the
hydrogeology in and around Luke AFB contains unconsolidated to
semi-consolidated clastic sediments.[^139] Simply stated, this can be
compared to a bathtub which is filled with unconsolidated to partly
consolidated rock fragments that can be up to 10,000 feet thick.
Geologists have determined that, \"the deposits consist of interbedded
sequences of conglomerate, gravel, sand, silt, clay and
evaporates.\"[^140] Research on Luke AFB\'s hydrogeology indicates the
base is located in an area referred to as the Western Salt River Valley,
where, as the 1997 report notes,

> the structure and lithology of the basin-fill deposits have been
> influenced by a massive evaporite (salt) deposit referred to as the
> Luke Salt Body. Over millions of years, water has infiltrated into the
> deposits. When the area began to be settled in the mid-1800's wells
> were drilled and groundwater was withdrawn. Groundwater levels in
> these wells around the turn of the century were about 1000 to 1040
> feet above sea level, and groundwater flow was from the north to the
> south. Depth to groundwater was about 80 feet below land surface
> \[BLS\] \[.\] Presently, about 80% of the groundwater pumpage in this
> area is for agriculture, with the remaining pumpage divided between
> municipal and industrial use. In the Luke AFB area, three groundwater
> bearing units can be distinguished: The uppermost unit is called the
> Upper Alluvial Unit (UAU), the next is called the Middle
> Fine-Grained-Unit (MFU) and the deepest is called the Lower
> Conglomerate Unit (LCU). It is within the LCU that the Luke Salt Body
> occurs.[^141]

The report continues by noting that,

> \[m\]ost of the wells in the Luke AFB area are screened in the MFU
> and/or the LCU. The well depths on Luke AFB range from 600 to 1200
> feet below ground surface. The top of the LCU begins at about 950 feet
> bls and the UAU at 350 feet \[BLS\]. The UAU has little if any water
> remaining in it. By about 1990, water levels in the Luke AFB area had
> declined 150 to 300 feet in the upper two units. In fact, in some
> areas these two units have been dewatered or partially dewatered. This
> was due to withdrawing more groundwater than was replaced by recharge.
> However, a partial reversal of declining groundwater levels started
> occurring in the late 1980's.
>
> In general, groundwater levels in the Luke AFB area have been rising
> since the late 1980's, in places up to 39 feet. This is due to a
> variety of reasons, such as greater than normal precipitation, reduced
> pumpage demands for irrigation water, and surface water replacement.
> Flow directions have changed also since predevelopment times. While in
> the early 1900's flow was north to south, presently groundwater flow
> is in a southwesterly direction at Luke AFB. This is due to various
> withdrawal patterns being established over time.
>
> In 1993, Luke AFB had 9 active production wells. These wells withdrew
> water from intervals no shallower than 359 feet \[BLS\] to no greater
> than 1005 feet \[BLS\]. Water was withdrawn from a combination of the
> MFU and LCU units. No wells were screened in the UAU. Non-pumping
> water levels in these wells ranged from about 220 feet to near 400
> feet \[BLS\]. A network of monitoring wells has also been installed at
> Luke AFB. . .
>
> Well yields from the nine Luke AFB production wells range from 230 gpm
> to 1200 gpm with drawdowns ranging between 35 to 141 feet. \[
> \]Specific capacities range from 6 to about 18 gallons per minute per
> feet of drawdown. Current depths to groundwater across Luke AFB are in
> the 385 feet range.
>
> If the current production capacity was in each well used for only 9
> months out of the year, then the total yield for the 9 wells would be
> 2,367 million gallons \[ \]without any modification of the system. The
> base's water requirement in 1996 was only 513.55 MGY. Hence, current
> production capacity at present is very adequate for the base's water
> requirements.[^142] (tables and headings omitted)

Evaluations of the hydrologic conditions surrounding Luke AFB indicate
that,

> Continued pumpage in and around Luke AFB will likely contribute to the
> land subsidence already occurring in the region. In addition, poorer
> quality water derived from around the Luke Salt Body may one day
> contribute a growing share of water pumped from beneath Luke AFB. To
> make that water potable, specialized treatment equipment would be
> necessary. However, this will not affect the quantity that could be
> pumped.[^143]

Based on these evaluations and conditions, it appears likely that, for
at least the next twenty years, Luke AFB can safely withdraw groundwater
from its existing well systems without appreciable water table
reduction, as long as "groundwater withdrawals from adjacent areas
around Luke AFB will not be substantially increased."[^144] However, if
groundwater withdrawals around Luke AFB doubled over the same time
period, severe declines in water levels would occur along with the
likelihood of poorer water quality and greater amounts of
subsidence.[^145] In this event, there would be alternative water
supplies available and which should be explored, such as: buying Central
Arizona Project surface water, if available, and non-potable water from
Maricopa Water District to supplement the use of effluent on the Luke
AFB golf course.

######## **B. Case Study No. 2: Mountain Home AFB, Idaho**

A summary report of the hydrologic conditions surrounding Mountain Home
AFB, Idaho reveals that Mountain Home AFB and the City of Mountain Home
are located in southwestern Idaho in Ada and Elmore counties.[^146]
Yearly precipitation can vary from nine inches on the surrounding
plateau to twenty-three inches in the nearby mountains, while its
\"climate is semi-arid with hot dry summers and cold winters.\"[^147]
Agriculture and the Air Force base at Mountain Home are primarily
responsible for the area\'s economic fortunes.[^148] Agricultural crops
include alfalfa, potatoes, minor amounts of wheat and barley, and sugar
beets, but potatoes and sugar beets are the primary cash crops.[^149]

As with Arizona, Idaho adopts the prior appropriation doctrine and
allows for adjudication of both groundwater and surface water.[^150] A
statewide water adjudication is underway. Idaho permits water rights to
be based upon past beneficial usage. Additionally, Idaho has a statute
which expressly provides filing procedures for claims filed pursuant to
federal law.[^151]

As noted in a 1994 report by Bendixsen,

> The major geologic units in the area are: 1) alluvium and younger
> terrace gravels, 2) the Snake River Group, 3) the Idaho Group, 4) the
> Idavada Volcanics, and 5) the Idaho Batholith.[^152] The alluvium and
> younger terrace gravels consist of unconsolidated clay, silt, sand,
> and gravels occurring beneath flood plains. Well yields of 2500
> gallons per minute (gpm) have been reported ...[^153] The Snake River
> group consists of an olivine basalt with a thickness of less than 500
> feet. Well yields range from 20 to 3100 gpm, but the basalt is above
> the water table in most of the area. The Idaho Group consists of
> fluvial lake deposits, layers of ash, and basaltic lava flows. The
> Bruneau Formation and the Glenns Ferry Formation are also part of the
> Idaho Group and consist of fan deposits, consolidated detrital
> material, and an olivine basalt with a thickness of approximately 800
> feet. Well yields range from 10 to 3500 gpm with a basalt from the
> Bruneau Formation composing the principle \[sic\] aquifer in the area.
> The Idavada Volcanics are a 2000-feet-thick, layered, welded tuff
> formation, with variable well yields, while the Idaho Batholith is a
> quartz monzonite and/or granodiorite with generally low well
> yields....[^154] A perched or shallow groundwater system exists in the
> area surrounding the town of Mountain Home. It underlies approximately
> 38,000 acres of land .... Depth to groundwater in this system can vary
> from less than 10 feet to approximately 200 feet. The aquifer consists
> mainly of Quaternary Alluvium, but basalts of the Snake River Group
> and Bruneau Formation can also contain water from the perched
> system.[^155]

Bendixsen\'s report also notes that, \"\[a\] deeper regional aquifer
system underlies the perched system and is largely contained within
basalts of the Bruneau Formation (the aquifer that supplies the major of
groundwater to users within the basin).\"[^156] Bendixsen\'s report
continues by noting, \"\[r\]echarge to the regional system occurs mainly
from downward flow from the perched system, precipitation on the
uplands, and underflow from the north, however, discharge is exceeding
recharge where development has taken place within the regional
system.\"[^157]

A later report in 1998 concerning hydrologic conditions in and around
Mountain Home AFB noted that,

> \[b\]asin 61, within which Mountain Home AFB is located, is closed to
> new wells. Only replacement wells are allowed by State regulators.
> However, domestic and new subdivisions wells are allowed. Even with
> the limits placed on new extractions, water levels continue to
> decline. Although, \[sic\] physically there is another aquifer,
> \[Glenns Ferry Formation\] below the main aquifer, the Snake River
> Basalt, for practical purposes, the area is really dependent on the
> Snake River Basalt. There appear to be about 120-150 feet of useable
> water remaining in this aquifer. At the current rate of extraction,
> the Mt. Home AFB area could see \[its\] groundwater supply dry up
> within 50 years. Therefore, it is important for the Air Force to
> obtain as high a priority date as possible in \[the\] event some users
> are required to cut back on pumpage. [^158]

This 1998 report also noted, \"there are two main \'water rights
permits\'\" from the State of Idaho totaling 11.11 MGD (million gallons
per day). A third, much smaller permit, allows 0.02 MGD to be
pumped.[^159] Further analysis reveals that,

> \[d\]uring winter months the base pumps about 1 million gallons a day.
> However, during the summer, up to 6 million gallons are used. ... Due
> to the base and surrounding farm irrigation groundwater levels are
> declining at the rate of 2 to 3 feet per year. This rate has been
> occurring for quite a few years and shows no signs of slowing.[^160]

The base pumps about three MGD as a yearly average, while the nearby
city of Mountain Home pumps about four MGD and within four miles of the
base, another eleven MGD is pumped by irrigators.[^161]

As an antidote to reverse this groundwater exhaustion, the United States
Geological Survey (USGS), Water Resources Division (WRD) office in
Boise, Idaho, has proposed and developed an artificial recharge project
proposal for the Mountain Home area.[^162] The project would involve
reinjecting excess surface run-off waters into an area slightly west of
the city of Mountain Home.[^163] The reinjection would definitely help
extend the water life of the basin and could be a great benefit to the
base. While the legal position of the base is quite good as the base
appears to have sustainable Federal Reserved Rights (and large areas of
public domain land), there is continued instability due to the overdraft
of the watershed and lack of alternative water supplies.[^164]

This recharge proposal is a feasible supplemental program which deserves
serious consideration.

# **V. Conclusion**

There are many unanswered questions concerning the status of Air Force
water claims in multiple pending, and undoubtedly future, state water
adjudications. The Air Force should receive its fair share of water in
these adjudications pursuant to the Federal Reserved Rights Doctrine,
the recently recognized NDWR, or under state law. To the extent Air
Force water rights are decreed pursuant to state law, there is the risk
that water rights will be insufficient in quantity and seniority to meet
future military needs. Furthermore, even the best priority date for
World War II-era bases (1940-41) may be insufficient to guarantee all
future water needs.

The newly recognized NDWR may be utilized as a flexible tool by those
states desiring to maintain military installations and their economic
contributions, within their boundaries. NDWR can provide that the
installations will have a future stable water supply to meet national
defense needs. Using Nellis AFB as an example, NDWR can be tailored to
blend with existing state water law, and can accommodate the needs of
state water claimants, and other federal and Native American Indian
water rights.

This article presented both legal and hydrologic perspectives and used
two case studies to illustrate the varying water rights scenarios facing
western bases. For instance, Luke AFB, Arizona may be legally hampered
by a lack of Federal Reserved Rights claims, due to small areas of
withdrawn public domain land, but has an adequate short-term groundwater
supply, plus a number of available alternative water sources which it
may explore. Mountain Home AFB, Idaho, on the other hand, has a sounder
legal posture due to large areas of public domain land within its
confines, but may be limited due to the severely depleted
watershed.[^165] This recharge proposal is an alternative for future
exploration of ways to help ensure water stability. Complete
privatization of either base's water supply is probably not a realistic
alternative unless new surface water sources are identified which will
reduce dependence upon groundwater. Use of the Central Arizona Project
water for Luke AFB may be a future option, assuming distribution to
Phoenix's west valley becomes a reality.

The DOD privatization initiative can and should be implemented where
feasible to assure future water supplies and stability. Privatization
will not be suitable for every installation. In the context of water
systems, it will offer many adverse consequences. Moreover,
privatization should not necessarily replace Air Force water rights
pending in judicial or administrative adjudications, and which will
eventually be decreed under a federal or state law theory. However,
privatization can and should also be viewed as a flexible tool, which
may be utilized to stabilize the Air Force's water needs for the next
millennium. Stabilizing Air Force water rights at these western bases
will help meet national defense needs and strengthen the economic impact
to the local economies. The National Defense Water Right recognized on
behalf of Nellis AFB can and should also be considered as a flexible
tool to resolve DOD water claims in existing adjudications where there
exists limited public domain land to assure adequate Federal Reserved
Water Rights.

[^1]: The authors join in giving special acknowledgement to United
    States Department of Justice attorney, Stephen Bartell, and to
    Joseph Hinds, Lt Col (Ret.), USAFR, for their valuable assistance in
    providing litigation services regarding the Las Vegas Artesian Basin
    Adjudication.

[^2]: ^\*^ *Lt Col Cianci (B.A., J.D., University of Arizona; L.L. M.,
    University of Washington) is a member of the law firm, Mariscal,
    Weeks, McIntyre, and Friedlander, P.A., Phoenix, Arizona. He was
    formerly Chief of the Water Rights Adjudication Team for the
    Environmental Law & Litigation Division, Air Force Legal Services
    Agency, Luke Air Force Base, Arizona.*

[^3]: ^\*\*^ *Mr. Williams (B.S. in Geology, University of Alabama, M.S.
    in Hydrology, University of Idaho) is the Chief Hydrologist (GM-14)
    for the Consultant Operations Division of the Air Force Center for
    Environmental Excellence at Brooks AFB, Texas.*

[^4]: ^\*\*\*^ *TSgt Binkley is the former Chief Paralegal for the Air
    Force Water Rights Adjudication Team, currently assigned to the
    Office of the Stafff Judge Advocate, Luke AFB, Arizona and has been
    a member of the Legal Services career field since August 1987.*

[^5]: Department of Defense Reform Initiative Directive \# 9 (December
    10, 1997).

[^6]: DOD Reform Initiative Directive #49Privatizing Utility Systems
    (December 23, 1998).

[^7]: [Robert E. Beck, Waters and Water Rights, Vol. 2,]{.smallcaps} 83
    (1991) \[hereinafter [Beck]{.smallcaps}\].

[^8]: *Id.* at 205.

[^9]: *See* Michael J. Cianci, Jr. & Cheryl R. Burgan, *Military Water
    Rights in the West: A Rebuttal to the Argument that the Federal
    Reserved Rights Doctrine Does Not Protect Future Military Water
    Needs*, The Reporter, June 1995, at 1 \[hereinafter Cianci\].

[^10]: *Id*.

[^11]: *Id*. at 2.

[^12]: 43 U.S.C. § 666 (1999) and *See* U.S. v. District Court in and
    for the County of Eagle, 401 U.S. 520 (1971) and U.S. v. District
    Court for Water Division No. 5, 401 U.S. 527 (1971).

[^13]: United States v. Oregon, 44 F.3d 758 (9^th^ Cir. 1994)
    (confirming that administrative proceedings met the McCarran
    Amendment\'s "comprehensive requirement").

[^14]: [Beck,]{.smallcaps} *supra* note 4, 163.

[^15]: Cianci, *supra* note 6, at 1-2.

[^16]: *Id.*

[^17]: *Id.*

[^18]: *Id.*

[^19]: *Id.*

[^20]: *See* M. Graham, *Army Water Rights and the Judge Advocate*, The
    Army Lawyer, May 1992, p. 66, nn.14-15.

[^21]: *See id.* at n.14.

[^22]: *See id.* at 67.

[^23]: *Id.*

[^24]: [Ariz. Rev. Stat.]{.smallcaps} § 45-401.

[^25]: 1 [Florence Lee Jones & John F. Cahlan]{.smallcaps}*,* [Water: A
    History of Las Vegas 112]{.smallcaps} (1975) \[hereinafter
    [Jones]{.smallcaps}\].

[^26]: Captain Kirk S. Samuelson, USAF, Note*, Reserved Water Rights On
    Air Force Property*, 22 [A.F. L. Rev.]{.smallcaps} 302, 304
    (1980-1981) \[hereinafter Samuelson\].

[^27]: Charles F. Wilkinson, *Western Water Law In Transition*, 56 U.
    [Colo. L. Rev.]{.smallcaps} 317 (1985).

[^28]: 207 U.S. 564 (1908).

[^29]: *Id*. at 575. These agreement established the Fort Belknap Indian
    Reservation in May 1888 as a permanent home for the Indian tribes.

[^30]: *Id.* at 569.

[^31]: Federal Power Commission v. Oregon, 349 U.S. 435 (1955).

[^32]: Samuelson, *supra* note 23, at 305.

[^33]: United States v. Rio Grande Dam & Irrigation Company, 174 U.S.
    690 (1899) and United States v. Winans, 198 U.S. 371 (1905). As
    discussed more fully in subsequent text, *Rio Grande* involved
    navigation of the river. The Court held that states cannot limit or
    interrupt federal interests, such as navigation. In *Winans*, the
    Court considered fishing rights which were reserved to the tribe
    pursuant to treaty. The Court held that the treaty reserved to the
    tribe the right to fish on the river and that the treaty rights were
    paramount to state laws.

[^34]: Rio Grande, 174 U.S. at 703.

[^35]: Winans, 198 U.S. at 379.

[^36]: *Id*. at 383-384.

[^37]: Conrad Inv. Co. v. United States, 161 F. 829 (9^th^ Cir. 1908).

[^38]: United States v. Walker River Irrigation District, 104 F.2d 334
    (9^th^ Cir. 1939).

[^39]: *Id*. at 335.

[^40]: *Id*. at 336.

[^41]: 373 U.S. 546 (1963).

[^42]: *Id*. at 600.

[^43]: *Id*.

[^44]: United States v. District Court in and for the County of Eagle,
    401 U.S. 520 (1971).

[^45]: *Id*. at 522-523.

[^46]: *See* Harold Ranquist, *The Winters Doctrine And How It Grew:
    Federal Reservation of Rights To The Use of Water*, 1975 B.Y.U. L.
    Rev. 639, 684-687 \[hereinafter Ranquist\].

[^47]: *Id.* at 640-641.

[^48]: County of Eagle, 401 U.S. at 523.

[^49]: Cappaert v. United States, 426 U.S. 128 (1976).

[^50]: *Id*. at 131.

[^51]: *Id*. at 147.

[^52]: *Id*. at 138.

[^53]: *Id*. at 138-139.

[^54]: Desert Land Act, ch. 107 at 1, 19 Stat. 377, March 3, 1877,
    codified at 43 U.S.C. § 321 (1994).

[^55]: Cappaert, 426 U.S. at 143-144.

[^56]: California Oregon Power Co v. Beaver Portland Cement Co., 295
    U.S. 142 (1935).

[^57]: 349 U.S. 435 (1955).

[^58]: Cappaert, 426 U.S. at 144.

[^59]: *Id*. at 144, n.10. *Accord*, In re Water of Hallett Creek Stream
    System, 749 P.2d 324 (Cal. 1988). In *Hallett*, the Supreme Court of
    California recognized that the Desert Land Act did not apply to
    federal lands reserved from the public domain, but did not preclude
    state claimants from using water which was in excess of the implied
    federal purpose. *Id.* at 334. Although the Desert Land Act did not
    terminate the interests of the federal government in the waters of
    the public domain, it did subordinate those interests to the rights
    of subsequent appropriators recognized under state and local law.
    *Id*.

[^60]: 43 U.S.C. § 321 (1999).

[^61]: Ch. 262, Sec. 9, July 26, 1866, codified at 43 U.S.C. § 661
    (1999).

[^62]: Ch. 235, Sec. 17, July 9, 1870, codified at 43 U.S.C. § 661
    (1999).

[^63]: United States v. New Mexico, 438 U.S. 696 (1978).

[^64]: *Id.* at 700.

[^65]: *Id.* at 718.

[^66]: Organic Administration Act of June 4, 1897, ch 2, § 1, 30 Stat.
    34, 36, codified at 16 U.S.C. § 473 (2000).

[^67]: 438 U.S. at 707-708.

[^68]: *Id.* at 716-718.

[^69]: *Id.* at 713.

[^70]: 16 U.S.C. § 528 (1999).

[^71]: *Id*.

[^72]: 438 U.S. at 713. (The reserved water rights cases have held that
    owners of Indian allotments have a right to use part of the reserved
    water right, and that allotment water rights survive the sale of the
    allotments to non-Indians, including a priority date as of the
    creation of the reservation. See Colville Confederated Tribes v.
    Walton, 647 F.2d 42 (9^th^ Cir. 1981)).

[^73]: United States v. Anderson, 736 F.2d 1358 (9^th^ Cir. 1984).

[^74]: *Id*. at 1362.

[^75]: *See* Samuelson, *supra* note Error: Reference source not found,
    at 311-312.

[^76]: *See id*. and Appendix.

[^77]: Robert J. Glennon & Thomas Maddock, III, *In Search of Subflow:
    Arizona's Futile Effort to Separate Groundwater from
    Surfacewater*[,]{.underline} 36 [Ariz. L. Rev. 567,]{.smallcaps} at
    607-609 (1994). For a rebuttal argument to this line of reasoning,
    *see* Cianci, *supra* note 6.

[^78]: 753 P.2d 76, 99 (Wyo. 1988).

[^79]: See [R. Michael Turnipseed, Preliminary Order of Determination in
    the Matter of the Relative Rights in and to the Waters of the Las
    Vegas Artesian Basin, Clark County, Nevada 12 (]{.smallcaps}1996)
    (State Engineer's Report).

[^80]: 426 U.S. 128 (1976).

[^81]: United States v. Cappaert, 508 F.2d 313 (9^th^ Cir. 1974).

[^82]: 426 U.S. at 142.

[^83]: Beck, *supra* note 4, vol. 4, ch. 36, at 252.

[^84]: United States v. Oregon, 44 F.3d 758, 770 (9^th^ Cir. 1994).

[^85]: Cianci, *supra* note 6, at 2.

[^86]: State of Nevada *ex rel*. Shamberger v. United States, 165 F.
    Supp. 600 (D.C. Nev. 1958).

[^87]: *Id*. at 601.

[^88]: *See generally*, *id*. at 609-611.

[^89]: In re the General Adjudication of All Rights to Use Water in the
    Gila River System and Source, Maricopa County W-1 through W-4
    (Consolidated), (Ariz. Sup. Ct., Maricopa Co., Sept. 30, 1988),
    *aff\'d*, 989 P.2d 739 (1999).

[^90]: *Id.* at 19-20 (Order of Superior Court Judge) (copy on file with
    authors).

[^91]: Cianci, *supra* note 6, at 2.

[^92]: In the Matter of Determination of the Relative Rights in and to
    the waters of the Las Vegas Artesian Basin (212), Clark County,
    Nevada District Court, Case No. A382950, 13 December 1999 (District
    Court Judge\'s Decree) (copy on file with authors).

[^93]: *Id*. at Exhibit 4, 2-4.

[^94]: The right to the use of approximately 5000 acre feet per year
    included a 1941 priority date if necessary to fulfill defense
    operational activities and/or emergencies. *Id.* and Addendum to
    Stipulated Settlement.

[^95]: *Id*. (Nellis AFB has had a 4,000 acre feet reclamation right to
    Colorado River surface water since the early 1980s).

[^96]: *Id*.

[^97]: U.S. [Const]{.smallcaps}. art. I, § 8; c1. 11-14 and 17, art. IV,
    § 4.

[^98]: *Id.* While it may be argued by state claimants that this logic
    extends the *Winters* doctrine too far, this reasoning is
    nonetheless persuasive, and may be raised in situations where a
    military installation is primarily on acquired lands. To the extent
    a state won\'t recognize a Constitutionally-based water right, it
    may, like Nevada, recognize a state-based water right grounded in
    national defense needs.

[^99]: Luke AFB Historian, *Album of Station Information*, 1944-1945.

[^100]: [Jones]{.smallcaps}, *supra* note Error: Reference source not
    found, at 112 (\$50,000 cost was in 1941 dollars).

[^101]: One water scholar recognized federal regulatory rights as water
    rights which necessarily are supreme to state water users to fulfill
    vital national purposes. *See* [Beck]{.smallcaps}, *supra* note
    Error: Reference source not found, at vol 4, ch. 37, 303.

[^102]: See [Herbert M. Hart, Tour Guide to Old Forts of New Mexico,
    Arizona, Nevada, Utah and Colorado, Vol. II]{.smallcaps}, 25-26
    (1982).

[^103]: Ranquist, *supra* note Error: Reference source not found.

[^104]: On such installations, states may have limited authority to
    regulate the military's water usage without the military's consent.
    *See generally,* [Beck,]{.smallcaps} *supra* note 4 and Schamberger,
    *supra* note 83.

[^105]: 498 F. Supp. 763 (D.C. Nev. 1980).

[^106]: 191 F.2d 154 (9^th^ Cir. 1951).

[^107]: 498 F. Supp. at 768.

[^108]: 330 S.W.2d 51 (Ark. 1959) (Reversing order of Arkansas Public
    Service Commission, finding commission cannot designate the utility
    company from whom the Government must purchase electricity, nor can
    the Commission dictate the area of Government owned property in
    which the Government must use the electricity it has purchased).

[^109]: *Id*. at 54-55.

[^110]: [Ariz. Rev. Stat.]{.smallcaps} § 45-251 (2000).

[^111]: *See supra*, note 86.

[^112]: Clifford, Office of the Attorney General, Arizona Water Rights
    Litigation Status Report, Jan 10, 1986 (copy on file with authors).

[^113]: [Ariz. Rev. Stat.]{.smallcaps} § 45-151.

[^114]: *See* Hill v. Lenormand, 16 P. 266 (Ariz. 1888) and Clough v.
    Wing, 17 P. 453 (Ariz. 1888).

[^115]: [Ariz. Const.]{.smallcaps} Art 17, § 1.

[^116]: *Id.* § 2.

[^117]: Gordon Morris Bakken, *The Arizona Constitutional Convention of
    1910*, 3 [Ariz. St. L.J.]{.smallcaps} 20-23 (1978).

[^118]: *Id.*

[^119]: Howard v. Perrin, 76 P. 460 (Ariz. 1904).

[^120]: [Ariz. Rev. Stat.]{.smallcaps} § 45-401 (2000).

[^121]: *Id.*

[^122]: *See* James F. Williams, Air Force Center for Environmental
    Excellence, *Groundwater Evaluation Summary, Luke AFB, Arizona*
    (1997) \[hereinafter *Groundwater at Luke AFB*\] (copy on file with
    authors).

[^123]: *Id.* at 1.

[^124]: *Id.*

[^125]: *Id.*

[^126]: *Id*.

[^127]: *See generally*, [Ariz. Rev. Stat.]{.smallcaps} § 45-561 (2000).

[^128]: *Groundwater at Luke AFB*, *supra* note 119, at 1.

[^129]: *See generally, supra* note 86.

[^130]: *Groundwater at Luke AFB*, *supra* note 119, at 1.

[^131]: *Id*.

[^132]: *Id*.

[^133]: *Id.* (based on [B.A. Hammett, and R.L. Hertler, Maps Showing
    Groundwater Conditions in the Phoenix Active Management Area,
    Maricopa, Pinal, and Yavapai Counties, Arizona-1992,]{.smallcaps}
    Arizona Department of Water Resources Hydrologic Map Series, Report
    No. 27, Sheet 2 (1995)).

[^134]: *Id.* (A cone of depression is produced in groundwater by
    pumping or by artesian flow. It takes the form of a funnel, roughly
    conical in shape).

[^135]: *Id.* (Interview with William Malache, Infrastructure Chief,
    56^th^ Civil Engineering Squadron, Luke AFB, Arizona, Jan. 1997).

[^136]: *Id.* at 3.

[^137]: *Id.*

[^138]: *Id.* (based on Thom A. Tobin, AGRA, Earth & Environmental,
    *Report for Alternative Water Sources at Luke AFB, Arizona* (1997)
    (copy on file with authors) (The Maricopa Water District primarily
    produces groundwater and has a canal literally within yards of the
    base's golf course perimeter  a probable privatization water source
    alternative to support the base and the golf course).

[^139]: *Groundwater at Luke AFB*, *supra* note Error: Reference source
    not found, at 3.

[^140]: *Id.*

[^141]: *Id.* (based on [E. C. Dapples]{.smallcaps}, [Geology of
    Groundwater in the West Salt River Valley Sub-Basin, Part
    II]{.smallcaps}, Vol. 1, No. 2, 36 (1990)).

[^142]: *Id.* at 7-8.

[^143]: *Id*. at 9.

[^144]: *Id*.

[^145]: *Id.*

[^146]: Shane Bendixsen, Summary of Hydrologic Conditions in the
    Mountain Home and Cinder Cone Butte Areas, Idaho Department of Water
    Resources, 3 (1994) \[hereinafter Bendixsen\].

[^147]: *Id.*.

[^148]: *Id.*

[^149]: *Id.*

[^150]: [Idaho Code]{.smallcaps} § 42-1401 (1999).

[^151]: [Idaho Code]{.smallcaps} § 42-1411A (1999).

[^152]: Bendixsen at 7.

[^153]: *Id.* (An alluvium consists of ground deposits resulting from
    the normal flow of rivers, flood plains, and lakes while \"younger
    terrace gravels\" are rounded, water worn pebbles deposited on
    generally flat areas which at one time were adjacent to streams).

[^154]: *Id.*

[^155]: *Id*. at 7, 9.

[^156]: *Id.* at 9.

[^157]: *Id*. at 12 and 15.

[^158]: James F. Williams, Air Force Center for Environmental
    Excellence, *Trip Report: Assistance to the Air Force Legal Services
    Agency in regards to Water Adjudication at Mt. Home AFB, Idaho*, 3
    (1998) \[hereinafter Williams\].

[^159]: *Id*. at 2.

[^160]: *Id.*

[^161]: *Id*. at 3.

[^162]: H. William Young & Walton H. Low, *A Comprehensive Artificial
    Recharge Program, Mountain Home Area, Southwestern Idaho*, USGS
    Survey, 1 (1996).

[^163]: *Id.*

[^164]: Williams, *supra* note 155 at 3 and Appendices.

[^165]: The Idaho watershed is deemed to be severely "overdrafted"
    because users are removing more water than is being recharged.