b'Federal \xe2\x80\x9cNon-Reserved\xe2\x80\x9d Water Rights\n[The follow ing m em orandum of law deals with the scope of the federal governm ent\xe2\x80\x99s rights to\nu nappropriated w ater flowing across federally ow ned lands in the western states It discusses the\nbackground and developm ent of the federal \xe2\x80\x9c non-reserved\xe2\x80\x9d water rights theory, and concludes\nthat that theory does not provide an appropriate legal basis for a broad assertion of water rights by\nfederal agencies w ithout regard to state laws. It then sets forth the legal standards and considera\xc2\xad\ntions that are applicable to an analysis o f federal water rights in connection with the m anagem ent of\np articu lar federal lands under specific statutes authorizing federal land m anagem ent.]\n\nTABLE OF CONTENTS\nI. Introduction\nII. Background\nA. Development of \xe2\x80\x9cA ppropriative\xe2\x80\x9d Water Rights in the Western\nStates\nB. Role of the Federal Government\n(1) Federal ownership o f western lands\n(2) Congressional recognition of state water law\n(3) Judicial recognition of federal water rights\n(a) Federal reserved rights\n(b) Conflicts with congressional directives\n(c) Administrative practice and interpretations\n(i) Krulitz Opinion\n(ii) Martz Opinion\n(iii) Coldiron Opinion\nIII. Analysis\nA. Constitutional Basis for Federal Claims\n(1) Congressional authority to preempt state water laws\n(2) \xe2\x80\x9c Ownership\xe2\x80\x9d of unappropriated water\n(3) Effect of Mining Acts of 1866 and 1870 and Desert Land Act\nB. Statutory Basis for Federal Claims\nIV. Conclusion\n\n328\n\n329\n333\n334\n338\n338\n341\n345\n346\n351\n355\n356\n360\n360\n362\n362\n362\n364\n367\n370\n383\n\n\x0cJune 16, 1982\nMEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL,\nLAND AND NATURAL RESOURCES DIVISION\nI. Introduction\nYou have asked us for our analysis and legal opinion concerning the federal\ngovernment\xe2\x80\x99s legal rights to unappropriated water arising on or flowing across\nfederally owned lands in the western states. Specifically, you have asked us to\nconsider whether the federal government can assert rights to unappropriated\nwater, without regard to state laws governing the use of such water, under what\nhas come to be known as the federal \xe2\x80\x9c non-reserved\xe2\x80\x9d water rights theory. For the\nreasons set forth in detail in this opinion, we conclude that the federal nonreserved water rights theory which we address in this opinion does not provide an\nappropriate legal basis for assertion of water rights by federal agencies in the\nwestern states.\nThe question presented to us arose in your Division in pending litigation in\nWyoming State court involving, inter alia, rights of the United States Depart\xc2\xad\nment of Agriculture, through the Forest Service, to water in the Big Horn and\nShoshone National Forests. The question presented to us initially was whether an\nappropriate legal basis exists for the Forest Service to assert amended claims in\nthat litigation based on the federal non-reserved water rights theory. At that time\nthe Forest Service supported assertion of such claims, at least for the purposes of\nthe Wyoming litigation. The Department of Agriculture has since changed its\nposition and decided as a matter of policy that it will not assert claims based on\nthe non-reserved water rights theory, but rather will rely on state law to obtain\nwater rights, except where Congress has specifically established a water right or\nwhere a federal reserved right exists. See Letter from John B. Crowell, Jr.,\nAssistant Secretary for Natural Resources and Environment, Department of\nAgriculture, to the Honorable David H. Leroy, Attorney General, State of Idaho\n(Feb. 5, 1982).\nWhile the question of the validity of the federal non-reserved water rights\ntheory arose in the relatively narrow context of the Wyoming litigation, it is a\n329\n\n\x0cquestion that has created considerable uncertainty for you and your client\nagencies (the Departments of the Interior, Agriculture, and Defense), and for the\nwestern states. It is no exaggeration to say that water is the single most vital\nresource in the western states. The importance of the availability of water for\nmanagement of federal lands in the western states and concern at the state level\nwith allocation of dwindling water resources have led in the past to conflicts\nwithin the Executive Branch and intense controversy with the western states over\nthe basis and scope of the federal government\xe2\x80\x99s right to use unappropriated water\narising on or flowing across federal lands. Previous Executive Branch positions\nrelative to federal government claims to water in the western states have been\ninconsistent and have produced confusion, turmoil, and significant hostility\ntoward the federal government.1 The need to establish clear, dependable, reli\xc2\xad\nable, and sound legal policies and to avoid conflicts and uncertainty in the\nwestern states to the extent possible, and to facilitate future planning for the use of\nwater resources by both the western states and the responsible federal agencies\nhas led you to ask this Office to address the matter more broadly.\nWe address here only the legal issues raised by the federal non-reserved water\nrights theory. Some uncertainty may persist as to how the legal principles we\noutline here should be applied to specific factual situations. Policy considerations\nwill also continue to be important, for example, in the determinations by federal\nagencies relative to the breadth of permissible rights which they wish to assert or\nin the choice of procedures and forums in which to adjudicate federal water\nrights, and quantification of current and future water rights may have to await\ncomprehensive adjudications in each state. However, because much of the\nuncertainty has been created by contradictory analyses of the legal basis of the\nfederal non-reserved right theory, a comprehensive resolution of the legal issues\ninvolved will go far toward reducing the uncertainty and therefore the tensions\namong the various federal agencies and between the Executive Branch and the\nwestern states.\nAt the outset, it is important to understand what we address in this opinion.\nFirst, we are concerned here only with the federal government\xe2\x80\x99s right to use\nunappropriated water\xe2\x80\x94 i.e., water that is not subject to any vested right of\nownership under applicable state or federal law at the time the federal right\naccrues. We do not deal here with the scope of the federal government\xe2\x80\x99s right to\nacquire, by purchase or condemnation, existing vested (\xe2\x80\x9c appropriated\xe2\x80\x9d ) water\nrights held by private individuals or by the states. Second, the question we\naddress is not simply whether a federal non-reserved right exists in the abstract.\nThe federal government can, and does, acquire rights to use unappropriated water\non federal lands by complying with state procedural and substantive laws. In\n1 The Attorney General for the State of W yoming has stated, for example, that \xe2\x80\x9c the non-reserved right doctrine\ncreates a nightmare for Western States water resources m anagem ent\xe2\x80\x9d Letter from the Honorable Steven F.\nFreudenthal, Attorney General, State of W yoming, lo Theodore B. Olson, Assistant Attorney General, Office of\nLegal Counsel (Apr. 1, 1982) The Montana Attorney General has suggested that failure to resolve the non-reserved\nwater nghts dispute would lead to \xe2\x80\x9c a long and acrimonious confrontation between the federal and state govern\xc2\xad\nments \xe2\x80\x9d Memorandum from the Honorable M ike Greely, Attorney General, State of Montana, to Theodore B\nO lson, Assistant Attorney G eneral, Office of Legal Counsel (Apr 1, 1982) at 12.\n\n330\n\n\x0caddition, the Supreme Court has recognized federal \xe2\x80\x9c reserved\xe2\x80\x9d water rights\xe2\x80\x94\ni.e., when the federal government, acting pursuant to congressional authoriza\xc2\xad\ntion, reserves or withdraws public land for a specific federal purpose, such as a\nnational forest, it also reserves sufficient water to accomplish that purpose,\nregardless of limitations that might otherwise be imposed on the use of that water\nunder applicable state law. See Part IlB(3)(a) infra. In its broadest formulation, a\nfederal non-reserved water right might include any use by the federal government\nof unappropriated water that is recognized neither under applicable state law nor\nunder the reserved right doctrine. Defined this broadly, federal non-reserved\nwater rights would include even uses of water that have been explicitly authorized\nby Congress, but that may not be recognized by state law, such as preservation of\na minimum instream flow in a particular river,2 or diversion of a stream and\nconstruction of a dam for flood control, improvement of navigation, or produc\xc2\xad\ntion of hydroelectric power.3 Although Congress has rarely been explicit in\ndirecting the use or disposition of water by federal agencies, there is no question\nthat, by operation of the Supremacy Clause, such a specific directive preempts\ninconsistent state laws. See discussion in Part IIIA(l) infra. As we discuss below,\na legal basis may therefore exist under particular federal statutes for assertion of\nfederal water rights that do not fall into the category of either reserved or staterecognized rights, and that might conceivably be classified as \xe2\x80\x9c non-reserved\xe2\x80\x9d\nwater rights simply because they do not stem from the reserved doctrine.\nThis is not to say, however, that an appropriate legal basis exists for the federal\nnon-reserved water rights theory, as it has been articulated by, among others,\nformer Solicitor Leo Krulitz of the Department of the Interior. It is this theory that\nwe address here. In his June 25, 1979, opinion on the legal bases for acquisition\nof water rights by the Department of the Interior, Solicitor Krulitz concluded that,\nin the absence of an explicit congressional directive to the contrary, a federal\nagency may claim and use whatever unappropriated water is necessary to carry\nout congressionally authorized \xe2\x80\x9c management programs\xe2\x80\x9d for federal lands, with\xc2\xad\nout regard to state law. See Part IIB(3)(c)(i) infra. Solicitor Krulitz\xe2\x80\x99s theory of\nfederal non-reserved water rights rested on the presumption that the federal\ngovernment need not comply with state water law in its acquisition and use of\nwater for federal purposes on federal lands\xe2\x80\x94 a presumption that could be rebutted\nonly by an explicit statutory directive that the federal agency responsible for\nmanagement of the federal lands in question abide by state law in the use,\nappropriation, or distribution of water on those lands. Thus, under this theory, in\nthe absence of such a directive a federal agency may use whatever unappropriated\nwater is necessary to carry out its land management functions without regard to\nstate law.4\n2 See, e.g.. 16 U S.C. \xc2\xa7 577b (1976) (prohibiting any \xe2\x80\x9c further alteration of the natural water level of any lake or\nstream\xe2\x80\x9d in the Lake Superior National Forest).\n3 See, e g., Oklahoma v. Guy F Atkinson Co , 313 U.S. 508, 535 (1941), First Iowa Coop, v Federal Power\nComm\xe2\x80\x99n, 318 U .S. 152, 176 (1946), discussed in Part IIB(3)(b) infra\n4 As we discuss in Part IIB(3)(c)(i) infra. Solicitor Krulitz concluded that federal agencies are immune from both\nsubstantive and procedural state law, but recommended as a matter of policy that the agencies comply with state\nprocedures wherever possible\n\n331\n\n\x0cWe conclude that the broad federal non-reserved water rights theory asserted\nby Solicitor Krulitz is not supported by an analysis of the applicable statutes and\njudicial decisions. As we discuss below, to the extent Solicitor Krulitz relies on\nfederal ownership of unappropriated water in the western states as a basis for\nfederal rights to water, that reliance is misplaced. More importantly, when the\nquestion is considered as one of competing state and federal regulatory jurisdic\xc2\xad\ntion, rather than ownership of the water\xe2\x80\x94as we believe it must\xe2\x80\x94 Solicitor\nKrulitz\xe2\x80\x99s opinion fails to give adequate consideration to the pattern of con\xc2\xad\ngressional deference to state water law, which the Supreme Court has recognized\nas critical in analyzing federal rights to water on federal lands. See California v.\nUnited States, 438 U.S. 645, 648\xe2\x80\x9463 (1978); United States v. New Mexico, 438\nU.S. 696, 701-02 (1978).\nWe believe that the history of federal-state relations with respect to water rights\nin the western states and Congress\xe2\x80\x99 weighing of the competing federal and state\ninterests establish a presumption that is directly opposite to that asserted by\nSolicitor Krulitz: in the absence of evidence of specific congressional intent to\npreempt state water laws, the presumption is that federal agencies can acquire\nwater rights only in accordance with state law. The mere assignment of land\nmanagement functions to a federal agency, without more, does not create any\nfederal rights to unappropriated water necessary to carry out those functions.\nIt is important to keep in mind, however, that this presumption is rebuttable.\nThere is no question that the federal government has the constitutional authority\nto acquire rights to whatever water is necessary to manage federal lands, either\nthrough purchase or condemnation of existing water rights or by clear con\xc2\xad\ngressional action. The critical question is what evidence of congressional intent is\nnecessary to rebut the inference that state law is controlling. The Supreme Court\nhas addressed that question in its recent decisions in California v. United States\nand United States v. New Mexico, albeit in limited contexts. We believe that the\nCourt\xe2\x80\x99s reasoning in those two cases provides the relevant framework for analysis\nhere. Read together, those cases suggest that congressional intent to preempt state\ncontrol over unappropriated water in the western states will be found only if\nconditions imposed under state law on the use or disposition of water by a federal\nagency conflict with specific statutory directives authorizing a federal project or\ndirecting the use of federal lands, or if application of state law would prevent the\nfederal agency from accomplishing specific purposes mandated by Congress for\nthe federal lands in question. The scope of the federal rights that may be asserted\nunder those circumstances is limited to water minimally necessary to carry out\nthe relevant statutory directives or purposes.\nAlthough we believe that the water rights that can be asserted by federal\nagencies without regard to state law are far more limited than those available\nunder Solicitor Krulitz\xe2\x80\x99s non-reserved water rights theory, we do not believe it is\nappropriate to reach a blanket conclusion that under existing federal statutes no\nimplied federal water rights exist except for reserved rights. The reasoning used\nby the Supreme Court to support federal reserved rights does not depend solely\non a formal reservation of land from the public domain, but rather on Congress\xe2\x80\x99\n332\n\n\x0cexercise of a constitutional authority such as the Property or Commerce Clauses,\ncoupled with the Supremacy Clause. Therefore, that reasoning is applicable even\nif there has been no such reservation. We believe, for example, that the Court\xe2\x80\x99s\ndecision in United States v. New Mexico is equally applicable to water necessary\nto fulfill the primary purposes of a federal statutory scheme where the lands in\nquestion have been acquired by the federal government from private ownership,\nrather than reserved from the public domain, and dedicated to particular federal\npurposes, such as a national forest, park, or military base. See Part IIIB infra. We\nalso believe that it is open to federal agencies to argue that Congress has\nestablished particular mandatory purposes for the management of public domain\nlands that would be frustrated by the application of state water law, although, as\nwe discuss below, the primary federal statutes authorizing management of the\npublic domain appear to provide little basis for that argument. The New Mexico\ndecision leaves virtually no room for arguing, however, that federal agencies can\nappropriate water without regard to state law if that water is necessary only to\ncarry out a \xe2\x80\x9c secondary use\xe2\x80\x9d of federal lands, in the terminology of the Court in\nNew Mexico \xe2\x80\x94i.e ., an incidental or ancillary use that is permitted by Congress,\nbut not within the primary purposes mandated by Congress for the federal lands\nin question.\nThe scope of the federal government\xe2\x80\x99s rights to unappropriated water for use in\nthe management of specific federal lands in the western states, whether charac\xc2\xad\nterized as \xe2\x80\x9c reserved\xe2\x80\x9d or \xe2\x80\x9c non-reserved,\xe2\x80\x9d can be definitively determined only by\na careful examination of the individual federal statutes that authorize manage\xc2\xad\nment of those lands and their legislative history, and of the potential conflicts that\nmay be created by application of state laws. We cannot undertake that analysis\nhere with respect to all federal statutes governing the use of federal lands, but\nmust leave that task, at least initially, to the individual agencies responsible for\nadministration of those statutes. We outline in this opinion, to the extent possible,\nthe legal standards and considerations that are applicable to that analysis, and the\nbases for our conclusions.\nII. Background\nThe rights of the federal government to use water in the western states cannot\nbe analyzed solely as a question of abstract constitutional or statutory interpreta\xc2\xad\ntion. See California v. United States, supra, 438 U.S. at 648. The unique\ngeography, history, and climate of the western states and the ownership by the\nfederal government of substantial land within those states have shaped many of\nthe relevant questions and conclusions. In order to analyze the scope of the\nfederal government\xe2\x80\x99s rights to unappropriated water in the western states, it is\ntherefore necessary to look in some detail at the development of western water\nlaw and the role played by the federal government in managing and disposing of\nthe western public lands.\n333\n\n\x0cA . D evelopm en t c f \xe2\x80\x9cA p p ropriative\xe2\x80\x9d Water R ights in the Western States\n\nBecause of different climatic, topographic and geographic conditions and the\ndiffering demands of agricultural and economic development, the arid and semiarid western states have developed legal doctrines and administrative machinery\ngoverning water rights that bear little resemblance to those developed in the\nhumid eastern states.5 Most o f the eastern states have adopted, with some\nvariations and modifications, the common law riparian theory of water rights. In\ngeneral, under a riparian theory, the right to use water goes with ownership of\nland abutting a stream. Each owner of land on a stream has the right to make\nreasonable use of the water, but cannot interfere unreasonably with the right of a\ndownstream owner to the continued flow of the stream. For example, if the\nriparian owner diverts the water, he must return it to its natural channel, un\xc2\xad\ndiminished except for reasonable consumptive uses. See 1 R. Clark, Waters and\nWater Rights, \xc2\xa7\xc2\xa7 4.3, 16.1 (1967) (hereinafter cited as Clark); F. Trelease, Water\nLaw, at 10\xe2\x80\x9411 (3d ed. 1979). Similarly, a landowner in a riparian state generally\nhas the right to make reasonable use of ground water arising on his land, but not to\nmake unreasonable withdrawals of that water if it comes from a pool common to\nother landowners. Id. A landowner\xe2\x80\x99s riparian rights exist whether or not he\nactually takes steps to use the water, and the use may be initiated at any time. See\nid. at 1 1.\nThe riparian doctrine has for the most part been adequate to allocate water\nrights in the eastern states, where water is generally abundant and water problems\nmost often involve flooding, drainage, pollution, or navigation.6 As the arid and\nsemi-arid western states were settled, however, the riparian system proved to be\ninadequate to meet the needs of the early settlers, particularly the miners and,\nlater, the farmers.7 The major problem faced by early settlers in those states was a\nshortage of water. The two primary occupations, mining and agriculture, re\xc2\xad\nquired large consumptive uses o f water, which could be accomplished only by\nconstruction of systems to divert and store available stream and ground waters.\nTying water rights to the ownership of adjacent land, and thereby retarding or\n5 Land is generally considered arid or sem i-and if 11 cannot be cultivated without irrigation. See Note, FederalState Conflicts Over the Control c f Western Waters, 60C olum . L. Rev. 967 n 2 (1960) (hereinafter cited as Colum\nNote) Seventeen western states are usually included in this category. Arizona, California, Colorado, Idaho,\nKansas, M ontana, N ebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas,\nU tah, W ashington, and W yoming. These states, where water is relatively scarce, have developed systems of legal\nrights to water based on the doctrine of \xe2\x80\x9cappropriation\xe2\x80\x9d or capture of the water for a productive use See discussion\nat pp 8-11 infra. The remaining 31 contiguous states have adopted some form of a riparian system for the allocation\nof water rights, based on ownership of land S e e discussion at pp 7 -8 infra. Alaska appears to have largely rejected a\nriparian doctrine in favor of an appropriative system, while Hawaii has a mixed system based on custom, ancient\nn ghts, and legislation See 1 Clark, supra. \xc2\xa7 4 4\n6 Although most of the states outside of the seventeen arid or semi-and western states still adhere to riparian\nrights, in many of those states the common law has been codified or preempted by statutes governing specific uses\nsuch as construction of dams and use of water by cities, districts and state agencies, or preserving public uses such as\nminimum flows or, more recently, aesthetic and environmental values See F. Trelease, Water Law, supra, at 12.\nSome riparian states now require administrative permits prior to the initiation of new water uses. Id; see also\nF Trelease, \xe2\x80\x9c Federal-State Relations in W ater Law\xe2\x80\x9d (Legal Study No 5, prepared for the National Water\nCommission) at 15-18 (Sept 7, 1971) (hereinafter cited as \xe2\x80\x9c Federal-State Relations\xe2\x80\x9d ).\n7 A riparian system was particularly ill-suited for use by the first wave of miners, who staked their claims at a time\nwhen most of the western lands were still owned largely by the federal government and not legally open for\nsettlement Thus, for the most part there was no private ownership of land to which npanan rights could attach. See\nC olum. Note, supra n 5, at 969\n\n334\n\n\x0cprecluding the diversion of waters from their normal channels, would have\nentirely frustrated development of the west. See, e.g ., California Oregon Power\nCo. v. Beaver Portland Cement Co., 295 U.S. 142, 157 (1935). Accordingly,\nbased largely on customs of the early miners, the western states developed what\nhas come to be known as the \xe2\x80\x9c law of the first taker,\xe2\x80\x9d or the \xe2\x80\x9c appropriative\xe2\x80\x9d\nsystem. Under an appropriative system, unlike under a riparian system, the right\nto use water does not depend on ownership of underlying or appurtenant lands.\nRather, the right depends on capture or \xe2\x80\x9c appropriation\xe2\x80\x9d of the water for a\nparticular use. The first person to put water to use is entitled to that water as long\nas the use continues, to the exclusion of subsequent users. The principle of \xe2\x80\x9c firstin-time-first-in-right\xe2\x80\x9d embodied in this customary system was quickly confirmed\nby the state courts,8and refined and codified by state statute.9 Most of the western\nstates have now adopted comprehensive water codes based primarily on appropri\xc2\xad\nation, which provide for recognition, administration, and enforcement of water\nrights and, in several of those states, for large-scale planning of water resource\nuse.10\nAlthough statutory and case law differ in many respects among the western\nstates, there are several common principles that distinguish the appropriative\nsystems from riparian systems. See generally Trelease, \xe2\x80\x9c Federal-State Rela\xc2\xad\ntions,\xe2\x80\x9d supra n.6, at 29-33; 1 Clark, supra, \xc2\xa7 4.\nFirst, the right is based on the beneficial use of water, rather than on ownership\nof appurtenant land. Unless there has been an actual application of water to a\nbeneficial use, there has been no valid appropriation. The beneficial use is also\nthe measure of the right; an appropriator is entitled to only that quantity of water\nbeneficially used in any given year upon particular land. See 5 Clark, supra,\n\xc2\xa7 408.1. Uses considered \xe2\x80\x9c beneficial\xe2\x80\x9d vary from state to state. Recognizing that\nthe term must be applied pragmatically, the states have generally considered\nbeneficial uses to include a variety of productive uses such as mining, irrigation,\ndomestic and municipal uses, industry, power production, stock watering, and,\nmore recently, wildlife preservation and recreation." See id. Some states have\n8 See. e g., Irwin v Phillips, 5 Cal. P. 140, 63 Am Dec 113 (1855), Lux v. Haggin, 69 Cal. 255, 10 P. 674\n(1886), Coffin v Lefthand Ditch Co., 6 Colo. 443 (1882).\n9 See. e.g , Cal Civ. Code. lit. 8. pt 4 .d iv 2, \xc2\xa7\xc2\xa7 1410-22 (1872), Colo Laws 1862. ch. 28. \xc2\xa7 13, Colo Laws\n1864. \xc2\xa7 32, Mont Laws 1865, p 30, \xc2\xa7\xc2\xa7 1-2 Bannack Slats 367; \xc2\xa7\xc2\xa7 69-70 Mont. Sess Laws 57; Laws of Dec. 9,\n1850, Laws of Utah (1866) ch. U 0 - U 1, Law of Feb. 18, 1852, Laws of Utah (1866). ch 117; Law of Jan. 17,1862,\nLaws of Utah (1866) ch. 119. Hills Laws Ann (Oregon) \xc2\xa7 3832 (1864); Howell Code (Arizona) \xc2\xa7\xc2\xa7 1 ,3 (1864)\n10 Fora general description of state water laws, see R Dewsnup& D Jensen, A Summary-Digest of State Water\nLaws (1973) (study prepared for the National Water Commission) and 3 W Hutchins. Water Rights Laws in the\nNineteen Western States (U S. Dept, of Agriculture Misc Pub. No. 1206, 1971) Nine of the western states, most\nnotably California, have in the past recognized some limited forms of riparian nghts on private lands, in addition to\nappropriative rights. See I Clark, supra, \xc2\xa7 18 2(B). By statute or constitutional amendment those states have largely\neliminated or severely circumscribed reliance on riparian ownership, and consequently riparian rights now have, for\nthe most part, only historic significance See 5 Clark, supra, \xc2\xa7 420 The only states in which new uses may be\ninitiated by exercising a riparian right are California and, to a limited extent, Nebraska. See F. Trelease, Water Law,\nsupra, at 11-12\n11 The Montana and Washington water codes contain examples of broad definitions of beneficial use.\n\xe2\x80\x9c Beneficial use\xe2\x80\x9d . . means a use of water for the benefit of the appropnator, other persons, or the\npublic, including but not limited to. agricultural (including stock water), domestic, fish and wildlife,\nindustrial, irrigation, mining, municipal, power and recreational uses.\nMont Rev Code 1979 \xc2\xa7 85-2-102(2)\nUses of water for domestic stock watering, industrial, commercial, agricultural, irrigation, hydroC ontinued\n\n335\n\n\x0cestablished statutory preferences to be given effect if there are competing\napplications for new uses that exceed the available unappropriated water supply.\nThese preferences do not generally affect past or existing uses.12\nSecond, the water must be \xe2\x80\x9c appropriated,\xe2\x80\x9d or reduced to possession. As a\ngeneral rule, appropriation may be accomplished only by a physical diversion of\na stream or capture of ground water. Although some states recognize exceptions\nfor uses such as stock watering and irrigation by natural overflow, uses of a whole\nstream or lake, without diversion, for purposes such as maintenance of minimum\ninstream flows to preserve fish and wildlife or for recreation are often not\nrecognized. See 5 Clark, supra, \xc2\xa7 409.2. A few states allow instream uses on a\ndiscretionary basis13 or provide that state agencies may make appropriations of\nminimum instream flows for recreational, wildlife, or other purposes.14\nThird, when there is insufficient water to meet the needs of all appropriators,\npriority among appropriators is established chronologically, based on the time\nthe various appropriators first put the water to use, rather than based on any\nproration that takes account of the utility of the competing uses. The priority date\ngives an appropriative water right its primary value, because it guarantees that a\nsenior (in time) appropriator will receive the entire quantity of water to which he\nis entitled prior to delivery of any water to a more junior appropriator. Originally,\npriority dates were established on the basis of when the water was actually put to\nuse. Most western states, however, have enacted statutes requiring noticing or\nfiling of applications for new water uses. In many western states, that statutory\nprocedure is the exclusive means for acquiring water rights. In these so-called\n\xe2\x80\x9c permit states,\xe2\x80\x9d priority dates are normally fixed by the date of application for\nthe water right rather than the date of actual use. See 5 Clark, supra, at \xc2\xa7 410.1.\nIn permit states, it is possible that an appropriator who fails to make the filings or\napplications required by state law but actually puts the water to use may find his\nrights cut off by a more junior appropriator who makes a timely filing.15\nFourth, an appropriation of water is a transferable right of permanent, or at\nleast indefinite duration, provided the use is continued. It may be sold or\ntransferred with the land or separately. Changes in the location or nature of the\nuse (but generally not the quantity) may be permitted, provided they do not injure\nthe rights of other appropriators, but in most cases must be approved in advance\nelectric power production, mining, fish and wildlife maintenance and enhancement, recreational,\nand thermal power production purposes, and preservation o f environmental and aesthetic values, and\nall other uses compatible with the enjoyment of the public waters of the state, are declared to be\nbeneficial\nWash. Rev Code Ann \xc2\xa7 90 54.020\n12 See, e g., Ariz. Rev. Stat. Ann \xc2\xa7 45-147B (West Supp.) (relative values are (1) domestic and municipal, (2)\nirrigation and stock watering; (3) power and mining, and (4) recreation and wildlife, including fish); Wyo. Slat.\n\xc2\xa7 4 1 -3 -1 0 2 (1977); 5 Clark, supra, \xc2\xa7\xc2\xa7 40 8 .1 , 408.4\n13 See. e.g . W yo. Stat. \xc2\xa7 4 1 -3-306 (1977) (State Engineer can make allowances for instream stock watering,\nwithout recognizing a right to such use).\n14 See, e .g .. Colo Rev. Stat \xc2\xa7 37-92-102(3), 37-92-103(3) (4) & (10) (1973) (state agency may make\nappropriations of minimum instream Hows).\n15 Particularly where water rights may antedate water codes or adjudication statutes, rights in those states may in\nsome cases be awarded priority by equity decrees or other adjudicative procedures, despite a failure to make the\nrequisite filing See 5 C lark, supra. \xc2\xa7 410.1.\n\n336\n\n\x0cby the state. See 5 Clark, supra, at \xc2\xa7 412; Trelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d\nsupra n.6, at 33.\nAll the western states have developed administrative or judicial systems to\nrecognize, administer and enforce water rights. In most of these states, new\nappropriations must be approved by a state administrator (often known as the\nState Engineer) who has the authority, inter alia, todetermine ifthere is sufficient\nunappropriated water available, if the proposed use is beneficial and, in some\nstates, if the use is in the public interest. See Trelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d\nsupra n.6 at 135-36; 1 Clark, supra, \xc2\xa7\xc2\xa7 20-21. Judicial review of administrative\ndeterminations, and adjudication of competing rights are available in each state",\noften in special courts or under special procedures applicable only to water\nrights. Id. The western states do not generally provide any explicit exemption\nfrom their substantive or procedural requirements for the federal government or\ngive any special recognition to uses of water by the federal government that may\nhave no private counterpart, such as minimum instream flows necessary to\nsustain wildlife and fish or to provide recreational opportunities.16\nIn addition to statutes providing for the appropriation of water and enforcement\nof water rights, most of the western states have asserted, by statutory or constitu\xc2\xad\ntional provision, some form of \xe2\x80\x9c title\xe2\x80\x9d to or \xe2\x80\x9c ownership\xe2\x80\x9d of waters by the state or\nthe people of the state.17 Many of those states also recognize, however, that the\nfederal government may have reserved some \xe2\x80\x9c proprietary\xe2\x80\x9d interests in unap\xc2\xad\npropriated water appurtenant to federal lands at the time the states were admitted\ninto the Union. In the so-called \xe2\x80\x9c California doctrine\xe2\x80\x9d and \xe2\x80\x9c Oregon doctrine\xe2\x80\x9d\nstates,18 the state courts have held that the federal government had an original\nproperty right to all non-navigable waters on the territories that formed those\nstates, a right it did not pass to the states at the time of their admission. Those\nstates, however, by virtue of their sovereignty over lands within their borders, can\nnonetheless determine rights that appertain to federal as well as private\nownership of property, such as the use of water, subject to the ultimate authority\nof the federal government to determine such rights on federally owned lands.19In\n16 Some states have, however, recognized that state agencies may have particular interests and rights not available\nto private parties See nn 13, 14 supra\n17 See. e g . Colo Const art. XVI, \xc2\xa7 5 ( \xe2\x80\x9c The water of every natural stream, not heretofore appropriated, within\nthe state o f Colorado, is hereby declared to be ihe property of the public, and the same is dedicated to the use of the\npeople o f the state, subject to appropriation as hereinafter provided\xe2\x80\x9d ), Wyo Const art. VIII, \xc2\xa7 1 ( \xe2\x80\x9c The water of all\nnatural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby\ndeclared to be the property of the state\xe2\x80\x9d ), N.D Const, art XVII, \xc2\xa7 210 States such as California, Nevada and\nOregon have provided by statute that all water within the state \xe2\x80\x9c is the property of\xe2\x80\x9d or \xe2\x80\x9c belongs to\xe2\x80\x9d the public or the\npeople of the state. See Cal W aterCode\xc2\xa7 102,Nev Rev Stat \xc2\xa7 533 0 2 5 (1 979);0re Rev Stat.\xc2\xa7 537 110(1963).\nSee generally E M orreale, Federal-State Conflicts over Western Waters\xe2\x80\x94A Decade c f Attempted "Clarifying\nL e g i s l a t i o n 20 Rutgers L Rev. 423, 446-59 (1966) (hereinafter cited as Federal-State Conflicts)\n18 The \xe2\x80\x9c California doctnne\xe2\x80\x9d states are California, Kansas, Nebraska, North Dakota, Oklahoma, Texas and\nWashington The \xe2\x80\x9c Oregon doctnne\xe2\x80\x9d is followed in Oregon and South Dakota See Colum. Note, supra n.5, at\n972-75; Note, Federal Nonreserved Water Rights, 48 U Chi L Rev. 758, 766 n.46 (1980); 2 Clark, supra.\n\xc2\xa7 102 3.\n19 The \xe2\x80\x9c Oregon doctnne\xe2\x80\x9d differs from the \xe2\x80\x9c California doctrine" in that it construes the Desert Land Act as\nestablishing a uniform rule of appropriation applicable to private and federal rights The \xe2\x80\x9c California doctnne\xe2\x80\x9d holds\nthat the Desert Land Act, together with the Mining Acts of 1866 and 1870 (discussed at pp 18-24, infra) merely\nrecognized and affirmed whatever state system had been developed for allocation of water nghts, including systems\nsuch as California\xe2\x80\x99s that recognized some riparian nghts SeeColum Note,supra, n 5, at 972-75; 2 Clark, supra,\n\xc2\xa7 102.3.\n\n337\n\n\x0cthe \xe2\x80\x9c Colorado doctrine\xe2\x80\x9d states, by contrast, the courts have held that the United\nStates never acquired any proprietary interest in waters in those states, and\ntherefore that the transfer of sovereignty to such states with their admission\nsimultaneously transferred full power to control the disposition and use of those\nwaters.20\nB. Role c f the Federal Government\n\nThe most significant role that the federal government has played in the\ndevelopment of water law in the western states has been that of owner of vast\npublic lands within those states. As we discuss below, the federal government has\nlargely acquiesced in or fostered the development of comprehensive state control\nover water in the western states, even with respect to water flowing over or arising\non federally owned lands. With rare exceptions, Congress has not directly\nregulated the acquisition or use of water flowing over or arising on federal lands in\nthe western states. The federal laws that have the greatest impact on state interests\nand state regulation of water rights are directions or authorizations to government\nagencies to construct projects, administer programs, manage property, and use\nwater on federal lands. To the extent that a \xe2\x80\x9c federal\xe2\x80\x9d law of water rights exists\xe2\x80\x94\ni.e ., rights that can be asserted under federal statutes without regard to state\nlaw\xe2\x80\x94 it arises primarily because programs or projects on federal lands operated\nby federal agencies require the use of water, rather than because federal regulation\nof the uses of water overlaps with state regulation. As one commentator has\nnoted:\nMost conflicts [between federal and state agencies] have come not\nfrom direct clashes between inconsistent laws applicable to the\nsame subject of regulation, but from federal uses or operations\nwhich in particular applications do not mesh with state laws or\nprivate rights. [For example a] federal project may be illegal, or at\nleast unauthorized, under state water law. A private use under state\nlaw may interfere with a federal use of water or of land. A federal\nuse may destroy a state use. A federal program may encourage\nuses not provided for by state law.\nTrelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d supra n.6, at 56-57. Therefore, Congress\xe2\x80\x99\npolicies towards the settlement, disposition, and management of federal lands in\nthe western states provide the context for our consideration of the scope of federal\nwater rights in those states.\n1. Federal ownership of western lands\nThe federal government was the original owner of substantially all the land that\ncomprised the western territories.21 The acts of admission of the western states,\n20 The \xe2\x80\x9c Colorado doctrine\xe2\x80\x9d states are A rizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and\nW yom ing 2 Clark, supra, \xc2\xa7 102.3(C) n 21 F o r a full discussion of the origins and holdings of the California,\nO regon, and C olorado doctrines, see 5 Clark, supra. \xc2\xa7\xc2\xa7 401, 405, 420; Colum Note, supra n.5, at 972-75\n21 Title to most of the western territories was obtained by the United States from foreign powers through purchase\nand treaty du n n g the first half of the 19th century Generally, the terms of acquisition provided for recognition of the\nfew existing private property nghts, but granted title over the vast non-pnvate lands lo the United States Texas was\nan exception, it was admitted by annexation in 1845, and retained title to all its public lands. See Morreale, FederalState Conflicts, supra n 17, at 431 & n 41; C olum Note, supra n 5, at 968-69 & nn. 8, 9.\n\n338\n\n\x0cwhich guaranteed each state \xe2\x80\x9c equal footing with the original States in all respects\nwhatever\xe2\x80\x9d (see, e .g ., 9 Stat. 452 (1850)), reserved to the federal government\nownership of unappropriated lands within the state, but made no provision with\nrespect to unappropriated waters. See, e.g ., California v. United States, supra,\n438 U.S. at 654. Much of the land originally owned by the federal government\nhas been sold or disposed of under the terms of the federal public land laws,22 but\nthe federal government still holds title to substantial acreage in the West.23\nThe lands owned by the federal government are generally classified as either\n\xe2\x80\x9c public domain\xe2\x80\x9d or \xe2\x80\x9c reserved\xe2\x80\x9d lands. The public domain includes lands that are\nopen to settlement, public sale, or other disposition under the federal public land\nlaws, and not exclusively dedicated to any specific governmental or public\npurpose. See, e .g ., Federal Power Commission v. Oregon, 349 U.S. 435,\n443\xe2\x80\x9444 (1955); United States v. Minnesota, 270 U.S. 181, 206 (1926). Public\ndomain lands are for the most part managed by the Department of the Interior,\nthrough its Bureau of Land Management (BLM).24 Reserved lands are lands that\nhave been expressly withdrawn from the public domain by statute, executive\norder, or treaty, and dedicated to a specific federal purpose. Federal statutes\nauthorize reservation of public domain land for a variety of purposes, such as\nnational parks and monuments,25 national forests, refuges and wilderness areas,26\nreclamation projects,27 hydroelectric dams,28 and military facilities.29 Other\nwithdrawals have been made by executive order, pursuant to the general authority\nof the Executive Branch to manage and administer federal lands, subject to\ncongressional authorization or assent. See United States v. Midwest O il C o ., 236\n22 The term \xe2\x80\x9c public land laws\xe2\x80\x9d is generally used to refer to statutes providing for the sale or disposition of public\nlands, such as the Homestead Act. 12 Stat. 392 (1862), 43 U S.C \xc2\xa7 161 (1970), and the Desert Land Act of 1877,\n19 Slat 377, 43 U.S C \xc2\xa7 321 et seq., which provided for land grants to settlers of western lands, and various\nstatutes providing for the sale or grant of public lands to private individuals or the states under conditions set by\nCongress See. e.g., Act of Aug 18, 1894, 28 Stat. 422. 43 U .S.C \xc2\xa7 641 (1976). Public Lands Act of 1964, Pub.\nL No 88-606, 78 Slat 982, 43 U.S C. \xc2\xa7 1391 et seq (1970) The sale and disposition of public lands are now\ngoverned pnm anly by the Federal Land Policy and Management Act of 1976. Pub L No. 94-579, 90 Stat 2743,\n43 U S C \xc2\xa7 1701 etse q . Public land laws are usually distinguished from mining laws, which govern the mining of\nhard minerals on public lands, and mineral leasing laws, which provide for leasing of public lands for gas and oil.\nSee generally 63 Am Jur. 2d \xe2\x80\x9c Public Lands,\xe2\x80\x9d \xc2\xa7 2\n23 In 1978 the Supreme Court recited that the percentage of federally owned land in the western states, excluding\nIndian reservations and trust properties, ranged from 29.5 percent of the land in the State of Washington to 86 5\npercent of the land m the State of Nevada, with an average of approximately 46 percent See United States v New\nMexico, supra. 438 U.S at 699 n 3 (1978)\n24 The two major statutes authorizing management of the public domain by the BLM are the Taylor Grazing Act,\n48Stat 1269 (1934), asamended, 43 U.S C. \xc2\xa7 315 etseq.. which authorizes the Secretary of the Interior to manage\nthe public domain for grazing purposes, and the Federal Land Policy and Management Act, supra n 22, which\ndirects the Secretary of the Interior to manage the public domain on the basis of \xe2\x80\x9c multiple uses\'* and for \xe2\x80\x9c sustained\nyield \xe2\x80\x9d See 43 U S C \xc2\xa7 1702(c), (h)\n25 See, e g.. National F^rk Service Act of 1916, 39 Stat 535, as amended, 16 U.S C \xc2\xa7 1 et seq., American\nAntiquities Preservation Act of 1906, 34 Stat 225, 16 U S C \xc2\xa7 431 (1976)\n26 See, e g , Forest Service Creative Act o f 1891, 26 Stat. 1103, 16 U S.C. \xc2\xa7 471 (1976), Forest Service Organic\nAdministration Act of 1897, 30 Stat 34, 36, as amended, 16 U .S.C. \xc2\xa7 473 (1976), National Wildlife Refuge\nAdministration Act of 1966, Pub. L No 89-669, 80Stat 9 2 7 . 1 6 U S C \xc2\xa7 668dd (1976), Wild and Scenic Rivers\nAct, Pub. L No 90-542, 82 Stat. 906 (1968), 16 U.S C. \xc2\xa7 1271 et seq., Wilderness Act of 1964, Pub. L No.\n88-577, 78 Stat 890, 16 U S C. \xc2\xa7 1131 et seq. (1976).\n21 See Reclamation Act o f 1902. 32 Stat 390. as amended. 43 U .S.C . \xc2\xa7 371 et seq. (1976).\n28 See Federal Power Act. 41 Stat 1075 (1920), as amended. 16 U .S.C . \xc2\xa7 818 (1976).\n29 See State c f Nevada ex rel. Shamberger v. United States, 165 F. Supp. 600 (D Nev 1958), rev d o n sovereign\nimmunity grounds. 279 F.2d 699 (9lh Cir 1960), Act of Feb. 28, 1958, Pub L No 85-337, 72 Stat 2 7 ,4 3 U .S .C\n\xc2\xa7 155 (withdrawal, reservation or restriction of public lands for defense purposes)\n\n339\n\n\x0cU.S. 459, 474 (1915). As a general rule, land that has been withdrawn from the\npublic domain is no longer subject to laws governing the disposition or sale of\npublic lands. See, e .g .. United States v. Minnesota, supra, 270 U.S. at 206.\nThe terms \xe2\x80\x9c public domain\xe2\x80\x9d and \xe2\x80\x9c reserved lands\xe2\x80\x9d are most often used to refer\nto land that has been owned continuously by the federal government. There is a\nthird category of federally owned land that includes lands acquired by the federal\ngovernm ent from private ownership by purchase, exchange, gift, or con\xc2\xad\ndemnation pursuant to statutory authorization. See, e .g ., 43 U.S.C. \xc2\xa7 315g(c) &\n(d) (grazing lands); 16 U.S.C. \xc2\xa7 515 e tse q . (1976) (national forest lands). These\n\xe2\x80\x9c acquired\xe2\x80\x9d lands may become part of the public domain, or may be set aside for\nspecific federal purposes in the same manner as reserved lands. When acquired\nlands are set aside, they are not characterized as reserved lands, because they\nwere not, strictly speaking, reserved from existing public domain lands. They are\nnonetheless usually managed under the same statutory authority and for the same\npurposes as reserved lands,30 and therefore for most purposes can be considered\nas part of a federal reservation. See Rawson v. United States, 225 F.2d 855, 856\n(9th Cir. 1955), cert, denied, 350 U.S. 934 (1956) (\xe2\x80\x9c It may be stated as a\nuniversal proposition that patented lands reacquired by the United States are not\nby mere force of the reacquisition restored to the public domain. Absent legis\xc2\xad\nlative or authoritative directions to the contrary, they remain in the class of lands\nacquired for special uses, such as parks, national monuments, and the\nlike . . . .\xe2\x80\x9d ); Thompson v. United States, 308 F.2d 628, 632 (9th Cir. 1962).\nUntil the end of the 19th century, federal policy emphasized and encouraged\nsettlement and transfer of the public lands to private ownership. See Comment,\nFederal Non-Reserved Water Rights, 15 Land and Water L. Rev. 67, 69 (1980);\n1 Clark, supra, \xc2\xa7 20.2. Since that time, however, federal policy has shifted\nincreasingly towards conservation and retention of land in federal ownership and\nmanagement. The emphasis on retention of lands in federal ownership began\naround the turn of the century, with establishment by Congress of several national\nparks and forests, and passage o f statutes of general applicability authorizing the\nreservation of federally owned land for national forests, parks, and historic\nmonuments,31 and authorizing management of public domain land to promote\npurposes such as grazing or wide use of the resources on such lands.32 In\naddition, the federal government began to take an active role in the promotion,\nfinancing, and use of water resources. In the Reclamation Act of 1902, supra\nn.27, for example, Congress established broad authorization for federal develop\xc2\xad\nment of facilities to reclaim arid lands. The Federal Power Act, supra n.28,\npassed in 1920, authorized the Federal Power Commission to license private\npower projects, and other acts provided for federal development or construction\n30 For example, \xc2\xa7 521 o f the Forest Service statute provides that acquired forest service lands \xe2\x80\x9c shall be\npermanently reserved, held and administered as national forest lands under the provisions of section 4 7 1 of this title\nand Acts supplemental to and amendatory thereof." 16 U .S.C . \xc2\xa7 521.\n31 See nn 25, 26 supra\n32 See n.24 supra.\n\n340\n\n\x0cof large-scale multipurpose flood control, navigation, or power projects.33 Most\nrecently, in 1976 Congress declared in the Federal Land Policy and Management\nAct, supra n.22, that federal policy is to retain public lands in federal ownership\nunless it is determined, following procedures mandated by the Act, that disposal\nof a particular parcel will serve the national interest.\n2. Congressional recognition of state water law\nAs we described above, even before their admission into the Union, the\nwestern states developed customary and statutory laws governing the acquisition\nand use of water within their borders based primarily on appropriative rights. See\nPart IIA supra. Federal ownership of much of the underlying land raised the\nthreat of a general federal law applicable to the acquisition of rights to unap\xc2\xad\npropriated water on federal lands. However, in a series of statutes passed in the\nlast half of the 19th century, Congress rejected the alternative of a general federal\nwater law, and instead largely acquiesced in comprehensive state control over the\nappropriation of water, including water on federal lands, at least with respect to\nrights that could be asserted by private appropriators.34\nThe first of these acts, the Mining Act of 1866,35 officially opened federally\nowned lands to exploration and development by miners. Act of July 26, 1866, 14\nStat. 253, codified at 50 U.S.C. \xc2\xa7\xc2\xa7 51, 52 and 43 U.S.C. \xc2\xa7 661 (1976).\nAlthough the primary purpose of the Act was to allow open mining on federal\nlands,36 Congress included a provision that specifically disclaimed any intent to\ninterfere with water rights and systems that had developed under state and local\nlaw:\nWhenever, by priority of possession, rights to the use of water for\nmining, agricultural, manufacturing, or other purposes, have\nvested and accrued, and the same are recognized and acknowl\xc2\xad\nedged by the local customs, laws and the decisions of courts, the\npossessors and owners of such vested rights shall be maintained\nand protected in the same; and the right of way for the con\xc2\xad\n33 See, e g., Boulder Canyon Project Act, 45 Stat. 1057 (1928), 43 U.S C. \xc2\xa7 617 (1976), Colorado River Storage\nProject, 70 Stat 105 (1956), as amended, 43 U S C \xc2\xa7 620 (1976).\n34 This deference to state control can be contrasted with Congress\xe2\x80\x99 approach to control over mining on federal\nlands, as to which Congress authorized comprehensive procedures and standards for assertion and protection of\nmineral claims. See 30 U S C \xc2\xa7 22 etseq (1976) The Supreme Court has recently noted that \xe2\x80\x9calthough mining law\nand water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject\nonly mining to comprehensive federal regulation.\xe2\x80\x9d Andrus v. Charlestone Stone Products Co , 436 U S. 604, 613\n(1978).\n35 The Homestead Act, passed in 1862 (see n.22 supra), did not contain any reference to water nghts or to the\nappropriation of water by homesteaders\n36 The 1866 M ining Act was passed to thwart legislative initiatives calling for the sale of mining interests on\nfederal lands Its effect was to legalize the system of "free mining\xe2\x80\x99\xe2\x80\x99 that had been established by custom and local\nrules of the western mining communities The legislative history of the provision indicates that proponents of the\nlegislation believed it would merely confirm the existing rules and customs. See R. Grow & M Stewart* \xe2\x80\x9cThe\nWinters Doctnne as Federal Common Law,\xe2\x80\x9d lONaturalRes Law 457, App at4 8 6 n .l6 (1 9 8 0 )(h erein aftercited as\n\xe2\x80\x9cGrow & Stewart\xe2\x80\x9d)\n\n341\n\n\x0cstruction of ditches and canals for the purposes herein specified is\nacknowledged and confirmed; . . .\n43 U .S.C . \xc2\xa7 661 (1976).\nFour years later Congress amended the Mining Act of 1866 to extend its\napplicability to \xe2\x80\x9c placer\xe2\x80\x9d mines. Act of July 9, 1870, 16 Stat. 218, codified at 30\nU.S.C. \xc2\xa7\xc2\xa7 51, 52, a n d 43 U.S.C. \xc2\xa7 661 (1976). In perhaps an overabundance of\ncaution, Congress reaffirmed in the 1870 Act that water rights obtained under\napplicable state or local law were not to be affected by grants made under the Act:\n[A]ll patents granted, or preemption of homesteads allowed, shall\nbe subject to any vested and accrued water rights, or rights to\nditches and reservoirs used in connection with such water rights,\nas may have been acquired under or recognized by the [Mining\nAct of 1866].\n43 U .S.C . \xc2\xa7 661 (1976).37\nThe Supreme Court has interpreted these acts as expressing congressional\nrecognition of and acquiescence in the water rights law developed by the western\nstates:\nCongress intended [by these acts] \xe2\x80\x9c to recognize as valid the\ncustomary law with respect to the use of water which had grown\nup among the occupants of the public land under the peculiar\nnecessities of their condition.\xe2\x80\x9d\nCalifornia v. United States, supra, 438 U.S. at 656, quoting Basey v. Gallagher,\n87 U.S. (20 Wall.) 670,684 (1875). See also United States v. Rio Grande & Dam\nIrrigation C o., 174 U.S. 690, 704 (1899) (\xe2\x80\x9c The effect of this statute was to\n\nrecognize, so far as the United States are concerned, the validity of the local\ncustoms, laws and decisions of courts in respect to the appropriation of water\xe2\x80\x9d ).\nThe effect of the acts was not limited to recognition of rights that had previously\nvested under applicable state law or custom:\nThey reach[ed] into the future as well, and approvefd] and confirm[ed] the policy of appropriation for a beneficial use, as recog\xc2\xad\nnized by local rules and customs, and the legislation and judicial\ndecisions of the arid-land states, as the test and measure of private\nrights in and to the non-navigable waters on the public domain.\nCalifornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142,\n\n155 (1935).\nIn 1877, Congress passed yet a third statute, the Desert Land Act, supra n.22,\nwhich permitted persons in most o f the western states to enter and claim irrigable\nlands \xe2\x80\x9c by conducting water upon the same . . . [by] bona fide prior appropria\xc2\xad\n37 The legislative history o f this provision o f the 1870 Act is sparse, and indicates only that Congress wanted to\nassure that water rights vesting under the 1866 Act would not be adversely affected by the new act. See Grow &\nStewart, supra n.36, App. at 493-94\n\n342\n\n\x0ction.\xe2\x80\x9d 38 In what has become an important proviso, Congress limited the amount\nof water that could be appropriated by such entrymen under the statute to that\namount \xe2\x80\x9cactually appropriated\xe2\x80\x9d and \xe2\x80\x9c necessarily used\xe2\x80\x9d for irrigation and recla\xc2\xad\nmation. Any excess non-navigable water was specifically saved for the public:\n[A]ll surplus water over and above such actual appropriation and\nuse, together with the water of all lakes, rivers and other sources\nof water supply upon the public lands and not navigable, shall\nremain and be held free for the appropriation and use of the public\nfor irrigation, mining and manufacturing purposes subject to\nexisting rights.\n43 U.S.C. \xc2\xa7 321.\nThis proviso of the Desert Land Act has been given a somewhat broader\nreading by the Supreme Court than might be warranted by its legislative history,\nwhich suggests only that it was included to prevent any individual from monopo\xc2\xad\nlizing a source of water on desert lands.39 In California Oregon Power Co. v.\nBeaver Portland Cement Co., supra, the Supreme Court construed the Act as\neffecting \xe2\x80\x9c a severance of all waters upon the public domain, not theretofore\nappropriated, from the land itself,\xe2\x80\x9d and reserving those severed waters \xe2\x80\x9c for the\nuse of the public under the laws of the states and territories named.\xe2\x80\x9d 295 U.S. at\n158, 162. The Court held that a land patent granted by the federal government to\na settler under the Homestead Act did not carry with it any common law riparian\nrights not recognized by the state, because in the Desert Land Act (if not before)\nCongress had acquiesced in the authority of the western states to change the\ncommon law riparian system to an appropriative system. Id. at 158. Although the\nquestion before the Court in that case involved competing private rights to water\narising on federal lands, the language used by the Court to describe the effect of\nthe Desert Land Act is quite broad, and could be interpreted to apply to rights that\nmay be asserted by the federal government:\nWhat we hold is that following the Act of 1877, if not before, all\nnon-navigable waters then a part of the public domain became\npublici juris, subject to the plenary control cf the designated\nstates, including those since created out of the territories named,\nwith the right in each to determine for itself to what extent the rule\nof appropriation or the common-law rule in respect of riparian\nrights should obtain . . . [t]he Desert Land Act does not bind or\npurport to bind the states to any policy. It simply recognizes and\n38 The Desert Land Act applies only to California, Colorado, Oregon, Nevada, Washington, Idaho, Montana,\nUtah, Wyoming, Arizona, New Mexico, and North and South Dakota. 43 U.S.C. \xc2\xa7 323(1976). It does not apply to\nKansas, Nebraska, Oklahoma, or Texas.\n19 See F Trelease, Federal Reserved Water Rights Since PLLRC, 54 Denver L J 473,476(1977). At the time the\nAct was proposed, concern was voiced that the language \xe2\x80\x9c conducting water\xe2\x80\x9d upon the desert lands might work a\npartial repeal of the 1866 and 1870 Acts, and would permit a settler to monopolize available water by conducting it\nacross his land and selling it to contiguous owners See Grow & Stewart, supra n 36, App. at 495 & n 48. The\nlanguage quoted above was included to make it clear that an entryman could acquire only such rights as are available\nby appropriation under stale law (i e , limited to the quantity necessary for actual beneficial use). Id.\n\n343\n\n\x0cgives sanction, in so far as the United States and its future\ngrantees are concerned, to the state and local doctrine of appro\xc2\xad\npriation, and seeks to remove what otherwise might be an impedi\xc2\xad\nment to its full and successful operation.\n295 U.S. at 163-64 (emphasis added). The Desert Land Act has been held\ninapplicable to federal reserved lands. See Federal Power Commission v.\nOregon, 349 U.S. 435, 448 (1955), discussed at pp. 26-27, 32-33, & n.52.\nThus, in the Mining Acts of 1866 and 1870and the Desert Land Act, Congress\ndeferred to development by the states of comprehensive water codes and admin\xc2\xad\nistrative systems, at least with respect to rights of private appropriators. Notwith\xc2\xad\nstanding the broad language in the statutes and in California Oregon Power Co. v.\nBeaver Portland Cement Co., supra, it is not so clear, as we discuss infra, that\nCongress also intended to subject federal uses of that water to state water law. In\nthat regard, we must consider statutes that touch on the federal government\xe2\x80\x99s use\nof water, including, most importantly, the Reclamation Act of 1902, supra n.27,\nthe Federal Power Act, supra n.28, passed in 1920, and the McCarran Amend\xc2\xad\nment, July 10, 1952 , 66 Stat. 560, 43 U.S.C. \xc2\xa7 666.\nThe 1902 Reclamation Act authorized joint federal-state efforts to construct\nlarge-scale reclamation projects on federal lands, subject to the jurisdiction and\noversight of the Secretary of the Interior through the Bureau of Reclamation.\nSeveral provisions of the Act and subsequent amendments deal explicitly with the\nacquisition, use, and distribution of water. Section 8 provides expressly for the\napplication of state law:\nNothing in [this title] shall be construed as affecting or intending\nto affect or to in any way interfere with the laws of any State or\nTerritory relating to the control, appropriation, use or distribution\nof water used in irrigation, or any vested right acquired there\xc2\xad\nunder, and the Secretary of the Interior, in carrying out the\nprovisions of [the Act], shall proceed in conformity with such\nlaws, and nothing herein shall in any way affect any rights of any\nState or of the Federal Government or of any landowner, appropri\xc2\xad\nator, or user of water in, to, or from any interstate stream or the\nwaters thereof.\n43 U.S.C. \xc2\xa7 383. Other specific restrictions on the use or distribution of water\nreclaimed in a federal project appear in \xc2\xa7 5, 43 U.S.C. \xc2\xa7 431, which prohibits\nthe sale of reclamation water to tracts of land in excess of 160 acres, and \xc2\xa7 9 of the\nReclamation Project Act of 1939, 43 U.S.C. \xc2\xa7 485h, which provides for repay\xc2\xad\nment to the United States of funds expended in the construction of reclamation\nworks and authorizes the Secretary of the Interior to make contracts to furnish\nreclamation water at appropriate rates for irrigation.\nThe Federal Power Act established a comprehensive licensing scheme for\nwater power projects constructed by private or public entities on navigable\nstreams or federally owned land. The Act contains two provisions referring to the\n344\n\n\x0capplicability of state laws: \xc2\xa7 9b, which requires an applicant to present evidence\nof \xe2\x80\x9csatisfactory compliance\xe2\x80\x9d with certain state laws;40 and \xc2\xa7 27, which expressly\nsaves certain state laws relating to property rights in the use of water from\nsupersedure by the Act.41\nThe McCarran Amendment is not a substantive statute, but rather a limited\nwaiver of sovereign immunity permitting the United States to be joined as a party\nin state general stream adjudications. It does not affect the federal government\xe2\x80\x99s\nsubstantive rights with respect to water on federal lands. However, the Act has\noften been relied upon as evidence of congressional recognition of the primacy of\nthe western states\xe2\x80\x99 interests in regulating and administering water rights. See,\ne.g., California v. United States, supra, 438 U.S. at 678-79. This position is\nsupported by the Senate Report on the Amendment, which states that:\nIn the arid Western States, for more than 80 years, the law has\nbeen the water above and beneath the surface of the ground\nbelongs to the public, and the right to the use thereof is to be\nacquired from the State in which it is found, which State is vested\nwith the primary control thereof . . . . Since it is clear that the\nStates have the control of water within their boundaries, it is\nessential that each and every owner along a given water course,\nincluding the United States, must be amenable to the law of the\nState, if there is to be a proper administration of the water law as it\nhas developed over the years.\nS. Rep. No. 755, 82d Cong., 1st Sess. 3, 6 (1951) (emphasis added).\nIn each of these statutes, Congress recognized that the western states have a\nlegitimate interest in and responsibility for the allocation of water resources\nwithin their borders. Specific provisions of federal statutes such as the Reclama\xc2\xad\ntion Act and Federal Power Act, however, have led to conflicts between federally\nmandated uses of water and state regulation of those uses. Those conflicts were\nleft to the courts to resolve.\n3. Judicial recognition of federal water rights\nThe Supreme Court has grappled on several occasions with the federal\ngovernment\xe2\x80\x99s rights to use or dispose of water in the western states in the context\nof particular federal statutes, including the Reclamation Act and the Federal\nPower Act and statutes authorizing the reservation of land for particular federal\npurposes. Because Congress has not legislated definitively on the scope of the\n40 Section 9(b) requires an applicant lo provide the Federal Power Commission with \xe2\x80\x9c satisfactory evidence that\n[he] has complied with the requirements of the laws of the State or States within which the proposed project is to be\nlocated with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and\nwith respect to the right to engage in the business of developing, transmitting, and distributing power, and in any\nother business necessary to effect the purpose of a license under this chapter\xe2\x80\x9d 16 U.S C \xc2\xa7 802(b).\n41 Section 27 provides that \xe2\x80\x9c [njothing herein contained shall be construed as affecting or intending to affect or in\nany way to interfere with the laws of the respective States relating lo the control, appropriation, use or distribution of\nwater used in irrigation or for municipal or other uses, or any vested right acquired therein \xe2\x80\x9d 16 U.S C. \xc2\xa7 821.\n\n345\n\n\x0cfederal government\xe2\x80\x99s rights to use water on federal lands in the western states,42\nwe must look at the Court\xe2\x80\x99s construction of those specific statutes to determine the\nprinciples and analysis the Court would apply to questions of federal rights that\nhave not yet been litigated.\nThe Supreme Court has recognized that even if a particular federal statute does\nnot expressly authorize a federal agency to acquire water rights without regard to\napplicable state law, the federal government may nonetheless in some circum\xc2\xad\nstances assert an implied right to use or divert unappropriated water in derogation\nof state law. The Supreme Court\xe2\x80\x99s recognition of such implied rights has rested in\neach case on a finding of implied congressional intent to preempt application of\nstate law. The Court has found such intent in at least two circumstances: (1) when\nland is reserved from the public domain for a specific federal purpose (see United\nStates v. New Mexico, supra); or (2) when state regulation of the use of water by a\nfederal agency or licensee is inconsistent with specific congressional directives\ngoverning the construction or operation of a federal project requiring the use of\nwater (see California v. United States, supra).43\na. Federal reserved rights.\nIt is now settled that when the federal government reserves land for a particular\nfederal purpose, it also reserves, by implication, enough unappropriated water as\nis reasonably necessary to accomplish the purposes for which Congress author\xc2\xad\nized the land to be reserved, without regard to the limitations of state law. The\nright to that water vests as of the date of the reservation, whether or not the water is\nactually put to use, and is superior to the rights of those who commence the use of\nwater after the reservation date. See Cappaert v. United States, 426 U.S. 128,\n138 (1976); United States v. New Mexico, supra, 438 U.S. at 698.\nAlthough the reserved rights doctrine is now well-recognized, its contours and\nscope have been defined only recently. The doctrine had its origins in United\nStates v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899). In that case,\nthe Court upheld an injunction restraining the petitioner from constructing an\nirrigation dam that would have destroyed the navigability of the Rio Grande\nRiver. While the Court recognized that Congress had by statute acquiesced in the\nsubstitution of appropriative water rights for common law riparian rights in the\nwestern states (see p. 20 supra), it found that Congress had not waived its\nsuperior authority under the Commerce Clause to preserve the navigability of\nnavigable waters. The Court listed two \xe2\x80\x9c limitations\xe2\x80\x9d inherent in the Supremacy\nClause on the authority of the states to change the common-law rules:\nFirst, that, in the absence of specific authority from Congress, a\nstate cannot, by its legislation, destroy the right of the United\nStates, as the owner of lands bordering on a stream, to the\ncontinued flow of its waters, so far, at least, as may be necessary\n42 See n 91 infra.\n43 As we discuss infra, the constitutional basis for federal water nghts is the same in both circumstances\nenumerated above, whether the nghts fall within the \xe2\x80\x9c reserved\xe2\x80\x9d nghts category or within the category of \xe2\x80\x9c specific\ncongressional directives.\xe2\x80\x9d Because the Supreme Court has developed the reserved right doctnne in a few, welldefined cases, for clarity we will set out the decisions in these two categories separately.\n\n346\n\n\x0cfor the beneficial uses of the government property; second, that it\nis limited by the superior power of the general government to\nsecure the uninterrupted navigability of all navigable streams\nwithin the limits of the United States.\n174 U.S. at 703. The Court\xe2\x80\x99s holding rested only on the second limitation\xe2\x80\x94 i.e.,\nthe federal goverment\xe2\x80\x99s superior authority under the Commerce Clause to pre\xc2\xad\nserve the navigability of the stream.44\nNine years later in Winters v. United States, 207 U.S. 565 (1908), the Court\nrelied, inter alia, on the first limitation described in Rio Grande \xe2\x80\x94the inability of\nthe state to destroy the federal government\xe2\x80\x99s rights to the continued flow of a\nstream \xe2\x80\x9c at least, as may be necessary for beneficial uses of government proper\xc2\xad\nty\xe2\x80\x9d\xe2\x80\x94to support implication of a so-called \xe2\x80\x9creserved\xe2\x80\x9d right to water under a\ntreaty between the federal government and the Indians of the Fort Berthold\nReservation. The treaty set aside particular tracts of the public domain as a\nhomeland for the Indians, but did not expressly provide for the water necessary to\nirrigate that land. The Court found nonetheless that the treaty and reservation of\nland impliedly set aside sufficient water for the present and future needs of the\nIndians, reasoning that Congress\xe2\x80\x99 intent that the Indians become a pastoral and\ncivilized people could not be accomplished without sufficient water to irrigate the\nreservation land. 207 U.S. at 576. Citing Rio Grande, the Court opined that,\n\xe2\x80\x9c [t]he power of the Government to reserve the waters and exempt them from\nappropriation under the state laws is not denied, and could not be.\xe2\x80\x9d Id. at 577.\nUntil 1955, the Winters, or reserved right doctrine, was generally thought to be\na special rule of Indian law, rather than a general rule applicable to all federal\nreservations. See F. Trelease, \xe2\x80\x9c Federal Reserved Water Rights Since PLLRC,\xe2\x80\x9d\n54 Denver L. J. 475 (1977). In 1955, the Supreme Court suggested for the first\ntime that other types of federal reservations might also provide a basis for federal\nreserved rights. In Federal Power Commission v. Oregon, 349 U.S. 435 (1955),\noften referred to as the Pelton Dam decision, the Court considered whether a state\nagency could deny permission to a federal licensee under the Federal Power Act\nto construct a hydroelectric dam on lands of the United States that had been\nreserved for that purpose. The state argued, relying on the Court\xe2\x80\x99s broad\nlanguage in California Oregon Power Co. v. Beaver Portland Cement Co. (see\npp. 21-22 supra), that by the Desert Land Act of 1877 Congress had expressly\nconveyed to the states the power to regulate all unappropriated water within their\nborders, and that therefore, in the exercise of its police powers, Oregon could\ndeny use of those waters to an individual, even if the federal government had\notherwise licensed the use. The Court rejected the state\xe2\x80\x99s arguments on the\nground that the Desert Land Act applies only to public domain lands and does not\napply to lands that have been reserved by the federal government, even if the land\n44 Nearly seventy years later, the Supreme Court slated that the holding in Rio Grande was limited, and lo be\nconstrued as reaffirming the rights of the states over disposition and use of water except in narrow and specific\ncircumstances \xe2\x80\x9c [E]xcept where the reserved rights or navigation servitude of the United States are invoked, the\nStale has total authority over its internal waters." California v. United States, supra, 438 U.S. at 662 (emphasis\nadded).\n\n347\n\n\x0cwas reserved after passage of the Desert Land Act. See 349 U.S. at 448.\nAlthough the Pelton Dam decision did not involve directly the federal govern\xc2\xad\nment\xe2\x80\x99s right to use water because the licensee was a private party, the Court\xe2\x80\x99s\nholding implies that the licensee was exercising some right of the United States to\nuse water that had been reserved from state control at the time the United States\nreserved the dam site. See, e.g., Cappaert v. United States, supra, 426 U.S. at\n144 n.10; Federal Power Commission v. Oregon, supra, 349 U.S. at 453\n(Douglas, J., dissenting).\nThe applicability of the reserved right doctrine to all federal reservations was\nconfirmed in Arizona v. California, 373 U.S. 546 (1963). There, the Court\nupheld, with little discussion, a M aster\xe2\x80\x99s award of reserved rights to the United\nStates in several national wildlife refuges and the Gila National Forest:\nThe Master ruled that the principle underlying the reservation of\nwater rights for Indian Reservations was equally applicable to\nother federal establishments such as National Recreation Areas\nand National Forests. We agree with the conclusions of the Master\nthat the United States intended to reserve water sufficient for the\nfuture requirements of the Lake Mead National Recreation Area,\nthe Havasu Lake National Wildlife Refuge, the Imperial National\nWildlife Refuge and the Gila National Forest.\n373 U.S. at 601.\nThe scope of the reserved rights doctrine on non-Indian land remained some\xc2\xad\nwhat uncertain until the Supreme Court\xe2\x80\x99s decisions in Cappaert v. United States,\nsupra, and United States v. New Mexico, supra. In Cappaert, the Court unan\xc2\xad\nimously held that the reservation of Devil\xe2\x80\x99s Hole as a national monument under\nthe American Antiquities Preservation Act, supra n.25, also reserved sufficient\nunappropriated water to maintain the scientific value of the reservation\xe2\x80\x94 in that\ncase, to maintain the water level in Devil\xe2\x80\x99s Hole at the minimal level necessary to\npreserve the Devil\xe2\x80\x99s Hole pupfish, a unique species that had been endangered by a\ndrop in the water level.45 The Court stated that:\n[t]his Court has long held that when the Federal Government\nwithdraws its land from the public domain and reserves it for a\nfederal purpose, the Government, by implication, reserves appur\xc2\xad\ntenant water then unappropriated to the extent needed to accom\xc2\xad\nplish the purpose of the reservation. In so doing the United States\nacquires a reserved right in unappropriated water which vests on\nthe date of the reservation and is superior to the rights of future\nappropriators. Reservation of water rights is empowered by the\nCommerce Clause, Art. I, \xc2\xa7 8, which permits federal regulation\nof navigable streams, and the Property Clause, Art. IV, \xc2\xa7 3,\n45 The case arose as an action by the United States to enjoin pumping of wells by owners of a ranch near the Devil\xe2\x80\x99s\nHole Monument The pumping had been authorized by a state permit after the date of reservation of the monument\nSee 426 U .S. at 134-35.\n\n348\n\n\x0cwhich permits federal regulation of federal lands. The doctrine\napplies to Indian reservations and other federal enclaves, encom\xc2\xad\npassing water rights in navigable and nonnavigable streams.\n426 U.S. at 138 (citations omitted).\nThe Court made it clear that the determinative issue was whether the federal\ngovernment intended to reserve unappropriated water, and that such intent would\nbe inferred if \xe2\x80\x9c previously unappropriated waters are necessary to accomplish the\npurposes for which the reservation was created.\xe2\x80\x9d46 426 U.S. at 139. The amount\nof water reserved, however, was \xe2\x80\x9c only that amount of water necessary to fulfill\nthe purpose of the reservation, no more.\xe2\x80\x9d Id. at 141 (citations omitted).\nIn United States v. New Mexico, the Court upheld, for the first time, a denial of\nreserved rights to the federal government. In New Mexico, the Forest Service\nasserted reserved rights to waters within the Gila National Forest, including\nminimum instream flows, \xe2\x80\x9c for the requirements and purposes of the forests\xe2\x80\x9d as\nof the date that various tracts of public lands were withdrawn from the public\ndomain for inclusion in the Forest. The Forest Service\xe2\x80\x99s claims to reserved rights\nfor, inter alia, maintenance of instream flows, recreation, and stock watering\nwere initially granted by the special master appointed to consider all the claims,\nbut were denied by the New Mexico District and Supreme Courts on appeal, on\nthe basis that those uses were not among the purposes included in the Forest\nService\xe2\x80\x99s Organic Administration Act, pursuant to which the Gila National Forest\nwas created. The New Mexico Supreme Court drew a distinction between the\n\xe2\x80\x9c primary purposes\xe2\x80\x9d for which a federal reservation is created, and \xe2\x80\x9csecondary\nuses\xe2\x80\x9d of federal lands that ma; be permitted or authorized by statute or admin\xc2\xad\nistrative practice, finding that only the former provides a basis for reserved rights.\nThe New Mexico Supreme Court found the primary purposes of national forest\nreservations to be limited to the preservation of timber and securing of water flows\nfor public and private uses. Mimbres Valley Irrigation Co. v. Salopek, 90 N.M.\n410, 564 P.2d 615, 617-18 (1977).\nThe United States Supreme Court agreed with both the result and analysis of\nthe New Mexico Supreme Court. Justice Rehnquist, writing for the majority,\nnoted that the application of the reserved right doctrine requires a careful\nexamination of \xe2\x80\x9c both the asserted water right and the specific purposes for which\nthe land was reserved\xe2\x80\x9d and must rest on the conclusion that \xe2\x80\x9cwithout the water\nthe purposes of the reservation would be entirely defeated.\xe2\x80\x9d 438 U.S. at 700\n(footnote omitted). Such an examination and tailoring of the reserved right is\nnecessary \xe2\x80\x9c because the reservation is implied, rather than explicit and because of\nthe history of congressional intent in the field of federal-state jurisdiction with\nrespect to allocation of water.\xe2\x80\x9d Id. at 701-02. The Court noted that, \xe2\x80\x9c [wjhere\nCongress has expressly addressed the question of whether federal entities must\n46 The Court actually found the requisite congressional intent to be explicit, rather than implied, because the 1952\npresidential proclamation reserving the land recited that the \xe2\x80\x9c pool . . . should be given special protection.\xe2\x80\x9d 426\nU S at 140\n\n349\n\n\x0cabide by state water law, it has almost invariably deferred to the state law.\xe2\x80\x9d47Id. at\n702 (footnote omitted).\nThe Court accepted the primary purpose/secondary use distinction drawn by\nthe New Mexico Supreme Court:\nWhere water is necessary to fulfill the very purposes for which a\nfederal reservation was created, it is reasonable to conclude, even\nin the face of Congress\xe2\x80\x99 express deference to state water law in\nother areas, that the United States intended to reserve the neces\xc2\xad\nsary water. Where water is only valuable for a secondary use of the\nreservation, however, there arises the contrary inference that\nCongress intended, consistent with its other views, that the\nUnited States would acquire water in the same manner as any\nother public or private appropriator.\nId. (emphasis added). Based on the legislative history of the Forest Service\xe2\x80\x99s\nOrganic Administration Act, the Court concluded that Congress\xe2\x80\x99 intent in author\xc2\xad\nizing reservation of the Gila National Forest was \xe2\x80\x9c that water would be reserved\nonly where necessary to preserve the timber or to secure favorable water flows for\nprivate and public uses under state law.\xe2\x80\x9d Id. at 718.48 The Court found recreation,\nwildlife, and stock watering to be secondary uses rather than primary purposes of\nthe reservation, and therefore upheld the state court\xe2\x80\x99s denial of reserved rights for\nthose uses. The Court did not address the further question whether, if the Forest\nService applied under state law for appropriative rights not available under the\nreserved rights doctrine, the state could deny such rights.49\nAfter Cappaert and New Mexico, it is safe to conclude that a federal agency\nmay acquire unappropriated water on federal lands without regard to state\nsubstantive or procedural law, when that land has been reserved pursuant to\ncongressional authorization for a specific federal purpose that requires the use of\nwater. The right is based on implied congressional intent, and is limited in two\n47 In California v. United States, supra, decided the same day as New Mexico, Justice Rehnquist, again speaking\nfor the majority, discussed at length the \xe2\x80\x9c purposeful and continued deference to state water law by Congress,\xe2\x80\x9d\nincluding principally the Mining Acts of 1866 and 1870, the Deserf Land Act and the Reclamation Act of 1902. 438\nU.S. at 653-70\n48 The opinion of the Court also concluded that the Multiple-Use Sustained-Yield Act of 1960, 16 U S.C. \xc2\xa7 528\n(MUSYA), which provides that national forests \xe2\x80\x9c shall be administered for outdoor recreation, range, timber,\nwatershed, and wildlife and fish purposes,\xe2\x80\x9d does not provide any basis for assertion of reserved nghts in forests\nexisting as of the effective date of the MUSYA \xe2\x80\x9c for the secondary purposes there established \xe2\x80\x9d 438 U S at 715. The\nCourt \xe2\x80\x9c intimate[d] no view as lo whether Congress [in the MUSYA] authorized the subsequent reservation oi\nnational forests out of public lands to which a broader doctrine of reserved water nghts might apply.\xe2\x80\x9d Id. at n.22 As\nJustice Powell pointed out in his partial dissent from the Court\xe2\x80\x99s opinion, the Court\xe2\x80\x99s statements on the effect of the\nMUSYA are probably dicta because the United States did not argue that the MUSYA reserved additional water for\nuse on national forests, but only that the Act confirmed Congress\xe2\x80\x99 intent in the Organic Administration Act to\nestablish multiple purposes that include fish, wildlife, and recreation See id at 718 n. 1.\n49 New M exico was a split decision, with Justices Brennan, White, and Marshall joining in a dissent written by\nJustice Powell The dissenters, however, did not take issue with the conclusion of the majority that Congress had\ngenerally deferred to state water law and therefore \xe2\x80\x9cthat the implied-reservation doctrine should be applied with\nsensitivity to its impact upon those who have obtained water nghts under state law and to Congress\xe2\x80\x99 general policy of\ndeference to state law,\xe2\x80\x9d and concurred in the m ajonty\xe2\x80\x99s conclusion that the Organic Administration Act could not be\nread \xe2\x80\x9cas evidencing an intent to reserve water for recreational or stock watenng purposes \xe2\x80\x9d 438 U.S at 718 The\ndissenters disagreed rather with the majority\xe2\x80\x99s narrow reading of the legislative history of the Organic Administra\xc2\xad\ntion Act to exclude preservation of wildlife as a primary purpose of the reservation of national forests Id. at 719\n\n350\n\n\x0ccrucial respects. First, federal rights will be implied only if necessary to accom\xc2\xad\nplish the specific purposes for which Congress authorized reservation of the land,\nnot for incidental, or \xe2\x80\x9csecondary\xe2\x80\x9d uses that may be permitted by congressional\nauthorization or acquiescence in agency practice. Drawing the line between the\n\xe2\x80\x9cprimary purposes\xe2\x80\x9d for which water may be reserved and the \xe2\x80\x9csecondary uses\xe2\x80\x9d\nfor which water may not be reserved requires a careful examination of con\xc2\xad\ngressional intent, as expressed in the particular statute authorizing reservation\nand management of the land in question and its legislative history. Second, the\namount of water reserved is only that minimally necessary to accomplish those\nprimary purposes\xe2\x80\x94 i.e., that water \xe2\x80\x9cwithout [which] the purposes of the reserva\xc2\xad\ntion would be entirely defeated.\xe2\x80\x9d United States v. New Mexico, supra, 438 U.S.\nat 700.\nb. Conflicts with congressional directives.\nIn the second relevant line of decisions, the Court has held that a state may not\nveto a federally authorized water project by requiring the federal government or\nits licensee to obtain a state permit authorizing use of water necessary for the\nproject, and may not impose conditions on the acquisition, use, or distribution of\nproject water that are inconsistent with specific congressional directives authoriz\xc2\xad\ning the project. Although in these cases the Court has not developed a coherent\ntheory of water rights comparable to the reserved right theory, there is a common\nthread: when the federal government, in the exercise of its constitutional powers,\nfor example under the Commerce or Property Clauses, authorizes a project\nrequiring the diversion or use of water, state laws that would effectively prevent\nthe project from being built or operated under the conditions and terms and for the\npurposes prescribed by Congress must fall under the Supremacy Clause.\nThe Court has consistently held that a state cannot block construction or\noperation by the United States or its licensee of dams and reservoirs for flood\ncontrol, improvement of navigation, power production, or reclamation.50 For\nexample, in Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508 (1941), the Court\nheld that Oklahoma could not block construction by the United States of a dam\nand reservoir for purposes of flood control and improvement of navigability on\nthe Red River in Oklahoma and Texas. One of the objections raised by Oklahoma\nto the federal project was that construction of the dam and impoundment of the\nwaters would be inconsistent with the state\xe2\x80\x99s water resources program. The Court\nrejected that argument, finding that:\n[T]he suggestion that this project interferes with the state\xe2\x80\x99s own\nprogram for water development and conservation is likewise of no\n50 The Supreme Court has recognized that Congress\xe2\x80\x99 constitutional authority to construct or license such projects\ncan stem from any of several constitutional grants of power, such as the Commerce Clause, which provides the basis,\ninter aha. for regulation and promotion of the navigability of streams, the Property Clause, which authorizes\nCongress to manage federal lands, or the General Welfare Clause. See, e g , Oklahoma v. Guy F. Atkinson Co., 313\nU.S. 508,534 (1941) (flood control and navigation project authorized under Commerce Clause); First Iowa Coop. v.\nFederal Power Comm\xe2\x80\x99n, 328 U S. 152, 176 (1946) (hydroelectric project on navigable stream authorized under\nCommerce Clause), Federal Power Comm\'n v Oregon, 349 U S. 435, 445 (1955) (hydroelectric project on nonnavigable stream authorized under Property Clause, because project to be constructed on federal lands); United\nStates v. Gerlach Live Stock Co . 339 U.S 725, 737-38 (1950) (reclamation project authorized under General\nWelfare Clause).\n\n351\n\n\x0cavail. That program must bow before the \xe2\x80\x9csuperior power\xe2\x80\x9d of\nCongress.\n313 U.S. at 534\xe2\x80\x9435 (citations omitted).\nSimilarly, in cases involving federal licenses to construct hydroelectric proj\xc2\xad\nects awarded under the Federal Power Act, the Court has consistently rejected\nstate attempts to block authorization of the construction of project facilities and\nreservoirs. See, e.g., First Iowa Cooperative v. Federal Power Commission, 328\nU.S. 152, 176 (1946); Federal Power Commission v. Oregon, 349 U.S. 435,445\n(1955); City of Tacoma v. Taxpayers cf Tacoma, 357 U.S. 320, 340 (1958).\nAlthough some of the language used by the Court in those decisions suggests that\nstate law or permit requirements do not apply to federally licensed projects even\nif they are consistent with the authorization of the project,51 in each case\napplication of state law would have prevented construction of the project.52Given\na direct conflict between federal authorization and state requirements, the Court\nheld that the state law must fall, even though the Federal Power Act contained\nsavings provisions reserving traditional control over water resources to the\nindividual states. See First Iowa Cooperative v. Federal Power Commission,\nsupra, 328 U.S. at 176; City cf Tacoma v. Taxpayers cf Tacoma, supra, 357 U.S.\nat 340; Federal Power Commission v. Oregon, supra, 349 U.S. at 445.\nThe Court has reached similar conclusions in cases involving the reclamation\nlaws.53 Despite the direction of \xc2\xa7 8 of the 1902 Reclamation Act that the\nSecretary of the Interior \xe2\x80\x9cproceed in conformity\xe2\x80\x9d with applicable state laws (see\npp. 22-23 supra), the Court has held that state law or permit requirements are\npreempted if they are inconsistent with other, more specific provisions of the Act\nor of the legislation authorizing the project. In Ivanhoe Irrigation District v.\nMcCracken, 357 U.S. 275 (1958), the Court reversed the refusal of the California\nSupreme Court to confirm certain reclamation contracts that contained clauses\nimplementing \xc2\xa7 5 of the Reclamation Act of 1902 and \xc2\xa7 9 of the Reclamation\nProject Act of 1939 (see p. 23 supra) because limitations imposed by those\nsections were inconsistent with California law. The California Court had held that\n51 For example, in First fowa Coop , Ihe C ourt, discussing the effect of the savings provisions of the Act, noted\nbroadly that \xe2\x80\x9cin those fields where rights are not thus \xe2\x80\x98saved\xe2\x80\x99 to the States, Congress is willing to let the supersedure\nof the state laws by federal legislation lake its natural course " 328 U.S. at 176. See generally Federal Power\nComm\xe2\x80\x99n v Oregon, supra. 349 U .S. at 444\xe2\x80\x9445 (\xe2\x80\x9cThere thus remains no question as to the constitutional and\nstatutory authority of the Federal Power Commission to grant a valid license fora power project on reserved lands of\nthe United States, provided that, as required by the Act, the use of the water does not conflict with vested nghts of\nothers. To allow Oregon to veto such use, by requiring the State\xe2\x80\x99s additional permission, would result in the very\nduplication of regulatory control precluded by the First Iowa decision \xe2\x80\x9d) (citations omitted).\n52 In First Iowa Coop , the power cooperative\xe2\x80\x99s development plan required diversion of the Cedar River into\nanother basin in order to get a greater drop and head for water power. That plan would have been barred by an Iowa\nstatute requinng that any water taken from a stream for power purposes be returned lo the same stream at the nearest\npracticable location. See 328 U S. at 166 In Federal Power Comm\xe2\x80\x99n v. Oregon, the Stale of Oregon sought lo\nprevent construction of the dam because it would cut off anadromous fish from their spawning and breeding grounds\n349 U .S. at 449-50. City c f Tacoma involved a conflict between the terms upon which the FPC issued a license to the\nCity to construct a power dam on the Cowlitz River, and a Washington statute prohibiting the construction of dams\nover 25 feet in height on the Cowlitz or other state streams tnbutary to the Columbia, for protection of salmon. See\n357 U .S. at 328 n. l l .\n53 Most large federal reclamation projects are authorized by specific legislation and appropriations, but incorpo\xc2\xad\nrate by reference the provisions of Ihe federal \xe2\x80\x9creclamation laws.\xe2\x80\x9d including, most importantly, the 1902 Act. See,\ne.g.. California v. United States, supra, 438 U .S. at 651 n 6.\n\n352\n\n\x0c\xc2\xa7 8 required that \xe2\x80\x9cwhenever there is a conflict between the Federal Reclamation\nlaws and the laws of the State, the law of California must prevail.\xe2\x80\x9d 357 U.S. at\n287. The United States Supreme Court held that the general savings provision of\n\xc2\xa7 8 could not override the mandatory, specific provisions of \xc2\xa7 5 and \xc2\xa7 9. Id. at\n292.54 The Court reaffirmed this view of \xc2\xa7 8 in City cf Fresno v. California, 372\nU.S. 627 (1963), in which the Court held that \xc2\xa7 8 does not require the Secretary\nof the Interior to ignore the explicit preference established by \xc2\xa7 9(c) of the\nReclamation Act of 1939 for irrigation over domestic and municipal uses of\nreclamation water (see p. 23 supra)\', and in Arizona v. California, 373 U.S. 546\n(1963), in which the Court concluded that state law could not interfere with the\npower of the Secretary of the Interior, under the Boulder Canyon Project Act,\nsupra n.33, to determine with whom and on what terms water contracts would be\nmade.\nLanguage used by the Supreme Court in Ivanhoe, Fresno, and Arizona\nsuggested that the scope of \xc2\xa7 8 was extremely narrow. In Ivanhoe, for example,\nthe Court stated that \xc2\xa7 8 \xe2\x80\x9cmerely requires the United States to comply with state\nlaw when, in the construction and operation of a reclamation project, it becomes\nnecessary for it to acquire water rights or vested rights therein.\xe2\x80\x9d 357 U.S. at 291.\nThe Court suggested in Fresno that state law would not control even the\nacquisition of water rights when the United States exercises its power of eminent\ndomain, but instead would only determine the \xe2\x80\x9cdefinition of the property inter\xc2\xad\nests, if any, for which compensation must be paid.\xe2\x80\x9d 372 U.S. at 630. In Arizona,\nthe Court endorsed its broad holdings in Ivanhoe and Fresno, noting \xe2\x80\x9c [t]he\nargument that \xc2\xa7 8 of the Reclamation Act requires the United States in the\ndelivery of water to follow priorities laid down by state law has already been\ndisposed of by this Court . . . .\xe2\x80\x9d 373 U.S. at 586.\nHowever, in California v. United States, supra, decided the same day as\nUnited States v. New Mexico, the Court made clear that its decisions in Ivanhoe,\nFresno, and Arizona could be read only to hold that state laws governing the\nappropriation, use, control, or distribution of water do not control federal uses if\nthey are inconsistent with specific congressional directives, for example \xc2\xa7 5 of\nthe Reclamation Act or \xc2\xa7 9 of the Reclamation Project Act of 1939. California v.\nUnited States involved construction of the New Melones Dam in California, part\nof the mammoth Central Valley Reclamation Project, which has spawned much\nof the case law under the Reclamation Act.55 The California State Water Re\xc2\xad\nsources Control Board, upon application by the Bureau of Reclamation, author\xc2\xad\nized the impoundment of water for the project, but imposed several conditions on\nthe use of that water. The Bureau of Reclamation then sought a declaratory\n54 The Court also rejected a constitutional challenge to the reclamation projects in question, finding that \xe2\x80\x9c[tjhere\ncan be no doubt of the Federal Government\xe2\x80\x99s general authority to establish and execute\xe2\x80\x9d the projects under the\nGeneral Welfare Clause and Property Clauses of the Constitution. 357 U S at 294-95 Those clauses give the\nfederal government the power \xe2\x80\x9cto impose reasonable conditions on the use of federal funds, federal property, and\nfederal privileges,\xe2\x80\x9d and prohibit the states from \xe2\x80\x9ccompel[ling] uses of federal property on terms other than those\nprescribed or authorized by Congress \xe2\x80\x9d Id. at 295\n55 See, e g , United States v. Gerlach Live Stock Co , 339 U.S. 725 (1950); Ivanhoe Irrigation District v\nMcCracken, supra; City o f Fresno v California, supra; Dugan v Rank, 372 U S 609 (1963).\n\n353\n\n\x0cjudgment that the United States could impound whatever unappropriated water\nwas necessary for the project without complying with state law.\nThe District Court held that the United States must apply to the State Board for\nan appropriation permit as a matter of comity, but that the Board must issue the\npermit without condition if there is sufficient unappropriated water. United States\nv. California, 403 F. Supp. 847 (E.D. Cal. 1975). The Ninth Circuit affirmed, but\nheld that \xc2\xa7 8 of the Reclamation Act of 1902, rather than comity, required the\nUnited States to apply for the permit. United States v. California, 558 F.2d 1347\n(9th Cir. 1977). In the Supreme Court the United States argued for affirmance of\nthe decisions below on the ground that a state may not impose any conditions on a\nfederal reclamation project, whether or not they may be consistent with author\xc2\xad\nization for construction and operation of the project. See Brief for the United\nStates at 31-55, California v. United States, 438 U.S. 645 (1978).56\nIn its decision reversing the Ninth Circuit, the Supreme Court recognized that\nits prior statements regarding the effect of \xc2\xa7 8 of the Reclamation Act of 1902\ncould be read to support the United States\xe2\x80\x99 argument, but the Court characterized\nthose statements as dicta \xe2\x80\x9cto the extent [they] impl[y] that state law does not\ncontrol even where not inconsistent with . . . expressions of congressional\nintent.\xe2\x80\x9d 438 U.S. at 671 n.24. The Court pointed out that each of its prior\ndecisions involved a direct conflict between state law and a specific provision of\nthe federal reclamation laws, and therefore disavowed that dicta insofar as it\n\xe2\x80\x9cwould prevent petitioners from imposing conditions on the permit granted to the\nUnited States which are not inconsistent with congressional provisions authoriz\xc2\xad\ning the project in question.\xe2\x80\x9d Id. at 674. Because the courts below had not reached\nthe question whether the conditions actually imposed were inconsistent with\ncongressional directives authorizing the New Melones project, the Court re\xc2\xad\nmanded the case for further consideration.57 The Court suggested that on remand\nthe district court would be free to consider arguments that the legislation\nauthorizing the New Melones project had \xe2\x80\x9cby its terms signified] congressional\nintent that the Secretary condemn or be permitted to appropriate the necessary\nwater rights for the project in question.\xe2\x80\x9d Id. at 669 n.21.58\n56 The United States also argued that the conditions imposed on the permit granted by the California Board were\ninconsistent with the terms upon which construction and operation of the project had been authorized. See U.S.\nBrief at 57-85 Because the lower courts had both found that California could not impose any substantive conditions\non the permit, this argument was not considered below.\n57 Three justices (White, Brennan, and Marshall) dissented from the majority\xe2\x80\x99s decision, on the ground that \xc2\xa7 8\nshould be read narrowly, as it was in Ivanhoe, Fresno, and Arizona, to deal only with the acquisition of water rights\nand to require only that the United States respect water rights that have been vested under state law See 438 U S. at\n691. The dissent would have upheld the lower court decisions \xe2\x80\x9cthat the State was without power under the\nreclamation laws to impose conditions on the operation of the New Melones Dam and on the distribution of project\nwater developed by that Dam, which would be undertaken with federal funds.\xe2\x80\x9d Id. at 693 Justice Powell, who wrote\nthe dissent in United States v. New Mexico, joined in the majority in California.\n58 On remand, the district court found that certain conditions imposed by the California Board on the amount and\npurposes of water to be appropriated, the times of the year in which water could be appropriated, and the distribution\nof water outside certain counties were not inconsistent with Congress\xe2\x80\x99 purpose in authorizing the New Melones\nproject. O ther conditions, for example, those imposing limitations on the use of impounded water for the production\nof power were rejected as inconsistent with the congressional intent. United States v California, 509 F. Supp 867\n(E.D . Cal 1981). Cross-appeals were filed in the Ninth Circuit Those appeals have been briefed and argued and are\npending decision. U nitedStates v State of California, C A Nos 81\xe2\x80\x944189 and 81\xe2\x80\x944309 {appeals docketed Apr 10,\n1981, and June 5, 1981).\n\n354\n\n\x0cc. Administrative practice and interpretations.\nBecause the Supreme Court and Congress have not definitively answered\nmany of the questions in the area of federal-state water rights, administrative\npractice and interpretation by the federal land management agencies have served\nto fill some of the interstices. We understand that there has never been a uniform\npolicy among the agencies with primary responsibility over federal lands regard\xc2\xad\ning the extent to which the federal government should or would comply with state\nlaws and procedures in acquiring water rights or give notice to appropriate state\nagencies or officials of the water needs and uses of the agency.59 Agencies have\nparticipated in general stream adjudications, at least since passage of the McCarran Amendment in 1952,60 and have litigated water rights in individual cases, but\nhave not developed wholly consistent policies as to whether they should file all\nwater right claims with state agencies. See Report cf the Task Force on NonIndian Federal Water Rights at 35 (Government Printing Office 1980) (here\xc2\xad\ninafter cited as Task Force Report). For example, the Forest Service and Fish and\nWildlife Service, at least since the 1930s, have generally attempted to notify the\nstates of water uses and needs and to file for some water rights pursuant to\napplicable state law. Task Force Report at 36. Since 1946, the Forest Service has\ngenerally not filed for water rights on reserved lands, although it has filed for\nwater rights on acquired lands and, since 1966, has informed state officials of the\nscope of its reserved water rights. The policy of the National Park Service has\nbeen to comply with state water laws, particularly with respect to rights not\navailable under the reserved right doctrine. Id. Other agencies have often com\xc2\xad\nplied with state procedures in acquiring water rights, but have also asserted rights\nor used water in many instances without compliance with state law or notice to\nappropriate state authorities.61\nWhile the ad hoc approach reflected in the practice of responsible agencies\nmay have accommodated both state and federal concerns when water supplies\nwere relatively ample, over-appropriation of streams in most of the western states\nand increasing competition for water between and among private and public users\nhas led to efforts at the state and federal levels to achieve certainty in the\ndefinition and allocation of water rights. In 1978, President Carter submitted a\nFederal Water Policy Message to Congress, which recognized the difficulties\ncreated for the states by the existence of unquantified, undetermined federal\n59 These agencies include, most importantly, the Department of the Interior, which has jurisdiction over all public\ndomain lands and some reserved lands, such as national parks, refuges, and wilderness areas; the Department of\nAgriculture, which, through its Forest Service, has jurisdiction over the national forests; and the Department of\nDefense, which has jurisdiction over military bases and reservations and, through the Army Corps of Engineers,\nover flood control and navigattonal public works.\n60 See, e g.. United States v. District Court in and fo r Water Division No. 5, 401 U.S 527 (1971); Colorado River\nConservation District v United States, 424 U.S 800 (1976).\n61 For example, following the Pelton Dam decision in 1955, the Department of the Navy apparently ceased filing\nany claims for water with state agencies. See Nevada ex rel. Shambergerv United States, supra n 29, 165 F. Supp.\nat 606. That has not, however, been the consistent position of the Department of Defense since then We understand,\nfor example, that the Air Force has agreed that water necessary for deployment of the MX missile system in Nevada\nand Utah will be appropriated only under state laws See Letter from Grant C Reynolds, Assistant General Counsel,\nDepartment of the Air Force, to Myles E. Flint, Chief, General Litigation Section, Land and Natural Resources\nDivision, Dept, of Justice (Nov 19, 1981).\n\n355\n\n\x0creserved rights to water in the western states, and recommended that priority be\ngiven to quantification of federal reserved rights.62 At the same time, federal\nagencies were directed to expeditiously establish and quantify federal reserved\nrights.\nIn response to this initiative, Solicitor Krulitz of the Department of the Interior\nissued a formal opinion in June 1979, covering both \xe2\x80\x9creserved\xe2\x80\x9d and \xe2\x80\x9cnonreserved\xe2\x80\x9d water rights under statutes authorizing the Department of the Interior to\nmanage federal lands. As we discuss in the next segment of this opinion, Solicitor\nKrulitz articulated the non-reserved water rights theory of the Department of the\nInterior, stating that the federal government had a right to use water for \xe2\x80\x9ccongressionally authorized uses\xe2\x80\x9d irrespective of any reservation of land. Solicitor\nKrulitz\xe2\x80\x99s opinion provoked a maelstrom in the western states and an almost\nimmediate decision by Interior Secretary Andrus not to implement segments of\nthe Krulitz opinion except in very limited circumstances. Secretary Andrus\xe2\x80\x99\nannouncement was followed in January 1981 by an opinion by Solicitor Krulitz\xe2\x80\x99s\nsuccessor, Solicitor Clyde 0. Martz, restricting the application of the Krulitz\nopinion. In September 1981, the current Solicitor, William H. Coldiron, issued\nan opinion repudiating the legal basis and conclusions of the Krulitz opinion.\nSince these opinions have shaped much of the recent debate on the scope of\nfederal water rights,63 we will review them in detail here.\ni. Krulitz Opinion\nIn his opinion, Solicitor Krulitz set out to analyze comprehensively the legal\nbases for the Department of the Interior to assert rights to water on federal lands.\nIn addition to federal reserved rights, Solicitor Krulitz concluded that the federal\ngovernment has the right to make use of unappropriated water on federal lands\nwithout regard to state substantive or procedural law, so long as the water is\nnecessary to carry out \xe2\x80\x9ccongressionally authorized purposes\xe2\x80\x9d or \xe2\x80\x9cuses,\xe2\x80\x9d unless\nCongress clearly and expressly directs otherwise\xe2\x80\x94the so-called federal \xe2\x80\x9cnon\xc2\xad\n62 Pub. Papers c f Jimmy Carter, 1978, pp. 1044-51. Pursuant to this initiative, a Task Force on Non-Indian\nReserved Rights was established. The Task Force issued a final report in 1980, in which it recommended, inter alia,\nthat federal agencies attempt to quantify all current and future water requirements, that state law be used to the fullest\nextent possible for water uses not subject to existing reserved rights, and that the Executive Branch attempt, as a\nmatter of policy, to obtain future water nghts by purchase, exchange, condemnation, or appropriation under state\nlaw. Task Force Report, supra, at 3 -6 This last recommendation was \xe2\x80\x9cgrounded on the belief that, to the extent\nneither existing state law nor existing federal reserved nghts provide an adequate base for federal water needs to\ncarry out congressionally established management objectives, in some cases a new reserved right might be created\nand in other cases a federal non-reserved right might be asserted.\xe2\x80\x9d The Task Force urged, however, \xe2\x80\x9cthat neither\ncourse be followed except where it is absolutely essential to carry out congressionally mandated management\nobjectives \xe2\x80\x9d Task Force Report at 66-67 The Report did not address in any detail the legal basis for assertion of any\nfederal non-reserved water rights.\n63 Solicitor Krulitz\'s opinion, in particular, has been the subject of considerable comment. See, e g., The Western\nStates Water Council, \xe2\x80\x9cResponse to the Solicitor\xe2\x80\x99s Opinion on Federal Water Rights of June 25, 1979\xe2\x80\x9d (Oct 25,\n1979); Note, \xe2\x80\x9cFederal Nonreserved Water Rights,\xe2\x80\x9d 48 U Chi. L. Rev. 758 (1981); F Trelease, \xe2\x80\x9cUneasy\nFederalism\xe2\x80\x94 State Water Laws and National Water Uses,\xe2\x80\x9d 55 Wash. L. Rev 751 (1980); Comment, \xe2\x80\x9cFederal NonReserved Water Rights,\xe2\x80\x9d 15 Land and Water L. Rev. 67 (1980), Note, \xe2\x80\x9cFederal Acquisition of Non-Reserved Water\nRights after New M exico," 31 Stan. L. Rev 885 (1979). Solicitor Coldiron\xe2\x80\x99s opinion has been the subject of at least\none recent comment. See Gould, \xe2\x80\x9cSolicitor Rejects Non-Reserved Rights,\xe2\x80\x9d 14 Water Law Newsletter No 3 (Rocky\nMountain Mineral Law Foundation 1981).\n\n356\n\n\x0creserved\xe2\x80\x9d water rights theory. Dept, of Interior Solicitor\xe2\x80\x99s Opinion No.\nM-36914, \xe2\x80\x9cFederal Water Rights of the National Park Service, Fish and Wildlife\nService, Bureau of Reclamation and the Bureau of Land Management,\xe2\x80\x9d 8 6 1.D.\n553(1979) (Krulitz Op.). Solicitor Krulitz did not elaborate on the scope of \xe2\x80\x9ccon\xc2\xad\ngressionally authorized purposes\xe2\x80\x9d or \xe2\x80\x9cuses,\xe2\x80\x9d but his subsequent discussion of the\navailability of federal non-reserved water rights under statutes applicable to the\nDepartment of the Interior indicates that he thought those purposes and uses\nshould be broadly defined.64 Thus, in Solicitor Krulitz\xe2\x80\x99s opinion, there are only\ntwo prerequisites to the existence of a federal non-reserved water right: (1) the\nassignment of a land management function to a federal agency, e.g., by statute,\nappropriation, legislation, or acquiescence in long-standing administrative inter\xc2\xad\npretation; and (2) the actual application of water to use.\nThe non-reserved water right asserted by Solicitor Krulitz is both broader and\nnarrower than the reserved right. It is broader in that it does not depend on a\nformal reservation of land, and therefore may arise on public domain and\nacquired, as well as reserved, federal lands. In addition, it is not limited to the\nspecific \xe2\x80\x9cprimary purposes\xe2\x80\x9d for which federal land is managed, but also extends\nto any management use or function that is permitted by Congress for the land,\neven if such uses are only incidental to the purposes mandated by Congress for\nthe land, or \xe2\x80\x9csecondary,\xe2\x80\x9d in the language of the Court in New Mexico. Thus,\nunder Solicitor Krulitz\xe2\x80\x99s formulation, a federal agency may assert a non-reserved\nright for any secondary use of reserved lands (assuming it has reserved rights\ncovering all primary purposes), and for all permissible uses on acquired and\npublic domain lands, whether characterized as primary or secondary. In one\nrespect, however, the non-reserved right is narrower than the reserved right,\nbecause it is based on the appropriation of water to actual use, rather than on a\nreservation of land. Thus, the priority date for non-reserved rights is the date the\nwater was first put to use, and its measure is the amount of water reasonably\nnecessary for that use. By contrast, reserved rights have priority as of the date of\nthe reservation, regardless of when or whether the water was put to use, and\nextend to all water reasonably necessary for current and future uses. See, e.g.,\nCappaert v. United States, supra, 426 U.S. at 138.\nSolicitor Krulitz rested his opinion on an asserted federal proprietary interest\nin unappropriated waters in the western states and the federal government\xe2\x80\x99s\nsuperior right under the Supremacy Clause to make use of water in furtherance of\nits constitutional powers. See Comment, \xe2\x80\x9cFederal Non-Reserved Water Rights,\xe2\x80\x9d\n15 Land and Water L. Rev. 67, 74\xe2\x80\x9475 (1980). He started with the premise that,\nthrough cession from foreign nations, the United States acquired ownership of\nthe lands that now comprise the western states and ownership of all rights\nappurtenant to those lands, including \xe2\x80\x9c the power to control the disposition and\nuse of water on, under, flowing through or appurtenant to such lands.\xe2\x80\x9d Krulitz\nOp. at 563, 575. He asserted that under the Property Clause of the Constitution,\nthe United States has plenary power to control its property; no interest in that\n64 See discussion infra.\n\n357\n\n\x0cproperty may be acquired, by the states or private parties, \xe2\x80\x9c in the absence of an\nexpress grant from Congress . . . Solicitor Krulitz concluded that \xe2\x80\x9cabsent\nthat grant or consent, [the property] continues to be held by the United States.\xe2\x80\x9d 65\nId. (citing United States v. Grand River Dam Authority, 363 U.S. 229, 235\n(1960); Utah Power & Light Co. v. United States, 243 U.S. 389,404-05 (1917)).\nSolicitor Krulitz buttressed this conclusion with a Supremacy Clause argument:\nFederal control over its needed water rights, unhampered by\ncompliance with procedural and substantive state law, is support\xc2\xad\ned by the Supremacy Clause and the doctrine that federal ac\xc2\xad\ntivities are immune from state regulation unless there is a \xe2\x80\x9c clear\ncongressional mandate,\xe2\x80\x9d or \xe2\x80\x9c specific congressional action,\xe2\x80\x9d\nproviding for state control.\nId. at 564 (citing Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954));\nPaul v. United States, 371 U.S. 245, 263 (1963); Hancock v. Train, 426 U.S.\n167, 178-81 (1976); EPA v. State Water Resources Control Board, 426 U.S.\n200, 214, 217, 221 (1976).\nUnder either theory, the conclusion reached by Solicitor Krulitz as to the\napplicable legal analysis is the same:\n[T]o the extent Congress has not clearly granted authority to the\nstates over waters which are in, on, under or appurtenant to\nfederal lands, the Federal Government maintains its sovereign\nrights in such waters and may put them to use irrespective of state\nlaw.\nId. at 563. Krulitz concluded that neither the equal footing doctrine66 nor the Acts\nof 1866 and 187067 and the Desert Land Act68 constituted the necessary clear\ngrant of authority over unappropriated waters on federal lands to the states, and\ntherefore that the federal government may use that water without interference\n65 However, Solicitor Krulitz disavowed statements made by a prior Interior Department Solicitor that the United\nStates is the \xe2\x80\x9c owner of unappropriated non-navigable water on the public domain\xe2\x80\x9d as \xe2\x80\x9c broad and irrelevant to the\nnght of the United States to make use of such water.*\xe2\x80\x99 He stated that \xe2\x80\x9c concepts of \xe2\x80\x98ownership\xe2\x80\x99 of unappropriated\nwaters are not determinative in federal-state relations in non-reserved water rights.\xe2\x80\x9d Krulitz Op. at 613 Solicitor\nKrulitz\'s partial disavowal of the proprietary basis for federal claims is somewhat confusing and seems inconsistent\nwith his statements that the federal government has a retained \xe2\x80\x9c proprietary interest\xe2\x80\x9d m waters not otherwise\nappropriated pursuant to state law and \xe2\x80\x9cplenary power\xe2\x80\x9d over unappropriated waters on federal lands by virtue of the\nProperty Clause See, e g , id at 563, 575.\n66 Solicitor Krulitz concluded that the equal footing doctnne (see p. 15 supra), which is generally relied on to\nsupport state claims of ownership of unappropnated waters, did not divest the United Stales of its ownership interests\nin unappropnated waters, because (1) the state acts of admission into the Union contained no express grant of\nownership, such as is required when the United States divests itself of its property rights, and (2) state ownership of\nunappropriated water at the time of admission into the Union is \xe2\x80\x9c difficult to square with the reserved rights doctrine\n. . . as appl[ied] to reservations of land in a state after statehood.\xe2\x80\x9d Krulitz Op. at 564.\n67 Solicitor Krulitz interpreted the 1866 and 1870 Mining Acts to waive the United States\xe2\x80\x99 \xe2\x80\x9c proprietary and\nriparian nghts to water on the public domain [only] to the extent that water is appropnated by members of the public\nunder state law . . . .\xe2\x80\x9d Krulitz Op. at 565 By negative implication, because the acts did not deal with the federal\ngovernment\xe2\x80\x99s rights to use that water, they recognized the United States\xe2\x80\x99 \xe2\x80\x9c inchoate federal water nghts to\nunappropnated waters that exist at any point in time \xe2\x80\x9d Id at 565-66\n68 Solicitor Krulitz interpreted the Desert Land Act as a statute of limited applicability that \xe2\x80\x9c does not directly\naddress federal nghts to use water for congressionally authonzed purposes on the federal lands, but instead is aimed\nat appropriation and use \xe2\x80\x98by the public\xe2\x80\x99\xe2\x80\x9d Krulitz Op at 566\n\n358\n\n\x0cfrom the states. Thus, he asserted that by these \xe2\x80\x9c relatively narrow\xe2\x80\x9d acts, the\nUnited States did not divest itself of its authority \xe2\x80\x9cto use the unappropriated\nwaters on public lands for governmental purposes.\xe2\x80\x9d Id. at 569 (emphasis in\noriginal).\nSolicitor Krulitz acknowledged that the language of the Supreme Court in\nUnited States v. New Mexico, supra, that, in the absence of a reserved right\n\xe2\x80\x9c there arises the contrary inference that Congress intended federal agencies to\nacquire water in the same manner as any other public or private appropriator\xe2\x80\x9d\n(438 U.S. at 702) makes it unclear whether federal agencies must conform the\nassertion of non-reserved federal water rights to state law. He concluded,\nhowever, that the Court could not have intended to suggest that state procedural or\nsubstantive law would control federal non-reserved uses, because requiring\nfederal agencies to assert non-reserved water rights only for purposes recognized\nas beneficial under state law would lead to the \xe2\x80\x9c anomalous result\xe2\x80\x9d that federal\nland managers would have to manage the same kind of federal land differently in\ndifferent states. Rather, he argued that the Court intended only to suggest that\nwater rights other than those available as reserved rights must be acquired through\nsome form of appropriation and actual use, and not merely through a reservation\nof land. Id. at 576-77.\nAs a matter of policy, Solicitor Krulitz recommended that federal agencies\ncomply with procedures established by the states \xe2\x80\x9c to the greatest practicable\nextent.\xe2\x80\x9d He did not conclude, however, that compliance with state procedural\nrequirements is required as a matter of law. Id. at 577-78.\nIn the second portion of his opinion Solicitor Krulitz outlined reserved and\nnon-reserved federal water rights available to the land management divisions of\nthe Department of the Interior. He acknowledged that the Taylor Grazing Act and\nthe Federal Land Policy Management Act (FLPMA) do not create any reserved\nrights, but concluded that those statutes express a congressional mandate that the\npublic domain be managed for multiple use and sustained yield purposes,\nincluding recreational campgrounds, timber production, livestock grazing, and\nminimum instream flows necessary to protect and enhance fish and wildlife\nresources and scenic values. Therefore, he concluded that the BLM may appro\xc2\xad\npriate any water on the public domain necessary to fulfill those purposes. See id.\nat 615. With respect to the National Park Service and the Fish and Wildlife\nService, Solicitor Krulitz concluded that those agencies may appropriate (in\naddition to water available as reserved rights) all unappropriated water necessary\nto fulfill a broad range of consumptive and non-consumptive uses, including,\ninter alia, conservation of scenery, natural and historic objects, fish, and wildlife;\nprovision for public recreation and enjoyment; construction and maintenance of\neasements, rights-of-way, and trails; operation of concession operations and\nconstruction of airports in national parks; and management of timber, range,\nagricultural crops, and animals in national refuges. Id. at 616-17. Only in \xc2\xa7 8 of\nthe Reclamation Act of 1902 did Solicitor Krulitz find a sufficiently clear\ncongressional directive to require that water necessary for operation and mainte\xc2\xad\nnance of reclamation projects be acquired pursuant to state law. Id. at 615-16.\n359\n\n\x0cii. Martz Opinion\nIn 1980, Solicitor of the Interior Clyde O. Martz issued a supplemental opinion\ndealing with the federal non-reserved water rights theory. See Dept, of the\nInterior Solicitor\xe2\x80\x99s Opinion No. M-36914 (Supp.), \xe2\x80\x9c Supplement to Solicitor\nOpinion No. M -36914, on Federal Water Rights of the National Park Service,\nFish and Wildlife Service, Bureau of Reclamation and the Bureau of Land\nManagement,\xe2\x80\x9d 8 8 1.D. 253 (1981) (Martz Op.). Solicitor Martz did not disagree\nwith or disavow Solicitor Krulitz\xe2\x80\x99s analysis of the existence and nature of the\nfederal non-reserved water rights theory,69 but concluded that no federal nonreserved water rights could be asserted under FLPMA or the Taylor Grazing Act.\nSolicitor Martz noted that FLPMA authorizes a wide range of land management\nactivities that require the use of water, but concluded that the savings provision in\n\xc2\xa7 701(g) of the Act70 indicates that Congress did not intend to provide an\nindependent statutory basis for claims to water that would be inconsistent with\nthe substantive requirements of state law. Martz Op. at 257-58. Without discus\xc2\xad\nsion, he concluded that \xe2\x80\x9c [t]he same analysis and conclusion is equally applicable\nto the Taylor Grazing Act.\xe2\x80\x9d Id.1\'\niii. Coldiron Opinion\nThe current Solicitor of the Interior, William H. Coldiron, issued an opinion\non September 11, 1981, concluding that \xe2\x80\x9c there is no federal \xe2\x80\x98non-reserved\xe2\x80\x99\nwater right\xe2\x80\x9d and disavowing the Krulitz and Martz opinions to the extent they\nasserted that such rights exist. See Dept, of the Interior Solicitor\xe2\x80\x99s Opinion\nM -36914 (Supp. I), \xe2\x80\x9cNon-Reserved Water Rights\xe2\x80\x94 United States Compliance\nwith State Law,\xe2\x80\x9d (Sept. 11, 1981) (Coldiron Op.). Solicitor Coldiron acknowl\xc2\xad\nedged that Congress has the power under the Commerce and Property Clauses to\ncontrol the disposition and use of water appurtenant to lands owned by the federal\ngovernment, and that, under the Supremacy Clause, it is \xe2\x80\x9c unlikely that state law\ncould preclude reasonable water use by a federal agency if Congress specifies a\n69 Solicitor Martz reaffirmed Solicitor Krulitz\xe2\x80\x99s conclusion that situations exist in which the federal government\nhas a legal basis for asserting a federal right to use water in a manner not conforming to all substantive requirements\nof state law, and not available as a matter of a reserved right. \xe2\x80\x9c Federal claims in such cases may be founded on\nFederal supremacy if and where clearly mandated by Act of Congress Such claims may also be supported by the\ndominion the United States has and continues to exercise over unappropriated waters ansing on the public lands."\nM am Op. at 256.\n70 Section 701(g) provides, in relevant part:\nNothing in this Act shall be construed as limiting or restricting the power and authority of the United\nStates or (1) as affecting in any way any law governing appropriation or use of, or Federal right to,\nwater on public lands; (2) as expanding or diminishing Federal or State jurisdiction, responsibility,\ninterests or rights in water resource development or control\nReprinted at 43 U S.C. \xc2\xa7 1701.\n71 Solicitor Martz also noted that the Department of the Interior had previously decided, as a matter of policy, to\nrefrain from asserting non-reserved nghts, except if specifically approved m individual cases by the Assistant\nSecretary or Secretary of the Department, or if the Department was required to submit all claims for water nghts in\nlitigation. Martz predicted that in the future most federal water rights would be founded on appropriation or\npurchase. Martz Op. at 255 n.4.\n\n360\n\n\x0cparticular federal usage.\xe2\x80\x9d Coldiron Op. at 5.72 However, Solicitor Coldiron\nobserved that Congress can also defer to state control over water resources, and\nthat therefore the crucial question is whether Congress intended to delegate that\nauthority to the states.\nSolicitor Coldiron analyzed the question of congressional intent in much the\nsame terms as did the Supreme Court in California v. United States and United\nStates v. New Mexico\xe2\x80\x94decisions which Solicitor Coldiron concluded \xe2\x80\x9cdefi\xc2\xad\nnitively and directly addressed\xe2\x80\x9d the issue of federal non-reserved water rights.\nColdiron Op. at 9. Thus, Solicitor Coldiron interpreted the land management\nstatutes of the 19th century, the Reclamation Act of 1902, and other public land\nuse statutes to express congressional recognition of the practical importance of\nlocal control of water resources and a general policy of deference to state water\nlaw. Id. at 6-7. Solicitor Coldiron asserted that only two exceptions have been\nrecognized to this general deference to state water law: the federal navigation\nservitude and the federal reserved right. Id. at 10-11. He concluded, drawing on\nlanguage from California and New Mexico, that Congress has given the states\nbroad power to provide for the administration of water rights, which can be\ninfringed by the federal government only where necessary to accomplish the\noriginal purpose of a congressionally mandated reservation of land, or to protect\nthe navigation servitude. Therefore, in analyzing land management statutes, the\npresumption should be that \xe2\x80\x9c the United States and its agencies must acquire\nwater rights in accordance with state substantive and procedural law unless\nnecessary for the original purpose of a reservation\xe2\x80\x9d (or, presumably, unless\nincident to the federal government\xe2\x80\x99s navigation servitude). Id. at 12.\nSolicitor Coldiron did not address the question of what evidence of con\xc2\xad\ngressional intent is necessary to overcome the presumption that state law applies.\nHe concluded, without an analysis of specific statutory schemes such as that\nundertaken by Solicitor Krulitz and Solicitor Martz, that \xe2\x80\x9c there is an insufficient\nlegal basis for the creation of what has been called federal \xe2\x80\x98non-reserved\xe2\x80\x99 water\nrights . . . . There is no federal \xe2\x80\x98non-reserved\xe2\x80\x99 water right.\xe2\x80\x9d Coldiron Op. at 12.\nThis conclusion suggests that, in Solicitor Coldiron\xe2\x80\x99s opinion, no existing federal\nland management statute contains a congressional directive of sufficient speci\xc2\xad\nficity to overcome the presumption of deference to state law, and that, unless and\nuntil Congress enacts statutes specifically authorizing non-reserved rights or\nrepeals the land management statutes that preserve control over water rights in the\nstates, the only water rights available to federal agencies outside of state law are\nreserved rights or rights necessary to preserve the navigation servitude. Id.\n72 Although Solicitor Coldiron\xe2\x80\x99s analysis is rooted primarily in the Supremacy Clause, he also found a basis for\ncongressional authonty in the United States\xe2\x80\x99 ownership of unappropnated water on the public domain. He suggested\nin his opinion that the United States\xe2\x80\x99 power over unappropriated non-navigable water located on the public domain\n\xe2\x80\x9c arises from retention of federal property, including the streams and lakes thereon at the time of statehood,\xe2\x80\x9d and\ncharactenzed the pattern of ownership of waters with the western states as follows \xe2\x80\x9c [w]hen the vanous western\nstates were admitted to the Union, the title to the beds and waters of the navigable streams and lakes passed to the\nnew states, with the United States retaining title to the non-navigable waters on the public domain.\xe2\x80\x9d Coldiron Op.\nat S\n\n361\n\n\x0cIII. Analysis\nA. Constitutional Basis for Federal Claims\n1. Congressional authority to preempt state water laws\nAs a matter of constitutional law, Congress clearly has the power to preempt\nstate law governing the use and disposition of unappropriated water by federal\nagencies on federal lands. That authority arises from the constitutional provi\xc2\xad\nsions authorizing the federal government, for example, to regulate interstate\ncommerce (Art. I \xc2\xa7 8), to provide for a common defense (Art. I \xc2\xa7 8), to enter into\ntreaties (Art. II \xc2\xa7 2), to manage federal property (Art. IV \xc2\xa7 3), and to provide for\nthe general welfare (Art. I \xc2\xa7 8).73 In the exercise of its constitutional authority\nunder the Commerce, Property, or General Welfare Clauses, or under its treaty\nand war powers, Congress has the power to authorize the appropriation of\nunappropriated water by federal land management agencies. If Congress exer\xc2\xad\ncises that power, by operation of the Supremacy Clause such an exercise preempts\ninconsistent state laws. See United States v. Rio Grande Dam & Irrigation Co.,\nsupra, 174 U.S. at 703; Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 534\n(1941).\nCongress may, for example, authorize a comprehensive interstate plan for\ncontrol and disposition of water resources that preempts inconsistent or duplicat\xc2\xad\ning state regulation;74 provide for maintenance of instream flows without regard\nto whether such flows are recognized under state law;75 authorize federal agencies\nor licensees to divert streams for the construction and operation of hydroelectric\nprojects without regard to state restrictions on such diversions;76place limitations\nor conditions on the use or disposition of water from federal projects that are\ninconsistent with state laws governing the use of such water;77 or impliedly\nreserve water necessary to carry out specific federal purposes at the time land is\nwithdrawn from the public domain.78 The question, therefore, is not generally\nwhether Congress has the power to establish federal rights to unappropriated\nwater, but whether it has exercised that power. See United States v. New Mexico,\nsupra, 438 U.S. at 698.\nIt is important to understand that any water rights that may be asserted by the\nfederal government outside of state law\xe2\x80\x94 whether called reserved, non-reserved,\n73 R>r the most part, ihe authorizations to federal agencies that are of concern here are based directly on the\nProperty Clause, which grants Congress the power \xe2\x80\x9c lo dispose of and make all needful Rules and Regulations\nrespecting the Territory or other Property belonging to the United States.\xe2\x80\x9d Art. IV \xc2\xa7 3 cl.2 As we discuss at\npp. 51-56 infra, we believe the proper analytical approach is to consider that the \xe2\x80\x9c property\xe2\x80\x9d that is subject lo\nfederal control in this context is not the unappropriated water arising on federal lands, but the lands themselves. See\ngenerally Kleppe v. New Mexico. 426 U S. 529, 537-39 (1976).\n74 See, e.g , Arizona v California, 373 U S. 546 (1963) (Boulder Canyon Project); Oklahoma v. Guy F. Atkinson\nCo , 313 U .S. 508, 534 (1941) (navigation and flood control project)\n75 See, e g , 16 U S.C. \xc2\xa7 557b (prohibiting any \xe2\x80\x9c federal alteration of ihe natural water level of any lake or\nstream \xe2\x80\x9d in the Lake Superior National Forest)\n76 See, e g., Ashwander v. Tennessee Valley Authority, 297 U S. 288, 350 (1936), First Iowa Coop. v. Federal\nPower Com m\'n. 32$ U S. 152, 176(1946): Federal Power Com m \'nv. Oregon. 349 U.S. 435, 445 (1955), Tacoma\nv. Taxpayers o f Tacoma. 357 U.S. 320, 340 (1958); United States v Grand River Dam Authority. 363 U.S 229,\n232-33 (1960).\n77 See. e.g . Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), City c f Fresno v California, 372\nU.S 627 (1963); California v United States, 438 U S 645 (1978)\n78 See, e.g.. Cappaert v United States, 426 U .S. 128(1976); United States v New Mexico, 438 U.S. 696 (1978).\n\n362\n\n\x0cor by some other name\xe2\x80\x94rest on this same constitutional basis. Thus, federal\nreserved rights are not a unique species of federal rights that arise directly out of\nthe reservation of federal lands, so that, absent a reservation of land, no federal\nwater rights can exist. As one commentator has noted, \xe2\x80\x9cthe reservation doctrine\nis not a source of federal power.\xe2\x80\x9d Trelease, \xe2\x80\x9cFederal-State Relations,\xe2\x80\x9d supra n.6,\nat 139 (emphasis added). The reserved right doctrine does not rest on any unique\nconstitutional basis. Rather:\n[t]he federal functions exercised in the name of the reservation\ndoctrine rest instead on the supremacy clause, coupled with the\npower exercised in making the reservation of land, or with some\nother power incidentally exercised on the reserved land.\nId.19\nThus the willingness of the Supreme Court to recognize federal reserved rights\ndoes not, under an exclusio unius principle, necessarily preclude the federal\ngovernment from asserting in other circumstances water rights not available\nunder state law or under the reserved right doctrine. The fact that the Supreme\nCourt has never explicitly recognized a non-reserved water right in haec verba\ndoes not mean that the Court would not recognize the federal government\xe2\x80\x99s\nimplied rights to unappropriated water, arising from clear congressional intent, in\na situation that has not yet been presented to it.80 As we discuss below, however,\n19 Similarly, the navigation servitude, which has been characterized as one of only two \xe2\x80\x9c exceptions\xe2\x80\x9d to Congress\xe2\x80\x99\ndeference to state law (see California v. United States, supra, at 602; Coldiron Op. at 8), is not a unique source of\nfederal constitutional authority or federal rights. The navigation servitude is a doctrine which holds that the federal\ngovernment is not constitutionally required to pay compensation if, in the exercise of its power over navigable\nstreams, it lakes, destroys, or impairs private property rights that depend on the use or presence of the water. See\nUnited States v. Rands, 389 U.S 121, 122-23 (1967); see generally Trelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d supra\nn 6, at 72, 175; E Morreale, \xe2\x80\x9c Federal Power in Western Waters* The Navigation Power and the Rule of No\nCompensation,\xe2\x80\x9d 3 Natural Resources J 1. 64-65. 74-75 (1963). The navigation servitude stems from Congress*\npower to preserve and promote the navigability of waters, which in turn rests on the Commerce Clause. See, e.g.,\nGibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); United States v Rio Grande Dam & Irrigation Co.. 174 U.S 690,\n707 (1899); United States v. Grand River Dam Authority, 363 U S. 229, 232-33 (1960) As with other exercises of\nconstitutional authority, inconsistent state laws, programs, or permit requirements must fall by operation of the\nSupremacy Clause See Oklahoma v. Guy F. Atkinson Co . 313 U S. 508, 534-35 (1941), First Iowa Coop v\nFederal Power Comm\xe2\x80\x99n, 328 U S. 152, 176(1946) The analysis of federal water nghts under Congress\'navigation\npower is the same as the analysis of any federal water rights. Has Congress exercised its power under the Commerce\nClause over navigable waters9 If so, what is the scope of the congressional mandate9 Would state law conflict with or\nfrustrate that mandate?\n80 Although the Court has recognized under specific statutes such as the Reclamation Act and the Federal Power\nAct that the federal government has certain rights to unappropnated water outside of the reserved right doctnne (see\npp. 31-37 supra), the Court has not addressed directly a broad assertion of federal implied water nghts such as that\nasserted by Solicitor Krulitz\xe2\x80\x94 i e., that a federal agency may assert a federal water right based solely on the\nassignment of land management functions to a federal agency In Nebraska v. Wyoming, 325 U S 589 (1945), an\naction between Nebraska, Wyoming, Colorado, and the United States for allocation of water of the North Platte\nRiver, the Court specifically declined to rule on an argument analogous to that made by Solicitor Krulitz. The United\nStates argued that, given the federal ownership of unappropriated water on federal lands, the federal government\ncould acquire all water necessary to carry out two reclamation projects using water from the nver regardless of state\nlaw, because \xe2\x80\x9c if the right of the United States lo these water nghts is not recognized [by state law], its management of\nthe projects will be jeopardized \xe2\x80\x9d 325 U S at 615 The Court declined to rule on that contention, however, as it\nfound that all necessary rights had been acquired by the United States under applicable law. The Court expressly\nreserved decision on the broader claim.\nWe do not suggest that where Congress has provided a system of regulation for federal projects it\nmust give way before an inconsistent state system We are dealing here only with an allocation,\nthrough the States, of water rights among appropriators The nghts of the United Slates in respect to\nthe storage of water are recognized.\nId at 615\n\n363\n\n\x0cthe reasoning used by the Court in shaping the reserved right doctrine is relevant\nto an analysis of what other rights the federal government may have. See\npp. 70-72 infra.\n2. \xe2\x80\x9c Ownership\xe2\x80\x9d of unappropriated water\nMuch of the confusion about the federal government\xe2\x80\x99s rights to unappropriated\nwater in the western states stems from arguments based on \xe2\x80\x9c ownership\xe2\x80\x9d of the\nunappropriated waters on federal lands and the effect of the land management\nstatutes of the 19th century. As we outlined supra, Solicitor Krulitz\xe2\x80\x99s assertion of\na broad federal non-reserved water right, while not clearly stated, apparently\nrested in part on the assumption that the United States acquired proprietary rights\nto all unappropriated water on public lands at the time it acquired the territories\nthat became the western states, and that it has never subsequently granted away\nthat proprietary interest except to the extent that private individuals may have\nactually appropriated water on those lands. Some of the western states have\nargued that the federal government acquired ownership of unappropriated water\ntogether with the public lands, but ceded ownership of the water to the states by\nthe acts of admission into the Union or at least by the passage of the Desert Land\nAct in 1877, or that the federal government never acquired ownership of those\nwaters.81 The contention is made that the states therefore own those waters and\ncan exercise control over their use, even if the use is by the federal government.\nSee, e.g., Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n.17, at 446-59; Colum.\nNote, supra n.5 at 972-74. The only exception to that control is if Congress\nwithdraws land (and water) from the applicability of those acts by a formal\nreservation.\nThis proprietary view of western water rights has significant ramifications both\nfor the federal government and the states. As Solicitor Krulitz noted, the\nSupreme Court has characterized the federal government\xe2\x80\x99s control over the use\nand disposition of its property as \xe2\x80\x9c complete\xe2\x80\x9d and \xe2\x80\x9cwithout limitation,\xe2\x80\x9d and has\nstated that an interest in property of the United States may be acquired only by an\nexpress grant from Congress. See Krulitz Op. at 563; Kleppe v. New Mexico,\nsupra, 426 U.S. at 539\xe2\x80\x9440; Caldwell v. United States, 250 U.S. 14, 20-21\n(1919). Therefore, if the United States \xe2\x80\x9c owns\xe2\x80\x9d the water, it may be contended\nthat all that is necessary to perfect its rights is use of that water for an authorized\nfederal purpose; a state cannot impose any restrictions on that use unless\nCongress has explicitly granted an ownership interest to the states. See Com\xc2\xad\nment, \xe2\x80\x9c Federal Non-Reserved Water Rights,\xe2\x80\x9d 15 Land and Water L. Rev. 67, 76\n(1980). At the same time, the ownership theory provides a basis for the states\xe2\x80\x99\nargument that statehood acts and the federal land acts passed in the 1860s and\n1870s (see Part IIB(2) supra ) constituted an express grant of ownership to the\nstates of all unappropriated water within their borders, and that therefore they\n81 See F^rt I1A supra.\n\n364\n\n\x0cmay now exercise plenary authority over that water.82 If the states own that\nunappropriated water, the only way the federal goverment can acquire an interest\nin the water is if Congress withdraws certain lands from the scope of the acts,\nappropriates water under state law, or acquires existing water rights through\npurchase, exchange, or condemnation.\nWe believe that state and federal claims of title to or ownership of unappropri\xc2\xad\nated water within the western states do not provide an adequate basis for either\ndenial or assertion of federal water rights. Arguments made on either side of the\nissue are difficult to reconcile with the reserved rights doctrine, as it has been\ndeveloped by the Supreme Court. With respect to state claims of ownership, the\ntheory creates substantial questions concerning the constitutionality of the re\xc2\xad\nserved water rights doctrine. That is, if Congress, either by the statehood acts or\nland management statutes, gave the states ownership of all unappropriated waters\non the public domain, on what basis can the federal government reserve some of\nthat water for a federal use, without compensation, by a withdrawal of land made\nafter ownership of the waters passed to the states? On the other hand, with respect\nto federal claims, the Supreme Court has clearly limited the reserved rights that\nthe United States can assert to those which are minimally necessary to fulfill the\nexplicit or necessarily implied congressional intent, and has recognized that the\nUnited States will not, in every instance, have reserved rights to all unappropri\xc2\xad\nated water on federal reserved lands. See United States v. New Mexico, supra,\n438 U.S. at 702. If the United States owned all the unappropriated water on the\npublic domain at the time a particular parcel was reserved and had plenary control\nover its disposition, this limitation would appear to be superfluous, and the\nCourt\xe2\x80\x99s extended analysis of the scope of the reserved right doctrine unnecessary.\nFurthermore, it seems anomalous to suggest that an entity can own water that\nhas not yet been appropriated, if ownership is understood to mean a proprietary\n82 Aside from the effect of the Mining Acts of 1866 and 1870 and the Desert Land Act, the western states have also\nasserted other theories to support claims of ownership in unappropnated waters within their borders, viz, (1) in the\noriginal thirteen (ripanan) states, the federal government had no interest in water as a sovereign and, therefore,\nunder the constitutional equal footing doctnne. which guaranteed admission to the western states on an \xe2\x80\x9c equal\nfooting\xe2\x80\x9d with the original thirteen states, the federal government relinquished all claims to water within the new\nstates, or (2) Congress by the vanous acts of admission impliedly accepted or ratified state constitutional and\nstatutory provisions asserting the ownership of water Neither theory provides an adequate or consistent basis for\nstate claims of ownership of unappropriated water Although in California v. United Slates, supra, 438 U S at 654,\nthe Court noted, without elaboration, that \xe2\x80\x9c [o]ne school of legal commentators held the view that, under the equalfooting doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the\nunappropnated waters in their stream s,\xe2\x80\x9d the Court\xe2\x80\x99s interpretation of the equal footing doctnne in other cases has\nbeen limited In enera, the Court has interpreted the doctnne to apply only to political nghts of sovereignty granted\nthe original stales, not to property or economic rights. See, e g . , United States v. Texas. 339 U.S 707, 716 (1950)\nIn Arizona v California, 373 U S 546, 597-98 (1963), the Court rejected the contention that the equal footing\ndoctnne could limit \xe2\x80\x9c the broad powers of the United States to regulate navigable waters under the Commerce Clause\nand to regulate government lands under Art IV, \xc2\xa7 3 of the Constitution "See discussion at 2 Clark, supra, \xc2\xa7 102 6\nThe ratification and compact theories also suffer from several deficiencies. Most notably, the language and meaning\nof the various constitutional and statutory provisions relied upon by the states vary considerably, as do the admission\nprocedures followed by the western states It is impossible to construct a coherent theory that would apply to each\nstate, especially as several of the western states either have no constitutional or statutory provision asserting\nownership or passed such a provision only after admission. The ratification or compact theory would make a state\xe2\x80\x99s\nownership of unappropnated water within its borders turn on the fortuitous language of its constitution and the\ncircumstances of its admission into the Union As several commentators have noted, the theory therefore provides\nlittle support for state claims of ownership See, e g , Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n. 17, at 446-55;\nTrelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d supra n 6, at 117 n*; Goldberg, \xe2\x80\x9c Interposition\xe2\x80\x94 Wild West Water S tyle,\xe2\x80\x9d 17\nStan L. Rev 1, 12-16(1964).\n\n365\n\n\x0cinterest in the water. Unappropriated water, much as wild animals, has been\nviewed as res nullius\xe2\x80\x94 the property of no one\xe2\x80\x94 until it has been captured. See F.\nTrelease, \xe2\x80\x9c Government Ownership and Trusteeship of Water,\xe2\x80\x9d 45 Calif. L. Rev.\n638, 643 (1957); Trelease, \xe2\x80\x9cFederal-State Relations,\xe2\x80\x9d supra n.6, at 147b\xe2\x80\x94i;\nNote, \xe2\x80\x9c Federal Nonreserved Water Rights,\xe2\x80\x9d 48 U. Chi. L. Rev. 785, 770-71\n(1981). In Hughes v. Oklahoma, 441 U.S. 322 (1979), the Supreme Court noted\nthat concepts of ownership of or title to natural resources such as natural gas,\nminerals, landfill areas, birds, fish, and other wildlife is a \xe2\x80\x9clegal fiction\xe2\x80\x9d that\nmerely expresses legitimate state regulatory interests in the conservation and\nprotection of its natural resources:\nThe whole ownership theory, in fact, is now generally regarded as\nbut a fiction expressive in legal shorthand of the importance to its\npeople that a State have power to preserve and regulate the\nexploitation of an important resource.\n441 U.S. at 334, quoting Toomer v. Witsell, 334 U.S. 385,402 (1948). The Court\nmade it clear that a state\xe2\x80\x99s power over wild animals, as over other natural\nresources, is based on the state\xe2\x80\x99s police powers and is subject to ordinary\nconstitutional limitations\xe2\x80\x94in that case, the Commerce Clause.83\nThus, claims of ownership of natural resources by the states or by the federal\ngovernment are best understood as claims of regulatory jurisdiction over those\nresources, either under the states\xe2\x80\x99 police powers or under the federal govern\xc2\xad\nment\xe2\x80\x99s constitutional powers. See Kleppe v. New Mexico, 426 U.S. 529, 537\n(1976) (ownership of wild horses and burros on federal lands is irrelevant to the\nscope of the federal government\xe2\x80\x99s authority under the Property and General\nWelfare Clauses to protect those horses and burros). This interpretation of the\nnature of the states\xe2\x80\x99 and federal government\xe2\x80\x99s interests in unappropriated water is\nconsistent with the approach taken by the Supreme Court in cases involving the\nuse or disposition of water in the western states. The Court has consistently\nanalyzed claims by the states and the federal government over navigable and nonnavigable waters as a question of competing regulatory authority, rather than as a\nquestion of property rights.84 See, e.g., United States v. Rio Grande Dam &\nIrrigation Co., supra, 174U.S. at 703; Wintersv. UnitedStates, supra, 207U.S.\nat 577; Arizona v. California, supra, 373 U.S. at 597-98; California v. United\nStates, supra, 438 U.S. at 665\xe2\x80\x9479; United States v. New Mexico, supra, 438\n83 In H ughes v. Oklahoma, the Court overruled Geer v. Connecticut, 161 U S 519 (1896), which had sustained\nagainst a Commerce Clause challenge a Connecticut statute forbidding the transportation beyond the state of game\nbirds that had been lawfully killed within the state The Court\xe2\x80\x99s decision in Geer rested on its conclusion that no\ninterstate commerce was involved, because the state had the power as representative for its citizens, who owned all\nwild animals within the state, to control both the taking and ownership of game that had been lawfully reduced to\npossession in the state. See 441 U.S at 322. In Hughes, the Court noted that the Geer rationale had been\nconsiderably eroded and limited in subsequent decisions dealing with state authority over other natural resources\nSee 441 U.S at 329-335. faced with an Oklahoma statute prohibiting the transport or shipping outside the state of\nminnows procured from waters within the state, the Court explicitly overruled the holding in Geer, and concluded\nthat the Oklahoma law unconstitutionally interfered with interstate commerce Id.\n84 In several cases in which the Court has been faced with claims of \xe2\x80\x9c ownership\xe2\x80\x9d of the unappropnated waters by\nthe states or the federal government, it has refused to address the question, and found a narrower ground for its\ndecision. See. e g . Ickes v Fox, 300 U S. 82, 96 (1937); Nebraska v Wyoming, 325 U.S 589, 615-16 (1945)\n\n366\n\n\x0cU.S. at 698. While some of these decisions made reference to the Property\nClause, in each instance federally owned land was at the center of the controver\xc2\xad\nsy, and the references made to the Property Clause may be best understood as\nrelating to an exercise of power over that property. The Court made the distinction\nbetween ownership and regulatory jurisdiction clear in a slightly different context\nin United States v. California, 332 U.S. 19, 36 & n.20 (1947). In that case, the\nCourt found that California does not hold title to submerged lands off its coast by\nvirtue of the equal footing doctrine, but that California could nonetheless\nexercise police powers over waters flowing over that land, limited by constitu\xc2\xad\ntional constraints such as the Commerce Clause or the war power. See id.\nThe question is not one of competing ownership, therefore, but of competing\nregulatory jurisdiction. As one commentator has noted:\nThe state and federal governments share an interest in proper\nregulation of water. Neither \xe2\x80\x9c owns\xe2\x80\x9d unappropriated water but\neach has the power to use it and to regulate its use . . . . The\nimportant question is whether state or federal rules of capture\napply to the United States. In other words, the issue is whether\nCongress has established a federal regulatory jurisdiction over\nfederal appropriations, or has recognized the inherent regulatory\njurisdiction of the states and adapted federal programs to it.\nNote, \xe2\x80\x9c Federal Nonreserved Water Rights,\xe2\x80\x9d 48 U. Chi. L. Rev. 758, 772 (1981)\n(footnotes omitted).\n3. Effect of Mining Acts of 1866 and 1870 and the Desert Land Act\nThe major 19th century land acts\xe2\x80\x94the Mining Acts of 1866 and 1870 and the\nDesert Land Act of 1877 (see pp. 18-21 supra )\xe2\x80\x94 can thus best be understood as\nan allocation of jurisdiction to regulate the use of unappropriated water on federal\nlands between the states and the federal goverment, rather than a conveyance of\nproperty interests in that water. See Trelease, \xe2\x80\x9c Federal-State Relations,\xe2\x80\x9d supra\nn.6, at 147; Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n.17, at 432. Since\nCongress has the power to cede its constitutional authority over federal uses of\nsuch water to the states, the question is whether those acts divested the federal\ngovernment of that authority.85\nThe Supreme Court\xe2\x80\x99s treatment of those acts, particularly the Desert Land Act,\nhas been ambiguous and far from definitive. In California Oregon Co. v. Beaver\n85 At one time the Justice Department took the position that Congress could not provide for state administration of\nfederal property rights because to do so would be in contravention of Article IV, \xc2\xa7 3 of the Constitution and the\nseparation of powers principle See Letter of Deputy Attorney General William P. Rogers to Sen. James E. Murray,\nChairman, Senate Committee on Interior and Insular Affairs, dated March 19, 1956, reprimedin S. Rep N o .2587,\n84th Cong , 2d Sess. 25 (1956) This Office has since rejected that position. See Memorandum for James W\nMoorman, Assistant Attorney General. Land and Natural Resources Division, from Larry L. Simms. Deputy\nAssistant Attorney General, Office of Legal Counsel (Jan 22, 1980), at 13 n 10 As we stated in that memorandum,\n\xe2\x80\x9c [t]he Supremacy Clause charges the States with protecting federal rights and, other than sovereign immunity\nlimitations, we perceive no constitutional or common law limitations on state administration of those rights \xe2\x80\x9d See\ngenerally United States v New Mexico, 438 U S. 696 (1978); California v United States, 438 U.S. 645 (1978)\n\n367\n\n\x0cPortland Cement Co., supra, for example, the Court stated that, \xe2\x80\x9c [the Desert\nLand Act] . . . recognizes and gives sanction, in so far as the United States and\nits future grantees are concerned, to the state and local doctrine of appropria\xc2\xad\ntion.\xe2\x80\x9d 295 U.S. at 164 (emphasis added). Even if that language could be\ninterpreted as an unambiguous statement that the Desert Land Act applies to\nfederal uses, the case involved only competing claims by private parties, not\nclaims by the federal government, and the Court\xe2\x80\x99s statement must be regarded as\ndictum. See pp. 21-22 supra. In the Pelton Dam decision, which did involve, at\nleast indirectly, claims by the federal government (i.e., through its licensee), the\nCourt characterized the Desert Land Act as severing, \xe2\x80\x98for purposes of private\nacquisition, soil and water rights on public lands.\xe2\x80\x9d Federal Power Commission v.\nOregon, supra, 349 U.S. at 448 (first emphasis added; second emphasis in\noriginal). Again, however, the Court\xe2\x80\x99s statement is not definitive, because the\nCourt refused to rule on the general question of the effect of the Desert Land Act\nor the 1866 and 1870 Acts on a state\xe2\x80\x99s exercise of jurisdiction over unappropriated\nwater within its borders, holding only that the acts do not apply to federal\nreserved lands.86 Id. In Cappaert v. United States, supra, the court characterized\nthe Desert Land Act as \xe2\x80\x9c provid[ing] that patentees of public land [i.e., private\npurchasers or grantees] acquire only title to land through the patent and must\nacquire water rights in nonnavigable water in accordance with state law.\xe2\x80\x9d 426\nU.S. at 143. Although that characterization appears to limit the effect of the Act\n(and, by implication, the preceding Mining Act of 1866 and 1870) to rights that\nmay be acquired by private appropriators,87 the Court rested its holding, as in the\nPelton Dam decision, on the inapplicability of the Act to federal reserved lands.\nId. at 144 & n.9.\nAlthough the issue is not free from doubt, we believe that the sounder view is\nthat the Mining Acts and Desert Land Act authorize state control only over\nappropriations by private individuals of unappropriated water on federal lands,\nand do not, by their terms, cede to the states control over the federal government\xe2\x80\x99s\nuse of water for federal purposes and programs. That interpretation is suggested\nby the Supreme Court\xe2\x80\x99s language quoted above from the Pelton Dam decision and\nCappaert v. United States. Moreover, it is consistent with the legislative back\xc2\xad\nground and history of the Acts. At the time the Mining Acts and Desert Land Act\nwere passed, the concern at the state and federal level was not with possible\nfederal-state conflicts over the use of water on the public lands, but rather with\nsettlement of private disputes between private claimants. See generally 2 Clark,\nsupra, \xc2\xa7 102.5. The somewhat sparse legislative history of the acts suggests that\nthe primary\xe2\x80\x94 if not the only\xe2\x80\x94 contemplated purpose of provisions of the acts\ndealing with water rights was to clarify that private patentees or users of federal\nlands would not acquire, by virtue of that ownership or use, any rights to\n86 In Federal Power Comm\xe2\x80\x99n v. Oregon, supra, the state argued that the 1866, 1870, and 1877 legislation\nconstituted express congressional conveyances to the states of the power to regulate the use of non-navigable waters\nThe Supreme Court found it unnecessary \xe2\x80\x9c to pass upon the question whether this legislation constitutes the express\ndelegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved\nlands and waters here involved.\xe2\x80\x9d 349 U S. at 448.\nB7 See Cappaert v United States, supra, 426 U S. at 143 n.8.\n\n368\n\n\x0cunappropriated water except as recognized by state law. See generally Grow &\nStewart, supra n.36, at 468-69.88\nIt was not until the end of the 19th century that federal users of water within the\nwestern states began to be of major concern. In United States v. Rio Grande Dam\n& Irrigation Co., supra, one of the first cases to discuss a federal-state conflict\nover the use of water resources within those states, the Court noted that the\nMining Acts and Desert Land Act must be interpreted \xe2\x80\x9c in the light of existing\nfacts,\xe2\x80\x9d i.e.:\n. . . that all through this mining region in the West were streams,\nnot navigable, whose waters could safely be appropriated for\nmining and agricultural industries, without serious interference\nwith the navigability of the rivers into which those waters flow.\nAnd in reference to all these cases of purely local interest the\nobvious purpose of Congress was to give its assent, so far as the\npublic lands were concerned, to any system, although in con\xc2\xad\ntravention to the common-law rule, which permitted the appropri\xc2\xad\nation of those waters for legitimate industries. To hold that Con\xc2\xad\ngress, by these acts, meant to confer upon any state the right to\nappropriate all the waters cf the tributary streams which unite\ninto a navigable water course, and so destroy the navigability of\nthat water course in derogation cf the interests cfall the people cf\nthe United States, is a construction which cannot be tolerated. It\nignores the spirit of the legislation, and carries the statute to the\nverge of the letter, and far beyond what, under the circumstances\nof the case, must be held to have been the intent of Congress.\n174 U.S. at 706-07 (emphasis added). The Court clearly affirmed that the intent\nof the Mining Acts and the Desert Land Act was to deal with issues of local\nconcern\xe2\x80\x94 i.e., private appropriations\xe2\x80\x94and not to interfere with Congress\xe2\x80\x99 supe\xc2\xad\nrior right, in the exercise of a constitutional power such as that over navigation, to\nuse water within the western states.89See, e.g., Colum. Note, supra n.5, at 980.\nWe believe the conclusion that the acts by their terms do not cede regulatory\nauthority over federal uses to the states is consistent with the Supreme Court\xe2\x80\x99s\nholding in the Pelton Dam decision that the acts do not apply to federal reserved\nlands. In the Pelton Dam decision, the Court rested its conclusion on its\n88 In particular, it is difficult to construe the Desert Land Act as ceding the federal government\xe2\x80\x99s control over its\nuse of water on federal lands in the 17 western states, because the Act does not apply to all 17 states or to navigable\nwaters within those states See n 38 supra\n89 This part of the Court\xe2\x80\x99s holding in Rio Grande cannot be dismissed as dealing only with the federal\ngovernment\xe2\x80\x99s power over navigable waters and therefore inapplicable to the Desert Land Act, which applied by its\nterms only to non-navigable waters. As we noted supra at n.79, the federal government\xe2\x80\x99s authority to preserve the\nnavigability of streams is not a source of federal power, but rather an example of federal power that can be exercised\nunder the Commerce Clause Therefore, the Court\xe2\x80\x99s comments would be equally applicable if some other\nconstitutional power\xe2\x80\x94 for example the Property or General Welfare Clauses\xe2\x80\x94 were the basis of the United States\xe2\x80\x99\nattempt to enjoin diversion of the nver by private appropriators. In any event, the Court\xe2\x80\x99s comments were directed\nnot at state-approved diversions of navigable waters, but state-approved diversions of non-navigable waters, waters\nthat are clearly within the scope of the Desert Land Act\n\n369\n\n\x0cinterpretation of the term \xe2\x80\x9cpublic lands\xe2\x80\x9d in the Desert Land Act to include only\npublic domain lands\xe2\x80\x94 i.e., those open for settlement and disposition. See p. 27\nsupra. The Act therefore did not apply to reserved lands. At the time of the\nCourt\xe2\x80\x99s decision, because the federal reservation in question had been made\nsubsequent to passage of the Act, the relevant public domain was not the public\ndomain as of the time the Act was passed, but the public domain as of 1954. The\nCourt\xe2\x80\x99s decision has consistently been interpreted to mean therefore that the\nfederal government can withdraw unappropriated water from the state appropria\xc2\xad\ntion system at any time by withdrawing appurtenant lands from the public\ndomain for a particular federal purpose. See, e.g., Cappaert v. United States,\nsupra, 426 U.S. at 145; Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n.17, at\n432.\nThe basis upon which the federal government can make such a withdrawal is\nnot clear from the Court\xe2\x80\x99s discussion in Federal Power Commission v. Oregon,\n349 U.S. 435 (1955). Commentators have suggested that the appropriate analysis\nis repeal-by-implication. The argument is that, although Congress granted the\nstates plenary authority over unappropriated water within their borders by the\n1866, 1870, and 1877 Acts (including authority over federal uses), the subse\xc2\xad\nquent reservation of land for a specific federal purpose impliedly repeals those\nacts to the extent of the water rights involved. See, e.g.. Grow & Stewart, supra\nn.36, at 466-67. That argument is subject, however, to the serious objection that\nimplied repeals are highly disfavored, particularly as many reservations may be\nmade simply by executive order or administrative action. See, e.g., TVA v. Hill,\n437 U.S. 153, 189-90 (1978); C. Sands, Statutes and Statutory Construction,\n\xc2\xa7 23.09 (4th ed. 1973). We believe that the more tenable explanation is that the\nActs gave the states authority only to control and administer private rights to\nwater on federally owned lands, and did not grant away the federal government\xe2\x80\x99s\npower, if properly and clearly exercised, to use unappropriated water on federal\nlands without regard to state law. The significance of a reservation of land from\nthe public domain is not that it repeals the effect of the Mining Acts or Desert\nLand Act, but that it is an exercise by Congress of that power and therefore, by\nreason of the Supremacy Clause, preempts inconsistent state control of federal\nuses.\nB. Statutory Basis for Federal Claims\n\nAlthough we do not believe that Congress ceded its regulatory authority over\nfederal use of unappropriated water on federal lands to the western states by the\nMining Acts and the Desert Land Act, Congress clearly recognized and indeed\nfostered, by those acts and subsequent land management statutes, the develop\xc2\xad\nment of comprehensive state water codes and administrative systems applicable\nto unappropriated water on federal, as well as privately or state-owned land. It is\nclear that federal law may displace those state systems, however, at least with\nrespect to unappropriated water on federal lands. See, e.g., United States v. Rio\n370\n\n\x0cGrande Dam & Irrigation Co., supra. What is not clear\xe2\x80\x94and what we address\nhere\xe2\x80\x94 is when and how federal law displaces state water law.\nBecause Congress has seldom directly regulated the acquisition or use of water\nby federal agencies or their licensees,90 and has not enacted comprehensive\nlegislation dealing with federal water rights in the western states,91 the federal\nstate conflicts that are of primary concern are conflicts between federal uses of\nwater for the management of federal lands and state substantive or procedural\nlaw. For example, state law may not recognize certain federal uses as beneficial or\nin the public interest92 or may deny a priority date to a federal use because of the\n90 Exceptions include certain provisions of the reclamation laws, such as \xc2\xa7 5 and \xc2\xa7 8 of the Reclamation Act of\n1902 and \xc2\xa7 9 of the Reclamation Project Act of 1939, which prescribe terms upon which the Secretary of the Interior\ncan use or dispose of water from federal reclamation projects {see pp. 22-23 supra); \xc2\xa7 9 of the Rivers and Harbors\nAct of 1899, 33 U.S C. \xc2\xa7 401, which requires the consent of Congress to construct dams and other obstructions on\nnavigable waters, and the Federal Power Act, supra n.28, which provides for licensing of hydroelectric dams on\nnavigable and some other waters {see p 23 supra).\n91 In the last 30 years, a number of \xe2\x80\x9c water nghts settlement bills\xe2\x80\x9d have been introduced into Congress but have not\nbeen passed. For the most part, these bills would have given the states considerable control over federal uses of\nunappropriated water The \xe2\x80\x9c Barrett bill,\xe2\x80\x9d introduced in 1956, for example, would have provided that:\n[A]ll navigable and non-navigable waters are hereby reserved for appropriation and use of the public\npursuant to State law, and rights to the use of such waters for beneficial purposes shall be acquired\nunder State laws relating to the appropriation, control, use, and distribution of such waters. Federal\nagencies and permittees, licensees, and employees of the Government, in the use of water for any\npurpose in connection with Federal programs, projects, activities, licenses, or permits, shall, as a\ncondition precedent to the use of any such water, acquire rights to the use thereof in conformity with\nState laws and procedures relating to the control, appropriation, use, or distnbution of such water.\nS 863, 84th Cong , 2d Sess \xc2\xa7 6 (1956), reprinted in Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n.17, at 514\nThe \xe2\x80\x9c Kuchel bill,\xe2\x80\x9d introduced in the 88th Congress, provided that\nAny right claimed by the United States to the beneficial diversion, storage, distribution, or\nconsumptive use of water under the laws of any State shall be initiated and perfected in accordance\nwith the procedures established by the laws of that State.\nS. 1275, 88th Cong., 1st Sess \xc2\xa7 3 (1962), reprinted in Morreale, \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n. 17, at 494.\nSponsors of bills granting control over water resources to the states generally have argued that such provisions\nwould merely \xe2\x80\x9c confirm\xe2\x80\x9d the status quo. See id at 446. Hearings were held on various aspects of federal-state\nrelations in the field of water rights in 1950, 1956, 1960-61, and 1964. See Water Rights Settlement Act: Hearings\non S 863 Before the Subcomm on Irrigation and Reclamation c f the Senate Comm, on Interior and Insular Affairs,\n84th Cong., 2d Sess. (1956); Water Rights Settlement Act c f 1956. Hearings Before the House Comm, on Interior\nand Insular Affairs, 84th Cong , 2d Sess (1956); Federal-State Relations in the Field o f Water Rights: Hearings\nBefore the Subcomm on Irrigation and Reclamation c f the House Comm on Interior and Insular Affairs, 86th\nC ong., 1st Sess (1959), Federal-State Water Rights: Hearings Before the Senate Comm, on Interior and Insular\nAffairs, 87th Cong., 1st Sess. (1961), Federal-State Water Rights\xe2\x80\xa2 Hearings on S. 1275 Before the Subcomm. on\nIrrigation and Reclamation c f the Senate Comm, on Interior and Insular Affairs, 88th Cong , 2d Sess. (1964) Fora\ndetailed discussion of vanous water nghts settlement bills, see Morreale. \xe2\x80\x9c Federal-State Conflicts,\xe2\x80\x9d supra n. 17,\nand 2 Clark, supra. \xc2\xa7 107.\nIn 1973, the National Water Commission proposed a \xe2\x80\x9c National Water Rights Procedure A ct,\xe2\x80\x9d which would have\nrequired federal agencies to proceed in conformity with state laws and procedures relating to the appropriation or use\nof water and the administration and protection of water nghts, except \xe2\x80\x9c where state law would conflict with the\naccomplislynent of the purposes of a federal program or project \xe2\x80\x9d The Act would also have established a procedure\nfor recording and quantifying existing non-Indian federal water uses and would have eliminated the non\xc2\xad\ncompensation features of the reserved right doctnne and the navigation servitude See National Water Commission,\nWater Policies fo r the Future (Water Information Center, Inc. 1973), at 461-64.\n92 The Forest Service has expressed concern in the past, for example, that it might not be able to obtain stale\nrecognized nghts for certain instream or in-situ uses such as livestock watenng, recreation, or preservation of fish\nand wildlife, because applicable state law requires a diversion of water or does not recognize such uses as beneficial\nSee Department of Agnculture Position Statement, submitted to Office of Legal Counsel on Nov. 5, 1981. An\nanalogous problem has been identified by the Department of the Army with respect lo water rights available for Fort\nCarson, in Colorado, which is located on acquired federal lands Concerns have been raised by the Army that\nColorado law would nol recognize the uses of water for military training and emergency preparedness. See\nDepartment of the Army, Legal Memorandum, \xe2\x80\x9c Federal Non-Reserved Water Rights\xe2\x80\x9d (Nov. 5, 1981).\n\n371\n\n\x0cfailure of the agency to comply with state procedural or permitting require\xc2\xad\nments.93 The question, therefore, is whether, by authorizing certain uses of\nfederal lands, Congress intended also to authorize acquisition of water for those\nuses without regard to limitations imposed by state law. As the Supreme Court\ncommented in New Mexico with respect to federal reserved rights, this \xe2\x80\x9c is a\nquestion of implied intent and not power.\xe2\x80\x9d 438 U.S. at 698 (emphasis added).\nUnder the federal non-reserved right theory articulated by Solicitor Krulitz,\nthe requisite intent to displace state control over the appropriation of unappropri\xc2\xad\nated water could be inferred merely from Congress\xe2\x80\x99 authorization to federal\nagencies to manage federal lands; no specific congressional intent to displace\nstate control over water would need to be shown. Thus, for example, a federal\nagency would be entitled to water necessary for preservation of minimum\ninstream flows for stock watering, recreation, and fish and wildlife purposes\nwhether or not state law recognized such uses as beneficial, and would not be\nbound by state permitting or other procedural requirements, so long as the agency\nwas acting within its congressionally mandated authority. The contrary view is\nthat, unless Congress has set specific conditions on the acquisition or use of water\nby federal agencies or has reserved the underlying land, federal agencies are\nlimited to water rights obtainable under state substantive and procedural law. If,\nfor example, applicable state law does not recognize minimum instream flows,\nCongress has not explicitly recognized a federal right to those flows, and the\nagency cannot claim an implied reserved right to such flows because the underly\xc2\xad\ning land was not reserved from the public domain or the use is not a primary\npurpose of a reservation, the agency is not entitled to that water.94 Similarly,\nexcept when the agency may be able to assert reserved rights (which have a\npriority date based on the date the land was reserved), the priority date of its water\nrights must be established in accordance with state substantive arid procedural\nlaw.\nAs both Solicitor Krulitz and Solicitor Coldiron recognized, the Supreme\nCourt\xe2\x80\x99s decisions in California v. United States and United States v. New Mexico\nare highly relevant to an analysis of the federal non-reserved water rights theory,\nboth because those decisions are the most recent pronouncements of the Supreme\nCourt on federal rights to unappropriated water in the western states and because\nthe Court suggested in those opinions that there may be limitations on the federal\ngovernment\xe2\x80\x99s ability to acquire or use water on federal lands without complying\nwith applicable state laws. It is important to understand, however, that the\n93 In many cases federal agencies have failed to apply for permits recognizing state appropriative nghis at the time\nthe water was first put to use because of inadvertence, policy decisions, or legal advice In \xe2\x80\x9c permit\xe2\x80\x9d states, which\naward priority based on the date an application is filed, those agencies nsk having their nghts cut off by a junior\nappropriator who has complied with state procedural requirements. Assertion of federal non-reserved nghts, if\nsustained, would allow the federal agencies to antedate their water rights\xe2\x80\x94 i e., to get the benefit of a prionty date\nbased on the first actual use of the water\n94 The western states have argued that in those states that do not recognize minimum instream flows, the flows may\nnevertheless be preserved by the acquisition (by purchase or condemnation) and exercise of senior downstream\nstate-awarded water rights, which will ensure the continued upstream flows. See Memorandum to Theodore B.\nOlson, Assistant Attorney General, Office of Legal Counsel, from the Honorable Mike Greely, Attorney General,\nState of Montana (Apr 1, 1982).\n\n372\n\n\x0choldings in those decisions were relatively narrow, limited to the effect of \xc2\xa7 8 of\nthe Reclamation Act of 1902 (California v. United States) and the scope of the\nForest Service\xe2\x80\x99s reserved rights under its Organic Administration Act (United\nStates v. New Mexico). Unfortunately, much of the debate about the meaning of\nCalifornia and New Mexico focuses on isolated language used by the Court,\nwhich is interpreted by critics of the non-reserved right theory to preclude\nassertion of any federal non-reserved rights and by proponents of the theory as\nlimited to the narrow holdings in the cases before the Court. As we discuss now,\nboth interpretations of the Court\xe2\x80\x99s language are selective and do not provide an\nentirely satisfactory rationale for either conclusion.\nCritics of the non-reserved right theory argue that, in the following three\npassages from California and New Mexico, the Court definitively disposed of the\ncontention that any federal non-reserved water rights exist:\nThe Court noted [in United States v. Rio Grande Dam & Irriga\xc2\xad\ntion Co.] that there are two limitations to the State\xe2\x80\x99s exclusive\ncontrol of its streams\xe2\x80\x94reserved rights \xe2\x80\x9c so far at least as may be\nnecessary for the beneficial uses of the government property,\xe2\x80\x9d\nand the navigation servitude. The Court, however, was careful to\nemphasize with respect to these limitations on the States\xe2\x80\x99 power\nthat, except where the reserved rights or navigation servitude of\nthe United States are invoked, the State has total authority over its\ninternal waters.\nCalifornia v. United States, supra, 438 U.S. at 662 (citations omitted).\nWhere water is only valuable for a secondary use of the reserva\xc2\xad\ntion . . . there arises the contrary inference that Congress intend\xc2\xad\ned, consistent with its other views, that the United States would\nacquire water in the same manner as any other public or private\nappropriator.\nUnited States v. New Mexico, supra, 438 U.S. at 702.\n[T]he \xe2\x80\x9c reserved rights doctrine\xe2\x80\x9d is a doctrine built on implication\nand is an exception to Congress\xe2\x80\x99 explicit deference to state water\nlaw in other areas.\nId. at 715.\nNone of these statements, however, can be interpreted as conclusively as critics\nof the non-reserved rights theory urge, when read in context.95 In the language\n95 Solicitor Coldiron concluded in his opinion that \xe2\x80\x9c this issue of \xe2\x80\x98non-reserved\xe2\x80\x99 federal water rights was\ndefinitively and directly addressed on July 3, 1978, by the Supreme Court in two separate opinions regarding the\nwater nghts of the United States [United States v New Mexico and California v. United States] " Coldiron Op at 9.\nThe western states, relying primarily on the \xe2\x80\x9c contrary inference\xe2\x80\x9d language from New Mexico, argue that \xe2\x80\x9c New\nMexico dictates that when the federal government claims water for a national forest (assuming the navigation\nservitude does not apply), it has only two mechanisms available to it. the reserved nghts doctnne or the law of the\nstate in which the reservation is located \xe2\x80\x9d See Memorandum to Theodore B. Olson, Assistant Attorney General,\nOffice of Legal Counsel, from the Honorable Mike Greely, Attorney General of Montana (Apr 1, 1982) at 8-9\n\n373\n\n\x0cquoted from California, for example, the Court was merely characterizing its\nholding in the Rio Grande case.96 The Court clearly recognized in the remainder\nof its opinion that there may be circumstances other than the navigation servitude\nor reserved rights doctrine under which a federal statute would preempt the state\xe2\x80\x99s\nexclusive control of its stream\xe2\x80\x94 i.e., if conditions imposed by state law on the\noperation or construction of a federal reclamation project are \xe2\x80\x9c inconsistent with\nclear congressional directives respecting the project.\xe2\x80\x9d See 438 U.S. at 672.\nConsequently, the Court could not have intended, by that language, to establish a\nrule of law applicable to all water rights that could be asserted by the federal\ngovernment.\nLikewise, the often-cited language in New Mexico that a \xe2\x80\x9c contrary inference\xe2\x80\x9d\narises that the United States must acquire water \xe2\x80\x9c in the same manner as any other\npublic or private appropriator,\xe2\x80\x9d if reserved rights are not available, must be\nconsidered in context. The only issue before the Court in New Mexico was the\nscope of the Forest Service\xe2\x80\x99s reserved rights under its Organic Administration\nAct.97 The Court did not have before it any argument or evidence relevant to\nrights that might have been asserted by the Forest Service on some other basis,\nsuch as appropriation under state law, or relevant to rights arising on public\ndomain lands. Thus, the Court\xe2\x80\x99s statement about the ability of the Forest Service\nto obtain water in excess of its reserved rights was made only in the context of\nfederal reserved lands; as we discuss infra, even with respect to reserved lands it\ncan be argued that the language does not mean that federal agencies are neces\xc2\xad\nsarily bound by state law in acquiring water necessary only for \xe2\x80\x9c secondary\xe2\x80\x9d uses\nof the land. See p. 68 infra.\nFinally, the Court\xe2\x80\x99s characterization of the reserved rights doctrine as an\n\xe2\x80\x9c exception\xe2\x80\x9d to Congress\xe2\x80\x99 explicit deference to state water law in other areas does\nnot imply that reserved rights are the only exception. The Court clearly recog\xc2\xad\nnized in California, as we have discussed, that other exceptions may exist. See\nPart IIB(3)(b) supra.\nWhile we believe that these selected passages from California and New Mexico\ndo not therefore definitively dispose of the federal non-reserved water rights\ntheory, we believe that they reflect the Court\xe2\x80\x99s view and its interpretation of\nCongress\xe2\x80\x99 intent over the years that substantial deference will be accorded to state\nwater laws. We do not believe, therefore, that the decisions should be read as\nnarrowly as has been suggested by proponents of the non-reserved theory.\nSolicitor Krulitz, for example, argued that when the Court suggested in New\n96 Arguably, this construction mischaracterizes the scope of the language used in Rio Grande, which was that a\nstate cannot \xe2\x80\x9c destroy the right of the United States, as the owner of lands bordering on a stream, to the continued\nflow of its waters; so far at least as may be necessary for the beneficial uses of the government property.,, 174 U S. at\n703. It was not until nine years later, in Winters v. United States, supra, that the Court first used the term \xe2\x80\x9c reserved\xe2\x80\x9d\nrights to describe federal water nghts furtherm ore, the Court\xe2\x80\x99s holding in Rio Grande rested on the federal\ngovernment\xe2\x80\x99s navigation power under the Commerce Clause Hence its holding is somewhat narrower than was\ndescnbed in California v. United States.\n97 The Court defined the question before it as \xe2\x80\x9c what quantity of water, if any, the United Stales reserved out of the\nRio M imbres when it set aside the Gila National Forest in 1899\xe2\x80\x9c 438 U S at 698. The bnefs before the Court dealt\nonly with the scope of reserved rights available under the Forest Service\xe2\x80\x99s Organic Administration Act, no evidence\nor argument was advanced to indicate that the Forest Service would not be able to acquire water necessary for the\nmanagement of the national forests under applicable state law, if it did not have reserved rights to that water.\n\n374\n\n\x0cMexico that, absent a reserved right the Forest Service should acquire water rights\n\xe2\x80\x9c in the same manner\xe2\x80\x9d as other appropriators, it intended only to draw a\ndistinction between the rights that could be obtained by a reservation of land\n(which have priority as of the date of the reservation and are measured by\nreasonable present and future uses of the land) and rights obtained by appropria\xc2\xad\ntion (which have priority as of the date of actual use and are measured by the\nextent of that use). That is, when the Court stated that federal agencies must\nacquire water for secondary uses of federal reservations \xe2\x80\x9c in the same manner\xe2\x80\x9d as\nother appropriators, it meant only that the right must be acquired through\n\xe2\x80\x9c appropriation,\xe2\x80\x9d or actual use of the water, rather than by \xe2\x80\x9c reservation\xe2\x80\x9d of the\nland. If a federal agency had actually appropriated water to fulfill an authorized\nagency function, Krulitz concluded that the Court would not hold that a state, by\napplication of its substantive or procedural law, could deny a right to that water to\nthe agency. See Krulitz Op. at 577.\nWhile there is evidence to suggest that the Court was concerned with the\npossibility that reserved rights could cut off the rights of private appropriators\nbecause of their senior priority date,98 we believe that the Court intended \xe2\x80\x9c in the\nsame manner as any other public or private appropriator\xe2\x80\x9d to mean \xe2\x80\x9cunder\napplicable state law.\xe2\x80\x9d On three occasions, the Court referred expressly to\ncongressional intent that water be acquired under state law. In the sentence\nimmediately following the language quoted above, for example, the Court\nremarked that \xe2\x80\x9cCongress indeed has appropriated funds for the acquisition under\nstate law of water to be used in federal reservations.\xe2\x80\x9d 438 U.S. at 702 (emphasis\nadded). Similarly, the Court noted that \xe2\x80\x9c [t]he agencies responsible for admin\xc2\xad\nistering the federal reservations have also recognized Congress\xe2\x80\x99 intent to acquire\nunder state law any water not essential to the specific purposes of the reserva\xc2\xad\ntion,\xe2\x80\x9d and that \xe2\x80\x9c the \xe2\x80\x98reserved rights doctrine\xe2\x80\x99 is a doctrine built on implication\nand is an exception to Congress\xe2\x80\x99 explicit deference to state water law in other\nareas.\xe2\x80\x9d Id. at 703, 715 (emphasis added). Thus, the most logical reading of the\nCourt\xe2\x80\x99s language is that water that is not necessary to carry out the particular\nprimary purposes mandated by Congress for the federal reservation in question\nmust be acquired in compliance with applicable state substantive and procedural\nlaw.99\nWith respect to the effect of California v. United States, Solicitor Krulitz\nargued that the Court\xe2\x80\x99s recognition that state law must fall if \xe2\x80\x9c inconsistent\xe2\x80\x9d with\ncongressional directives supports the federal non-reserved rights theory. Krulitz\n98 The Court noted that \xe2\x80\x9c (wjhen, as m the case of the Rio Mimbres, a nver is fully appropriated, federal reserved\nwater rights will frequently require a gallon-for-gallon reduction in the amount of water available for water-needy\nstate and private appropriators" and suggested that \xe2\x80\x9c [t]his reality has not escaped the attention of Congress and must\nbe weighed in determining what, if any, water Congress reserved for use in the national forests \xe2\x80\x9d 438 U.S al 705\n99 It could be argued that the Court meant only that federal agencies should comply with state procedural law in\nthe filing of claims or applications for water nghts, but would not be bound by limitations imposed by state\nsubstantive law on water nghts to carry out secondary uses of the reservation. The Court did not, however, draw any\ndistinction between substantive and procedural law in its discussion. Moreover, the Court rejected a similar\nargument in California v United States with respect to the language of \xc2\xa7 8 of the Reclamation Act, stating that\nlimiting the effect of \xc2\xa7 8 to compliance with only the form of state water law \xe2\x80\x9c would tnviahze the broad language\nand purpose of \xc2\xa7 8.\xe2\x80\x9d 438 U S. at 675\n\n375\n\n\x0cOp. at 576. This argument requires that we construe the mere assignment of a\nland management function or delegation of responsibility for construction and\noperation of a federal project to a federal agency as a \xe2\x80\x9c congressional directive\xe2\x80\x9d\nwithin the Court\xe2\x80\x99s meaning. If so, any state laws or conditions that would prohibit\nthe acquisition of water to carry out those responsibilities would fall.\nBecause the Court in California remanded the proceedings for a determination\nof whether the conditions imposed by California on the New Melones Dam\nwould be \xe2\x80\x9c inconsistent\xe2\x80\x9d with authorization of the dam, it is difficult to speculate\nas to the type of conditions the Court would have found impermissible. Plainly, if\na state-imposed condition would make the entire project impossible, it would be\nstruck down. See First Iowa Cooperative v. Federal Power Commission, 328\nU.S. 152 (1946). If Congress specifically authorized construction of a dam of a\ncertain size, placed express conditions on the use of water from the dam, or\nprescribed particular uses or purposes of the project, it is relatively clear that\nstate-imposed conditions that are inconsistent with those provisions would be\npreempted. See, e.g., California v. United States, supra, 438 U.S. at 669 n.21;\nIvanhoe Irrigation District v. McCracken, supra, and City of Fresno v. Califor\xc2\xad\nnia, supra. However, we do not believe the Court intended that any conditions\nthat might interfere with construction or operation of the project must fall. Such\nan interpretation would be inconsistent with the Court\xe2\x80\x99s analysis in New Mexico,\nin which the Court contemplated that state law might control some aspects of the\noperation of federal lands. We believe that, read in context and in light of New\nMexico, the Court contemplated in California that \xe2\x80\x9c inconsistent\xe2\x80\x9d state condi\xc2\xad\ntions include those, for example, that would conflict with explicit statutory\nprovisions directing a federal agency to acquire or dispose of water under certain\nconditions or limitations (such as the provisions of the reclamation laws dis\xc2\xad\ncussed in Ivanhoe, Fresno, and Arizona v. California), conditions, or specifica\xc2\xad\ntions established by Congress in the authorizing legislation for a federal project,\nor conditions that would entirely frustrate the purposes for which the project was\nauthorized. This leaves open the possibility, for example, that the state may place\nconditions on secondary, or incidental, features of the project, or may impose\nconditions, for state purposes, that do not frustrate the specific federal purposes\nfor which the project or management of the lands was authorized.\nThe primary importance of the Court\xe2\x80\x99s decisions in California and New\nMexico to the federal non-reserved right theory lies in the Court\xe2\x80\x99s mode of\nanalysis, particularly in the significance attributed by the Court to Congress\xe2\x80\x99\nhistory of deference to state water law. As we discussed above, the constitutional\nbasis for federal water rights, however denominated, is the Supremacy Clause\ncoupled with a proper exercise of federal authority. Therefore the issues ad\xc2\xad\ndressed by the Court in California and New Mexico are precisely those which\nmust be addressed whenever federal water rights are asserted, whether the\nasserted rights arise under the Reclamation Act of 1902, the Forest Service\xe2\x80\x99s\nOrganic Administration Act, or some other federal land management statute. The\nissues are (1) in an exercise of a constitutional grant of power, did Congress\nintend to preempt state laws governing the acquisition and use of unappropriated\n376\n\n\x0cwater within the western states? and (2) if so, what is the scope of that\npreemption?\nThe Supreme Court made it clear in California and New Mexico that the\nexistence of federal water rights depends on a finding of congressional intent to\npreempt state water law. That congressional intent cannot be analyzed without\nconsideration of Congress\xe2\x80\x99 overall role in the development of water law in the\nwestern states and the importance to the western states of control over scarce\nwater resources. The Court found the most significant aspect of Congress\xe2\x80\x99 role to\nbe a negative one\xe2\x80\x94 i.e.. Congress\xe2\x80\x99 general deference to and acquiescence in the\ndevelopment of comprehensive water codes by the western states. For example,\nin California the Court interpreted the Reclamation Act of 1902 not only in light\nof its unique legislative history, but also in light of \xe2\x80\x9c the consistent thread of\npurposeful and continued deference to state water law by Congress.\xe2\x80\x9d 438 U.S. at\n653. In New Mexico, both the majority and the dissent agreed that the determina\xc2\xad\ntion of reserved rights under a particular statutory scheme, such as the Forest\nService\xe2\x80\x99s, requires a \xe2\x80\x9c careful examination\xe2\x80\x9d of the asserted right and the specific\npurpose for which the land was reserved, \xe2\x80\x9c both because the reservation [of water]\nis implied, rather than expressed, and because of the history of congressional\nintent in the field of federal-state jurisdiction with respect to allocation of water.\xe2\x80\x9d\n438 U.S. at 701-02; see also id. at 718 (Powell, J., dissenting).\nThe deference to state water law found relevant by the Court includes both\nspecific instances in which Congress directed federal agencies to abide by state\nwater law, such as \xc2\xa7 8 of the 1902 Reclamation Act and\xe2\x80\x94perhaps more impor\xc2\xad\ntantly\xe2\x80\x94Congress\xe2\x80\x99 acquiescence in the development by the states of comprehen\xc2\xad\nsive procedural and substantive codes to recognize and enforce private rights to\nwater, including water on federal lands. The significance of statutes such as the\nMining Acts of 1866 and 1870, the Desert Land Act of 1877, the Reclamation\nAct of 1902, and the McCarran Amendment is thus not that they directly regulate\nfederal uses of water, but that they demonstrate Congress\xe2\x80\x99 recognition that the\nallocation of water within the western states is primarily a matter of concern to the\nstates, rather than a subject for uniform comprehensive federal regulation. See\nUnited States v. New Mexico, supra, 438 U.S. at 702 & n.5. Although Congress\nmay in specific instances create federal water rights that do not depend on state\nlaw, such rights must be seen as the exception, rather than the rule, particularly as\nthey could substantially disrupt or disturb expectations of private appropriators\nunder existing state systems. See United States v. New Mexico, supra, 438 U.S.\nat 715.\nThe effect of Congress\xe2\x80\x99 deference to state water law can best be understood as\nestablishing a \xe2\x80\x9cpresumption\xe2\x80\x9d to be read into the language and legislative history\nof federal statutes that authorize the management of federal lands\xe2\x80\x94 i.e., that in\nthe absence of evidence to the contrary, it will be presumed that Congress did not\nintend to alter or affect its policy of deference to state water law. Therefore, as a\ngeneral rule, it will be assumed that Congress intended federal agencies to\nacquire water rights in accordance with state law and contemplated that a state\n377\n\n\x0ccould deny some federal uses of water. This is squarely inconsistent with the nonreserved water rights theory advanced by Solicitor Krulitz.\nSolicitor Krulitz argued that the presumption of deference to state law is an\nunwarranted exception to the established doctrine that \xe2\x80\x9cfederal activities are\nimmune from state regulation unless there is a \xe2\x80\x98clear congressional mandate,\xe2\x80\x99 or\n\xe2\x80\x98specific congressional action.\xe2\x80\x99 \xe2\x80\x9d Krulitz Op. at 564 (citations omitted). The cases\nrelied upon by Solicitor Krulitz in support of this argument, however, involve\nfederal statutory schemes that are ill-adapted to state law,100 or state statutes that\noperate to frustrate specific federal purposes.101 If we look at other areas in which\nthe Court has recognized that state rules may apply to federal programs, it is clear\nthat the approach taken and result reached by the Court in California and New\nMexico are not aberrations, but rather are consistent with the approach of the\nCourt in those areas.\nThe Court\xe2\x80\x99s recent decision in United States v. Kimbell Foods, Inc., 440 U.S.\n715 (1979), is particularly instructive. In that case, the Court considered whether\ncontractual liens arising from certain federal loan programs take precedence over\nprivate liens established under state commercial laws. The federal statutes in\nquestion, the Small Business Act and the Federal Housing Act, authorized\nfederal agencies to secure certain loans and provided for liens arising out of those\nloans, but did not establish any priority for the liens. Analyzing the question as\none of \xe2\x80\x9c federal common law,\xe2\x80\x9d 102 the Court refused to fashion specific federal\nrules governing the relative priority of private liens and liens arising under the\ngovernment\xe2\x80\x99s lending program; it held that priorities should be determined under\napplicable state laws. The Court recognized that federal law governed the rights\nof the United States arising under the loan programs, because the lending\nagencies derived their authority from specific acts of Congress passed in the\nexercise of a constitutional power and \xe2\x80\x9c their rights, [therefore] should derive\nfrom a federal source,\xe2\x80\x9d but held that application of federal law does not require,\nin every instance, the creation of uniform federal rules. 440 U.S. at 726, 728.103\n100 See, e.g., Hancock v. Train. 426 U S 167 (1976) (Clean Air Act); EPA v. State Water Resources Control\nBoard, 426 U S. 200 (1976) (Clean Water Act); Kleppe v New Mexico, 426 U S. 529 (1976) (Wild Free-Roaming\nHorses and Burros Act).\n101 See. e.g . United States v Little Lake Misere Land Co., 412 U.S. 580, 597 (1973) (Louisiana statute\ngoverning mineral rights in land conveyance to the United States is \xe2\x80\x9c hostile\xe2\x80\x9d to federal interests under the\nMigratory Bird Conservation Act and discriminates against federal interests).\n102 The Supreme Court has generally not characterized questions of federal water rights as involving federal\ncommon law See, e.g.. United States v New Mexico, supra, but see Hinderhder v. LaPlata River & Cherry Creek\nDitch Co., 304 U S. 92 (1938) (federal common law applied to reverse a decision of the Colorado Supreme Court\nconcerning the appropriation of water in an interstate stream). However, as at least two commentators have noted, the\nanalogy is apt. See Grow & Stewart, supra n.36; Note, \xe2\x80\x9c Federal Nonreserved Water Rights,\xe2\x80\x9d 48 U. Chi. L. Rev.\n758 (1981) That is, the task undertaken by the courts in the name of federal common law is to fill interstices left by\ncongressional authorization of a federal program that fails to deal specifically or comprehensively with rights and\nliabilities that may arise under that program See Clearfield Trust Co v. United States, 318 U.S. 363, 367 (1943)\n(\xe2\x80\x9cIn the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law\naccording to their own standards\xe2\x80\x9d); see generally R Bator, P Mishkin, D Shapiro, and H. Wechsler, The Federal\nCourts and the Federal System, 691-708 (2d ed. 1973). An analysis of federal water rights similarly requires the\ncourts or administrative agencies to determine what rules should apply to water necessary to carry out congressionally authorized programs, where Congress has expressly authorized only the use of the underlying land\n103 The C ourt\xe2\x80\x99s use of the term \xe2\x80\x9c federal law\xe2\x80\x9d in this context connotes only that the federal judiciary is competent\nto determine nghts ansing under the federal programs See 440 U.S. at 727\n\n378\n\n\x0cIn some cases, federal law may require no more than the adoption or borrowing of\nrules created by state law:\nWhether to adopt state law or to fashion a nationwide federal rule\nis a matter of judicial policy \xe2\x80\x9c dependent upon a variety of consid\xc2\xad\nerations always relevant to the nature of the specific governmental\ninterests and to the effects upon them of applying state law.\xe2\x80\x9d\n440 U.S. at 728, quoting United States v. Standard Oil Co., 332 U.S. 301, 310\n(1947); see also United States v. Little Lake Misere Land Co., supra, 412 U.S. at\n594-95.\nThe Court identified three considerations relevant to the choice of federal or\nstate rules:\n(1) the need, if any, for uniform nationwide rules governing\nimplementation or administration of federal programs;\n(2) the extent to which application of state law would frustrate\nspecific objectives of the federal program; and\n(3) the extent to which application of a federal rule would disrupt\nrelationships predicated on state law.\nSee 440 U.S. at 728-29. In the circumstances presented in Kimbell, the Court\nconcluded that none of these considerations required fashioning of specific\nfederal rules governing the priority of liens under the SB A or FHA.\nThe Court\xe2\x80\x99s reasoning in Kimbell is analogous in several respects to its\nreasoning in California and New Mexico. For example, in rejecting the govern\xc2\xad\nment\xe2\x80\x99s contention that administration of the SBA and FHA programs required a\nuniform national rule of priority, the Court found it significant that the practice\nand policies of the responsible agencies in administering the loan programs were\nin many respects adapted to state law, with apparently little disruptive effect on\nthe accomplishment of the goals of the program. See 440 U.S. at 730-33.\nSimilarly, in California and New Mexico, the Court found it relevant that the\nBureau of Reclamation and the Forest Service had in the past conformed their\nacquisition of water rights to state law as a matter of administrative practice and\ninterpretation. See California v. United States, supra, 438 U.S. at 675-76;\nUnited States v. New Mexico, supra, 438 U.S. at 717 n. 24. In Kimbell, as in New\nMexico and California, the Court recognized that creation of special federal rules\nwould substantially disrupt expectations built on established state law. The\nCourt\xe2\x80\x99s comments in Kimbell in that regard are equally applicable to the poten\xc2\xad\ntially disruptive effect of federal water rights that could be asserted without\nregard to state substantive or procedural law:\nIn structuring financial transactions, businessmen depend on state\ncommercial law to provide the stability essential for reliable\nevaluation of the risks involved. However, subjecting federal\ncontractual liens to the doctrines developed in the lien area\n379\n\n\x0c[giving such liens priority] could undermine that stability. Cred\xc2\xad\nitors who justifiably rely on state law to obtain superior liens\nwould have their expectations thwarted whenever a federal con\xc2\xad\ntractual security interest suddenly appeared and took precedence.\n440 U.S. at 739 (citations omitted).\nMost importantly, the Court indicated in Kimbell that it would be willing to\nfashion special federal rules of priority only if application of state rules would\nfrustrate the specific purposes for which Congress had authorized the loan\nprograms. The Court concluded that the interest of the United States as a \xe2\x80\x9c quasi\xc2\xad\ncommercial lender\xe2\x80\x9d did not require the same sort of extraordinary priority that\nhad been accorded other liens created under federal programs, such as tax liens,\nwhich are intended to secure adequate revenues in order that the United States can\ndischarge its obligations. In reaching this conclusion, the Court found it highly\nrelevant that Congress had recognized by statute that state claims may in some\ninstances have priority even over federal tax liens:\nWe do not suggest that Congress\xe2\x80\x99 actions in the tax lien area\ncontrol our choice of law in the commercial context. But in\nfashioning federal principles to govern areas left open by Con\xc2\xad\ngress, our function is to effectuate congressional policy. To ignore\nCongress\xe2\x80\x99 disapproval of unrestricted federal priority in an area as\nimportant to the Nation\xe2\x80\x99s stability as taxation would be inconsist\xc2\xad\nent with this function.\n440 U.S. at 738 (citations omitted). The significance attributed by the Court to\nsuch expressions of congressional policy and its unwillingness to create federal\nrules of priority absent a showing that application of state rules will frustrate\nspecific federal interests echoes the reasoning of the Court in both California and\nNew Mexico. Thus, where application of state law will not frustrate specific\nfederal purposes or interests, where the federal program has been and can be\nadopted to state law, and where implication of federal rights would substantially\ndisrupt expectations of private individuals based upon an existing comprehensive\nstate regulatory scheme, the teaching of Kimbell, California, and New Mexico is\nthat state law may control federal rights and liabilities arising under federal\nprograms.\nThe next step of the analysis is to determine whether, in a particular statutory\nscheme authorizing the management of federal lands or federal water projects,\nCongress intended to carve out an exception in that instance to its general policy\nof deference to state water law. This is precisely what the Court did in California\nand New Mexico. In both cases, the Court looked in detail, on a case-by-case\nbasis, at the statutes in question and their legislative history to determine whether,\nor under what circumstances, Congress intended that the Bureau of Reclamation\nor the Forest Service could use water without regard to state water laws.\nBecause California and New Mexico dealt only with two particular statutes,\nthey do not provide a definitive answer as to federal rights that can be asserted\n380\n\n\x0cunder other statutes. That determination can be made only by examining each\nstatute in light of its legislative history and the possible conflicts that could be\ncreated by application of state law. Nonetheless, the Court\xe2\x80\x99s reasoning in New\nMexico and California provides the relevant framework for that examination.\nWe believe that California and New Mexico must be read to limit the bases\nupon which federal water rights may be asserted without regard to state law to\nspecific congressional directives or authorizations that override inconsistent state\nlaw, and the establishment of primary purposes for the management of federal\nlands or construction and operation of federal projects that would be frustrated by\nthe application of state law. As we noted supra, we believe that specific con\xc2\xad\ngressional directives must be construed narrowly, and do not include all author\xc2\xad\nized functions or uses of federal property. The clearest example of such directives\nwould be provisions that place express limitations or conditions on the use or\ndistribution of water from federal projects or express conditions or specifications\nincluded in congressional authorizations of federal projects. In the abstract,\npending clarification by the Court of its holding in California, however, it is\ndifficult for us to provide more detailed guidance.\nThe determination of whether there has been a sufficient manifestation of\nfederal power in order to invoke the Supremacy Clause is difficult to make in the\nabstract, and may be clarified only through administrative interpretation or\nlitigation. The starting point, however, is unquestionably the content and the\ncontext of the act, usually a statute, but occasionally an executive order, express\xc2\xad\ning the exercise of a constitutional federal power. As we have discussed above,\nthe Court\xe2\x80\x99s analysis of federal-state conflicts in other areas may provide some\nguidance in determining the validity of the exercise of the power. In particular, the\nCourt has found relevant such factors as: the extent to which federal programs can\nbe or have been adapted to state law;104the role played by the federal government,\nthe significance of the federal interests at stake, and the risk to federal goals and\ninterests posed by application of state law;105 and the extent to which application\nof federal rules will disrupt private expectations.106See United States v. Kimbell\nFoods, Inc., supra, 440 U.S. at 728\xe2\x80\x9429; Wilson v. Omaha Indian Tribe, 442 U.S.\n653, 671-74 (1979). These factors, together with the legislative history of the\nstatute in question, must be weighed in determining the basis for federal water\nrights.\nWe do not view the Court\xe2\x80\x99s discussion in New Mexico of primary purposes and\nsecondary uses as necessarily limited to federal lands that have been formally\nwithdrawn from the public domain. We believe, for example, that the implied\nright analysis used by the Court in New Mexico and other reserved right cases\nsupports a parallel implication on \xe2\x80\x9cacquired\xe2\x80\x9d lands that have been set aside for\nspecific federal purposes, for example, national forest lands acquired under the\n104 See. e g., United States v. Yazell, 382 U S 341, 354-57 (1966), United States v Standard Oil Co., 332 U.S.\n301, 311 (1947)\n105 See. e g. . RFC v Beaver County, 328 U.S. 204,209-10(1946), United States v Little Lake Misere Land Co.,\nsupra n 101, 412 U.S at 595-97, United States v. Yazell. supra n 104, 382 U S. at 352-53\n106 See, e.g.. United States v Brosnan, 363 U S. 237, 241\xe2\x80\x9442 (1960), Wallis v Pan American Petroleum Corp .\n384 U S 63, 68 (1966)\n\n381\n\n\x0cprovisions of the Weeks Act, 16U.S.C. \xc2\xa7 515.107 Much of the language used by\nthe Court to describe the scope of the reservation doctrine, in fact, is broad\nenough to cover all lands set aside for a particular federal purpose, regardless of\nthe prior ownership of the land. For example, in Arizona v. California, supra, in\nwhich the Court recognized that the reserved right doctrine applies to non-Indian\nlands, the Court agreed with the conclusion of the Master \xe2\x80\x9cthat the principle\nunderlying the reservation of water rights for Indian Reservations was equally\napplicable to other federal establishments such as National Recreation Areas and\nNational Forests.\xe2\x80\x9d 373 U.S. at 601 (emphasis added). In Cappaert v. United\nStates, supra, the Court noted that the reserved right doctrine \xe2\x80\x9c applies to Indian\nreservations and other federal enclaves." 426 U.S. at 138 (emphasis added).\nFinally, in New Mexico, the Court did not suggest that the reserved right doctrine\napplies only to lands that may be formally reserved from the public domain; it\nrecognized rather that the doctrine applies to any land that has been set aside as a\nnational forest (which could be reserved or acquired lands). See 438 U.S. at\n698-99.108\nSimilarly, we believe that Congress could establish \xe2\x80\x9c primary purposes\xe2\x80\x9d for\nthe management of public domain lands that could be the basis for federal water\nrights. As we have noted, the reservation of land for a federal purpose does not, in\nand of itself, create federal water rights. It is rather the specification of particular\npurposes for which the lands should be maintained and managed and the implicit\nintent that water be available for those purposes that give rise to those rights.109It\nmay be possible to argue, therefore, that in the relevant statutes Congress\nintended that the public domain be managed for specific purposes that cannot be\naccomplished without implication of federal water rights.110 However, as Solic\xc2\xad\nitor Martz concluded, given the language and legislative history of the Taylor\nGrazing Act and FLPMA, it is highly doubtful that those statutes could be read to\nreflect the requisite congressional intent to displace existing state water laws. See\n107 The implied water nghts that could be asserted on acquired federal lands that have been, in effect,\n\xe2\x80\x9c withdrawn\xe2\x80\x9d from the public domain under a particular statutory scheme would theoretically be the same in all\nrespects as reserved nghts that could be asserted under (hat scheme, unless the statute itself sets out different\npurposes or different conditions for the use of acquired lands Most importantly, a pnority date for implied water\nrights on such acquired lands could be asserted based on Ihe date the lands were set aside for federal purposes,\nwhether or not the water was actually put to use at that time However, we understand that, in general, pnonty dates\nfor water rights on acquired lands have been claimed in the past only based on the date of first use. As a matter of\npolicy, federal agencies could, of course, continue to assert pnonty for water nghts on acquired lands based on the\ndate of first use, in order to minimize dislocation or disruption of state and private expectations\n108 The forest lands comprising the Gila National Forest were, insofar as we are aware, all reserved lands As we\npointed out in F^rt IIB (l) supra, in other contexts the Supreme Court and lower federal courts have generally\nrecognized a clear distinction between lands that are open to acquisition, use, and settlement under the public land\nstatutes and lands that have been set aside for particular federal purposes, including lands acquired or reacquired\nfrom pnvate ownership.\n109 The reservation of land, however, may be probative evidence of congressional intent, because it demonstrates\nthat Congress intended that the land should be managed for particular purposes to the exclusion o f other purposes\xe2\x80\x94 a\nshowing which would buttress the argument that Congress did not contemplate that state law could defeat those\npurposes.\n110 Nothing in the recent decision in Sierra C lub v Watt, 659 F.2d 203 (D.C Cir 1981), in which the court held\nthat no federal reserved rights could be created under FLPMA, necessarily precludes this argument, because the\ncourt\xe2\x80\x99s conclusion rested only on whether the land in question had been withdrawn from the public domain Since it\nhad not been withdrawn, the court found no reserved rights had been created The court did not consider whether,\nindependent of the reserved rights doctrine, FLPM A provides a basis for other federal water rights 659 F.2d at 205\n\n382\n\n\x0cMartz Op. at 257-58; see generally Sierra Club v. Watt, 659F.2d203, 206 (D.C.\nCir. 1981). While we believe it is theoretically possible for federal water rights to\nexist on public domain lands, such rights probably cannot be asserted under the\ncurrent statutory schemes authorizing management of the public domain. We\nhave not, however, undertaken an independent analysis of those statutes.\n\nIV. Conclusion\nWe conclude that the rationale of California and New Mexico must be applied\nto any assertion of federal water rights in the western states. To the extent the\nfederal non-reserved water rights theory would suggest that federal water rights\nare created merely by the assignment of land management functions to a federal\nagency or authorization of a federal project, we believe that it does not have a\nsound legal or constitutional basis and does not provide an appropriate legal basis\nfor assertion of water rights by federal agencies. New Mexico and California\nmake it clear that the federal constitutional authority to preempt state water law\nmust be clearly and specifically exercised, either expressly or by necessary\nimplication. Otherwise, the presumption is that the western states retain control\nover the allocation of unappropriated water within their borders. Although we\nhave not undertaken an independent analysis of the various federal land manage\xc2\xad\nment statutes, we believe that, as a practical matter, because statutes authorizing\nmanagement of the public domain probably do not provide a basis for assertion of\nfederal water rights, the federal rights that can be asserted are limited to federal\nreserved rights and rights implied from specific congressional directives, if the\nconcept of \xe2\x80\x9c reserved\xe2\x80\x9d rights is understood to apply as well to acquired federal\nlands that are part of a federal reservation. This does not mean that the federal\ngovernment is helpless to acquire the water it needs to carry out its management\nfunctions on federal lands. If that water cannot be acquired under state law or by\npurchase or condemnation of existing rights, the remedy lies within the power of\nCongress. The Supremacy Clause provides Congress ample power, when cou\xc2\xad\npled with the commerce power, the Property Clause, or other grants of federal\npower, to supersede state law. The exercise of such power must be explicit or\nclearly implied, however, and federal rights to water will not be found simply by\nvirtue of the ownership, occupation, or use of federal land, without more.\nThe next logical step, to the extent it is necessary in order to apply this analysis\nto particular statutes, lands, or claims, is for the agencies with responsibility for\nenforcement and administration of the various land management statutes to\nreview their statutory authority and water needs in light of the principles we have\noutlined here. We have not attempted that task here, because of its scope and\nbecause those agencies are more familiar with the scope and administration of\nthose statutes and the possible problems presented by application of state law.\nT h eo d o re B. O lson\n\nAssistant Attorney General\nOffice cf Legal Counsel\n\n383\n\n\x0c'