Nisheet Dabadge (Nishu Dabadge) — Water Law Notes 7
Federal and Indian Water Rights
Federal land ownership falls into three categories: lands that have been reserved from disposition for particular purposes (like military bases, national parks and forests, and Indian reservations), residual land retained in federal ownership once the disposition policy ended (i.e. after the federal government stopped giving out land), and lands acquired by the federal government for particular purposes (usually after having being originally disposed of). Current federal lands are understood to have an implied reservation of as much of the then-unappropriated water appurtenant to them as is needed to fulfill the purposes of the reservation or acquisition; these reservations are not subject to state water right doctrines. However, federal land titles acquired from the federal government by private parties are generally understood to carry with them no rights to water under federal law.
Quantification of Federal Reserved Water Rights: The Standards and Procedures
Often, large amounts of federally reserved waters go unused; states end up utilizing the water upstream and downstream, without facing litigation for that water, because of its non-use at the time (even creating large water projects that are fairly dependent on such non-use). Issues arise when federally reserved unused waters start to become used (often having not been quantified, such as in cases associated with Indian water right reservations): the only available dependable water for other appropriators or users, upon federal usage of the reserved water, is any amount of water not being used by the federal government for federal purposes.
The McCarran Amendment created a large amount of uncertainty as to how the federal government could be brought to litigative and adjudicative hearings by states, when federal-state water rights conflicts arose (originally, the federal government had sovereign immunity over such issues). In Dugan, the court found that the McCarran Amendment waived federal sovereign immunity only in state court general water adjudications; however, in a string of Colorado cases, courts found that the Amendment also waived sovereign immunity covering federal reserved rights. In Colorado River Water Conservancy District, the court found that where federal Indian reserved water rights disputes were brought to both state and federal courts, state courts would be the more appropriate jurisdiction for determining the claims (a win for states) due to the need for reducing excessive litigation (the court also noted that in some cases, federal jurisdiction could be better, like if the involvement of state water rights were less extensive, if the state proceeding was in some respect inadequate to resolve the federal claims, or if more extensive proceedings had occurred in federal court prior to a potential dismissal). The dissent in this case disagreed, finding that federal courts were more appropriate for several federal reserved water rights cases and disputes, citing that because federal claims were separate to state claims, it did not actually matter in which jurisdiction such a claim was generally brought.
