in future litigation by the United States. In 1965 a broad view was likewise expressed by Mr. William H. Veeder, who served for many years as Special Assistant to the Attorney General responsible for many of the government's water rights litigations, as in fact the result of Arizona v. California: In the strict sense of the word those rights [reserved rights in Arizona v. California] were not "reserved." Rather, upon withdrawal they simply were no longer available for private acquisition. Because of the broad power of the national government over its property, those rights can be used by it for any purpose now and in the future and their use is not limited to the purpose for which they were withdrawn. Pelton provides clear authority for that proposition. 195/ Thus, from the view of the nature of the reserved water right contended for by Mr. Warner and Mr. Veeder, the government would not be restricted to the original purposes of the reservation or even to uses on the reservation itself. It can reasonably be anticipated that the Justice Department may take such a position in any future litigation upon the matter. 196/ One issue not resolved by the prior cases would not be embraced within the broad view of the reservation doctrine of Mr. Warner and Mr. Veeder set forth above. That involves the question of whether the reservation doctrine applies to the acquired lands of the United States. The Justice Department expressed the view in 1966 to the Department of Defense that there was a "reasonable doubt" as to whether the reservation doctrine applied to acquired lands in an opinion regarding the right of the Sandia military base in New Mexico to use groundwaters without compliance with state law: Because of the first of the noted factual differences the Government's principal contention in the Hawthorne case was that the United States' ownership of the right to use the waters tapped by the Navy wells went back to 1848, and that Nevada could not regulate the United States' exercise of its right to use these waters. Since the Sandia wells are located on acquired lands the argument with respect to them would have to be much different than the Hawthorne argument and there is a reasonable doubt that the supremacy argument alone would be adequate to establish the Government's property right, as distinguished from its constitutional power, to use water from the wells in excess of the permitted quantity. In this regard, the Government's experience in the case of United States v. Fallbrook Public Utility District, 347 F.2d 48 (C.A. 9, 1965), is particularly relevant. 197/ Other Justice Department spokemen had earlier failed to find any real distinction between original and federal public domain lands and acquired lands in terms of the sovereign power of control over these lands. 198/ Some statutory and administrative materials treat them as distinct and different. 199/ There appears to be no clear answer to the question. 197/ Letter from David R. Warner, Chief, Gen. Litigation Sec., 198/ Hearings Before Subcomm. on Irrig. and Reclamation of the 199. For example, note the distinction made between waters on ac- note continued 195/ Veeder, The Pelton Decision: A Symbol--A Guaranty That 196./ This broad view resembles the argument of the government it was not restricted to reserved lands. See pp. 83-84 supra. Prof. Sax also states that the reservation doctrine may have such a broad extension. 2 Waters and Water Rights § 117.1 (1967). -148 -149 The policies and position of the various Departments and agencies of the Federal Government regarding the reservation doctrine is treated in detail in part II E of this study, infra. Prior to turnit is appropriate to consider in detail whether ing to that matter, } or not the Congress, the supreme guardian of the public lands, has expressed any clear views on the subject. d. The absence of direct congressional authori- As previously noted, the reservation doctrine as it exists to- Since all water from House Creek flows entirely See Hearings on Federal-State Water Rights Before the Senate See, Forest Service Manual § 2541.01-04, Amendment No. 137 (1965). at least one order. 200/ On a question so important as that of a reservation of waters for use on federal reserved lands, the lack of congressional standards and guidelines poses a matter of more The purpose of this part of the report is than academic interest. to explore the legislative history of prior enactments by Congress directly involving the use of waters on the public domain of the United States to determine the prior intent of Congress, if any, with respect to the reservation doctrine as it exists today. Interest in this search is heightened by the curious fact that the prior cases have undertaken almost no discussion of the legislative history or the contemporaneous administrative construction of the statutory provisions involved. (1) Early acts. In 1851, the California legislature provided: that the rules and regulations of the Pursuant to this policy a comprehensive system of common law em- No further legislation on this subject was introduced until 200/ This includes Exec. Order No. 6910, Nov. 26, 1934, and Exec. 202 / Id. -150 -151 a presumptive license to work the mines and divert the waters necessary to such enterprise. 203/ The state courts tended to treat the conduct or rather absence of activity on the part of the Federal Government as a grant in fee of the lands--a fee by tacit consent. 204/ With the approach of the Civil War and increased concern with the assertion of federal rights, the position urged by the government and adopted by the federal courts was that miners were in fact trespassers. Their possessory title was good against everyone but the government. Against the government and its patentees, the appropriators were held to have no right at all. 205/ In line with this philosophy, the first federal legislation touching water rights on the public domain was enacted in 1865, entitled "An Act providing for a district and a Circuit Court of the United States for the District of Nevada, and for other purposes." 206/ The first eight sections related to the federal courts in Nevada and Oregon and to procedural The ninth and final section provided: matters. No possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to such title, shall be affected by the fact that the paramount title to the land on which said mines are is in the United States, but such case shall be judged by the law of possession. 207/ The section purported to establish a substantive rule of law 203/ See 1 Weil, Water Rights in the Western States 103-04 (3d ed. 1911). 204/ Id. 205/1 Weil, supra note 172, at 103, 104, 112, 113-15 Note, Federal-State Conflicts over the Control, of Western Waters, 60 Colum. L. Rev. 967, (1960). 206/ Act of Feb. 27, 1865, 13 Stat. 441, R.S. § 910, 28 U.S.C. § 690 (1964). 207/ 36 Cong. Globe 3227 (1866) (remarks of Senator Stewart); 1 Weil, supra hote 172, 105 n. 17. note continued or determinable by "the law of possession." Insofar, then, as the federal courts were concerned, miners in possession of mining claims should be treated as if they were owners unless and until the Federal Government asserted its ownership. 208/ "The law of possession" and not "custom' was referred to for resolution of disputes between miners among themselves. 11 (2) Act of 1866. In 1865 to counter legislation introduced to pay off the Civil War debt by sale of the mines without regard to prior possessory claims, 209/ Senator Stewart of Nevada introduced a bill (S. 256, 39th Cong., 1st Sess.) to confirm the right of the miners. The major thrust of this bill was (a) to resolve the eighteen years of controversy in favor of the miners, and (b) to permit state law and custom a continued large area of operation in the development of mining law. Incidental to this mining law was a specific provision for the disposition of water resources for any purpose, which became the first enduring legislative enactment by Congress on the subject of water rights. It survives unaltered except in minor textual respects. In pertinent part, as reported to the Senate by the Senate Committee on Mines and Mining, the bill provided: See also Act of May 5, 1866, 14 Stat. 43, § 2. This statute dealt with the boundaries of Nevada and incidentally recognized and protected possessory rights to mining claims, expressly stating that the Act was not to be construed as granting title in fee. 208/ Note, 60 Colum. L. Rev., supra note 174, at 970-71. 209/ Munro, The Pelton Dam Decision: A New Riparianism? L. Rev. 221, 227 (1957). -153 36 Ore. -152 * * Sec. 9. And be it further enacted. That when- Section 9 was not of itself the subject of major controversy in 210/ Act of July 26, 1866, ch. 262, § 9, 14 Stat. 253, R. S. § 2339, 211/ See 36 Cong. Globe 2335-39 (1866) (remarks of Senator Stewart), 212/ See 36 Cong. Globe 4021 (remarks of Representatives Kasson and Ashley) rights. It is clear, however, that Congress did not by section 9 intend to enact a substantive federal requirement about water law. It rather intended to facilitate the continuation of development in the West on terms similar to those in which it had hitherto progressed and thrived as the consequence of eighteen years of federal inaction. 213/ In the absence of the debates preceding the bill's passage, the 213/ 36 Cong. Globe 3226, 3227, 4053, 4054 (1866). 214/ The Federal Government had previously dealt with the public dò- 215/ 36 Cong. Globe 4052 (1866) (remarks of Representative Kasson). Congressmen apparently took the position that their inaction, 216/ 36 Cong. Globe 4021, 4053-54 (1866) (remarks of Representative Ashley). -154 -155 with local law and custom. 217/ It was not intended as a grant in the sense of confirming or recognizing a title previously granted, explicitly or implicitly. The then existing local law oriented system of locating mining claims on the public domain and acquiring water rights incidental to the operation thereof was characterized as having been "fostered by our [Congress'] neglect and matured and perfected by our generous inaction." 218/ The purpose of the bill was to "legalize" the system which had arisen with the tacit acknowledgment of the Federal Government over the preceding 18 years, 219/ to add "fee simple" to the possessory title acquired by the miners under the local system. 220/ The Act would constitute a grant, in effect a patent or quit-claim deed, 221/ to the present and future holders of recognized possessory titles, therefore according legality and stability to an interest which was as it then stood, at least in the conception of the Federal Government, "nothing but a possessory title, a customary right which the United States at any time may destroy." 222/ The federal legislators did not view congressional inaction permitting development of the local acquisition system as a license from the Federal Government to acquire public domain lands. Rather, the miners' possessory title and interest was considered as arising "under no authority from the United States, but simply through the enterprise and irrepressible zeal which characterizes the American people." 223/ Further, the bill was not considered 217/ See,e.g., 36 Cong. Globe 3227, 3234 (remarks of Senator 218/ 36 Cong. Globe 3226 (1866) (statement of Senator Stewart). 220/ 36 Cong. Globe 3235, 3453 (1866) (remarks of Senator Williams). 222/ 36 Cong. Globe 3236 (1866) (remarks of Senator Sherman). 223/ 36 Cong. Globe 4052 (1866) (remarks of Representative Kasson) (emphasis added). as producing the effect of transferring the "disposition of the title Section 9 has been deservedly criticized for its textual imperfections. Justice Stephen J. Field, the principal Supreme Court expositor, said that "the language is not happy." 225/ The Chief Justice of the Nevada Supreme Court was less restrained; he submitted that section 9 "by its turgid style and grammatical solecisms, more surely than by the enacting clause of the Act was shown to be a production of Congress." 226/ He further observed that the Act was "about as clear and certain as the objects and purposes of the Acts of Congress usually are. 11 227/ Yet section 9 survives and is the foundation in a real way of the present law of water rights on reserved as well as unreserved portions of the federal public domain. Section 9 does not indicate the lands to which it was intended to apply. Since Congress lacked the power to acknowledge and confirm any lands but those owned by the United States, it can be assumed that section 9 can only apply to lands owned by the Federal Government. However, taken out of context, the section does not indicate whether it embraces all public domain lands, including reserved lands. Therefore, it is necessary to look to section 1, the enacting or granting provision of the Act, to determine the lands covered. Section 1 applies to the "public domain. "228/ In the context of the history of the Act there is nothing which could be interpreted 224/ 36 Cong. Globe 3233 (1866) (remarks of Senator Conness). 225/ Basey v. Gallagher, 87 U.S. (20 Wall.) 670, 683-84 (1875). 226/ Hobart v. Ford, 6 Nev. 77, 88. 227/ Id. at 81. 228/ The Act of July 25, 1866, ch. 262, §1, 14 Stat. 251, provides as follows: That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. [Emphasis added.] note continued -156 -157 |