Plaintiff owned lands in Utah on which she or her predecessors had, since 1930, used waters which arose on the Ashley National Forest. Her water right was based on a certificate issued by the State Engineer of Utah in 1933, recognizing her priority as of 1930. The right represented the equivalent of 3 acre-feet per acre for 150 acres. In 1961, the United States diverted these waters by pipe for use at a recreation area developed in connection with Flaming Gorge Dam, constructed pursuant to the Colorado River Storage Project Act passed by Congress in 1956. She brought suit in the útiui movie Court Seeking animatively injunctive felles anu $1,500 damages for the water diverted, or (2) $25,000 damages for the water right.

The United States defended this suit on every ground in the catechism: lack of jurisdiction in the court, absence of the State of Utah as an indispensable party, discretionary functions under the Tort Claims Act, a nonexistent statute of limitations (i.e., 28 U.S.C. § 2481 (b)), a federal appropriative right under Utah law, and use of the water antedating plaintiff's use.

The United States prevailed. No appeal was taken. The district court's conclusions of law recited that the United States has rights to the use of water froni sources arising on Ashley National Forest by reason of the reservation of the forest by Executive Order in 1897, that the priority of the right is 1897, that it includes "the right to increased use in the future in order to accomplish the purposes of the forest reserve, that 16 U.S.C. § 481 grants "only a right to permissive use of waters within the national forest," and that findings of fact and conclusions of law were without prejudice to plaintiff's rights if any based on actual diversion and use prior to the 1897 reservation of the national forest.

No express finding is made as to the location of the plaintiff's point of diversion. The papers in the case permit an inference that it was not on the national forest, because if it were on the national forest the defenses pleaded and most of the facts stipulated by both parties were a waste of the United States Attorney's time. The district court appears to sustain the pleaded contention of the United States which would make the decision applicable whereever the diversion might have been located: "Defendant [United

States] has a proprietary right to all of the waters arising in the Ashley National Forest."

The court made findings, but no conclusion of law based on two other asserted bases of federal right.

(1) An appropriation of a part of the waters claimed under an appropriation filed with the State Engineer in 1960 (but junior to paints claimed appropriation). on this appropriation in its pleadings.

ine United States relea

(2) Extensive use of water for stock by permittees of the United States, beginning as early as 1912, the earliest date of information. This might support an appropriative right under a federal appropriation, arising from the use of the water. It might support an appropriation under state law on the ground either (a) that state law required no filing, or (b) any filing that state law might have required was a police regulation inapplicable to the United States.

The court's conclusion of law No. 3, incorporated in the Forest Service Manual in 1965, recites: "The provisions of 16 USC Sec. 481 grant only a right to permissive use of waters within the National Forest.

That section provides:

Arguably, Section 481 has nothing to do with the case, which clearly involved Mrs. Glenn's claimed right to use water on her land and not on the national forest. 21/ However, the court and the counsel assumed that Section 481 did relate to Mrs. Glenn's use, and the court held that Section 481 grants only a permissive

use.

The opinion gave no reasons, but the Memorandum of Authorities filed by the United States to supplement oral argument urges that the statutory words "may be used" cannot be given the same meaning as the word "appropriate," which has a clear and definite meaning in the law. This argument, very much to the United States' interest in avoiding compensation to Mrs. Glenn, might be very much against its interest in another The statutory words "may be used" apply to all waters covered by the act, both under laws of the State and under the laws of the United States.

case.

The phrase "may be used" rather than "appropriate" may be accounted for in a number of ways. The most plausible guess is that Congress knew that there are both appropriative and riparian rights, and employed "may be used" as a generic term which includes both. It also includes contract rights under the practice revealed in United States v. Ahtanum Irrig. Dist. 22/

The recreation site and the pipeline and diversion facilities constructed by the United States Forest Service were authorized by the Act of June 4, 1897 (30 Stat. 35) and constructed in cooperation with the Secretary of Interior under Section 8 of the Act of April 11, 1958 (70 Stat. 105), which authorizes the Secretary of Interior to construct the Flaming Gorge Dam, among other projects in the Colorado River storage system. Said pipeline, diversion facilities are all projects directly related to the Flaming Gorge Dam. 23/

They also stipulated even more remarkably, to the ultimate issue under the reservation doctrine in favor of the United States: "The waters arising on the Ashley National Forest are necessary

to the accomplishments of the purposes for which said forest was established." 24/

The reservation doctrine will doubtless maximize the rights of the United States wherever the parties so stipulate, but cases In the absence of such of such a stipulation must surely be rare.

a stipulation, the appropriative rights of the United States are quite likely to be superior to rights based on the reservation principle.

The Forest Service This is true for yet another reason. Manual of 1965, for reasons which are entirely unclear, limits the reservation principle to "unappropriated nonnavigable waters on the public domain." 25/ It cites in that paragraph FPC v. Oregon 26/ and Arizonav. California. 27/ The first was a decision involving the Deschutes River, for which the Federal Power Commission made a conscious choice not to ask for a finding of navigability, and it is not clear what if any water rights were there determined other than the right of the federal licensee to build a dam.

The second decision involved the navigable Colorado River and the Gila River which may or may not be navigable.

Uncertainty about the reservation principle--even aside from the consequences to water users whose rights exercised for over 30 years may be wiped out--is also emphasized by the Forest Service Manual treatment of Glenn and Arizona v. California as related to the same "reservation principle. "They are not the same principle at all. The central fact in Glenn (litigated before the Court's decision in Arizona v. California, but supported by arguments made by the United States on the basis of the Special Master's Report) is that the water rose from a spring on the Ashley National Forest. The reserved rights in Arizona v. California were decreed without regard to where the water came from. No testimony as to how much originated on reserved public lands, how much on nonreserved public lands, and how much on private lands was offered.

2. Federal enclaves.

A peculiar problem arises with respect to water rights related to lands of the United States or private lands in federal enclaves where the United States has exclusive jurisdiction. Such enclaves include territory described by Article I, Section 8, clause 17 of the Constitution which gives Congress power-

Because federal law does not exist with respect to many matters, civil and criminal, for which law is a necessity, the gaps in the law applicable to federal enclaves must be filled by federal legislation, or the limited federal common law applicable to federal property and federal functions. A common way to fill such gaps is by assimilation, as federal law, of the state laws in effect at the date of the state's cession of jurisdiction. The necessity for law is thus met by a fossilized version of the state's law as of a given moment of time, updated only as Congress alters the assimilated law or updates by reenactment the congressional assimilating legislation. This device was employed to provide a body of law applicable to the Continental Shelf beyond the State's territorial limits under the Submerged Lands Act of 1953. 29/

An alternative to assimilation at a fixed date is assimilation of existing state law, and state law as it may be amended by the legislature of the state in which the enclave is located. This was

28/ Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938). 29/ See Act of Aug. 7, 1953, ch. 345, 66 Stat. 462, 43 U.S.c. § 1333 (a) (2) (1964); Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23, 37-43 (1953).

the pattern followed in the federal Assimilative Crimes Act of 1948, 30/ the constitutionality of which was upheld in United States v. Sharpnack. 31/ A sharp dissent by Justices Douglas and Black argued that assimilation of future state legislation is an abdication of the federal legislative function. Congress had not enacted a law with respect to the sex crimes charged in Sharpnack, and yet defendant was convicted in a federal court of a crime created by Texas legislation. The dissent conceded, however, that future state laws on a limited subject such as speeding could be assimilated.

One commentator has urged that Sharpnack does not truly involve "assimilation" of state law, but rather a withdrawal of federal preemptive authority. 32/ Whether this choice of concepts represents something more substantial than doctrinal labels is unimportant. The significance of Sharpnack is that it makes available to Congress a device to adopt--in effect if not in theory-state law where Congress deems such action desirable for federal enclaves.

A recent case illustrating the usefulness of that device is Macomber v. Bose. 33/ The parties were in dispute over water rights related to privately owned lands within Glacier National Park, to which Montana had ceded sovereignty in 1914. Plaintiff's suit under 28 U.S. C. § 1331 alleged a federal question and rights at issue in excess of $10,000 in value. The United States district court dismissed for lack of jurisdiction on the ground that state law was applicable; the court of appeals reversed and remanded for trial of the issues.

Such a case arising in a federal enclave poses substantial issues of two kinds: (a) What substantive law is applicable? (b) What courts or administrators are available to apply that law? The assimilated Montana law of water rights antedating 1914, the date of the state's cession, is likely to prove inadequate as substantive law. If the amount in controversy involved less than

30/ 18 U.S.C. § 13 (1964).

31/ 355 U.S. 286 (1958) (6-2 decision).

32/ Comment, 6 Geo. Wash. L. Rev. 643 (1958).

33/ 401 F.2d 545 (9th Cir. 1968).

The construction of grants by the United States is a federal not a state question,

and in-
volves the consideration of state questions only
insofar as it may be determined as a matter of
federal law that the United States has impliedly
adopted and assented to a state rule of construc-
tion as applicable to its conveyance. In con-
struing a conveyance by the United States of land
within a State, the settled and reasonable rule of
construction of the State affords an obvious guide
in determining what impliedly passes to the grantee
as an incident to land expressly granted. 40/

The language of "grant"--involving semantic problems of what is property and what is ownership--is less important than the solution it affords to the basic problem. That problem is discovering a line (in United States v. Oregon a land boundary) or demarcation between the interests of the United States and another "owner." The doctrinal necessity is to discover a source of substantive rules, with as much certainty as the physical situation permits. The pragmatic necessity is to avoid subjecting a single stream or ground water body to two inconsistent rules without a predictable basis for resolving inconsistencies.

reasons.

A fourth avenue to solution may be available through the reservation doctrine unalloyed with state law. It is the least promising avenue of the four, because of the many voids and uncertainties in the various reservation doctrines. An illustrative case shows the In Nevada ex rel. Shamberger v. United States, 41/ Nevada challenged the power of the United States to withdraw water from wells on the Hawthorne Naval Ammunition Depot without first complying with Nevada laws which required a permit from the State Engineer. Exclusive jurisdiction over the site of the ammunition depot had been ceded by the State in 1935.

provided by 43 U.S. C. § 666 is inapplicable to the relief sought by Nevada, relating as Nevada's case did to sovereign proprietary rights of the state over waters in general, and not to water rights The result seems unchallengeable on the facts of water users. presented but neither opinion gives a clue to the resolution of the problem which might be presented if competing rights of the United States to withdraw water from an enclave were in conflict with rights of nonfederal parties to withdraw water from the same water source outside the federal enclave.

The United States district court is correct in determining that Nevada officials could not impose a permit requirement or a charge for permit. Indeed, this would seem to be true (except where federal law provided for federal compliance) whether the ammunition depot was a ceded enclave, a reservation of original public domain, federally acquired land, or an interest of the United States which involved no federal ownership of land at all. the demonstrable necessity is for a rule of law which such case, determines when compensable property interests of the nonfederal parties are affected; that rule of law cannot be exclusively coextensive with the boundaries of federal lands except when the ground water supply is located entirely within those boundaries.

The possible substantive rules are endlessly varied:

In any.

(a) A rule of capture, which would permit unlimited pumping by all persons from the same basin.

(b) A rule of capture, limited to beneficial use on overlying land.

(c) A rule of correlative rights, which would involve equitable adjustment of all users.

(d) A rule of priority in time, with rights limited to safe annual yield of the basin.