ROBERT EMMET CLARK
THE ALLEN SMITH COMPANY
Indianapolis, Indiana 46202
Copyright @ 1978 by
THE ALLEN SMITH COMPANY
WATERS AND WATER RIGHTS
ADDENDUM TO 1978 SUPPLEMENTS
Several important cases were decided by the United States
Supreme Court near or at the end of the 1977 term and after
material for the supplements went to press. These cases, over-
shadowed in the news by Bakke and First Amendment questions,
involve issues of particular significance in the resources, energy
and public land field.
Federal Reclamation Law-Reserved Water Rights
The following two cases are of critical importance and sub-
stantially alter western water law and encourage further difficul-
ties in applying it:
California v. United States, 46 U.S.L.W. 4997 (July 3, 1978,
No. 77-825) ; 38 CCH Sup. Ct. Bull. B4306, reversing and remand-
ing United States v. California, 558 F.2d 1347 (C.A.-9 Cal., 1977).
Justice Rhenquist, for a majority of six, held that the language
and legislative history of Section 8 of the Reclamation Law per-
mits the states to impose conditions on "control appropriation,
use or distribution of water" in a federal project that are not
inconsistent with clear congressional directives for the project,
and anything inconsistent with this view in Ivanhoe Irrigation
District v. McCracken, 357 U.S. 275 (1958), City of Fresno v.
California, 372 U.S. 627 (1963), and Arizona v. California, 373
U.S. 546 (1963) is regarded as dicta and disavowed. Yet to be
resolved is the question of whether conditions imposed by the
California Board are inconsistent with congressional directives
for the new Melones Dam project. Justice White dissented joined
by Justices Brennan and Marshall with exhaustive criticism of
the majority concluding with these words:,
The Court's "disavowal" of our prior cases and of the Govern-
ment's power to condemn state water rights, all without
briefing and argument, is a gratuitous effort that I do not
care to join and from which I dissent .
Although I do not join the Court in reconstruing the control-
ling statutes as it does, the Court's work today is a precedent
for "setting things right" in the area of statutory water law
so as to satisfy the views of a current Court majority. And
surely the dicta with which the Court's opinion is laced today
WATERS AND WATER RIGHTS
deserve no more or no less respect than what it has chosen
to label as dicta in past court decisions. Of course, the matter
is purely statutory and Congress could easily put an end to
our feuding if it chose to make it clear that local authorities
are to control the spending of federal funds for reclamation
projects and to control the priorities for the use of water de-
veloped by federal projects .
See subsection 117.2 in the 1978 supplement to Volume Two
United States v. New Mexico, 46 U.S.L.W. 5010 (July 3, 1978,
No. 77-510); 38 CCH Sup. Ct. Bull. B4359, affirming Mimbres
Valley Irrigation Company v. Salopek, 90 N.M. 410, 564 P.2d 615
(1977), United States Department of Agriculture, Forest Service,
State of New Mexico, plaintiffs in intervention.
Justice Rhenquist, for a majority of five, held that in estab-
lishing Gila National Forest beginning in 1899 with subsequent
additions, the United States reserved water rights only for the
preservation of timber and water flows related to private and
public uses under state law and had not reserved water rights
for aesthetic, recreational, wildlife preservation, and stockwater-
ing purposes. Congressional intent for the limited purpose is
found in the Organic Administration Act of 1897 and other legis-
lation. Although 1960 legislation broadened the purposes for
which national forests are administered, Congress did not intend
to reserve additional water in forest withdrawn under the 1897
Justice Powell, joined by Justices Brennan, White and Mar-
shall, dissented mainly from the majority proposition that the
forests do not include wildlife saying that he could not agree
"that the forests which Congress intended to 'improve and pro-
tect' are still, silent, lifeless places envisioned by the Court." He
also added a word "concerning the impact of the Court's holding
today on future claims by the United States that the reservation
of particular national forests impliedly reserved instream flows"
S. I see no inconsistency between holding that the United
States impliedly reserved the right to instream flows, and
what the Court views as the underlying purpose of the 1897
Act. The national forests can regulate the flow of water-
which the Court views as "the very purpose for which Con-
gress did create the national forest system"--only for the
benefit of appropriators who are downstream from the reser-
vation. The reservation of an instream flow is not a consump-
tive use; it does not subtract from the amount of water that
is available to downstream appropriators The Court's
opinion cannot be read as holding that the United States
never reserved instream flows when it set aside national for-
ests under the 1897 Act .
Water Not A "Valuable Mineral"
Andrus v. Charlestone Stone Products Company, 46 U.S.L.W.
4561 (May 31, 1978, No. 77-380) ; 38 CCH Sup. Ct. Bull. B2492,
reversing Charlestone Stone Products Company v. Andrus, 553
F.2d 1209 (C.A.-9 Cal., 1977). Justice Marshall, for a unanimous
court, held that water is not a "valuable mineral" within the
meaning of the Mining Law of 1872, and hence not a locatable
mineral although water in the broadest sense of the word may be
considered a mineral. See subsection 117.4 in the 1978 supple-
ment to Volume Two hereof.
Ownership of the Seacoast in the United States
United States v. California, 98 Sup. Ct. 1662 (May 15, 1978),
stemming from litigation over the past thirty years-see 332 U.S.
19, 91 L. Ed. 1889, 67 Sup. Ct. 1658 (1947) and 332 U.S. 804,
92 L. Ed. 382, 68 Sup. Ct. 20 (1947). Justice Stewart, for the
majority of five, Justice Marshall not participating, held that
California and not the United States has dominion over sub-
merged lands and water within the one-mile area surrounding
Santa Barbara and islands in the Channel Islands National Monu-
ment. Justice White dissented with Chief Justice Burger and
Justice Blackmun. See subsection 36.3 in Volume One hereof.
State's Interest in Regulating and Preserving Wildlife
Baldwin v. Fish and Game Commission of Montana, 98 Sup.
Ct. 1852 (May 23, 1978), affirming a divided three-judge District
Court in Montana Outfitters Action Group v. Fish and Game
Commission, 417 F. Supp. 1005 (D. Mont., 1976). Justice Black-
mun for the majority, with Chief Justice Burger concurring, held
that access rights by nonresident elk hunters were not within
the protection of the privileges and immunities clause, Article IV,
Section 2, or the 14th Amendment of the United States Consti-
tution. Montana's allocation process for recreational hunting was
held to be rationally related to the preservation of a finite re-
WATERS AND WATER RIGHTS
source and the state regulation imposing substantially higher
(71 times) license fees on nonresidents of the state than on
residents did not violate the equal protection clause of the 14th
Amendment. See also Terk v. Gordon (June 12, 1978), 46 U.S.
L.W. 3761; 38 CCH Sup. Ct. Bull. B2777.