|
Whiskey's for Drinkin', Water's for Fightin' Published by Stewards of the Range Water adjudications are taking place in virtually all of the seventeen western states. These are the states whose water law is based on the prior appropriation doctrine. Water adjudications are the proper function of state government in determining the extent of ownership individuals, municipalities and corporations have in the western states' most vital resource. Water adjudications have been ongoing since the individual states established statutory water law. Most western water law developed in the period prior to 1910. Water law in the western states provides a statutory basis for acquiring water rights. When applications are recognized under state statutes the state issues a water certificate. Those water rights are generally referred to as certificated water rights. State law also provides for recognition of water rights which existed prior to the development of state water statutes. Water rights which were lawfully in existence prior to the individual states water code are referred to as vested water rights. Adjudicated water rights are water rights in which title has been quieted by court decree. The codification of western water law was significantly influenced by the attempt of entities at the federal level to nationalize the west’s major sources of water when lands were withdrawn from the public domain for classification under the "forest reserve act" of 1891. It was the U.S. Supreme Court opinion May 19, 1907, In the case of Kansas v. Colorado which clearly established state jurisdiction over water rights. The court in that opinion reaffirmed the right of prior appropriation and the supremacy of the individual states in allocating water rights. There would be little controversy over current water adjudications if it were only the rights of prior appropriators which were being adjudicated. The factor which has created the current storm of controversy has been ongoing attempts by the federal government to assert reserved rights, or to take existing rights of individuals without compensation. Entities such as the United States Forest Service (USFS) have long sought to circumvent or modiify the prior appropriation water doctrine. Too often, it would appear, that state authority has made only an anemic attempt to exercise its lawful jurisdiction in these controversies. In some cases, state authorities have even sided with federal attempts to compromise the valid existing rights of individuals. Under the prior appropriation doctrine water does not necessarily need to be used on the land were the water originated. Under prior appropriation, water is treated separately from the land. Water can be transported from its source, long distances, to the place of beneficial use. This has resulted in vast systems of damns, reservoirs, ditches and pipelines to transport water from its source to the irrigated lands, industrial sites and municipalities where it is used to support agriculture, manufactures and the needs of urban populations. Obviously when water is no longer attached to the lands of origin the lands of origin have decreased in value. If water is separately owned from the land this constitutes split estate ownership. The USFS, in particular, opposes split estate ownership. As one of its long term policy goals the USFS has sought to return the water to the land. This, of course, ultimately means the termination of the prior appropriation water doctrine and the numerous state statutes based on it as well as the infrastructure upon which western property rights are based. One of the primary challenges the federal government has raised is the federal reserved right. Under this legal theory, the federal government argues that since the western states were created out of lands which the United States acquired under treaties with France, Britain and Mexico, the United States has a reserved right to the water on all those lands. However, the Congress of the United States passed the various confirmatory acts, starting with the Act of July 26,1866, which clearly recognized prior possession of settlers to the western water resources upon which western water law is based. The courts also have consistently upheld prior appropriation. For example, the United States Supreme Court held in United States v. New Mexico (1978) that the United States did not reserve water for recreation, aesthetics, wildlife preservation, or cattle grazing because these were not the purposes for which the National Forest had been withdrawn. Probably no privately owned water right in the national forest has been more contentious than the stock watering right. The federal land management agencies have tried to argue that all the stock water rights belong to the United States because they were reserved at the times the lands were withdrawn from the public domain. The courts have obviously not agreed. The land management agencies have then tried to argue that private stock water rights are only valid when the water flows onto private lands owned in fee simple. This argument also has failed the court test. The creation of grazing allotments was a recognition by the United States of the prior existing rights of possession of those who first put the lands to use for grazing purposes. The adjudication of these prior possessary rights resulted in a survey and plat map defining the boundaries of the grazing allotment. All forage and water rights within the exterior boundaries of the grazing allotments, unless specifically identified in other ownership, were recognized as private property which was appurtenant to a commensurate base property. Base properties were those lands acquired under the agriculture land disposal laws such as the 1862 homestead law and were limited to a certain acreage. Under the 1862 homestead law the limitation was 160 acres. These "patents" gave the owner title to the land. The water rights were acquired seperatly under state law. A grazing allotment did not give title to the land itself. Grazing allotments were established on the mineral lands of the United States. No acreage limitation applied to settlement of the mineral lands. Most of the settlement of mineral lands was for livestock grazing and lawful possession was determined by beneficial use. Control of a livestock grazing area was primarily determined by control of the water sources arising or flowing through the area being grazed. Control of the water sources derived from local law and custom and rules of the court. The mineral estate on these lands was retained by the federal government for separate disposal under the mining laws. As the United States Supreme Court said in Watt v. Western Nuclear (1983), Congress, by the Act of June 25, 1910 clearly expressed it’s intent to dispose of the western lands in a split estate. The surface estate to be disposed under the various land disposal laws, and the mineral estate to be disposed under the mining laws. A surface estate right is a right to use the surface of land but precludes the right to commercially exploit the minerals. A surface estate right is similar to a water right. One does not own the water itself, only the right to use the water. For this reason, water rights and surface estate rights are often identified as usufruct rights. They are bought, sold and transferred under the same general legal concepts which apply to other forms of real estate. A review of the public policy of the United States, the acts of Congress, and significant case law over the past 150 years, show an amazing consistency in support of the west’s prior appropriation doctrine and the recognition of private rights to the water, rights-of-ways, forage, etc. on federal lands. How then, did the current state of confusion, often seen in water adjudications, develop? There is misunderstanding as to the controlling law which creates property. If this concept is not understood, litigants often make the wrong arguments and end up having the wrong issues decided in the wrong courts. The purpose of a water adjudication is the development of a court decree establishing quite title to the property being adjudicated. The adjudication process is not to create new title to property, be it water or any other form of property. An adjudication proceeding is premised on the assumption that title already exists. The adjudication is to determine the size, extent or bounds of an existing title. Therefore if an individual has been joined in an adjudication proceeding he presumptively may own title to property involved in the proceeding. All property is created under state law, with the exception of intellectual property such as copyrights and patents for inventions, which are created under federal law. Property in the form of land or surface estate rights or water rights must have their origin in state law. State or federal administrative rules cannot extinguish property which has it’s origin in state law. There is has been much confusion on this basic issue as it relates to western land and water. Most federal case law relative to property in the eastern and mid-western portion of the nation was well established by 1938. In 1938 a rule change narrowed the kinds of disputes to be heard in Federal District Court, making the U.S. Court of Federal Claims the court of jurisdiction on common law (property law) arguments. After 1938 Federal District Court dealt primarily with administrative disputes. In other words, after 1938 Federal District Court arguments centered around bureaucratic rules and the contracts upon which they are based where property owners could bring disputes that could reverse agency decisions. Property arguments with the federal government, where the property in question had been so affected that the property owner needed to be made whole, were to be heard in the U.S. Court of Federal Claims. This change of rules in 1938 meant the development of any significant case law on private rights in federal land would have to wait until the federal government actually took a western ranch and the issue could be resolved in the U.S. Court of Federal Claims under the 5th Amendment. The last significant case law, affecting range rights as property rights on federal lands, emerging from Federal District Court was Red Canyon Sheep Co. v. Ickes in 1938, the year the rules changed. In Red Canyon the court firmly upheld the grazing allotment as a private right which could not be arbitrarily transferred to third parties by a government agency. It would be 58 years before any further significant federal case law would develop on the issue of private property rights in federal rangelands. During that 58 year hiatus numerous cases involving western federal land would go before Federal District Court. Federal District Court, now being confined to resolving disputes over federal administrative regulations, did not, and could not, address the underlying issues of split estate ownership. Western interests experienced an unending deluge of court opinions upholding bureaucratic rule on such issues as trespass, permit violation, endangered species, wilderness, recreation, etc. The majority of these rulings served to enhance the power of the bureaucracy at the expense of the property rights of individuals, corporations and municipalities who held split estate ownership in federal lands. On March 8, 1996 the impass was broken. The U.S. Court of Federal Claims issued an opinion in Hage v. United States. The Hage case had developed after the USFS effectively destroyed the economic value of Hage’s Pine Creek Ranch through excessive regulations. The property involved included not only fee simple commensurate base lands but also irrigation water rights, forage rights, stock watering rights, easements, rights-of-way and other improvements within the grazing allotments on the split estate lands. The Claims Court in the March 8th opinion began adding case law to the foundation laid by Red Canyon Sheep Co.. The Hage case presents an opportunity to balance the effect of the myriad administrative decisions which have emanated from the administrative courts and which have often severely infringed the rights of property owners. The 1996 decision was rendered in response to a government motion for summary judgment. The government had argued that Hage had no lawful property right in water, forage, easements, rights of way and other improvements on federal lands. The court disagreed and said if Hage and his predecessors in interest had established rights in these lands in the 1880’s, "presumptively those rights still exist today." The court further stated that federal and state administrative rules cannot extinguish the property which derives from state law. This court reaffirmed the opinion of the U.S. Supreme Court on reserve rights as expressed in United States v. New Mexico. It also said that when the requirement for a permit rises to the level of taking the economic value of a property, the owner can no longer be required to obtain a permit and the issue of compensation is raised. The Hage decision is the first significant case law involving private property interests in federal lands to be handed down by the federal courts in almost sixty years. It presents a solid premise from which the rights of individuals, corporation and municipalities can defend their lawful rights in water adjudications and other controversies involving federal split estate lands. A complete report including the cases cited, background material and the 1905 and 1907 Forest Service Use Book which states the Forest Services policy on grazing and water rights during that period is available from:
Stewards of the Range PO Box 1189 Boise, Idaho 83701 1-800-700-5922 208-335-7054 fax
|