The judicially created federal reserved rights doctrine provides that when the federal government withdraws land from the public domain for a special purpose, such as a national forest or park, it implicitly reserves the amount of unappropriated appurtenant water necessary to accomplish the purposes for which the land is reserved. Due to ambiguities in various statutes that create federal land reservations it is uncertain when the reserved rights doctrine is applicable. The United States Supreme Court has construed the doctrine narrowly, holding that for "secondary purposes" of a federal land reservation, the federal government must seek water rights through state law. With respect to national wilderness areas, statutory ambiguities leave unclear the federal government's duty to assert claims for reserved water rights. If these claims are not brought in a timely manner, the federal government again may have to rely on state water law to acquire water rights for these lands. This Note examines the judicial treatment of the reserved water rights doctrine for various types of land reservations. It also examines the conflicts between the reserved rights doctrine and the water law of the Western States and discusses the consequences of requiring the federal government to obtain water rights through state law. The Note concludes that the law of the Western States provides inadequate protection for instream values on federally reserved land. The Note recommends congressional action to clarify the scope of the reserved rights doctrine and the federal government's duty to assert rights to ensure that federal water rights are available for all the purposes of federal reservations of land.
Heather Blomfield Lee,
Forcing the Federal Hand: Reserved Water Rights v. States' Rights for Instream Protection,
41 Hastings L.J. 1271
Available at: https://repository.uchastings.edu/hastings_law_journal/vol41/iss5/4