Water compact research revealed
Water compact research revealed
It is extremely important to understand and research what a “federal reserved water right” is in order to determine if the Confederated Salish and Kootenai Tribes water compact should be supported. Following is a basic explanation of “federally reserved water rights” based on my research.
The federal reserved water rights doctrine was established by the U.S. Supreme Court in 1908 in Winters v. United States. In this case, the U.S. Supreme Court found that an Indian reservation (in this case, the Fort Belknap Indian Reservation) may reserve water for future use in an amount necessary to fulfill the purpose of the reservation, with a priority dating from the treaty that established the reservation.
This doctrine establishes that when the federal government created Indian reservations, water rights were reserved in sufficient quantity to meet the purposes for which the reservation was established.
In 1952, however, Congress passed the McCarren Amendment, which returns substantial power to the states with respect to the management of water. The McCarren Amendment requires that the federal government waive its sovereign immunity in cases involving the general adjudication of water rights.
Prior to this legislation, the federal government had reserved the right not to be included in general basin adjudications conducted under state law. The McCarren Amendment, however, recognized that the exemption of the federal government from these adjudications would undermine the state’s water allocation systems. Therefore, any federal agency claiming a federal reserved water right must participate in the state’s adjudication process.
Federal court decisions since the McCarren Amendment have further limited federal reserved water rights. In the 1976 Cappaert v. United States of America, the Supreme Court ruled that a federal reserved water right quantification was limited to the primary purpose of the reservation and only to the minimum amount of water necessary to fulfill the purpose of the reservation.
In 1978, in United State of America v. New Mexico, the Supreme Court found that the reserved water rights on national forests apply only to the preservation of timber resources and water flows. All other claimed needs were to be considered secondary purposes, and the federal government would have to obtain rights like any other appropriator under state law.
These rulings have narrowed the scope of the Winter’s Doctrine. Federal reserved water rights may only include quantities of water necessary to meet the primary purpose for which the reservation was established (“primary purpose” requirement) and only in the minimum amounts necessary to meet those purposes (“minimal needs” requirement).
Because federal reserved water rights must meet the “primary purpose” and “minimal needs” requirements, it is important to quantify any federal reserved right. Generally, quantifying a federal reserved right requires specifying the amount of water claimed, the water sources, the primary purpose of the reservation for which the water is needed, and the priority date of the claim (the date the reservation was created).
The opponents to the CSKT water compact have repeatedly asked that the “primary purpose” and “minimal needs” regarding this compact be determined. The current compact does not address, answer or meet these “primary purpose” “minimal needs” requirements. The CSKT compact proposes granting quantities of water much greater than could ever be justified if the “primary purpose” and “minimal needs” tests are met. Therefore, the compact in its current form must be rejected.
Jeff H. Larsen
Lakeside