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Legal Issues Related to
Livestock Watering Pamela Baldwin August 30, 1994 94-688 A SUMMARY In response to several congressional inquiries on the subject, this Report examines the legal history of livestock watering in federal grazing districts. Little analysis of this history appears to have been done in the past, despite the crucial importance of water to the management of the federal rangelands. Livestock watering has been the subject of a distinct sequence of Congressional enactments that imposed federal policies different from those that pertain to water rights in the context of homesteading and settlement. The Department of the Interior has recently proposed regulations that in part relate to water rights in grazing districts. The proposed regulations also raise the controversial issue of state versus federal authority over the public lands and water. In the early years of range use, Congress attempted to prevent private control over water and public lands used for common livestock grazing. To this end, the federal government reserved springs and other water sources. The Stockwatering Reservoir Act of 1897 required that water in privately or publicly constructed livestock watering reservoirs on the federal rangelands remain under the control of the Secretary of the Interior and be available to other users. This law contrasted with laws governing reservoirs for irrigation purposes, under which state law controlled the use of water. In 1934, Congress enacted the Taylor Grazing Act (TGA) to halt the continuing deterioration of the federal rangelands and to stabilize the livestock industry, pending the disposal of the lands. Congress directed that lands in TGA grazing districts were withdrawn from entry and acquisition of private title (except for mining patents), unless and until particular lands were reclassified by the Secretary as more appropriate for non-grazing use. Legal opinions of the Department of the Interior have concluded that water in grazing districts may be privately appropriated under state law and the proposed regulations reflect this view. The fact that Congress has frequently deferred to state water law in order to contribute to stability of state water rights and water planning lends support to the contention that it has done so with respect to livestock watering in grazing districts. On the other hand, the Supreme Court has held that federal statutes authorizing appropriation of water under state law apply only to lands that are available for entry and disposal under the public land laws. There is evidence in the structure, language, and legislative history of the TGA to support the view that Congress intended that water not be alienated from grazing district lands unless and until the lands were reclassified as available for acquisition of private title. In view of the proposed regulations and because of the importance of water rights both to the states concerned and to the management of the federal rangelands, Congress may wish to examine the issues. Table of Contents Introduction INTRODUCTION On March 25, 1994, the Administration proposed new grazing regulations for the federal rangelands managed by the Bureau of Land Management (BLM)(l) in the Department of the Interior (Department). These rangelands are primarily those contained in grazing districts established pursuant to the Taylor Grazing Act of 1934 (TGA).(2) The regulations propose that authorizations for new permanent water developments such as spring developments, wells, reservoirs, stock tanks, and pipelines shall be through cooperative range improvement agreements,(3) and that water rights acquired for livestock grazing on BLM grazing lands on or after the effective date of the new rules would be obtained and maintained in accordance with both state substantive and procedural law. To the extent allowed by state law, these rights would be titled in the name of the United States, or titled jointly with a permittee who invested in permanent range improvements. The proposed regulations do not state what the position of the Department is if rights are not permitted to be titled in the name of the United States. The proposed language is:
The use and control of water on the federal grazing lands is of crucial importance to the value and well-being of the lands and their resources. Concern has been raised by some that exclusive private ownership of water rights on federal rangelands, combined with a narrow state interpretation of the scope of federal rights, might well impair federal interests and prevent federal land managers from carrying out legislated management objectives because federal objectives cannot always be met adequately under state law. For example, water for fish or wildlife purposes may not be available or might not be given adequate priority under state law; state-required diversions or improvements may preclude wildlife watering; or a grazing permittee who holds a water right may decline to transfer that right to a subsequent permitted The existence of exclusive private water rights also could impede exchanges, sales, or other desired uses of the lands. On the other hand, Congress has historically deferred generally to state law regarding the allocation and control of water on the federal public lands. At times, however, Congress has expressly or by implication preempted state law. Whether private citizens properly may hold livestock water rights on lands within grazing districts managed by the BLM depends on how one interprets the relevant federal laws, especially the Taylor Grazing Act, and the actions of the Department since its enactment. Three recent Solicitors of the Interior, while setting out very different interpretations of federal water rights, have also all agreed that grazing district water could be privately appropriated under state law. However, these opinions appear to have rested on the general policy of deference to state law and did not analyze the applicable federal statutes related to rangeland water use or the historical practices of the Department regarding stockwatering rights. When the relevant federal statutes are examined, a different possibility is presented -- that Congress intended the water to remain with the rangelands until district lands were reclassified by the Secretary to allow acquisition of private title. It appears that in practice the United States for decades ensured the accomplishment of federal purposes or precluded exclusive private appropriation of range water by various means, including the titling of rights in the name of the United States and the imposition of conditions on water use through control of rights of way for the carriage and storage of water. The proposed regulations raise the question whether such practices can be continued should they be deemed necessary for effectuating federal interests. Such a potential clash of federal and state interests over an issue of critical importance to both may suggest a need to examine the whole question of water rights on federal rangelands. This report, prepared in response to several requests for analysis, briefly reviews the history of the respective federal and state roles with respect to water rights; compares the positions of the Bureau of Land Management (BLM) in the Department of the Interior with that of the Forest Service (FS) in the Department of Agriculture regarding livestock watering; reviews the history of the use of the water on federal rangelands for stockwatering purposes; analyzes some of the laws and executive actions that relate to such use, namely the Stockwatering Right of Way Act of 1897, Public Water Reserve 107, the Taylor Grazing Act of 1934, and the Federal Land Policy and Management Act of 1976; reviews administrative opinions and actions since enactment of the Taylor Grazing Act, and raise the question of whether federal policy since the 1980s and the proposed regulations comport with original congressional intent and whether they represent a departure from past administrative actions. BACKGROUND AND OVERVIEW OF WATER LAW This section briefly reviews water law as a preface to a review of the relevant statutes. The reader is referred to more detailed articles for greater elaboration.(5) The federal government may act with respect to water either in a proprietary or sovereign legislative capacity. The most relevant constitutional authority in this instance is Article IV of the Constitution, which authorizes Congress to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...." With respect to the lands in the western states, the United States is a unique property holder; before states were created the federal government held all possible attributes of property and sovereignty to the lands of the "public domain," which basically are those lands obtained by the United States from another sovereign rather than from a state or individual. The philosophical and legal effects of this fact have generated volumes of commentary. What is clear is that when the Congress legislates with respect to the property of the United States, that legislation may preempt state law under the Supremacy Clause of the Constitution. The federal government also may act to regulate water use and control through various of its other constitutional sovereign powers, such as the commerce power in general,(6) the control over navigable waterways and navigability,(7) and the spending power.(8) It is primarily enactments relating to the western lands as the property of the federal government that supply the context for the current controversy. Congress has spoken to water rights issues, but typically has done so intermittently and in very limited language susceptible of different interpretations . When the United States found itself the owner of the vast western territories, debate swirled for years as various approaches and policies were considered for the use and disposition of the lands. While Congress debated, settlers went west. As a result, some of the earliest and most significant federal "land laws" were in part legitimizations of uses that were already taking place on the western lands by pioneers and entrepreneurs who, until such legislation was passed, technically were either trespassers or at best mere licensees on the public domain. For example, the Mining Act of 1872(9) recognized mining claims "under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." As Congress began to enact statutes that allowed citizens to "enter" upon "unappropriated, unreserved," public lands i.e., those that were open to entry and settlement, in order to conduct certain activities, such as mining or homesteading that could lead to ownership of lands by citizens through the issuance of a patent (deed) from the government, it became necessary to consider the relationship of conveyance of title to land to title or right to use water. The situation in the arid West was typically very different from circumstances that prevailed in the water-blessed East, and different legal frameworks of entitlement to use water evolved. Although it is oversimplifying, it may be said as a general rule that states in the East followed a "riparian" system of water law, under which the right to use water was a part of one's ownership of the lands over which or through which the water source flowed. Each landowner along the source had the right to make reasonable use of the water, none had a greater right than another, and all shared the available water in times of scarcity. Because the right was incident to land ownership, it was not lost through disuse, nor was it limited to a numerical quantity. In contrast, states in the West typically developed along the lines of an "appropriation" system, under which the right to use water did not depend on owning the land containing the water source (in the early years of settlement, those on the public lands could not own the lands because Congress had not yet made private ownership possible), but rather depended on priority of diversion and beneficial use. The one who first diverted the water and put it to an approved use was recognized as having a "priority" to that amount of water for as long as the use was continued. The right was for a specific quantity, and could be lost through disuse. In times of shortage those with earlier priority had rights to the established amount of water with the result that holders of more junior rights could receive nothing. It is easy to see that the riparian system arose in an area characterized by abundant water sources, and the appropriation system in an area of scarcity. Some Western states, however, retained some elements of the riparian concepts along with elements of the new appropriations system. In 1866, Congress enacted a statute that recognized existing uses of water on the public lands:
That federal patents conveyed title to land subject to such vested water rights was clarified in 1870:
As part of the 1877 Desert Land Act, which provided for larger homesteads in dry but irrigable areas of enumerated states, Congress provided:
This last language has generated considerable debate, and has been said to have severed the obtaining of water rights on the public lands from the obtaining of rights in the land itself.(l3) Controversy has surrounded the possible effects of the statute on unappropriated waters in states to which the Desert Land Act did not apply, and the extent to which the statute may indicate an intent to divest the federal government of all proprietary interest in water on the public lands.(14) Some advocate the position that the federal government surrendered to the states all its proprietary interest in water and therefore retained no interest that would justify the finding of any federal rights, reserved or otherwise, contrary to state law. The statutes quoted, the ratification or other Congressional acceptance of state constitutions containing provisions asserting state ownership of water resources within their boundaries, and the admission of western states on an "equal footing" with the original states -- in which the United States makes no similar claims to unappropriated water -- are all cited to support the position that the federal government no longer has any proprietary control over water, but rather only the sovereign power to regulate water pursuant to one of its granted powers. Proponents of this view consider Supreme Court decisions to the contrary as incorrect, and bolster their position by noting the number of statutes in which Congress has "deferred" to state law.(l5) Other commentators, while conceding that Congress has as a general rule deferred to state law, assert that the above-quoted statutes speak only to the obtaining of water rights on the open, available public domain by private individuals; they do not address the rights or interests of the federal government at all, and hence are not a surrender of all federal power or rights. Therefore, they conclude that the federal government retains control over the remainder of the unappropriated waters on the federal lands and may make whatever disposition of the water it chooses. The Supreme Court has held that the severance/disposal statutes regarding water do not apply to federal lands that are not open to entry, settlement and acquisition of private title.(l6) Under each approach, Congress retains the power to legislate as to water on the federal lands. It follows, therefore, that the intent of Congress as to the use or control of water must be ascertained in each situation and under each statute. At times Congress has expressly indicated an intent to create or articulate federal water rights or restrictions on water use on federal lands, and at other times that intent is only implied. In some statutes, Congress has expressly deferred to state law. At times even a provision that expressly requires compliance with state law occurs in a statute that also contains certain overriding federal provisions.(l7) Neither Congress nor the Supreme Court has provided clear and definitive resolution of all water law issues, but the holdings of the Court clearly support those who maintain that Congress may reserve water for use by the federal government and has the authority to regulate water use and to establish federal rights that are not dependent on either state substantive or procedural law. In recognizing that Congress intended generally that the states could adopt riparian or nonriparian rules as best suited circumstances, the Court has stated:
That state law might not bind the federal government was indicated in dicta in an earlier case:
The Court also has articulated a type of federal water rights known as "reserved" rights. The doctrine of reserved rights holds:
Reserved water rights may be expressly created, as in the Wild and Scenic Rivers Act,(21) or they may be implied from the fact that the government reserved lands for a particular purpose for which water is necessary. As discussed earlier, Congress enacted various statutes allowing entry, settlement, and acquisition of private title to the public lands. Some lands, however, were withdrawn from such entry and settlement and were no longer subject to the disposal laws. If the lands were withdrawn for a particular purpose, they are said to be "reserved". In a 1908 case, known as the "Winters" case, the Supreme Court held that by the creation of an Indian reservation, the federal government impliedly reserved then unappropriated water sufficient to carry out the purposes of the reservation: "The power of the Government to reserve waters is not denied and could not be. (Citations omitted.) That the Government did reserve them we have decided ...."(22) Although many at first thought Winters applied only in the Indian context, the Court in a case that became known as the "Pelton Dam" case, held that the 1866, 1870 and 1877 acts did not apply to lands reserved for power purposes.(23) The Court described the 1866 and 1870 acts as "governmental recognition and sanction of possessory rights on public lands asserted under local laws and customs." (Emphasis in original.) In these statutes Congress addressed the status of water that had been put to private uses before Congress had enacted the principal laws by which citizens could obtain land title. Similarly, the Court stated that in the Desert Land Act Congress "... severed, for purposes of private acquisition, soil and water rights on public lands, and provided that such water rights were to be acquired in the manner provided by the law of the State of location."(24) Because the Court found that the reservation of lands for power purposes precluded the application of the Desert Land Act, it concluded that the lands were not available to the private appropriation of water under the three statutes. It is both clear and significant that the Court viewed "public lands" in this context as lands available for acquisition of private title.
Note that the Court found that the three statutes that allow acquisition of private title to water under state law did not apply to "reserved" lands (lands withdrawn for a particular purpose). But note also that the reasoning the Court used to reach that result was that water was available for private appropriation under state law only with respect to lands unqualifiedly subject to sale and disposal -- i.e., acquisition of private title to land. Quite arguably the opportunity for private appropriation of water is suspended with respect to lands that are withdrawn from the operation of the disposal laws for as long as the lands remain unavailable to private acquisition of land title. Indeed, this freezing of the status quo is the purpose of the segregative effect of a withdrawal. In 1963 the Court expressly applied the reserved rights doctrine to other, non-Indian, federal lands.(26) As discussed, reserved federal water rights will be implied if it appears that the federal government would not have reserved lands for specific purposes unless it also intended to reserve a quantity of unappropriated water necessary to fulfill those purposes. It is important to note that reserved rights have been implied even with respect to acts such as those relating to the National Forest System, which not only did not articulate any express federal rights, but even expressly allowed private appropriation of forest waters. The pivotal factor relied on by the courts was the statutory reservation of lands for federal purposes for which water was essential. In 1978, the Court limited the applicability of the implied reserved rights doctrine to the primary purposes for which a federal reservation is created:
It is also important to note that the reserved rights doctrine is a reflection of underlying federal power, not the exclusive embodiment if it vernment has the power to regulate water or put it to federal uses cannot be doubted and has not been, even by critics of the scope of federal intrusion into water law. Rather, the commentators diverge as to what constitutes sufficient indication of the intent of the federal government to create federal rights, or to override state laws, whether in connection with a reservation of land or otherwise.(28) In California v. United States,(29) the Supreme Court interpreted § 8 of the Reclamation Act of 1902, which expressly states that nothing in that Act is intended to "in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation ... and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws ...." Despite this express language, the Court held that state law governed only if not inconsistent with "congressional directives"(30) or "with congressional provisions authorizing the project in question.''(3l) The Reclamation Act contained Several directives e.g., the provisions that water rights be appurtenant to the land irrigated and governed by beneficial use, and the limitation in section 5 on sale of reclamation water to tracts of land not more than 160 acres. These are examples of congressional directives that preempted state law despite the express deference to state law, and are not related to reserved lands, a fact minimized in some other analyses.(32) The federal government also may obtain water rights by appropriating water and putting it to an authorized federal use. In doing so, the government may apply for recognition of that use and right under state law as would any other landholder. Opinion diverges drastically, however, as to whether a federal "nonreserved" right may exist to carry out congressionally mandated land management duties where such a use cannot be perfected under state law. Former Interior Department Solicitor Krulitz in his 1979 analysis of all types of federal rights asserted that nonreserved rights existed, because the federal government had the power to create water rights, this power was not dependent on reservations of land, and the intent to create such rights was sufficiently evidenced by congressionally enacted management directives. In overruling Solicitor Krulitz in 1981, Solicitor Coldiron placed great weight on the historical federal deference to state law and the discussion of that deference by the Supreme Court and concluded that any preemption of state law must be "specifically mandated" by Congress and that no federal nonreserved rights independent of state law currently exist. This Coldiron requirement that preemption of state law be "specifically mandated by Congress" is arguably more strict than is warranted by the interpretations of the Supreme Court to date. The principal case relied on by Solicitor Coldiron was California v. United States, in which the Court grappled with the extent to which federal law could override state law in the context of the Reclamation Act, which both expressly required compliance with state law on the use of water, and also contained other provisions that overrode state law. The Court referred variously to "congressional directives,"(33) "explicit congressional provisions"(34) "congressional objectives",(35) "expressions of congressional intent",(36) and "singular legislative history" (actually referring to the purposes of a particular enactment)(37) as the guidance that determined federal overrides of state law in the Reclamation Act context.(38) Perhaps a better articulation might be that given the traditional policy of deference to state law, a court should look for convincing evidence -- however demonstrated -- that Congress intended federal law to pertain. A lengthy 1982 memorandum of the Justice Department suggested that the question of whether federal water rights exist has no general answer, but rather concluded that congressional intent must be determined in each instance. The memorandum suggested some considerations to determine that intent:
The Justice Department opinion also noted that the more recent pronouncements of the Court have moved away from the earlier distinctions regarding "reservations" in the technical sense of withdrawals of lands from unappropriated public domain lands to serve a particular purpose, and have been speaking more in general terms of federal water rights for federal lands. This is a significant point. In modern times and especially since the 1976 Federal Land Policy and Management Act (FLPMA), the old terms have largely lost their meanings -- there are few unappropriated, unreserved lands left to which the few remaining public land laws permit entry, settlement, and acquisition of title. Most of the public settlement laws have been repealed and the federal policy now is one of retention of federal lands and management of the lands for multiple use under FLPMA and other statutes. Yet, while under the traditional "reserved rights" framework of analysis federal reserved water rights may be implied from the reservation of land for a particular purpose, the retention of lands in federal ownership for several federal purposes is said not to result in federal water rights for those uses(40) a result that may indicate that the underlying concepts and analysis could usefully be reexamined and perhaps rearticulated. The subject of water rights in the grazing districts created by the Taylor Grazing Act presents these analytical issues foursquare in that the grazing districts have existed throughout the changing federal land terminology and management legislation. There is evidence of initial Congressional intent that the lands in grazing districts be "reserved" for grazing purposes until reclassified for disposal and the acquisition of private title, and that the water on the lands not be available for private appropriation until that time. Yet, grazing district lands came to be regarded simply as "multiple use" lands lacking reserved rights. As will be discussed, the official position of the Department, beginning at a time before the articulation of federal reserved rights by the Supreme Court was that state law governed the appropriation of water in grazing districts. This position was reiterated by later Solicitors without a reexamination of the TGA in light of subsequent Supreme Court opinions. In practice, however, the Department apparently for the most part precluded the alienation of range water from grazing district lands through various means, including titling such rights in the name of the United States and retained control of the water by imposing conditions on permits, allotment plans and rights of way that ensured that federal purposes were carried out. Beginning in the 1980s, the exclusive private appropriation of water was encouraged. The grazing regulations proposed recently expressly propose that state substantive and procedural law apply to stockwatering rights in grazing districts, and are unclear as to whether the traditional means of imposing federal controls will continue. These administrative positions will be elaborated on in the next section. ADMINISTRATIVE POSITIONS OF THE DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF AGRICULTURE ON WATER RIGHTS FOR GRAZING PURPOSES Although current regulations of the Forest Service and BLM are largely silent on the subject of rangeland water rights, various policy documents pertain to federal rights. As will be discussed, it appears that historically water rights for livestock purposes were held in the name of the United States, but several changes were made during the 1980s that changed this and other policies affecting the use of water on the federal rangelands. According to documents from the 1980's, which apparently remain in effect pending resolution of the issues in the context of the new rangeland regulations, the objectives of the BLM are to cooperate with state governments, and to conform to applicable state water rights laws "except as otherwise specifically mandated by Congress"; to "[p]rotect the existing Federal reserved rights and State appropriative water rights of the United States"; and to "acquire and/or perfect water rights necessary to carry out public land management purposes through State law and administrative claims procedures unless: A Federal reserved water right is otherwise available, and a determination is made that the primary purpose of the reservation can be served more effectively through assertion of the available Federal reserved water right.''(4l) (Emphasis added.) Section 7250.06 of the BLM Manual reads: 'Where the primary purpose of the reservation can be served as, or more effectively by application for receipt thereof of (sic), a State appropriative water right, the Bureau is not required to assert an otherwise available Federal reserved water right, unless the Bureau is required to participate in a McCarran Amendment Proceeding, in which case all Federal reserved water rights must be asserted." (Emphasis added.) As can be seen, the policy is basically that BLM will file for water rights under state law "except as otherwise specifically mandated by Congress" or unless a reserved right is available, in which case that right may be asserted under certain circumstances, including when the United States is joined in a general water adjudication. The validity of this standard has been discussed above. The requirement that federal reserved rights only be asserted if a finding is made that the reserved right is more effective protection than a right perfected under state law is a bit puzzling since federal rights generally are more flexible than state law rights in that, as discussed above, a federal reserved right cannot be lost by disuse, may have features as needed to fulfill federal objectives, and may encompass future as well as current needs. Considering these features, a federal right would usually afford "more effective protection." Perhaps the intent was to assert federal rights only if state law rights were inadequate to accomplish federal purposes. As to what reserved rights the federal government may have in connection with the use of water on rangelands, the lengthy 1979 Solicitor's opinion on federal water rights,(42) which has been described as the "first comprehensive definition of BLM reserved, as well as nonreserved, water rights",(43) devoted less than a page to the Taylor Grazing Act and concluded after only this brief analysis that the Act did not reserve lands and hence did not give rise to any reserved rights.(44) This conclusion was not reexamined in subsequent opinions.(45) The 1979 Krulitz opinion found the most significant federal reserved rights on the rangelands to be those associated with the withdrawal of waterholes and public springs authorized by the Act of December 29, 1916 and principally withdrawn by Public Water Reserve No. 107 (Executive Order of April 17, 1926), and those associated with Reserved Stock driveways. Solicitor Coldiron reinterpreted the scope of those reserved rights narrowly, as will be discussed further in the section of this report on reserved waterholes. In sum, the position of the Department to date is that the federal government has only limited reserved rights available in connection with the western rangelands in TGA grazing districts. However, none of the publicly available analyses of the Department to date have examined or analyzed the historical statutes on these issues. As to nonreserved rights, Solicitor Krulitz, basically agreed with an earlier Solicitor's opinion,(46) and asserted that "the United States also has the right to appropriate water on its own property for congressionally authorized uses, whether or not such uses are part of any 'reservation' of the land."(47) He also felt that this right arises from the actual use of unappropriated water by the United States to carry out congressionally authorized management objectives on federal lands, and is a right not limited by substantive state water law. For example, some states require a diversion of water and until recently many states did not recognize instream uses such as fish and wildlife watering. However, Krulitz felt that the United States should comply with state law to the "greatest practicable extent."(48) Solicitor Krulitz concluded that both FLPMA and the Taylor Grazing Act authorized federal appropriation of water to carry out land management purposes.(49) The Martz supplemental opinion delineated three types of federal water rights: reserved rights, rights acquired in compliance with state law, and those acquired otherwise. In elaborating on the nonreserved rights, the opinion mentions those initiated either by application or other appropriative act prescribed by State law; or "by the historic use of water on public lands for consumptive beneficial uses....limited to quantities of water required for beneficial uses recognized by state law...." and those "reasonably required for Federal purposes expressly or impliedly mandated by the Act of Congress...." (Emphasis added.)(50) However, again without any analysis of the Taylor Grazing Act, Martz disagreed with Krulitz (and hence with the 1950 opinion by White as well) that FLPMA or the Taylor Grazing Act authorized water use other than in compliance with state law.(51) As discussed previously, the Coldiron opinion established a difficult standard for ascertaining if nonreserved rights might exist and found that no federal nonreserved rights currently exist independent of state law.(52) None of these opinions discussed the fact that since the 1930s the Department had in practice retained control over the use of water on the rangelands through several means. Apparently, typically rights to water either were not perfected at all, or were titled wholly or jointly in the name of the United States. Also, before the concept of federal reserved rights was fully articulated by the Supreme Court, the Department controlled water on federal lands either by simply putting the water to use on its riparian lands or by controlling the carriage and storage of water by private parties through federal control of rights of way.(53) This approach was applied to the grazing lands.(54) During the decades since 1934, there have been remarkably few cases in state courts litigating water rights on the federal rangelands. Perhaps this is indicative of the fact that the practical system that had developed was acceptable to all sides. However, against the background of recent legal interpretations and reinterpretations that resulted in the conclusion that there are only limited reserved rights and (most recently) no nonreserved rights available to the federal government in connection with the management of the rangelands, the Department of the Interior in the 1980's began to actively encourage private appropriation of water. New policy directives were issued and the Department encouraged the filing under state law of private applications for water rights in water sources on the federal lands. The September 11, 1981 supplemental Solicitor's Opinion directed that the Bureau of Land Management would follow state substantive and procedural law when appropriating water except in the limited instances where water is necessary to accomplish the original purpose(s) of a federal reservation or protect the navigation servitude.(55) A letter from BLM Director Burford to James W. Flynn (date obscure on file copy) states that the Bureau would withdraw its applications for appropriative water rights "if the grazing permittee/lessee had constructed the water structure with his/her own funds under a Section 4 Permit, or has assisted in construction and maintenance of the water structure uder a cooperative agreement and has either filed or expressed a desire to file for the water right." In a December 3, 1981, memorandum to the Secretary, the Director of BLM set out BLM policy on allowing private water rights to be filed under state law in conjunction with improvements such as wells and reservoirs constructed on grazing districts lands. After October 1, 1981, for improvements built pursuant to a cooperative agreement: "if the permittee so desires, he may file jointly with the BLM as coholder of the water rights. BLM will retain title to the structure." If the permittee built the improvement under a "section 4 permit" (section 4 of the Taylor Grazing Act permits grazing permittees to construct wells and reservoirs), the "Permittee will file for the water right and retain title to the structure." The same memorandum indicates that "before October 1, 1981," under a cooperative agreement, "[t]he permittee may file for the water right if he so desires. BLM will retain title to the structure," and uses the same language as to section 4 improvements as for those constructed after October 1, 1981. No other documents have been located indicating whether before 1981, water improvements constructed pursuant to a cooperative agreement were titled solely in the name of the permitted but interviews with range managers indicate that this was not the case.(56) As part of an effort to increase state and private investment in wildlife habitat improvement on the public lands, a February 16, 1984 memorandum from the Director of BLM to all State directors permits a state or a private individual to file singly or jointly with BLM for the rights to water developed on the public lands with their respective funds. As discussed, under the March 25, 1994 proposed grazing regulations the Department would acquire all water rights for livestock grazing on the public lands managed by BLM under both the substantive and procedural laws of the state within which the lands are located. Water would be developed through cooperative agreements(57) (which usually means with joint federal/permittee funds) and to the extent allowed by the law of the state where the land is located, water rights would be acquired in the name of the United States, or in the name of both the permittee and the United States if state law precludes the United States filing singly.(58) Neither the proposed regulation nor its accompanying material explains what is to happen if state law might not allow title in the United States at all, but presumably the water rights will be titled in the name of the private grazing permitted Also, no mention is made of the possibility of imposing conditions requiring the transfer of any such privately acquired rights to the next permittee or to the United States upon termination of the water rightholder's tenure as permitted or of otherwise imposing conditions to accomplish federal purposes. The explanatory material accompanying the proposed rule states that the position of the Department regarding water rights is "clarified" and
Note that comments are solicited on whether the rules should mandate joint filing for water rights in order to always have the rights at least partly in the name of the permittee, even if that is not permitted under state law. The proposed rule arguably contains some inconsistencies. On the one hand, it would subject the federal interest both substantively and procedurally to state law as to creation and maintenance, as though the federal grazing purposes do not preempt state law in any way. On the other hand, it asserts that title shall usually be in the name of the United States, as though there is some reason why title to the water should remain with the lands. The proposal does not consider or address whether exclusive private title and deference to state substantive requirements might frustrate federal purposes -- e.g. if state law requires "improvements" that would preclude certain wildlife watering, or if a permittee holding title to water rights might decline to transfer the rights to subsequent permittees. In light of the proposal that livestock watering rights be maintained in accordance with state substantive law, it is not clear whether and on what basis the Department might continue to condition the use of water to accomplish federal purposes.(60) Although the regulations would have the federal rights defined fully by state law, they also provide that no compensation will be owed upon cancellation of the permit. The explanatory material also asserts that the proposed rule would make the BLM position consistent with Forest Service (FS) practice and with pre-1980's BLM practices. During the early 1980s, the position of the Department of the Interior in authorizing the filing of private water rights had contrasted with the position of the FS. The FS required title to be in the name of the United States whenever possible and further required the termination of water use by a grazer at the end of that person's term. According to a FS report of June 29, 1984, entitled "Development of Forest Service Water Rights Policy Relating to Grazing -- An Overview": "The Forest Service believes it is essential for water rights to remain with the land, rather than with individual permittees. This provides the flexibility necessary for management of the National Forests and grasslands in the public interest, regardless of who the permittee may be ...." Until 1984, the Forest Service Manual § 2541.51 Water Rights stated: "... water used directly by the Forest Service and by the general public on National Forest System lands shall be obtained in the name of the United States" and also made other protective stipulations.(61) These Manual sections were significantly amended in 1984 and are now much less clear both in terms of language and concepts. Current Manual § 2541.21 indicates that certain uses under the Multiple-Use Sustained-Yield Act of 1960 may be claimed as part of the reserved rights of the United States. Section 2541.21f(1)(a) states that water impoundments or developments for improvement of the availability of water for wildlife or domestic livestock is a "reportable need" for purposes of calculating reserved rights.(62) The position in the proposed DOI regulations seems inconsistent with both parts of the pre-1984 FS policy and practices and the new indications that livestock watering may be considered by the FS as being part of the federal reserved rights associated with the forests -- i.e., still with title retained by the United States and with conditions on water use that implement federal purposes. Current § 2541.22b of the FS Manual requires that all applications to appropriate water be in the name of the United States. Section 2541.32 directs that a "possessory interest" (not explained) in water rights in the name of the United States will be claimed for water used by permittees or other authorized users of the National Forest System to carry out activities related to multiple use objectives if one or more situations exists. Among the listed situations is if "National Forest management alternatives or efficiency will be limited if another party holds the water right" or if "Forest Service programs or activities will continue after the current permittee, contractors or other authorized user discontinues operations." It would seem that these circumstances would usually be present in the grazing context. There is no indication that such applications will be fully in accordance with the substantive law of the state involved, if such law would frustrate federal purposes. The new FS Manual provisions do not address the situation of a state that refuses to allow the United States title in its own name, and do not address possible transfer of rights from one permittee to another.(63) On April 28, 1994, the Forest Service also proposed new grazing regulations.(64) These regulations are silent on water rights. We are not aware of any other post-1984 documents stating current FS policies or positions on the subject of water rights for livestock grazing. The recent proposed regulations and explanation of the Department of the Interior may be of interest to Congress because of possible effects on the federal lands and interests. Allowing permittees to hold exclusive water rights to lands within grazing districts under state law may impair the value of the lands and impede many federal management objectives. For example, the sale or exchange of arid federal lands on which someone other than the federal government holds water rights could well become infeasible. Exclusive private ownership of rangeland water rights may impair or preclude some federal purposes and also seems likely to present problems when the Bureau wishes to change permittees. Therefore, there may be instances in which the federal interest might not be adequately asserted or protected under state law.(65) The accomplishment of federal purposes then would depend on the ability of the federal agency to assert federal rights or to condition the exercise of rights defined by state law, an area of the law that has not been well explored to date. On the other hand, Congress has frequently deferred to state water law and may have done so with respect to livestock watering in the grazing districts. Such deference has been viewed as contributing to certainty as to water rights and as conducive to state water planning and control. If Congress deferred with respect to the rangelands in grazing districts, management difficulties would have to be worked out with water rights condemned as necessary (although condemnation is also a sensitive issue), or new legislation enacted. In view of the reinterpretations of the legal and policy positions of the Department, the current proposed regulations and the possible consequences for the federal lands, it appears timely and prudent to review the history of the federal grazing lands and stockwatering, and to reexamine some of the principal laws that relate to the use of the federal rangelands.
CONGRESS, WATER, AND THE FEDERAL RANGELANDS Beginning with the Homestead Act of 1862(66), Congress enacted several statutes authorizing entry, settlement, and eventual private ownership of tracts within the public domain. As farming homesteads extended westward into the drier plains, the increasingly arid lands were no longer adequate to sustain a family farming enterprise on the 160 acres authorized by the 1862 Act. Congress responded with several measures that authorized settlement of larger tracts.(67) During the homesteading era, Congress also permitted stockmen to freely use the remaining unappropriated public lands to graze livestock, and a valuable and powerful industry resulted. A strong tradition developed over the years that permitted the use of the federal rangelands as an enormous public commons area about which the Supreme Court said:
As all moviegoers are aware, the settlers pressed west and confrontations occurred between the homesteaders and stockmen who were using the then-unclaimed lands to graze livestock. In addition to the statutes relating to homesteading and settlement, Congress also enacted several statutes that addressed the use of the rangelands for livestock grazing, which will be discussed roughly in chronological order. Certain executive reservations of water also will be considered. The Unlawful Enclosures Act of 1885 Some individuals attempted to gain exclusive right to vast quantities of the range and to exclude others through strategic fencing of the federal lands. This practice was possible because, despite the confusing multitude of federal land laws, there was no criminal law under which parties committing such acts could be prosecuted, and a civil action was likely to require many months, if not years, to pursue.(69) In 1885, Congress took action by passing the Unlawful Enclosures Act,(70) which prohibited all enclosures of, or other exclusionary acts on, any public lands if the person constructing the enclosure or taking other action did not do so under claim or color of title made or acquired in good faith with a view to entry. In other words, Congress clearly distinguished actions permitted as part of the normal settlement and private ownership process, from actions that were not allowed when done as part of the grazing use of the public domain in common with others. The 1885 Act also states: "and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any State or any of the Territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and prohibited." Based on this act, the President on August 7, 1885 required "that any and every unlawful inclosure of the public lands ... be immediately removed" and forbade any person or corporation "from preventing or obstructing by means of such inclosures, or by force, threats, or intimidation, any person entitled thereto from peaceably entering upon and establishing a settlement or residence on any part of such public land ...."(71) Unlawful fencing continued, however, and it also became clear that the other principal means by which individuals would attempt to usurp public lands to their exclusive use was through control of water. To enter onto lands containing a water source with no intent to settle the lands, but rather to use the entry and homestead claim only to obtain exclusive use and occupancy of the surrounding public lands arguably might fall within the last language quoted from the 1885 act. yet both illegal fencing and the filing of fraudulent homesteading entries in order to secure water sources and to control the surrounding rangelands continued.(72)
The Stockwatering Reservoir Act -- Stockwatering Rights of Way In 1897 Congress passed an act that allowed persons and corporations a right of way to construct reservoirs on unoccupied public lands for the purpose of furnishing water to livestock. This act specified that the person establishing the reservoir could control the water, but was subject both to federal regulations and certain statutory requirements that imposed significant limitations. A person "shall have control of such reservoir, under regulations prescribed by the Secretary of the Interior .... Provided, that such reservoir shall not be fenced and shall be open to the free use of any person desiring to water animals of any kind."(75) It is interesting to note that the legislation as introduced read that the person constructing the reservoir "shall have exclusive possession and control of such reservoir, and the lands upon which the same is constructed, not exceeding...." (emphasis added). The bill as introduced also provided that the person constructing the reservoir could file entry on and purchase the land upon which the reservoir was situated in tracts not to exceed one hundred and sixty acres, but not more than ten tracts of land in any one county. The first provision was significantly modified and the second provision that provided for obtaining title to reservoir-associated lands was eliminated. The bill, S. 264, was sponsored by Mr. Pettigrew, who also reported the bill from the Committee on Public Lands and recommended the above amendments, all of which were accepted on the floor without elaboration or discussion.(76) The Senate Report also merely sets out the amendments.(77) The House report states in its entirety:
In explaining the bill on the floor, Rep. Lacey, the Chairman of the House Committee on Public Lands, stated:
The bill was passed without further discussion. In 1897 the assumption and intent seems to have been that the livestock watering sources on the common grazing lands would not be subject to exclusive private appropriation, even when constructed by nonfederal parties with nonfederal funds. Note that a distinction was made between the reservoir sites reserved for irrigation purposes under other legislation and the reservoir sites for stock watering purposes on the rangelands. A little more than a month after the passage of the stock watering reservoir measure, Congress clarified(80) that reserved irrigation reservoir sites were open to use and occupation under a 1891 right of way act that expressly provided "the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.(8l) The February, 1897 floor discussions of control of irrigation reservoirs were quite vehement on the point that state law was to govern control of the water in the reservoir, yet that measure was enacted only a short time after the very different language on federal control of stock reservoirs was enacted in January. Indeed, the same Rep. Lacey in speaking on the control of water in the irrigation reservoirs said: "[T]he United States does not control the water. It controls only the reservoir sites in which the water may be collected. The water is under the control of the States."(82) In view of Rep. Lacey's remarks on the stockwatering bill, this contrast makes even more notable Congress' evidenced intent that the Secretary retain control of livestock watering reservoirs, but not irrigation and homestead waters. Congress amended the 1897 provisions in 1923(83) with changes that shed additional light on the intent of Congress with regard to control of the water in stockwatering reservoirs on the federal rangelands. The 1923 act added authority for the Secretary to permit the fencing of stock reservoirs:
The above language was suggested by the Department of the Interior to clarify that permission to fence could be granted in the discretion of the Secretary, but that the use of fences remained under the Secretary's control and access to the water must still remain open to any person desiring to water animals. The comments of E.C. Finney, Acting Secretary of the Department were set out in the brief Senate Report accepting the recommended amendment:
In view of the language and history of the 1897 Act, a strong argument can be made that Congress intended the Secretary of the Interior to retain federal control over stockwatering reservoirs on the rangelands in order to protect the rights of the public to water animals, even when such reservoirs were privately constructed and a protective right of way had been granted. Several provisions of the TGA relate to rights of way and stockwatering issues. Section 6 of the Taylor Grazing Act codified at 43 U.S.C. § 315e maintained rights of way in grazing districts:
Section 4 of the Taylor Grazing Act, speaks directly to construction of wells, reservoirs, and fences in grazing districts. It considers them "improvements" that may be allowed under permits and cooperative arrangements:
Note that the construction of improvements is a permitted use only. Section 4 is silent as to the control of the water, in contrast to the express provision that the law of the state within which the grazing district is located is to govern the cost and maintenance of partition fences, a fact that will be discussed further under the section of this Report on the TGA. The Department interpreted the 1897 Act and Section 4 of the Taylor Grazing Act as complementary, by adopting regulations that permitted livestock reservoirs under the 1897 Act to continue to be built within grazing districts and to continue to be regulated by the Secretary. These regulations remained in effect until they were changed in 1980 in response to the passage of FLPMA, which contained new rights of way provisions.(85) The Federal Land Policy and Management Act of 1976 (FLPMA)(86) repealed most previous right of way statutes and enacted new provisions. The 1897 Act and many others were expressly repealed "insofar as they apply to the issuance of rights-of-way over, upon, under, and through the public lands and lands in the National Forest System". (Emphasis added.) From 1976 on, the new FLPMA provisions applied to establishment of new rights of way. As to existing rights of way, Section 509(a) states: "Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this title." Sections in the uncodified Title 7 of FLPMA also safeguarded existing rights. Section 701(a) states that "Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act." Section 701(f) states: Nothing in this Act shall be deemed to repeal any existing law by implication." Section 701(g) preserved the status quo as to the law governing water rights and the use of water. While FLPMA repealed the reservoir right of way statute as to future issuance of rights of way, it did not repeal the earlier act with respect to the administration of preexisting rights of way.(87) The Ninth Circuit reached a similar result with respect to an irrigation right of way under the act of 1891.(88) Similar reasoning may be applicable in the instant case. Stockwatering reservoir rights of way existing at the time of enactment of FLPMA quite arguably must still be administered under previous law -- here the 1897 Act, the Taylor Grazing Act, and the applicable regulations. As to new rights of way for stock reservoirs obtained under Title 5 of FLPMA, § 504(c) of that Act authorizes the Secretary to issue rights of way under such regulations or stipulations, consistent with the provisions of that title or any other applicable law, and also subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination. Section 504(e) provides that the Secretary concerned shall issue regulations with respect to the terms and conditions that will be included in rights-of-way pursuant to section 505 of the title. Section 505 states that a right of way shall contain terms and conditions that will, among other things, protect Federal property and economic interests, carry out management objectives efficiently, to minimize damage to fish and wildlife habitat and otherwise protect the environment, protect other lawful users, and protect the public interest in uses of the lands. This appears to be adequate authority for the Secretary to continue to impose conditions on rights of way for stockwatering reservoirs. In § 102 of FLPMA, Congress directed that the public lands (now defined in § 103(e) as those managed by BLM -- which includes grazing districts) be managed for multiple use, and in a manner that "will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use". Arguably, these provisions provide authority for the Secretary to continue to impose terms and conditions on right of way permits for private use of livestock watering facilities within grazing districts. It should also be noted that the new proposed regulations would authorize reservoirs, wells, and pipelines through cooperative agreements rather than through title V rights of way. It is not clear whether the cooperative agreement would be instead of or in addition to title V rights of way. If the cooperative agreement would be instead of a right of way, query whether this is the most appropriate vehicle and whether such an agreement could be as adequately conditioned as could a right of way, in light of the extensive conditioning authority under title V. The Stockwatering Reservoir Act is additional evidence of Congress' dual approach to use of the federal rangelands. On the one hand, Congress allowed and encouraged settlement and private ownership of land and water rights, but these settlement uses aimed at conveyance of parcels into private ownership seem to have been distinguished from the use in common of the remaining rangelands and waters for the free and nonexclusive use of livestock grazing and other uses on the other hand. How Congress reconciled these two approaches in the context of preference rights to lands within grazing districts will be discussed further in the section on the TGA. The 1897 right of way statute did not solve the problems of improper control by some individuals of open rangelands since the misuse of the homestead laws continued to result in the exclusive use of water sources and large landholdings.(89) In an effort both to authorize homestead settlement of a quantity of land sufficient to sustain grazing, and to ensure that other water sources would remain open for common use, Congress in 1916 enacted the Stock Raising Homestead Act. The Stock Raising Homestead Act -- Public Water Reserves The Stock Raising Homestead Act(90) authorized stock raising homestead entry on up to 640 acres of land that had been designated as stock raising lands by the Secretary of the Interior. Designated lands were to be those not susceptible of agricultural use even with irrigation. The Stock Raising Homestead Act was rather universally considered a failure because the acreage allowed to an applicant was not adequate for a viable grazing operation. At the same time, although settlers could use adjoining public lands, they lacked protection in that use; other grazers could move herds across the federal lands at will, frequently appearing at times when forage was best, grazing an area excessively, and moving on. Therefore, the herds belonging to settled ranchers were not assured of forage, especially forage anywhere near the openly available water sources. As a result, the resident ranchers were hard-pressed to make a living and the range was deteriorating badly. As more and more of the range was divided into homesteads whose owners desired greater stability in their use of the adjacent federal lands, and other users of the open range excessively exploited the common resources, the interests of various groups desiring to protect the remaining rangelands began to coincide in favor of greater federal regulation and some system of definite grazing rights to use the remaining open lands.(9l) The regulated and prospering grazing lands within National Forests increasingly were referred to favorably as an example of what could be done. Previously, only those who more strongly favored conservation had extolled the virtues of the regulated lands administered by the Forest Service, while stockmen had vigorously opposed such regulation. As it became increasingly clear that the federal government was unlikely to turn the range lands over to the states, and as the rangelands continued to deteriorate severely, even the stockmen began to consider federal supervision as the lesser of two evils.(92) Rep. Edward T. Taylor, who had sponsored the 1916 Stock Raising Homestead Act, subsequently sponsored what became known as the Taylor Grazing Act of 1934 (TGA).(93) As will be discussed, the TGA envisioned the suspension of private entry and settlement of much of the rangelands. Lands were to be withdrawn for classification and established as grazing districts, unless the Secretary of the Interior affirmatively classified a tract as more suitable and valuable for raising agricultural crops than native grasses. Such agricultural tracts would then be reopened to entry and acquisition of private title. The remaining lands were organized into grazing districts to be used for grazing by fee-paying permittees. Ranchers with nearby lands or water rights would receive first preference for the permits, the reasoning being that they would be most likely to take good care of and to improve the federal lands since those lands would be valuable for the ranchers' own base operations. In § 10 of the 1916 Stock Raising Homestead Act(94) Congress authorized the reservation of public springs, water holes and other water sources, and stock driveways:
The remainder of § 10 dealt with the width of the withdrawn stock driveways. The statute referenced in § 10 was the "Pickett Act" (now repealed), which gave broad authority to the President temporarily to withdraw lands for "water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals...." Because the Pickett Act was worded broadly and authorized withdrawals of land for "other public purposes", and the 1916 Act authorized reservations as needed or used by the public for watering purposes or "for such purposes under such general rules and regulations as the Secretary of the Interior may prescribe", one must look to the intent of the 1916 Act, the terms of the Executive Orders making the withdrawals, and the regulations of the Department of the Interior relating to the reservations in order to glean the purposes, and hence some indication of the quantities, of the reservations for water holes and springs. Considering that the language of § 10 was clearly and expressly intended to authorize the reservation of all significant water sources on the rangelands, the most striking thing about the legislative history of the provision is the total lack of debate or even comment that it generated. The provisions on water source withdrawals were added by the Committee on Public Lands, and were adopted on the floor without any discussion.(95) The only issue that generated debate in connection with the section, and that became the subject of conference committee modification,(96) was the width of the stock driveway withdrawals. There was no comment on the water reservation in the Senate report.(97) The House report mentioned the water reservation of the bill in the section-by-section analysis, stating:
This language reflects the growing concern over the practices of certain stockmen who through fences or fraudulent homesteading filings for lands containing water sources had been reducing vast areas of the range to their exclusive use. The measures enacted previously and discussed earlier in this report had not stopped the practices, and even administrative efforts at eliminating non-bona fide homesteading claims were not sufficient. The lack of controversy or disagreement, arguably may be indicative of the way Congress viewed the remaining rangelands and the private control of water; that state law would govern the determination of what water rights were associated with title to lands obtained from the government by settlers, but that water sources on the remaining rangelands were intended to be withheld from exclusive private ownership. It also is interesting to note that the report of the Secretary of the Interior that is reproduced in the House report indicates that there already were 182, 653 acres withdrawn in association with public water reserves as of July 1, 1915, and that these sites were separate and distinct from those withdrawn for power sites. No elaboration on these withdrawals was provided. It is possible that the President already had withdrawn many such sites under the 1910 "Pickett Act" authority described above. Section 10 of the 1916 Act was implemented by various withdrawals, but primarily by the general withdrawal of Public Water Reserve No. 107, Executive Order of April 17, 1926. That Order states:
The regulations issued by the Department to implement the order noted that the withdrawal was:
The 1916 Act authorized reservation of water holes "needed or used by the public for watering purposes," and "for such purposes... as the Secretary of the Interior may prescribe". In the absence of any regulatory guidance in addition to that set out above, the terms of the Executive Order state the purposes that define the extent of the water reservation. The Order reserved the water holes and lands "for public use in accordance with the provisions of ... the 1916 Act, and in aid of pending legislation." This language is somewhat circular since the Act refers to the Pickett Act and authorizes withdrawal for any of the numerous purposes in that Act. It appears likely, however, that the water reserved is at least that necessary for the concerns that gave rise to the 1916 provisions -- "the general use of the public", "necessary for large surrounding tracts of country", to prevent a private person from monopolizing or controlling a large territory, together with livestock watering and domestic use -- plus the "public use" indicated in the text of the Order, and any other uses that are or may be articulated in the regulations of the Department. It should also be noted that a great many statutes at that time authorized public use of the federal lands, e.g., for mining, roads, power lines, logging, etc. Solicitor Krulitz in the extensive opinion of June 25, 1979 concluded that the reservation included sufficient water for stock watering and human consumption and certain other purposes and that the amount reserved was the full flow. As to purposes beyond stockwatering and human consumption the opinion stated:
Notably, it also was Solicitor Krulitz' opinion:
On February 16, 1983, Solicitor Coldiron, citing a state law decision and a stipulated settlement of the Wyoming Big Horn River Adjudication that was not intended as precedent,(102) significantly narrowed the earlier Krulitz opinion and stated that the purpose of the public springs and water holes was to "prevent monopolization of the public lands ... and reserving only the minimum amount of water from those sources necessary to serve the needs of homesteaders and their livestock." ... "The right to use water from these water sources for any other purpose must be obtained pursuant to state law because those other purposes do not come within the reserved water right." "The entire flow or quantity of water in these reserved sources was accordingly not reserved unless necessary for the primary purposes -- a fact which must be determined on a case-by-case basis.''(l03) Given the historical position of Congress regarding water and the rangelands, it is questionable whether Congress or the President meant to prevent monopolization of water in the arid lands by protecting only that amount of water in significant springs that might be used directly by homesteaders. The repeated references to keeping the water open for "public use" would seem to indicate otherwise, and Congress expressed concern on several occasions that in the arid West, control of water sources gave control over the surrounding lands and their entire use and value.(104) When Congress later considered the Taylor Grazing Act in 1934, members indicated that the larger water sources on the range were both reserved but "unprotected," in the sense of being open to misuse because they were open to all users and were unregulated. The comments of the members also reflected an awareness of the fact that control of water sources directly affected the value of the surrounding lands and the uses to which they could be put.(105) The assumption underlying these remarks appears to be that the withdrawn watering holes and sources were completely reserved. That uses other than livestock watering and the domestic consumption of water by homesteaders were contemplated by Congress arguably is indicated by the fact that in a great many statutes Congress had authorized public access to the public lands for a great many purposes, most of which could require some access to and use of water. An earlier decision by the Interior Department is of interest in this regard. A claimant had asserted that because, through ownership and grazing rights, he had the use of the lands surrounding a reserved water source there was no longer any public for whose benefit to continue to water reserve. Solicitor White concluded that a PWR 107 water reserve could serve a broad range of purposes, and that it was not necessary that any specific number of individuals need appear in order to fulfill the intent of the reserve which was to keep the water source "open for public use" in accordance with the language of section 10 of the 1916 Act. The opinion also disagreed with claimant's assertion that holding federal grazing privileges so precluded access to the lands, or other public uses recognized under the Taylor Grazing Act, as to vitiate the purposes of the water reservation, and concluded: "There may not be much public in the surrounding area, but whatever public there is or may be has an undoubted right to water in this reserve and to reach the reserve by the way of the lands leased to Medd."(106) The reasoning of the previous Solicitors is of more than academic interest since the Federal Land Policy and Management Act, which repealed the Pickett Act, provides that previous withdrawals remain in force until changed in accordance with FLPMA. Although it can be argued whether § 10 and the implementing Executive Order reserved the entire flow of every water source in every instance, it appears from the language of those documents, referring as they do to public use, together with the broad range of public uses that historically were made of or were authorized for the public lands and the water sources, that viewing these reservations as protecting only water for homesteaders and their livestock is too narrow an interpretation of the purposes and scope of the reservations. The Taylor Grazing Act A careful examination of the Taylor Grazing Act (TGA) is fundamental to any inquiry into water use on the federal rangelands in federal grazing districts created under that Act. We have found no in-depth analysis of the Act by the Department to date. Solicitor Krulitz in his 1979 opinion concluded, with only brief explanation, that the Act did not reserve lands and hence did not give rise to any federal reserved water rights (a conclusion that was not reexamined by subsequent Solicitors). Our analysis of the Act suggests the possibility of the opposite conclusion, or at the least that Congress did not intend the rangeland waters to be available for private appropriation. If one attempts to apply the traditional "reserved water rights" analysis and ask if grazing districts are technically "reservations" of land or not, the TGA presents complicated evidence and issues. If one asks the more general question of whether there is discernible Congressional intent with respect to the private appropriation of water on the federal rangelands, the answer is more clear. As will be discussed, the structure, language and legislative history of the TGA indicate an intent that water not be privately appropriated unless and until grazing district lands are reclassified and returned to the operation of the settlement laws that authorize the acquisition of private title to land. The effects of contemporaneous and subsequent administrative interpretations will be discussed later in this report. As has been discussed in the general background portion of this report, the western rangelands had been the scene of prolonged confrontation between those who wanted to use the lands for grazing and those who wished to settle on the lands. Many stockgrowers attempted to obtain exclusive grazing use of the public rangelands by fencing them as their own or to secure the same result by monopolizing water sources, and Congress several times responded with legislation to prevent that result. A dual system resulted, under which the rangelands were either settled and lands and water sources were eventually owned by individuals under the homestead laws, or the lands were kept open as common grazing areas -- unfenced and with water sources used in common. As settlement of the West increased, many stockraisers perceived that some form of leasing system might better protect their interests by stabilizing the condition of the lands and defining rights to graze specified areas.(107) Coincidentally, there was increasing federal concern about overgrazing and the deterioration of the rangelands. The successes of some of the settlement laws, together with conspicuous problems of abuse of those laws and deterioration of the rangelands, also gave impetus to the effort to review and classify the remaining federal lands as to their best use. As Congress debated these issues but took no action, it appeared that the President might exercise his authority under the Pickett Act or otherwise to withdraw lands and administratively establish classification and grazing management programs. Against this background, Rep. Edward T. Taylor, who earlier had been a House sponsor of the Stock Raising Homestead Act, in the 73rd Congress sponsored H.R. 6462, a bill that later became known as the Taylor Grazing Act.(108) As originally enacted in 1934, the TGA provided that the Secretary of the Interior, "[i]n order to promote the highest use of the public lands pending its final disposal," was authorized to establish grazing districts not to exceed in the aggregate 80 million acres "of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska), which are not in national forests, national parks and monuments, Indian reservations, revested Oregon and California Railroad grant lands, or revested Coos Bay Wagon grant lands, and which in his opinion are chiefly valuable for grazing and raising forage crops: Provided, that no lands withdrawn or reserved for any other purpose shall be included in any such district except with the approval of the head of the department having jurisdiction thereof." Permittees could pay a fee and use tracts within districts for grazing. Preference for permits in the grazing districts was to be given to persons or associations who owned or held nearby land or water rights because it was believed that these people would be the most logical and productive users of the federal range. Fees would in part be used to improve the range. The TGA was intended to improve and maintain the federal rangelands and resources and to stabilize the livestock industry. The Secretary of the Interior was authorized to adopt regulations and enter into cooperative agreements to carry out the purposes of the Act and insure the objectives of grazing districts, "namely, to regulate their occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly use, improvement, and development of the range ... to continue the study of erosion and flood control and to perform such work as may be necessary amply to protect and rehabilitate the areas subject to the provisions of this Act ...." Whether the grazing districts are "reservations" in the sense of lands withdrawn for a particular purpose that might give rise to federal water rights, or whether Congress indicated its intent as to private appropriation of water in grazing districts, are obviously important questions that have not been adequately explored to date. For example, in a memorandum explaining a ruling that there were no federal reserved water rights under the Taylor Grazing Act, the Water Master of the Water Court of Montana recently stated that grazing districts are not reserved lands because the Taylor Grazing Act describes these lands as "vacant, unappropriated and unreserved lands belonging to the public domain ...."(109) This conclusion was stated without further analysis, even though the quotation when read in context seems merely to mean that the grazing districts are to be created out of, or made up of, then vacant, unappropriated, unreserved lands unless the head of the department having jurisdiction over reserved lands approved the inclusion of other lands. The extensive opinion on federal water rights written in 1979 by Leo Krulitz, then Solicitor of the Department of the Interior, devoted a half page to consideration of the Taylor Grazing Act and simply stated without analysis that the Act "did not reserve any land from the public domain .... [T]herefore, no reserved water rights were created by the Act.''(110) Our analysis reveals a more complicated scenario than previously has been asserted. In particular, the record suggests the critical question of whether the lands in grazing districts are withdrawn from entry under the federal land disposal laws and whether this fact might preclude private appropriation of waters until the lands are reopened to such entry. If the disposal laws that the Supreme Court has held confer authority to appropriate water do not apply to grazing district lands, by what other authority may water in grazing districts be appropriated? As has been stated, the 1934 Act authorized the Secretary to establish grazing districts from up to 80 million acres of unappropriated, unreserved lands. The Act describes lands within a district as "withdrawn." (More will be said on the sequence of events involving the withdrawals.) After giving notice, the Secretary is to hold a hearing regarding proposed districts in a state before finalizing district boundaries. The "publication of such notice shall have the effect of withdrawing all public lands within the exterior boundary of such proposed grazing districts from all forms of entry of (sic) settlement."(111) (Emphasis added.) This withdrawal from all forms of entry and settlement continues unless and until the Secretary classifies the grazing lands as more suitable for agricultural use and reopens such lands to entry. Section 7 of the Act as passed in 1934 authorized the Secretary to examine and classify lands within grazing districts as more suitable for the production of agricultural crops than native grasses and forage plants, and to open such lands to homestead entry in tracts not exceeding three hundred and twenty acres in area. Section 7 also stated "Such lands shall not be subject to settlement or occupation as homesteads until after same have been classified and opened to entry ...." Therefore, it is clear that grazing district lands were definitely withdrawn from homestead entry until reclassified and part of § 1 states that the lands were withdrawn from "all forms of entry of [sic] settlement". That the withdrawal of lands in grazing districts was broad was clarified in the 1936 amendments when language was added to § 7 stating that, except for mineral entry, "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Note the 320-acre limitation on homesteads within districts. The 640 acre stock-raising homesteads granted pursuant to a law also sponsored by Rep. Taylor, had proven to be an unsuccessful approach to rangelands grazing use. This law was being supplanted by the Taylor Grazing Act."(112) The TGA contemplated that the federal rangelands in grazing districts would either be used for grazing under a new permit system or would be used for agricultural homesteads on district lands that were reclassified and reopened for that use. The Act became law on June 28, 1934. On November 26, 1934, President Roosevelt issued Executive Order 6910 withdrawing for classification all of the vacant, unreserved and unappropriated public land in enumerated Western states, amounting to approximately 173 million acres.(113) This Order noted that under the TGA the Secretary was to exchange certain lands, sell other tracts, lease some and make other specified uses of still others, and that it was therefore necessary to classify all of the vacant, unreserved lands of the public domain within certain states. The Order withdrew all vacant, unreserved and unappropriated public land in Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah and Wyoming from settlement, location, sale, or entry, and reserved those lands "for classification, and pending determination of the most useful purpose to which such land may be put in consideration of the provisions of said act of June 28, 1934, and conservation and development of natural resources." The list of states subject to this blanket withdrawal for classification was expanded in Executive Order 6964 of February 5, 1935, as were the statutory mandates giving rise to the need for classification in those additional states."(114) After enactment of the TGA in 1934, the President, under his Pickett Act authority, withdrew for classification all vacant unappropriated lands from the operation of the settlement laws. Some of these lands were established as grazing districts; some were classified as appropriate for restoration to the operation of the settlement laws. Additional layers of withdrawals might be added to grazing districts -- for example an area might be further withdrawn from the operation of the mining laws (required under section 315e to remain generally applicable to district lands). Possibly because the 1934 and 1935 Executive Orders might have been interpreted as making all the withdrawn lands "otherwise reserved or appropriated", and hence not available to states as part of the exchanges authorized by TGA, Executive Order 7274 of January 14, 1936 stated that lands within grazing districts were "excluded from the operation of' the earlier Order for as long as the lands remained grazing districts.(ll5) This phrase could either be interpreted as meaning that lands in districts were no longer withdrawn at all or that such lands were withdrawn or reserved for grazing purposes but not otherwise, or that grazing district lands nonetheless were still available for exchange. Considering that other parts of the TGA expressly stated that grazing district lands were withdrawn and that both the 1934 and 1936 acts elaborate on the fact that district lands are not available for entry, settlement, or other disposition, it seems clear that grazing districts remained independently withdrawn after Executive Order 7274, and were governed by the provisions of the TGA. The TGA was amended in June of 1936(116) to reflect the presidential withdrawals. Section 7 was amended to direct the Secretary to examine and classify all lands withdrawn or reserved by the executive orders as well as those within grazing districts to determine whether they were more valuable or suitable for agriculture or any other use other than grazing. In light of the fact that § 7 speaks of classification and reclassification of all lands, including those put into grazing districts (expressly stated elsewhere in the TGA as being withdrawn lands), the 1936 amendment seems intended to clarify that the Secretary was authorized to classify or reclassify all the withdrawn unreserved public domain lands, and lands within grazing districts, but that grazing district lands were still to be governed by the TGA. The 1936 changes to § 7 also added language clarifying that lands in grazing districts "shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Other language clarified that the lands remained open to mining. The 1936 Act also increased the amount of acreage that could be included in grazing districts from 80 million to 142 million acres. The acreage limitation in grazing districts subsequently was eliminated in 1954.(117) Under the Executive Orders, after 1936, all otherwise unreserved public domain lands were temporarily withdrawn for the general purpose of classification. A limited amount of those lands could then be classified as suitable for grazing and, upon compliance with notice and hearing requirements, would remain withdrawn as grazing districts managed for the purposes set out in the Taylor Grazing Act. Some lands within a district might subsequently be reclassified and reopened to entry under the public land disposal laws. Otherwise, the entry, settlement, and disposal laws expressly did not apply to lands in grazing districts.(118) Following the reasoning of the Pelton Dam case and other analyses, if the 3 statutes providing for private appropriation of water under state law(119) apply only to lands available under the disposal laws for entry and for the acquisition of private title, quite arguably the opportunity for private water appropriation is suspended during the time the lands in grazing districts are unavailable for entry under the disposal laws. Because the land disposal laws do not apply to lands in a district unless and until such lands are reclassified as appropriate for other use, the opportunity for private water appropriation would continue to be suspended until reclassification made lands once again subject to the disposal laws. This interpretation is supported by the legislative history. Keeping in mind that the "reserved rights" framework of analysis was only fully developed by the courts long after the enactment of the TGA, the language of the TGA and its legislative history shed light on the issue of water rights in grazing districts. For example, there is evidence that the Congress that enacted the TGA considered grazing districts to be reserves; the concept is reflected both in the statutory language and in the legislative history. In TGA § 315g(b), for example, the Secretary is authorized in some instances to accept lands from individuals and in exchange to issue a patent for "surveyed grazing district land or of unreserved land in the same State ...." (emphasis added), language that contrasts grazing district lands with unreserved public lands. Similarly, under § 315g(c), the Secretary may accept lands from a state and in exchange issue a patent "to surveyed grazing district land not otherwise reserved or appropriated or unappropriated and unreserved surveyed public land." It could be argued that the wording of these provisions indicates that Congress regarded district lands as reserved. Section 315g(d) indicates that "lands conveyed to the United States under this chapter shall, upon acceptance of title, become public lands, and if located within the exterior boundaries of a grazing district they shall become a part of the district within the boundaries of which they are located ...." This could be read to mean either that even lands within grazing districts are public lands, or that received lands generally are public lands, but are reserved lands if within a grazing district. Section 315 states that nothing in the Act "shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this chapter ...." (Emphasis added.) In light of the express withdrawal of all lands in grazing districts from the operation of public land laws, this language seems to mean that the Taylor Grazing Act does not impair any rights previously obtained under those laws or rights initiated as to lands within districts that are reopened after classification. Similarly, § 315b as to water rights states:
This section has been interpreted by some to mean that water in grazing districts is available for private appropriation and that state law will govern. There are remarkably few cases involving water rights under the TGA, either at the federal or state levels. We have been unable to find cases holding that § 315b means that water rights can be acquired under state law.(l20) Given the structure of the statute establishing the system of express withdrawal and possible subsequent reopening of the lands within grazing districts, this language could also mean that existing water rights were protected and future rights could be acquired under the public land laws once lands were returned to the operation of those laws. Or the provisions could be interpreted in the same way similar language as to the national forests has been -- that water above that amount needed for the federal purposes was available for appropriation. Section 315(c) provides that "Fences, wells, reservoirs, and other improvements necessary to the care and management of the permitted livestock may be constructed on the public lands within such grazing districts under permit issued by the authority of the Secretary, or under such cooperative arrangement as the Secretary may approve. Permittees shall be required by the Secretary of the Interior to comply with the provisions of law of the State within which the grazing district is located with respect to the cost and maintenance of partition fences ...." Although state law expressly is to apply with respect to partition fences, there is no comparable language as to wells and reservoirs. This failure to mention the applicability of state water law contrasts with the language in the Forest Organic Act below. The remainder of § 315(c) provides for the payment by one permittee to a previous permittee for the reasonable value of the improvements. The obvious import of this provision is that a permittee's "rights" to improvements are usufructuary and temporary in nature and terminate at the end of the permit term. This is more in the nature of a license to use the improvements and is how the section has been implemented from the earliest days of TGA implementation. It would completely disrupt the range management system if one permittee could own more permanent rights to the water under state law and decline to convey to a subsequent permitted As discussed above in the part of this report on the Stockwatering Right of Way Act of 1897, the Department kept in effect the regulations on stockwatering reservoirs constructed under that Act until they were replaced in 1980 with general right of way regulations under title 5 of FLPMA. The older regulations expressly applied to stockwatering reservoirs on lands in grazing districts and imposed significant federal controls over such water. Quite arguably this is indicative of a continuing administrative position that water on district lands could not be privately appropriated for exclusive livestock use. If so, the distinction between whether the watering facility was a reservoir or a well and trough does not appear significant. Several other aspects of the TGA support the view that water in grazing districts was not to be subject to private appropriation. First, § 315a states some of the purposes of the TGA as: "to regulate their occupancy and use to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly use, improvement, and development of the range; and the Secretary of the Interior is authorized to continue the study of erosion and flood control and to perform such work as may be necessary amply to protect and rehabilitate the areas subject to the provisions of this chapter ...." That the Act might reserve lands and waters within grazing districts could also be said to be borne out by the similarities between the structure and language of the Act and similar provisions relating to the national forests --provisions consistently interpreted as reserving water rights. Under the (National Forest) Organic Administration Act, the Secretary of Agriculture is to protect the forests against destruction by fire and depredations and "to regulate their occupancy and use and to preserve the forests thereon from destruction.,..(121) "No national forest shall be established, except to improve and protect the forest within boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.''(l22) There were provisions for some forest reserve lands to be reopened to the settlement laws,(123) and the Organic Act further states that "[a]ll waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forest are situated, or under the laws of the United States and the rules and regulations established thereunder.''(l24) Despite this express language on private water use in the forest laws, courts consistently have held that federal reserved rights exist sufficient to carry out the purposes of the national forests.(125) Therefore, private water rights apply only to water beyond that needed to carry out the primary purposes of the forest reservation. Aside from this express authorization of private water use in the Organic Act, which contrasts with the language of § 315b of the TGA discussed above, the similarities between the acts are striking. Both acts regulate the occupancy and use of the withdrawn lands and protect the lands and their resources -- the timber in the case of the forest reserves and the forage in the case of the grazing districts. The National Forest System laws expressly mention protection of the watersheds as a purpose, while the TGA refers to wat |