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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 Congress directed that lands in TGA grazing districts were withdrawn from entry and acquisition of private title (except for mining patents), unless and until particular lands were reclassified by the Secretary as more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 water conservation more obliquely through references to controlling floods and erosion. Suspect though the concept of grazing districts as reserves analogous to national forests might seem, this analogy between the grazing districts and national forests was drawn by members several times in the legislative history of the Taylor Grazing Act. Notably, there are several points in the congressional debates when an understanding was expressed that water in grazing districts was not available for private appropriation until such lands were reclassified for settlement. Legislative History of the TGA When H.R. 6462 was introduced and considered in the House, it was repeatedly described as a conservation measure intended to protect the rangelands, regulate their use, and provide for the development of water facilities. In presenting the bill, Rep. De Rouen expressly mentioned the need to protect water supplies:
The discussions of water development in some instances mention federal construction and development of water facilities in order to halt erosion and develop the range.(128) Other comments mention the stability that the legislation would introduce by protecting a permittee in the use of improvements such as wells and reservoirs built by the permittee. As discussed previously, before the TGA, other stockmen on the open range could use the wells and reservoirs developed by another grazer, thereby depriving that person of some of the benefits of his efforts. Under the TGA, a permittee would receive greater protection because a permittee would enjoy the exclusive rights to use a particular tract of land.(l29) These discussions may be seen as supporting one of two positions. On the one hand, one could argue that the possibility of private appropriation of water was not precluded and hence was assumed to be allowed. For example, Rep. Carter voiced the opinion that the states controlled all water and that the bill would separate control of the water from control of the lands.(130) on the other hand, the discussions may reflect the assumption that range water sources for stockwatering purposes could not be privately appropriated outside the homesteading context. This assumption was reflected in the 1897 statute on stockwatering reservoirs and in the 1926 withdrawal of public water sources.(l31) Under this reasoning, the exclusive grazing preferences established by the TGA would protect a permittee in the use of the lands and waters within grazing districts during the term of the permit. Some Members expressly analogized the grazing districts to National Forest Reserves. Rep. Hill asked if the bill withdrew grazing district lands from homestead entry, to which Rep. De Rouen at first responded "No". Rep. Ayers corrected this answer and clarified the applicability of the homestead laws by saying:
In other words, lands in grazing districts were reserved and removed from homestead entry unless and until they were reopened for such entry. Other discussion clarified the status of grazing district lands as withdrawn from homesteading and other disposal laws. These discussions are very significant for the light they shed on the question of water appropriation. As introduced, the bill contained no acreage limitations on the amount of land that could be put into grazing districts. Although speakers in both chambers noted that homesteading had declined significantly, some members vehemently opposed the bill because an unlimited amount of land could be reserved, and might never be reopened, a fact that would make retention of the western lands in federal ownership even more offensive to those who advocated transfer of the lands to state ownership.(133) Rep. Englebright noted that "[When we contemplate 55 percent of the area of our Western States is to be reserved from acquirement by private ownership, it is appalling.''(l34) "To permanently reserve and keep from development and under Federal bureau control one half of a State is an unreasonable exercise of whatever rights the Federal Government might have to reserve lands.''(l35) Rep. Englebright also indicated an alternative existed, in that the Forest Service, which already had experience in administering grazing, would be the logical organization to handle grazing on the unreserved public lands.(l36) Similar concerns about the wisdom of reserving the entire public domain were voiced in the Senate. In presenting the measure, Sen. Adams noted that the previously vast public domain "by withdrawal of the forest reserves, for national parks and through homestead entries," had gradually been reduced so that very little of it was still available and suitable for homesteads. The remaining public domain was open without restriction and without cost to any use that the public may see fit to make of it. "Unfortunately the results have been that much of the land, especially that which is the preferable grazing land, has been overgrazed, and it is in a sadly eroded and damaged condition. This bill provides for the creation of grazing districts for the purpose of protecting this residue of the public domain against further damage by water erosion and wind erosion and by limiting the number of stock that may be grazed within the grazing capacity of the land."(137) The Senator continued by noting that the committee had restricted the authority of the Secretary of the Interior so that he could create grazing districts out of only 80,000,000 of a total 173,000,000 acres of public domain.(138) Senator O'Mahoney explained that it was a belief of "a great many of us in the public-land States that it would be unwise to clothe the Secretary of the Interior with the power to shut off all homesteading in the public-land States .... If the Secretary were permitted to create grazing districts without limitation it would have been possible for him to have stopped all homesteading .... [The limitation] gives us the assurance that all the public-land laws will continue to apply upon the area which is not included in the grazing districts". (139) Sen. O'Mahoney, and others, also noted that the committee had added other amendments to minimize the perceived unfavorable effects of the bill as passed by the House:
Senator Hatch commented: "Some think that under this bill there will be no further homesteading. The bill provides that even though the lands are withdrawn, those lands which are chiefly valuable for agriculture shall be so classified by the Secretary, and then shall be open to homestead under the public-land laws of the United States.''(l4l) The Senate committee also recommended an amendment to § 7 that required the Secretary to classify a land tract if a qualified person made application for it, thereby alleviating some of the severity of the reservation of the districts.(l42) In a very significant move, Sen. Hatch introduced a floor amendment to strike a proviso in the House version of § 7. The proviso said: "That no lands containing water holes, springs, or water supplies developed or improved by the holder of any grazing permit or his predecessor in interest shall be subject to classification, settlement, entry, or patent under the provisions of this section." Sen. Hatch argued that the proviso essentially gutted the reclassification and homesteading section. In the ensuing dialogue, Members serving on the pertinent Senate committee clearly indicated an understanding that water in grazing districts could not be privately appropriated.(l43) Because the dialogue is highly illuminating of the understanding and intent of Members regarding the effects of the bill on water sources on the range, it is included in its entirety: REGULATION OF PUBLIC GRAZING LANDS
After conference, the House accepted the striking of the proviso. This dialogue and this action in striking the proviso clearly support the position that Congress did not consider water in a grazing district, even water developed by a permittee, subject to private appropriation unless and until the tract of land on which the water source was located was classified by the Secretary as open to homesteading. A permitted with the consent of the Secretary could make water improvements on district lands and would be compensated for the cost of such improvements when a new permittee took over. However, only when a tract of land was reopened to entry and settlement would the statutes relating to private appropriation of water under state law again apply. This structure of keeping the water with the grazing district lands was devised both to protect the grazing resources and to protect those who might ultimately want to settle on reclassified lands. This structure of the Act makes sense out of all its provisions, including section one of the bill protecting generally rights "heretofore or hereafter initiated under existing law," and the similar language protecting rights to the possession and use of water. Initially, the bill language protected such rights that had heretofore vested or accrued "under existing law or which may be hereafter initiated or acquired and maintained in accordance with law." This language was added by the Senate, but was changed in both places at conference to refer to rights under "existing law validly affecting the public lands" or which may be hereafter initiated or acquired and maintained in accordance with such law. The Conference Report merely states that the addition meant that the laws in question "do validly affect the public domain.''(145) If lands in grazing districts are regarded as open, available, public lands, it is difficult to reconcile the above references to prospective rights with the provisions on withdrawal, classification, and possible "reopening" of district lands. If, however, the districts are regarded as withdrawn or reserved from application of the public land laws (except as otherwise stated, as, e.g., still being open to mining) until reopened to settlement, all of the provisions make sense, including the reference to prospective rights, as assurance that the creation of the districts did not affect rights already obtained nor preclude the operation of the public land laws -- and the acquisition of new rights -- on lands outside district boundaries or on reopened tracts within their boundaries. The only other significant discussion of water in the Senate was the explanation by Sen. O'Mahoney of the importance of the (TGA) legislation for the development of the water resources for the rangelands: IMPORTANCE OF DEVELOPING WATER
As has been discussed, Congress did not allow such watering sources to be homesteaded and private ownership to be obtained unless the lands were reclassified as suitable for agricultural homesteading. Sen. O'Mahoney's reference to the development of water discovered during the course of oil and gas leasing was ultimately enacted,(147) and provides that the Secretary is to be given the option of purchasing the well casings in such instances and may use the water on the public lands or dispose of it for beneficial use on other lands. Arguably, the Senator's comment on the range issues meant that the range would benefit from the public development of watering places to ensure the proper utilization of the grazing resources on the lands he acknowledged were likely to remain in federal ownership. The Senate debates included two other topics of interest. Sen. Carey, although also making it clear that he felt the federal lands should be passed to the States, supported the bill as an alternative that was better than actions apparently pending in the executive branch. The Senator had reprinted in the Record a Solicitor's opinion analyzing a proposed executive order to create grazing district withdrawals. The Solicitor's opinion stated:
Note that grazing districts apparently also were considered by the executive branch as reservations for the particular purpose of grazing. Mention has sometimes been made of the beginning of the first sentence of the Act: "In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized ... to establish grazing districts ..." (emphasis added), as evidence that Congress did not mean for the grazing districts to be true reservations like the forest reserves. Several of the discussions in both chambers indicate that Members were becoming aware that the era of rapid disposal of the federal lands during the westward expansion was coming to an end, both because there were fewer and fewer lands where people wanted to attempt homesteading and because there was less sentiment in Congress favoring turning the remaining lands over to the states. The increasing unlikelihood that the federal government would relinquish the western lands was noted several times and Sen. O'Mahoney explained that the phrase "pending final disposal" was added in committee at the suggestion of Sen. Ashurst "so that the question remains open.''(149) Until the Federal Land Policy and Management Act expressly stated in 1976 that federal policy was one of retention in federal ownership of the rest of the public lands, the question of possible eventual federal relinquishment was an open one; all remaining federal lands were "pending final disposal" in the hopeful sense in which the phrase apparently was used. Furthermore, as discussed above, the TGA does allow for disposal of lands in districts, but also expressly states that lands are not to be subject to the disposal laws until the lands are reclassified to make them so. In his statement approving the TGA, President Roosevelt stated in part:
The issue of the extent of state control was evidently a sensitive one. Section 16 of the Act states:
After enactment, it rapidly became clear that rangelands left out of grazing districts were deteriorating from overuse resulting from the new restrictions within grazing districts. Principally for this reason, a simple amendment was offered in the House early in 1935 to increase the acreage that could be established as grazing districts. In attempting to enact a similar provision in the following session, Rep. Taylor explained that the Senate had made some "very objectionable" additions to the 1935 bill that caused the President to veto it.(151) Exactly what the objectionable additions were was not specified, but the Senate had added changes related to exchanges, clarified that mining was protected, and clarified that lands could be reclassified for other uses. The Senate also had struck the last sentence of section 16 in order to clarify that the states could still regulate the rangelands.(152) This change was not among the 1936 changes, although most of the other 1935 changes were, so perhaps this was one of the "very objectionable" additions referred to. In 1935 Rep. Taylor discussed the pre-TGA conditions on the open range, noting that many of the western states had passed laws relating to the use of the federal lands. Some of those state laws related rights to the public range to the development of water. Rep. Taylor then stated:
These comments alone are not conclusive on the question of congressional intent regarding water rights, but may shed additional light on the question when read together with the discussions set out above. To summarize, after 1935 virtually all western lands were temporarily withdrawn by the President for classification by the Secretary. Some of these lands were placed into grazing districts by the Secretary. Upon compliance with the procedures set out in the TGA, grazing district lands are withdrawn by law for the purposes of the Act and expressly are not subject to the settlement and disposal laws, other than for mining, unless and until district lands were reclassified as reopened. Arguably, the water on such lands is not available for appropriation during the time lands are in a district, an argument that is supported by the structure and text of the TGA and the comments of Members on both sides of the debate. During the debate on the TGA, Members analogized grazing district lands withdrawn for grazing purposes to the national forest reserves -- for which federal water rights have been implied. Grazing district lands have a dual status -- not subject to private acquisition of title while in grazing district status, but potentially subject to such acquisition upon reclassification. But whether one calls the districts "reserves" or not, the TGA quite arguably reflects congressional intent that the water not be alienated from the lands while the lands remained in grazing district status. The TGA states that the lands in a district are withdrawn and not subject to entry, settlement or disposal -- and hence to acquisition of private title --unless and until they were reclassified as available. Comments of Members on both sides of the issue expressed an understanding that this meant the water could not be appropriated until lands were reclassified for homesteading or other settlement at which time the understanding also was that the water would be available for appropriation under state law. This position is in keeping with the later interpretations of the Supreme Court that the statutory authorization for the private appropriation of water on the western public lands applied only to those lands to which the settlement and disposal laws applied. The Congress enacted the Taylor Grazing Act to regulate the occupancy and use of the rangelands, to preserve the land and its resources from destruction or unnecessary injury, and to provide for the orderly use, improvement, and development of the range, pending either disposal to the states or into private hands, and the argument can be made that, except for water rights acquired in connection with mining operations, title to the water in grazing districts was intended to remain with the lands to carry out these purposes. Private ownership of scarce rangeland water would compromise or frustrate both the protection and recovery of the range and its potential for disposal to nonfederal ownership. Contemporaneous Administrative Actions The administrative record available to us that is contemporaneous with the TGA reflects two threads of administrative policy. There was both an official recognition of the policy of federal deference to state law, and the implicit assumption -- implemented in practice -- that water in grazing districts was not to be alienated from the lands and was to remain under federal control. On the one hand, before passage of the TGA, Solicitor Margold had opined that the 1866 Act (recognizing vested water rights) and the Constitution would safeguard already vested rights and that the 1866 Act would have to be repealed in order to prevent future private appropriations of water from grazing district lands because of the policy of the federal government of permitting the western states to pass laws providing for the use and appropriation of all waters within their boundaries except those in navigable streams.(154) Mr. Margold, of course, was writing before the Supreme Court decisions that concluded that the three water disposal laws did not apply to federal lands that were not subject to land title disposal laws. It should be noted that the Forest Service also initially believed that all water for forest purposes had to be obtained under state law.(155) And certainly it is relevant and important to keep in mind the federal policy of deferring to state law regarding water allocation, but one may also look to other agency actions and interpretations in agency implementation of the TGA. Other administrative documents dated soon after the enactment of the TGA and relating to range water are sparse, but those available to us(156) are interesting for what they indicate, either expressly or implicitly, about how range water was viewed. The first grazing regulations, "the Federal Range Code," were dated March 2, 1936. These were amended in 1937 and were considerably lengthened in 1938 at 43 C.F.R. § 501 (1938 Supp.). The 1936 regulations spoke of interim "licenses" that would be issued pending establishment of a formal permitting system. Other documents indicate that it is appropriate to read "license" as "permit" with respect to documents from these early years.(157) "Property" that would qualify an applicant for a grazing preference was "land and its products or stock water owned or controlled and used according to local custom in livestock operations." By June 14, 1937, the regulations also required that an owner of water or water rights must show that the water was used for stock purposes and held under proper authority from the State.(158)(Emphasis added.) However, the 1936 regulations also defined the terms "dependent," "near," and "commensurate" as modifiers of"property"and clarify that the lands and waters that comprised qualifying property are off the federal lands. Such properties typically were those obtained through homesteading, though some of the water involved was obtained through the Bureau of Reclamation and some water was described as being piped from distant rivers and other sources.(159) The 1938 regulations mentioned water rights and defined "prior water" as water to which rights had been established before the TGA. As before, Class I or Class II base property rights(160) could include water rights. It is nowhere expressly stated, however, what the policy was regarding acquisition of water rights on lands within a grazing district. These early regulations reflected the statutory provisions on range improvements and required a federal permit to construct any range improvements, including wells. There was no elaboration regarding water rights, though there were express requirements that permittees comply with state law as to fences and the number and type of bulls released. In 1936, the Department published "Instructions Concerning Permits and Cooperative Arrangements Relating to the Construction and Maintenance of Improvements on the Public Lands Within Grazing Districts.''(161) This publication set out a sample permit for improvements that indicates that a permit would grant the right to construct the improvement and would grant:
Note that the permit language grants only the right to use improvements during the term of the permit. This is consistent with the discussions during enactment of the TGA that grazers who built water improvements would not own them. Like the TGA, it also expressly requires compliance with state law only as to partition fences. That protection of wildlife within grazing districts was a recognized goal arguably is reflected in a memorandum that states that there is no good reason why game and domestic livestock cannot occupy the public domain harmoniously and that only revocable licenses would be issued in areas that might conflict with a wildlife program and that grazing district boundaries would be modified to permit approval of executive orders establishing game refuges.(163) Wildlife protection was also established in the early regulations, and a Division of Grazing memorandum from March 9, 1935 (no author indicated) states that areas would be set aside within grazing districts as priority game areas with reductions in domestic livestock made accordingly. Until very recently, wildlife watering generally was not a recognized use of water under state laws at all, or was given such a low priority as to seldom receive water. Furthermore, most early western state laws required some constructed improvement or diversion to qualify for a water right -- features that could frustrate federal wildlife watering objectives. These factors are relevant to discussing federal control over the use of range water. A 1934 memorandum discusses a request by the Federal Emergency Relief Administration (FERA) for permission to drill water wells on certain public domain lands in Utah to alleviate an acute drought and recommends withdrawal of the lands to protect the waters for this purpose. The memo states: "Probably the best way to effect this withdrawal would be to publish a notice for the establishment of a grazing district embracing this area.''(164) Clearly the belief was that the establishment of a grazing district would both constitute a withdrawal of lands and safeguard the waters for the FERA wells. Similarly, the 1942 edition of the Handbook of the Grazing Service in discussing withdrawal of public water reserves noted that the general withdrawals of 1934 and 1935 "as well as the orders creating grazing districts, afford blanket protection of all public land, including land containing springs or water holes. Consequently, where grazing districts are concerned, there is no administrative need for reserving land as public water reserves."(165) This statement again reflects an understanding that water sources could not be appropriated on the grazing district lands. An undated entry in the 1934-1937 Records of the Office of the Secretary entitled "Data in Regard to 10 Public Land Range States ..." lists the total area of federal lands as 585,700,000 acres and then lists:
Other entries then show acreages for Forest Reserves, Parks, National Monuments, Military, and Indian lands. Arguably, the way the grazing district lands are indicated recognized their status as not currently being public domain lands open to settlement, but rather that they were a subset of public domain, "Reserved (Subject to Taylor Act)", because district lands potentially could be open for disposal, but were not currently so. One document indicates that the Director of Grazing had sought guidance from the Secretary on appropriate procedures to protect the interests of the federal government from persons seeking to divert waters in Utah Grazing District # 6. Ironically, this effort at private appropriation of water was protested by the Advisory Board in the District on the ground that the water was part of the public domain and "it is necessary for it to remain Government property for proper administration." The response from the Secretary concluded that this particular case could be disposed of because the water source was within the 1926 Executive Order and hence water could not validly be granted to anyone by the state anyway.(166) Another Division of Grazing document containing "Instructions to Regional Graziers concerning water filings" states that the question of water was "sufficiently well settled" not to justify a request for a decision by the Comptroller General; but we did not find an exposition of what this "well settled" position was. Quite possibly, considering the preenactment opinion of Sol. Margold described above, this position was that the general policy of the federal government was deference to state law on the issue of water appropriation. Also, quite possibly, since we found no other formal opinion, this position rested on the general deference to state law and did not include further analysis. However, whatever the official position of the Department in Washington was, in practice the actions of the federal range managers seem to have prevented alienation of water from the rangelands or loss of federal control over the use of grazing district water for decades. This was accomplished in several ways. For one thing, the United States itself developed many of the new water sources in the grazing districts. Many of the early water improvements were constructed by the Emergency Conservation Work Program and the Civilian Conservation Corps.(167) It bears reiterating that the Stockwatering Right of Way Act of 1897 and its implementing regulations remained in effect 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, including the requirement that they remain open to the use of the public. Arguably this is indicative of a continuing position that water on district lands remained under federal control. If so, the distinction between whether the watering facility was a reservoir or a well and trough may not have been considered significant. Interviews with BLM personnel(168) who worked with grazing districts before 1980 and recently indicate that there were varied practices. In many instances, recognized water rights were not obtained at all for the water wells, etc., constructed on TGA grazing district lands -- the water was simply put to use. In other instances, water rights were obtained in the name of the United States or were jointly titled to the United States and the permitted This was especially true if federal funds were involved in the water improvement. In still other instances, water rights were titled in the permittee, if this was allowed under state law. However, before the change in policy in the 1980s, the United States filed protests to applications for exclusive permittee rights and frequently prevailed in obtaining joint title or having such applications denied. Relinquishment of water at the end of a grazing permit term was required and a permittee was compensated only for the costs of the water-related improvements. In addition, the United States continued to require that some stock-watering facilities accommodate wildlife purposes, a feature that might not be recognized or allowed under state law. There also is evidence that the United States controlled water within grazing districts by refusing to grant rights of way for the carriage and storage of water other than on terms sought by the United States.(169) The fact that, absent any vested rights, the United States could control and condition use of grazing district water through its control over access rights of way, combined with the fact that all improvements had to be authorized seemed to have resulted in a workable system of cooperation that was seldom questioned until the policy changes in the 1980's. Over the ensuing decades since 1934, title to water appears to have remained solely or jointly in the United States and grazing uses were conditioned to serve other federal purposes such as wildlife watering, etc.(170) However, once private exclusive title to water rights is allowed to be perfected and maintained under state law as proposed in the new regulations, one can question the extent to which the federal government may still refuse access and other necessary rights of way for the exercise of the rights without incurring an obligation to compensate for the possible "taking" resulting from the frustration of such rights. Also, if water rights are to be "maintained" in accordance with state substantive law, the extent to which the federal government may regulate the exercise of state-sanctioned water rights -- e.g. to require wildlife watering, etc. -- is a question to be explored.(171) Presumably, the federal managers could continue to validly regulate the exercise of state-recognized water rights based on the various protective and management duties set out in TGA and in FLPMA.(172) It appears fair to state that after the enactment of the TGA, the Department resolved the issue of private water rights on the federal rangelands by allowing the development of water sources by private permittees, but retaining control over the use of the water by retaining title either wholly or partly in the name of the United States and imposing conditions either as part of the permitting/allotment plan processes or through controlling rights of way in order to ensure that other uses of the federal lands continued to receive water. There are remarkably few state court cases involving the TGA and water rights; apparently the practical solution devised by the Department --recognizing state law as governing, but retaining federal control of (and frequently title to) the use of the water in order to accomplish federal purposes -- worked to the satisfaction of all concerned until the changes in the 1980s encouraging exclusive private water rights highlighted the issues. It is difficult to say with certainty how a court faced with this record would view the actions and interpretations of the Department. Several of the standard analytical approaches appear to be at odds in this instance. In all likelihood, final conclusions would depend in large part on the extent to which a court felt the relevant statutes were clear.
If a court were to review the history of federal statutes related to livestock grazing and the language and history of the TGA in particular, it might find that Congress intended that water not be alienated from grazing district lands during the time the lands are in districts. This interpretation is supported by the facts that Congress has treated rangeland water differently from water available to settlers and that under the TGA: 1) lands in a district are withdrawn from entry, settlement, and disposal laws unless and until reclassified for settlement and acquisition of private title and there is evidence that members understood this meant that (except for mining purposes), water would not be alienated until private title to lands could be acquired; and 2) that the principal purposes of the districts are to restore and protect the rangelands and to regulate their use for livestock grazing. If a court finds that Congress has answered the question, it might also conclude that mistaken interpretations and actions of the agents of the United States, and the silence or acquiescence of Congress would not suffice to change the law, nor result in the loss of federal rights.(175) A court also might conclude that Congress sufficiently addressed and answered the question in the opposite direction -- that water could be appropriated under state law. Most probably, a court would focus on the language in section 315b as to water rights which may "hereafter" be initiated to reach this conclusion. If a court finds that Congress has not directly or clearly answered the question at hand, then the interpretation of the agency entrusted by Congress with implementing a statute is entitled to deference.(176) And an administrative interpretation that is consistent and long-standing is entitled to special deference.(177) Furthermore, a court should not simply substitute its own judgment or preferred interpretation, if the agency's interpretation is a rational or reasonable one.(178) A reviewing court would normally make a substantial inquiry and consider whether the agency decision was based on a consideration of all the relevant factors and whether there has been a clear error of judgment.(179) Agency interpretation is not entitled to deference if it does not comport with congressional intent or if there are compelling indications that it is wrong.(180) Here too, there are conflicting rules of analysis. On the one hand, the legal position of the Department has been relatively consistent and long-standing that state law controls to some degree. On the other hand, the original Margold opinion did not analyze the TGA at all, rather the Solicitor appears simply to have felt constrained, as did other federal officials at that time, by the general policy of federal deference to state law. None of the subsequent Solicitors' opinions or any other legal interpretations of the Department of which we are aware have analyzed the structure, provisions, or history of the Taylor Grazing Act. In addition, the actions of the Department arguably have not been consistent with the stated legal position. Therefore, it may be questioned whether the administrative conclusion that there are no federal water rights associated with grazing districts is based on a consideration of all the relevant factors. This conclusion returns one to the relevant statutes and a closer examination of the historical administrative actions. The fact that Congress has not corrected a long-standing administrative position must also be considered. If Congress has revisited a statute that gives rise to a longstanding administrative position and does not revise or repeal the agency's interpretation, this is persuasive evidence that the interpretation is the one intended by Congress.(181) on the other hand, it can again be noted that the legal position of the Department at times allowed federal management use of water and that practical solutions were developed on the lands such that title and control of the rangeland water essentially remained with the United States over the decades and there was remarkably little controversy surrounding livestock watering. Therefore, perhaps Congress did not correct the issue because no issue or problem came to its attention until the 1980's when efforts were made in the Department to encourage exclusive private title. In these circumstances, a court may not give weight to the silence or acquiesence of Congress. (182) Perhaps the Department in the current rulemaking proceeding may provide clarification of the history of interpretation and practices with respect to stockwatering title and control. Alternatively, the Department's proposed regulations may be open to reexamination in light of the Taylor Grazing Act and its legislative history. The Classification Act Multiple Use Act of 1964. In 1964, Congress both created the Public Land Law Review Commission (PLLRC) to review all current federal land management laws(183) and enacted the Classification and Multiple Use Act.(184) The PLLRC was created to study the federal lands, their management, history, and current laws and to make recommendations for reforms and modernization. These recommendations eventually led to the enactment of the Federal Land Policy Management Act of 1976 (FLPMA).(185) Pending the completion of the studies of the Commission and the submittal of recommendations, the Secretary was to carry out certain interim reviews and classifications of lands under the new Classification and Multiple Use Act, a temporary statute that was to expire after the Commission submitted its recommendations. The Classification and Multiple Use Act began by stating that it was consistent with and supplemental to the Taylor Grazing Act ..." and should not be construed as repealing all or part of any existing law. It directed the Secretary to develop criteria by which to determine which of the "public lands and other Federal lands" should be disposed of or put to various uses, including grazing. The Secretary was to publish notice of certain classifications that would exclude from an area permanently, or for a substantial period of time, one or more of the multiple uses enumerated in the Act. Section 4 of the Act former 43 U.S.C. § 1414) provided that classification of lands would segregate them from the operation of the land disposal laws for a period of two years, except to the extent the Secretary otherwise provided. At the end of 2 years, the segregative effect would end unless the classification process was completed, in which case the terms of the final classification determined the extent to which the lands were open to entry and disposal. The Classification and Multiple Use Act applied to "public lands," which were defined as lands withdrawn or reserved by the Executive Orders of 1934 and 1935, lands within a grazing district, or lands located in Alaska, which were not otherwise withdrawn or reserved for a Federal use or purpose. One must ask whether the term "public lands" is used here in the technical sense of unreserved lands subject to the disposal laws. The Supreme Court has said: "We also reject the assertion that the phrase 'public lands' in and of itself, has a precise meaning, without reference to a definitional section or its context in a statute. (186) As discussed above, by the express language of the TGA, lands in a grazing district are not subject to entry under the land disposal laws, other than the mining laws, so it appears that the inclusion here of grazing district lands in the definition of public lands was intended simply to indicate which lands were to be subject to the extensive review directed by the Act. That this is the best interpretation of the definition is confirmed also by the fact that in the act creating the PLLRC, enacted immediately preceding the Classification and Multiple Use Act, Congress had defined "public lands" as including all federal reserved lands.(187) Clearly, Congress was defining the term "public lands" to delineate which lands Congress wanted included in the each of the study/classification/management efforts. Among other things, the final report of the PLLRC points out the following important fact about the withdrawal/reservation process that is relevant to the analysis and discussion of federal rangeland water. Over the years, in part because Congress acquiesced in executive branch actions regarding the public lands, and in part because homesteading and other disposals of the public lands declined, the terms classification, withdrawal, and reservation lost much of their original meanings related to whether lands were open or closed to disposal into nonfederal ownership. Instead, classifications, withdrawals, and reservations became tools and labels for imposing land use controls or indicating permitted uses:
The fact that in modern land management parlance lands being"classified" or "withdrawn" for grazing purposes might mean only that the grazing use is permitted or that some other uses are precluded, this usage is not probative of what Congress meant in 1934 when it directed that lands in grazing districts were withdrawn. In 1934, § 7 of the TGA expressly states that the lands were indeed withdrawn in the historical sense of that word -- withdrawn from private appropriation under the disposal laws -- until they were reclassified as open to settlement. Withdrawal in this sense precluded the private acquisition of title to the rangelands until reopening procedures were completed, and arguably also precluded the alienation of water from the lands in such districts. The change from withdrawals connoting suspension of the disposal laws to withdrawals merely delineating permitted uses was embodied in the PLLRC's recommendation that the last public lands managed by BLM (i.e. primarily the grazing district lands) be given a multiple-use mandate by Congress. This was accomplished by FLPMA in 1976, with the result that the previous distinctions regarding the nature of grazing districts -- and their waters -- blurred still further. The Federal Land Policy and Management Act The studies and recommendations of the PLLRC eventually came to fruition in 1976 with the enactment of FLPMA. In FLPMA, Congress expressly stated a policy of retaining the remaining federal lands in federal ownership; repealed many executive withdrawal authorities and imposed controls on future executive withdrawals; provided for review of existing withdrawals; required land use planning; and directed the use of the "multiple use" concept whereby the uses to be allowed on particular lands would be determined directly through the land use planning process. FLPMA's modernization of federal land law reflects and makes express the historical changes that had occurred from a system that emphasized disposal of lands from federal ownership, but with certain federal uses preserved through various withdrawal mechanisms that precluded acquisition of private title, to a system of retention of lands in federal ownership for many purposes, with various uses directly prohibited, permitted, or regulated primarily through land planning processes. As noted earlier, it can be argued that analysis of federal water rights conceptually has not kept pace with these basic federal land management changes. Although analysts may forthrightly agree that the federal government has water rights sufficient to carry out the particular purposes of a reservation -- the old regimen -- the same analysts usually do not agree that the federal government may have federal water rights for federal lands retained in federal ownership to fulfill many purposes.(189) Although FLPMA repealed many statutes related to the federal lands, it did not repeal the basic provisions of the TGA.(190) Section 701(c) states:
By its terms, FLPMA did not alter existing water law. Section 701(g) froze the status quo with respect to the law of water rights, stating that nothing in the Aet shall be construed as limiting or restricting the power and authority of the United States or --
If the Taylor Grazing Act and FLPMA are read together, lands in grazing districts are now subject to the planning processes and multiple use provisions of FLPMA, but whatever the status of water rights on grazing district lands was before FLPMA, still pertains.(191) Arguably, if the intent of Congress in enacting the TGA was to prevent alienation of the water resources from grazing district lands pending their reclassification and renewed availability for entry, settlement, and disposal, then that is still the status of grazing district water today.(192) SUMMARY AND CONCLUSIONS Despite the importance of water to the preservation and use of the federal rangelands, remarkably little analysis of the history of stockwatering on the federal lands is available. It appears from the relevant statutes and their legislative histories that the use of water in connection with livestock grazing on the federal lands has been the subject of a distinct sequence of Congressional enactments that set out federal policies and laws different from those that pertained to the titling and use of water on the public domain in the context of the homesteading and settlement laws. In three statutes enacted through 1877, Congress recognized water rights obtained and vested under state law, and authorized future water appropriations of water from the public lands as well. The Supreme Court, however, has held that this authority to appropriate water under state law applies only to lands that are available for entry, settlement, and disposal under the public land laws. In the early years of range use, Congress attempted to prevent individuals from exercising exclusive control of the open public lands and to require that those who used the federal lands as a common grazing area also would use the water sources in common for livestock watering. To this end, the federal government reserved springs and other sources of water on the public lands, both before and after the Executive Order that expressly authorized such reservations. This policy also was reflected in the Stockwatering Reservoir Act of 1897, which required that even water in privately constructed livestock watering reservoirs on the federal rangelands would remain under the control of the Secretary of the Interior and would be available to users other than the person who constructed the reservoir. Regulations implementing this law were in effect for 80 years and then repealed in 1980. This law contrasted with laws governing reservoirs for irrigation purposes, which specified that state law would control the use of such water. Congress enacted the Taylor Grazing Act (TGA) in 1934 to halt the continuing deterioration of the federal rangelands through the creation of grazing districts to protect and improve the rangelands and to stabilize the livestock industry, pending the disposal of the lands. To accomplish these purposes, Congress directed that lands in grazing districts were withdrawn from entry and acquisition of private title (except for mining patents) under the laws providing for the entry, settlement and disposal of federal lands unless and until particular lands were reclassified by the Secretary as more appropriate for non-grazing use. During congressional debates on the TGA, Members repeatedly referred to grazing district lands as being "reserved" for grazing purposes and analogized the grazing districts to forest reserves. Many provisions of the TGA deliberately parallel those of the Forest Organic Act of 1897. Grazing districts may be seen as being both "reserved" in the sense that they were removed from private appropriation and dedicated to a particular purpose, and as being"public lands" in the sense that private title to lands in grazing districts could be obtained if the lands were reclassified for such acquisition. District lands were recorded on contemporaneous Department of the Interior records as "Reserved Public Domain (Subject to Taylor Act)". Whether one regards grazing district lands as reserved in the technical sense of that term, there is strong evidence in the structure, language, and legislative history of the TGA suggesting that Congress intended that the water not be alienated from grazing district lands unless and until the lands were reclassified as once again available for acquisition of private title under some or all of the disposal laws. This view of the language and structure of the TGA comports with the later reasoning of the Supreme Court in holding that the statutes that authorized private appropriation of water from federal lands do not apply to lands that are not available for disposal; if lands are not available for private appropriation, their waters also are not. Comments of some Members who served on the relevant committees during the enactment of the TGA indicate this understanding and intent. It can be argued that federal protection of the water on grazing district lands better fulfills the purposes of the TGA -- the betterment of the rangelands, the stability of the livestock industry through the permit system, and preserving the possibility of private homesteads in the future. 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. Furthermore, an interpretation of the Department of the Interior written before enactment of the TGA took the position that water in grazing districts could be privately appropriated under state law. This position rested on the general policy of federal deference to state law that was also relied on by the Forest Service and other federal agencies at that time, until later rulings of the Supreme Court delineated concepts of federal water rights. Later legal opinions by the Department sustained this position over the decades since the TGA, with some modifications embracing and rejecting federal management water rights, but did not reanalyze the Taylor Grazing Act as to possible reserved rights or examine the historical position of the federal government on livestock watering. Yet, other early actions of the Department reflected the assumption that grazing districts were reserves and that the water was protected, and the practices of the Department over the ensuing decades until the 1980s typically retained federal title and control over the water in grazing districts in order to accomplish federal management purposes. Congress has not amended the pertinent TGA language and recent land statutes such as FLPMA, have preserved the legal status quo. Pending further analysis and clarification by the Department, it appears that questions can be raised as to the consistency the current policies of the Department, embodied in documents promulgated during the 1980s and in the proposed regulations, with congressional direction and intent. This issue arises specifically with regard to a policy of permitting acquisition of exclusive private water rights on the federal rangelands within grazing districts for livestock purposes, or requiring federal rights to be obtained and maintained in full accordance with state substantive law even if doing so might affect the management duties Congress imposed. The historical policy of the federal government, the structure, language, and legislative history of the Taylor Grazing Act, and some of the administrative actions contemporaneous with the enactment of the Taylor Grazing Act and since that time, indicate that significant questions exist. In view of the importance of the issue, Congress may wish to examine the whole question of water rights on the federal rangelands and perhaps to clarify its intent. ENDNOTES 1. 59 Fed. Reg. 14314 (March 25, 1994). 2. Act of June 28, 1934, ch. 865, 48 Stat. 1269, codified at 43 U.S.C. §§ 315 et seq. 3. Proposed 43 C.F.R. § 4120.3-3, 59 Fed. Reg. 14347. 4. 59 Fed. Reg. 14348. 5. See, e.g., 4 Waters and Water Rights, R.E. Beck, editor, §§ 30-42 (1991, 1993 Supp.); Note, Federal State Conflicts Over the Control of Western Waters. 60 Columbia L. Rev. 967 (1960); C.F. Wheatley, Jr., Study of the Development, Management and Use of Water Resources on the Public Lands, a study for the Public Land Law Review Commission (1969). 6. Sporhase v. Nebraska, 457 U.S. 273 (1982). 7. First Iowa Hydro-Electric Coop v. FPC, 328 U.S. 152 (1946). 8. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950). 9. Act of May 10, 1872, ch. 152, 17 Stat. 91.9 Act of May 10, 1872, ch. 152, 17 Stat. 91. 10. R.S. § 2339, Act of July 26, 1866, ch. 262, 14 Stat. 253, codified at 43 U.S.C. § 661. 11. R.S. § 2340, Act of July 9, 1870, ch. 235, 16 Stat. 218, codified at 43 U.S.C. § 661. Congress enacted the principal homestead law in 1862. 12. Act of March 3, 1877, ch. 107, 19 Stat. 377, as amended, 43 U.S.C. § 321. 13. California Oregon Power co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935) 14. See e.g. Frank J. Trelease, Co-ordination of Riparian and Appropriative Rights to the Use of Water, 33 Tex. L. Rev. 24 (1954), and Note, Federal-State Conflicts Over the Control of Western Waters, 60 Columbia L. Rev. 967, 976 (1960). 15.See the compilation of statutes in Federal-State Water Rights, Hearings on S. 1275 Before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Congress, 2d Sess., 302 (1964) (Appendix B. Supplementary Materials submitted by Sen. Kuchel). l6. Federal Power Commission v. Oregon, 349 U.S. 435 (1955). 17. See, e.g., § 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 383. 18. California Oregon Power co. v. Beaver Portland Cement Co., 295 U.S.142, 163 (1935). 19. United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 703 (1899). 20. Cappaert v. United States, 426 U.S. 128, 138 (1976). 21. Pub. L. No. 90-542, 82 Stat. 906, codified at 16 U.S.C. §§ 1271 et seq. 22. Winters v. United States, 207 U.S. 564, 577 (1908). 23. Federal Power Commission v. Oregon, 349 U.S. 435 (1955). 24. Id. at 448. 25. Id. 26. Arizona v. California, 373 U.S. 546 (1963). 27. United States v. New Mexico, 438 U.S. 696, 702 (1978). In this case the Court held that the federal government did not have reserved rights for stockwatering purposes, a secondary purpose of the National Forests, with a priority date as of the creation of the forest, resting on the Organic Administration Act of 1897. Rather the United States had rights with the earlier priority date only for the primary purposes of timber production and the securing of favorable conditions of water flows. The United States had not asked for and the Court offered no opinion on whether the government could have water rights for the purposes recognized in the Multiple Use Sustained Yield Act with a priority date related to the 1960 enactment of that act, or on whether that act might be read as elevating the previous secondary purposes to being primary forest purposes. See n. 21 at 713-714. 28. See Opinion of Solicitor Leo M. Krulitz, M-36914, June 25, 1979, Federal Water Rights of the National Park Service, Fish and Wildlife Service, Bureau of Reclamation, and the Bureau of Land Management, 86 I.D. 553, 571 (1979); National Water Policies for the Future. 466-467 (1973); C. Wheatley, Study of the Development, the Management, and Use of Water Resources on the Public Lands, 78-80, 112-116 (1969); Opinion of Solicitor William H. Coldiron, Non-Reserved Water Rights - United States Compliance with State Law, September 11, 1981 at 5; Memorandum by Theodore B. Olson for Carol E. Dinkins: Federal "Non-Reserved" Water Rights, Department of Justice, June 16, 1982. 29. 38 U.S. 645 (1978). 30. California v. U.S., supra at 679, considering 43 U.S.C. § 383. 31. Id at 674. 32. See, e.g., Coldiron opinion, n.23, supra, at 9-10. 33. 38 U.S. 645, 668 n.21, 672, 673, 678, 679 (1978). 34. Id at 670. 35. Id at 672 n.25. 36. Id at 672 n.24. 37. Id. at 674. 38. The Coldiron opinion also drew upon the discussion in California v. United States of the language in United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 609, 703 (1899), that only two bases exist for federal water rights: reserved rights and those derived from the navigational servitude. This approach does not take into account water law opinions since 1899, including the holding in California v. United States itself, and Sporhase v. Nebraska, 458 U.S. 941 (1982), which held that Congress could regulate water per se under the Commerce Clause. 39. Memorandum of Justice Department, supra, 76-78 n.23 (footnotes omitted). 40. Sierra Club v. Watt, 659 F.2d 203 (D.C.Cir. 1981). 41. Release 7-86, March 19, 1984 revising BLM Manual Section 7250 - Water Rights, § 7250.02. 42. 86 I.D. 553. 43. Summary of Water Rights Policy Development in BLM, July, 1984. 44. 86 I.D. at 592. 45. See Supplement to Solicitor Opinion No. M-39614, January 16, 1981, 88 I.D. 253; Opinion of William H. Coldiron, September 11, 1981, Non-reserved Water Rights-United States Compliance with State Law, 88 I.D. 1055. 46. M-33969, Mastin G. White, Compliance by the Department with State Laws Concerning Water Rights, November 7, 1950. 47. 86 I.D. supra, at 574, 614. 48. Id. at 578. 49. Id. at 614-615. 50. 88 I.D., supra., at 255. 51. Id. at 257-258. 52. 88 I.D. 1055. 53. See, 55 I.D. 371, 376 and 55 I.D. 378, 380 at which latter cite it is stated: "Where wells are developed on public lands of the United States, the Government could protect the use thereof for governmental purposes, in so far as the use of the waters depended upon the use of the land for the storage or carriage of such waters, by refusing to grant rights of way for such purpose." 54. Letter from W.C. Mendenhall, Acting Secretary of the Interior to Director of Division of Grazing, October 29, 1936; National Archives, Washington, D.C. (College Park, Md.). 55. M-36914 (Supp. I), Solicitor Coldiron. The opinion at 5 also noted that FLPMA "mandates the maintenance of the status quo ante in the relationship between the states and the United States. The status quo is a recognition of existing laws and practices, and thus allows for ... the right of the United States to use water for congressionally-recognized and mandated purposes set forth in legislation providing for the management of the public domain ...." 56. See n. 156 and accompanying discussion. 57. Proposed 43 C.F.R. § 4120.3-3 at 69 Fed. Reg. 14347. 58. Proposed 43 C.F.R. § 4120.3-9 at 59 Fed. Reg. 14348. 59. 59 Fed. Reg. 14322 (emphasis added). 60. The extent to which the BLM might modify the exercise of a state-defined water right was raised but not decided in Fallini v. Hodel, 963 F.2d 275 (9th Cir. 1992). 61. For example, § 2541.52 previously stated:
62. Note that the Supreme Court has held that the FS does not have reserved rights for stockwatering rights with a priority date related to the Organic Administration Act of 1897. See n.27, sepia. 63. Note that the repealed sections of the FS Manual required that a right titled in the name of a private party had to be relinquished without compensation at the end of that party's occupancy and use of the Forest lands. Implementation of such a policy without qualification could be unfair to a permitted If a permittee had a water right that predated the federal forest reservation, it would appear that the government should acquire the right and pay full compensation for it. As to water rights perfected after a forest is created, if title is retained in the United States or is held jointly with a permitted the permittee could be compensated at the end of the permit term for all out-of-pocket expenses incurred in connection with the development of a water source, but not for the water right. This system apparently is used by many states and private lessors that lease grazing rights. 64. 59 Fed. Reg. 22074. 65. In some states a water right is a property right that is freely transferable, such that the right could be held by someone who did not permit it to be used for stockwatering or another use Congress intended for the federal lands. For example, the right holder could preclude watering wild horses and burros or other wildlife. In some states a water right is not appurtenant to the land; a right holder could transport water from the federal range source for use at a different location. In such circumstances, the federal government could be forced to condemn the water right and pay compensation to the water-right holder in order to use the water for federal purposes. Some states may even take the position that the United States cannot be a water right holder, for example, when the United States arguably is not the one directly making use of the water, as is the case when the United States permits or leases its grazing lands to someone else who is the actual owner of the cattle. Nevada v. Morros, 104 Nev. 709, 766 P.2d 263 (Nev. 1988) raised the issues of whether some mechanical diversion was always necessary under Nevada law to perfect a right; whether the United States could hold a livestock watering right since it did not own the cows grazing on the BLM lands; whether rights could be allowed for wildlife watering; and whether any holding of water rights by the United States was per se against the public interest. Although the outcome of this case was favorable to the United States, the possibility of adverse legislative enactments or judicial holdings regarding such fundamental issues is plausible. Not all states recognize all the purposes for which federal land managers might need water to carry out management duties. For example, wildlife protection and management, recreational use, and instream flows are not recognized uses in some states. In other states the federal water uses may be of such low priority that federal purposes would not receive adequate water. Exclusive water rights in permittees could potentially limit multiple use management. A water right gives the permittee (representing a single use) a property right in a scarce resource, such that a federal manager could be reluctant (and possibly prohibited) to invest public funds in improvements for recreation, wildlife, and other uses that might adversely affect that property interest. 66. R.S. § 2289, derived from Act of May 20, 1862, ch. 75, 12 Stat. 392. See also the Timber Culture Act, Act of March 3, 1873, ch. 277, 17 Stat. 605, that authorized control of 40 acres if settlers would plant and cultivate trees. 67. E.g., the Desert Land Act, Act of March 3, 1877, ch. 107, 19 Stat. 377, codified at 43 U.S.C. §§ 321 et seq., authorizing entry on 320 acres of desert land capable of irrigated agricultural use; and the Enlarged Homestead Act of February 19, 1909, ch. 160, 35 Stat. 639, previously codified at 43 U.S.C. § 218. All of these homesteading acts, except the Desert Land Act, were repealed other than as to Alaska by FLPMA, Act of October 21, 1976, Pub. L. No. 95-479, 90 Stat. 2743, 2787-2788. 68. Buford v. Houtz, 133 U.S. 320, 326-328 (1890). 69. Paul W. Gates, History of Public Land Law Development, written for the Public Land Law Review Commission, 467 (1968). 70. Act of February 25, 1885, ch. 149, 23 Stat. 321, codified at 43 U.S.C. §§ 1061 et seq. 71. Proclamation of August 7, 1885, reprinted in James D. Richardson, 8 A Compilation of Messages and Papers of the Presidents, at 308-309, issued as House Misc. Doc. H. 210, 53rd Cong., 2d Sess. 72. Gates, supra., 467, citing Land Office Report of 1886. 73. Gates, supra., at 466. 74. Id. at 467. 75. Act of January 13, 1897, ch. 11, 29 Stat. 484, codified at 43 U.S.C. §§ 952 et seq. 76. 28 CONG. REC. 3347-3348 (1896). 77. S. Rep. No. 249, 54th Cong., 1st Sess. (1896). 78. H.R. Rep. No. 1527, 54th Cong., 1st Sess. (1896). (Emphasis added.) 79. 29 CONG. REC. 53-54 (1897). (Emphasis added.) 80. Act of February 26, 1897, ch. 335, 29 Stat. 599. 81. Act of March 3, 1891, ch. 561, 26 Stat. 1101, 43 U.S.C. § 946. 82. 29 CONG. REC. 1948-1949 (1897). 83. Act of March 3, 1923, ch. 219, 42 Stat. 1437. 84. S. Rep. No. 669, 67th Cong., 2d Sess. 2 (1922). 85. See, e.g. Circular 1559, 8 Fed. Reg. 7724 (June 9, 1943); 43 C.F.R. § 292 under the heading "Public Water Reserve". Section 292.28(f) stated: "If the lands so reserved are not kept open to the free use of any person desiring to water animals of any kind, or if the reservoir applicant attempts to use them for any other purpose, or if the reservation is not obtained for the bonafide and exclusive purpose of constructing and maintaining a reservoir thereon according to law, the declaratory statement, upon any such matter being made to appear, will be canceled and all rights thereunder be declared at an end." 86. Public Law No. 94-579, 90 Stat. 2743, codified at 43 U.S.C. §§ 1701 et seq. 87. Denver v. Bergland, 695 F.2d 465 (both Cir. 1982). 88. Grindstone Butte Project v. Kleppe, 638 F.2d 100, 101, n.2 (9th Cir. 1981), cert. denied, 454 U.S. 965 (1981). 89. See Gates, straw at 482, 515. 90. Act of December 29, 1916, ch. 9, 39 Stat. 862, codified at 43 U.S.C. §§ 291 et seq., repealed by FLPMA. 9l. See Gates, supra, 501, 515. 92. Gates, supra, at 610. 93. Act of June 28, 1934, ch. 865, 48 Stat. 1269, codified at 43 U.S.C. §§ 31. 94. Act of December 29, 1916, ch. 9, 39 Stat. 862, 865, codified at 43 U.S.C. §§ 291, 300, repealed by FLPMA, Pub. L. No. 94-579, 90 Stat. 2743. 95. 53 CONG. REC. 1234, 64th Cong., 1st Sess. (1916). 96. H.R. Rep. No. 1231, 64th Cong., 1st Sess. (1916). 97. S. Rep. No. 348, 64th Cong., 1st Sess. (1916). 98. H.R. Rep. No. 35, 64th Cong., 1st Sess. 18 (1916). 99. Circular No. 1066, May 25, 1926, 51 I. D. 457. 100. 86 I.D. 581-582- 101. Id. at 582. 102. So stated in the agreement, per John Hill, attorney for Department of Justice 103. Opinion M-36914 (Supp. II), Purposes of Executive Order of April 17, 1926, Establishing Public Water Reserve No. 107, 90 I.D. 81, 83 (February 16, 1983). 104. See e.g., Gates, supra., 467-468, citing a Land Office Report from 1886. 105. See, e.g., 78 CONG. REC. 11153 and the remarks of Rep. Robinson at 6356: "In certain portions of this land are located springs or watering holes. An act of Congress withdrew from entry all these springs or watering holes; therefore these watering holes and springs are largely unprotected, and the first one to reach them with his herds is the first one to get the privilege of grazing the grass which grows in the territory around these various areas. This privilege has been very much abused by foreigners who will, even during the summer months, graze upon some of these lands, which is very harmful and destructive. Some foreigner who has a few sheep and who lives right with them, travels from one place to another, camping first at one watering hole or spring and then at another until the grasses are all destroyed; thus, when the person who is legitimately and honestly entitled to the use of these grasses and this herbage for taking care of his cattle or sheep during the winter months reaches these places he finds that there is no grass, and, in fact, instead of being grass the whole country is merely a desert of dust and sand." 106. In re Jack A. Medd, A-23952, 60 I.D. 83, 93-95, (December 26, 1947). 107. Gates, supra, at 607, 610. 108. Act of June 28, 1934, ch. 865, 48 Stat. 1269, codified at 43 U.S.C. §§ 315 et seq. 109. Powder River Water Right Declarations 3343-01, 6399-01, 6431, 6433-01, 6498-02, 6508-01, 7473-01, 7716-01, 7731-01 and 10248. We are advised that the United States did not assert any reserved rights in the Powder River adjudication. 110. 86 I.D. 553, 592 (1979) 111. Taylor Grazing Act, § 1, 43 U.S.C. § 315. 112. See remarks of Rep. Stubbs, 78 CONG. REC. 6355 (1934). 113. Compiled Executive Orders of Pres. F.D. Roosevelt, Library of Congress. 114. Id. 115. Id. 116. Act of June 26, 1936, ch. 842, 49 Stat. 1976. 117. Act of May 28, 1954, oh. 243, 68 Stat. 151. 118.That lands within a designated grazing district were both withdrawn but potentially subject to the public land laws permitting settlement and perfection of private title gives rise to the question of how the withdrawals should be characterized and what the legal effects of the withdrawals are. The unique nature of the grazing district withdrawals may explain why Congress specified that the property interest of a user of the range was merely a grazing permit --about which Congress said in § 315b: "So far as consistent with the purposes and provisions of this chapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this chapter shall not create any right, title, interest, or estate in or to the lands." This interest of a permittee contrasts with both a lease, which Congress authorized for rangelands outside grazing districts, and with the possessory interest leading to title that pertains under both the mining laws and public land settlement laws. 119. See pp.4-5, supra. 120. See Ansolabehere v. Laborde, 310 P. 2d 842, 846 (Nev. 1957). In this case the water rights of both parties dated to before the TGA and hence were valid under federal and state law without reference to that Act. 121. Act of June 4, 1897, ch.2, 30 Stat. 35, codified at 16 U.S.C. § 551. 122. Id., codified at 16 U.S.C. § 475. 123. See 16 U.S.C. §§ 482 and 562a. 124. Act of June 4, 1897, ch. 2, 30 Stat. 36, codified at 16 U.S.C. § 481. 125. See, e.g., United States v. New Mexico, 438 U.S. 696 (1978). 126. 78 CONG REC- 6436 (1934)- 127. Id. at 6347-6348. 128. Id. at 6357, 6367. 129. See remarks on Rep. Robinson, 78 CONG. REC. 6356, and the remarks of Rep. Ayers at 6358-6359. 130. 78 CONG. REC. 6352. 131. See, e.g., remarks of Rep. Robinson at 6356. 132. 78 CONG- REC. 6347- 133. See, e.g., remarks of Rep. Carter, 78 CONG. REC. 6349-6352. 134. 78 CONG. REC. 6361. 135. Id. at 6362. 136. Id. 137. 78 CONG. REC. 11139. 138. Id. 139. Id. at 11140. 140. Id. at 11144. 141. Id. at 11146. 142. Id. at 11149. l43. Senators Adams (Co.), Hatch (N.M.), O'Mahoney (Wy.) and Erickson (Mt.) were all westerners and were all on the Senate Public Lands and Surveys Committee . 144. Id. at 11161-11162. 145. H.R. Rep. No. 2050, 73rd Cong., 2d Sess. (1934). 146. 78 CONG. REC. 11145 (1934). 147. Act of June 16, 1934, ch. 557, 48 Stat. 977. 148. 78 CONG.REC. 11142 (1934)- 149. Id. at 11146. 150. Statement of the President on Approval of the Taylor Grazing Act, 79 CONG. REC. 10394 (June 28, 1935). 151. 80 CONG. REC. 3815 (1936). 152. In proposing the amendment, Sen. McCarran stated in part that without the last proviso, As to all matters of public health and public welfare, within the police power and right of police regulation of the sovereign States, the States are sovereign. Then comes the dominion of the Federal Government under its control under the Taylor Grazing Act." 79 CONG. REC. 12181 (1935). 153. 79 CONG.REC. 10394 (1935). 154. Memorandum from Sol. Nathan Margold to the Secretary of the Interior on H.R. 6462 (June 21, 1934) and memorandum from Sol. Nathan Margold to K. Cheadle (spelling of this name is unclear on original) (June 25, 1934), Records of the Office of the Solicitor, 1933-1938, National Archives, Washington, D.C. (College Park, Md.). 155. Forest Service Manual (1936), quoted in United States v. New Mexico, 438 U.S. 696, 703 n.7 (1978). 156. We reviewed document files at National Archives from the Solicitor's Office for 1933-1938, and the documents of Oscar Chapman, Assistant Secretary of the Department of the Interior, for the years immediately after enactment of the TGA, National Archives, Washington, D.C. (College Park, Md.). l57. Undated memorandum from F.R. Carpenter (Dir. of Grazing) to Secretary of the Interior Ickes. 158.Rules for the Administration of Grazing Districts with Approved Forms, Department of the Interior, Division of Grazing, June 14, 1937, at 2. 159. Memorandum from F.R. Carpenter (Dir. of Grazing) to John C. Page (Bur. Rec.) April 28, 1937. See also memorandum from F.R. Carpenter: In the Matter of the Appeal of Joseph F. Livingston et al, September 11, 1936. 160. The early regulations referred either to base property or to applicants as Class I or Class II, or Group I or Group II, depending on the date of the draft or the regulations. 161. Fed. Reg. 879 (1936). 162. Id. at 881. (Emphasis added.) 163. Memorandum from Acting Director of Division of Grazing John Deeds to Assistant Secretary Oscar Chapman, July 16, 1935. 164. Memorandum from N.F.Waddell, Acting Director in Charge of Grazing to Assistant Secretary Oscar Chapman, August 21, 1934. 165. United States Department of the Interior Grazing Service, Branch of Land Acquisition and Control, Handbook, at 67. (Emphasis added.) 166. Memorandum from Acting Secretary W.C. Mendenhall to Director of Grazing, October 29, 1936. 167. See 79 CONG. REC. 10397 (1935). 168. E.g., interviews with James Fox and Vernon Taylor, August 29, 1994. 169. Id. And see 55 I.D. 371, 376 and 55 I.D. 378, 380. In this last cite it is stated: "Where wells are developed on public lands of the United States, the Government could protect the use thereof for governmental purposes, in so far as the use of the waters depended upon the use of the land for the storage or carriage of such waters, by refusing to grant rights of way for such purpose." 170. See Report to the House Committee on Appropriations on the BLM Grazing Management and Rangeland Improvement Program, by Surveys and Investigations Staff, 1984. 171. See Ansolabehere v. Laborde, 310 P.2d 842, 846-849 (Nev. 1957), in which the Nevada Supreme Court examined the intersection of preempting federal regulation of the use of rangelands with state water law governing water rights dating to before the TGA. In this case, the BLM had authorized two permitees to graze the same area even though there was inadequate forage surrounding the water source to which both grazers had state water rights. Under state law, the later grazer would not have been allowed to graze the area even though there was sufficient water in the water source to satisfy both water rights. The court held that federal range regulation -- allowing the overgrazing -- prevailed over contrary Nevada law regarding range use, even though the result would have an adverse effect on the senior water right holder under state law. The plaintiff in Fallini v. Hodel, 963 F.2d 275 (9th Cir. 1992) asserted that the federal government either could not modify his state recognized water rights so as to require watering of wildlife, or that doing so constituted a taking. The district court had spa sponte concluded that the government's wildlife watering requirement had effected a taking. The appeals court did not reach these issues, holding only that the Fallinis had not violated their range permit in fencing wild horses from their water source, based on the understanding of the parties in 1967, the time of the original permit. The Claims Court has since denied a taking claim in Fallini v. United States, No. 92-809 (Fed.Cl. 1994). 172. Cf Sierra Club v. Hodel, 848 F.2d 1068 (both Cir. 1988) in which the court allowed federal regulation of the scope of a right of way the court determined was governed by state law. 173. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,843, n.9 (1984) (citations omitted); Natural Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir. 1987). 174. Id. at 842-843. 175. In United States v. California, 332 U.S. 19 (1947), the Supreme Court held that the mistaken beliefs and substantial number of actions taken over time by U.S. agents based on that mistaken belief did not alter the conclusion that the United States held title to submerged offshore lands: "The Government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act." Id. at 40. Nor was the alleged long-existing Congressional policy of acquiescence in state ownership, absent "Congressional surrender of title or interest" sufficient to divest the federal government of its property. Id. at 24 and 39. 176. Natural Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir. 1987); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Udall v. Tallman, 380 U.S. 1 (1965). 177. Andrus v. Shell Oil Co., 446 U.S. 657, 667-668 (1980); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 178. Kerr-McGee Corp. v. Watt, 517 F. Supp. 1209 (D.D.C. 1981); In re Dep't of Energy Stripper Well Exemption Litigation, 520 F. Supp. 1232 (D. Kan. 1981), read 690 F. 2d 1375 (Temp. Emer. Ct. App. 1982), cert. denied Energy Reserves Group, Inc. v. Hodel, 459 U.S. 1127 (1983); Hiatt Grain & Feed, Inc. v. Bergland, 446 F. Supp. 457 (D. Kan. 1978), abed 602 F. 2d 929(10th Cir. 1979), cert. denied, 444 U.S. 1073 (1980). 179. Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). 180. Red Lion Broadcasting v. F.C.C., 395 U.S. 367 (1969); Dobbs v. Train, 409 F. Supp. 432 (N.D.Ga. 1975), aff d Dobbs v. Costle, 559 F.2d 946 (5th Cir. 1977). 181. Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 846 (1986), quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274, 275 (1974), 182. California v. United States, scram 24 and 39. The Court noted at 39 that: "[ads a matter of fact, the record plainly demonstrates that until the California oil issue began to be pressed in the thirties, neither the states nor the Government had reason to focus attention on the question of which of them owned or had paramount rights in or power over the three-mile belt." 183. Act of September 19, 1964, Pub. L. No. 88-606, 78 Stat. 982. 184. Act of September 19, 1964, Pub. L. 88-607, 78 Stat. 986. 185. Pub. L. No. 94-579, 90 Stat. 2744, codified at 43 U.S.C. §§ 1701 et seq. 186. Amoco Production Company v. Village of Gambell, 480 U.S. 531, 549 n.15 (1987). 187. Pub. L. No. 88-606, §10, 78 Stat. 982, 985, formerly codified at 43 U.S.C. § 1400. 188. 0ne Third of the Nation's Land, A Report to the President and to the Congress by the Public Land Law Review Commission, at 54 (1970). To remedy this problem the PLLRC suggested that Congress provide new permanent administrative classification authority and land use controls imposed directly through a system of land use planning and "zoning' for dominant uses. The PLLRC recommended that many of the lands best suited to grazing, whether TGA lands or Forest Service lands, be disposed of to nonfederal entities and individuals. 189. See, e.g., Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981), in which the court determined that FLPMA did not create any new federal reserved rights because the lands to which FLPMA applied were the last public lands and were per se unreserved. The issue of TGA grazing districts was not raised, nor did the court inquire into the nature of such districts at all. 190. Section 703 of FLPMA repealed § 14 of TGA relating to isolated tracts, and § 705 of FLPMA repealed § 8 of TGA on exchanges. 191. In 1978, Congress enacted the Public Rangelands Improvement Act (PRIA), Pub. L. 95-514, 92 Stat. 1803, codified at 43 U.S.C. 1901 et seq. This Act again addresses poor range conditions, but does not affect the issues at hand. PRIA states that the public rangelands shall be managed under TGA and FLPMA and other applicable law consistent with the public rangelands improvement program pursuant to that Act. 192. Reclassification and settlement -- with the possible full private title -- is still possible because FLPMA did not repeal the Desert Land Act which allows settlement under certain conditions. |
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