The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation of the Winters Doctrine

16 Denver Water Law Review 261 (2013)

34 Pages Posted: 5 Jun 2013 Last revised: 27 Aug 2013

See all articles by Sandra B. Zellmer

Sandra B. Zellmer

University of Montana - Alexander Blewett III School of Law

Justin Huber

University of Nebraska at Lincoln - College of Law

Date Written: June 1, 2013

Abstract

The doctrine of implied federally reserved water rights, as established over a century ago by Winters v. United States, is critical to realizing federal land management goals. Recently, the doctrine’s ability to protect those goals, particularly with respect to federal lands set aside for non-Indian purposes, has been greatly limited by several poorly reasoned and result-oriented state court decisions. The primary factors that have led to the erosion of the Winters doctrine’s utility are: (i) the McCarran Amendment, which allows states to force the federal government to assert its reserved water rights claims in state court general stream adjudications; (ii) state hostility to the assertion of Winters claims for political and economic reasons; (iii) state court expansion of the US Supreme Court’s restrictive interpretation of reserved water rights in United States v. New Mexico; and (iv) state court abuse of the inconsistent and often ambiguous language included in executive and congressional public land reservations.

The arid western states are unlikely to become more amenable to the assertion of federally reserved water rights, and the US Supreme Court is almost as unlikely to issue a more enlightening exposition of the Winters doctrine anytime soon. It is fair to surmise that the problem can only be fully and, due to its political nature, appropriately resolved by Congress. Ideally, Congress would repeal the McCarran Amendment to undo some of the damage done and to prevent the future derogation of this important aspect of federal land management law. This, too, may be unlikely given the current political climate, which tends to prioritize states’ rights over federal interests and also tends to be antagonistic to environmental concerns. An alternative congressional fix would be to amend the organic acts or the enabling statutes governing the establishment and management of federal lands. Should Congress fail to respond to the problem, federal agencies might be more proactive in litigating their reserved water rights in federal court in order to ensure the integrity of water bodies and water-dependent resources.

Keywords: water, reserved rights, public lands, McCarran

Suggested Citation

Zellmer, Sandra B. and Huber, Justin, The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation of the Winters Doctrine (June 1, 2013). 16 Denver Water Law Review 261 (2013), Available at SSRN: https://ssrn.com/abstract=2274336

Sandra B. Zellmer (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States
406-243-6653 (Phone)

HOME PAGE: http://www.umt.edu/law/faculty/directory/default.php?ID=5355

Justin Huber

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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