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Administration of Federal Non-Indian Water Rights

John R. Little, Jr., Proceedings of 27th Annual Rocky Mountain Mineral Law Institute (1981)

Any consideration of federal water rights in the West must start with certain assumptions and a great deal of humility. Humility is required because of the immense volume of worthwhile scholarship that has been devoted to the subject, commencing about 1955. One despairs of saying anything pertinent that has not already been said before and probably more than once. The assumptions are necessary because fundamental legal discrepancies and contradictions abound which, surprisingly, involve almost every major necessary premise, including even some of the very basic constitutional underpinnings of the respective powers and responsibilities of the state and federal governments.

The first assumption is that federal reserved rights exist as a matter of law.2 This premise is stated despite the fact that, if one momentarily forgets what the Supreme Court has plainly said, it would be easy to be utterly convinced by the persuasive writings of various scholars who argue that the reservation doctrine is, in the words of Professor Corker, a rhetorical, chimerical phantasmagoria, or the product of a fabricated legislative history or even a perversion and prevarication.3 Nevertheless, reserved rights are because the United States Supreme Court says they are.

The second assumption is that the respective responsibilities of federal and state governments in western water law ar