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Water Right Litigation

Michael D. White, Natural Resources and Environmental Litigation (1989)

Water right litigation falls into two categories. Fairly straightforward, simple matters which are often uncontested. A small remainder, the extraordinarily complex and contested matters addressed in this paper.2 About this small residue, only one universal truth exists — each case is time-consuming and expensive. Legal and factual issues are convoluted; trial preparation takes a long time. Stakes are high; litigators and their clients are justifiably cautions. Most importantly, the rules of the game, the substantive and evidentiary law, are in the
I. Types of complex water right litigation

What kind of cases are we talking about? It is helpful to view them in terms of the source of the law3 upon which claims and defenses may be based: federal, state and local. For many years, water right issues were considered to be questions purely of state law. Since World War II, however, the federal role has increased dramatically. In addition, during the past few years, in an effort to respond to environmental and economic concerns of their constituents, local government officials have stuck in their oar as well. What follows is not an exhaustive listing of complex litigation issues. They are, however, those which seem to dominate the current legal scenery.

A. Based on federal law

The federal influence on complex water litigation is usually based on the ass