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Whisky is for drinkin' but water, water is for fightin'
                     Old Western Water Adage

Through shameless flattery, I have been persuaded by some people - who for the purposes of this diary we'll call "Kossacks" - to write a diary that explains some of the uttely inexplicable tenets of the tragic comedy that is water law in the western US.

Why me?  Great question, dunno, but in addition to sleeping at lots of Holiday Inns in my life, I also have a law degree from Cal - Hastings, clerked for a water court, practiced water law in Idaho and taught water law and am a proud citizen of dkos, so I guess I can give it a shot.  I apologize up front for not having a browser that will link or put in cool graphs and sh*t - I shall use liberal spacing and  attempts at ruthless wit in an attempt to keep things interesting and understandable.

Disclaimer! (Always a lawyer) There will be lots of smart people, some who know a lot of water law, that will read this and state that I am wrong about "this" or "that" and they are right!  But, so am I.  Who is more right?  Lets compare war chests.

And that, my fellow Kossacks, is a frustrating truth water law - completely divergent opinions and "facts" can both be right, ultimately money will likely decide who is "righter".  So, if you are comfortable in a world where water flows uphill, where the "first" to use it is "first" - - except for the very very first people, where idly watching a beautiful mountain stream flow untrammeled is legally considered a "waste" of water, a world in which Lewis F'n Carrol would proudly claim Mayorship. . . well then follow me through the orange looking glass . . . my - we are late already.

"For purple mountains majesty. . ."
                    Mitt Romney

We are talking "Western Water Rights" nothing below has any applicability in any state that does not have "real" mountains.  States without mountains generally have lots of water, so they don't need perniciously weird water laws, oh, they HAVE water laws, just different.  This diary focuses on the "Use" rights in the states north, south and west of Colorado.

Mountains actually are important b/c that is where "water rights" as a legal term took their essential characteristics, almost all still applicable.  It all began with the Miners, specifically the "Miner 49ers" and the gold rush in the mountains near Lake Tahoe.

Off the boat, through Chinatown in SF for a night and up to the hills Kossacks, there is gold in them there hills!  OK, you are in the mountains now - you need some gold and you can't practice water law b/c you are busy inventing it, so get a shovel and a big wooden thingy, and start shoveling the mud and water of a little stream into your wooden thingy, the date is July 4, 1849, much more on that to come.  

Good for YOU!  You have just established three(!) critical components of water law!

1.  You USED it.

A water right is a "usefructory" right, that is a complicated way of saying that your legal right is based upon the amount of "flow" of water you are using.  Flow is now usually measured by Cubic Feet Per Second and to keep it simple, lets say that you ran 10/cfs of water through your wooden thingy (a huge amount of water - but a convenient number for our purposes).

You did NOT get a right to water by sitting by a beautiful stream, putting up a sign saying "Mine all Mine" and intending to use it. You got it by "diverting" your 10/cfs through your wooden thingy.  To have a legal "water right" you must establish it through actual use and keep using it - or you lose it.  If you get no gold in your thingy, and left to slough yourself off to Hollywood, you do not keep your water right.  The rule of forfeiting all, or sometimes part, of a water right is now five years of non-use.  Usually.

2. You own a claim to use water, NOT the LAND

What a country, as Yakov said! You didn't need to own the land to establish a water right, you merely need to be legally on the land, not tresspassing. You went up into those same mountains Markos pushes his bike up, you were almost always on federal land and set up a mining and water claim - DISPEL any notion that owning land has anything to do with owning a water right on that land.  They were separate then, they are separate now, usually - but for our purposes they are separate damn it!  Today, your ownership of land (ag land, cattle, mining) will usually include ownership of a water right to use on that land but they are, separate, distinct, real property rights.

Yes, Water Rights in the west are Real Property Rights - in the legal sense.  In fact, the property right to use water is now written into the constitutions of the western states.  Which means that your water right has all the property protection of land ownership and not merely "personal property" like your car, teevee, etc.

3. You were THERE, man, on July 4, 1849

Why is the date important?  Because its water law and we're about to fight for godsake!  No one (except Markos) went up to the mountains to enjoy their bucolic essence, they went there to get rich, LOTS of people.  And so the fact that you were there on July 4, 1849 is important b/c LOOK OUT, OMFGZ! some asshole a half mile upstream just diverted 10 cfs through his wooden thingy on August 14, 1849.

Oh, it is sooooo ON, now. . .

OK, I feel better b/c we are finally where we should be, your new comfort zone, fighting about your water right.  Keep in mind, neither of you own the land - NEVER forget that (its on the test).  BUT that asshole is now using 10cfs and b/c of him there is only 5 cfs coming through your wooden thingy!  You could kill him, lots of people did, but we're progressives, we won't kill him till we have to, and luckily, we can kill off his water right anyway.  WHY?

Because you were there FIRST.  In legalese its called First in Time, First in Right.  But, but, we're progressives and we still have 5 cfs and technically he isn't exactly where you are but simply taking some flow from the same source, can we still "kill his water right"? - - of course we can, this is water law, not nice clean family law.

Lets even say that on July 4, 1849 the stream had 20 cfs and could have had enough flow for both of you.  Doesn't matter, you were there first, the "source" has gone down and you are entitled to your FULL water right of 10cfs - - EVEN if the stream is dryer and now has only 10cfs total.  If you are getting 9 cfs b/c of this asshole's diversion you can go up and shut down his ENTIRE water right IF that is required to get your full one!

Harsh, huh?

Exactly, Miners were funny that way and so is water law.  On any same source of water, whoever has the oldest water right is entitled to shut down anyone junior to her (progressive Miners) to get their FULL right, even if the juniors go without ANY and even if you are taking their last 1cfs to get yours from 9 to 10!!!  This is water law, if you want to "feel good" go practice pediatrics.


Congratulations!!  You now know one hell of a lot of water law.  In fact, you know the basic tenets that still are in place today.

1.  Water rights are "use" rights, use it or lose it.

2.  IT HAS NOTHING TO DO WITH OWNING LAND, damnit, I'm not telling you again.

3.  Senior water rights can shut down Junior rights totally to get their FULL right.

4.  The "Source" matters a great deal when it comes down to WHOM you can shut down, we made it easy, same exact stream, but it doesn't have to be the exact same, ANY source use that lessens yours can be shut down.

5.  There is almost never enough water to fill everyone's rights.  Water is scarce in the west and its use equates directly to money.  Additionally, the scarce water gets scarcer from April to November and so the system is always in flux.  People that have water rights in April can and will be dry in August.

6. That is sooo cruel, why its, its. . . almost elegant in its totality.  Why yes, yes it is, welcome Kossacks, to water law.

That seems harsh, but actually, pretty simple. . .

True!  And believe me, the water bar, the courts, the government and big business has every incentive to mystify water law.  If you can rigorously hold on to these tenets above, you will be able to defend your water right fairly well. . . but:

Well there had to be a "but", right?  It is the "facts" that are argued that can make things complex and damned expensive to defend.  If you have an old, thus powerful, water right - - it can be hard to prove when it was established exactly.  The "settlers" rarely rigorously recorded the specifc time (beyond a couple years) as to when the specific use started.  Also, too, there is the factual issue of who - if anyone - is really responsible for your water right diminishing, our stream was purposefully simple, in the real world, sources are tough to define.  It can go on and on but lastly, let me state that someone whom you are attempting to shut down is busy trying to prove that you forfeited part of your water right b/c you haven't used ALL of it consistently through the years whether it be due to increased efficiency, change in plans or boredom, trust me, if you are busy shutting them down, they are busy saying you can't.


BUT, SURELY we can be crueler - -  Lets see, how can we make this "crueler" we need someone that the law can REALLY kick around, - I know, Native Americans, it ain't US law without being needlessly cruel to Native Americans, and our First Nations were sort of, well - ok, definitely here FIRST.

Quick story.  In the late 1800s, a Native Americans from several tribes were forced off their traditional lands and on to the Ft. Belknap reservation.  The statute establishing their reservation states that it is established for the set purpose of enabling the tribes to become "a pastoral and civilized people" (The Statutes words, not mine) as farmers.  So, they tried.

But its Montana and you need water to farm through irrigation.  Yes, the Tribe HAS water that flows on its reservation, but - DON'T.MAKE.ME.SAY.IT.  The state of Montana determined that all the water on their land had been "used" downstream (same source) already and since the Tribe had not traditionally USED water by diverting it, but by fishing, etc. they did not have a water right.  They were left high and dry so to speak.  And it was, completely legal, under Western water law.

Sanity Reigns!  And land ownership matters(?) Wait. . .WTF?

The Tribes knew they would get no where with Montana courts and thus appealed to the US Supreme Court and thankfully, the SCOTUS, being all-powerful, insanely progressive on this issue and capable of addressing water law on a non-miner, semi-thoughtful manner that actually utilized a comprimise (the F'in NERVE!)(of course, I think this was brilliantly compassionate and sensible, I am a kossack) created a new legal paradigm out of thin air to ensure that the federal government could have a say on their vast lands in the west and specifically, the First Nations and their lands.

The SCOTUS stated that since Congress reserved the land for the specific purpose of enabling agriculture, that of course Congress "meant to" reserve some water, the amount of water necessary to fulfill that purpose - irrigating the reservation. The SCOTUS thus established "Federal Reserved Water Rights" and they are essentially the hammer that the federal government possesses to keep the western states from controlling ALL the water in the west.  And thank F'ing God they did b/c

1.  Would you trust THIS Supreme Court to stand up to the Western States?
2.  The Federal Reserve Rights doctrine put a tiny tiny clamp on the complete control of water by the private interests in the western states.

But, the date of the establishment of the Reservation still would be their "Time" vis a vis other users.  Of course, we noted that Montana said that ALL the water was "used" when the reservation was established and, of course that is what they would say!  Its Montana, not Rhode Island!  So, there was a merging of fact and fiction. . .

The important point is that the federal government DOES possess some water rights through their ownership of lands, but only for the purposes of that "reservation of land"  or, say, enough to support a national forest, set aside by law. Also, too, (even water lawyers mock Sarah) the federal government can leave water IN STREAM and consider it "use" if that fulfills the purpose of that federal reserve - such as national parks, Native Reservations, etc.

Enough!  No one asked for this, this. . . stuff in a diary

Oh, man am I tired.  And so are you.  BUT we learned a lot.  More than you think right now, but in coming diaries (if anyone reads this) I will explain how those basic principles are now applied to power companies, canal companies, municipal water rights, etc.

And how it is still a needlessly harsh doctrine of law where issues such as "source" and who impacts whom or who stopped using their full amount - and thus "lost it" or "part of it" can be litigated with hundreds of thousands of dollars financing the litigation in support of water rights that are valued in the tens of millions, worth much more than the actual land owned. . . not that owning land means anything.  Plus, I'm thirsty now, need some whisky.

Originally posted to 4CasandChlo on Fri Nov 16, 2012 at 08:58 AM PST.

Also republished by DK GreenRoots and Community Spotlight.


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