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Federal Reserved Water Rights Litigation

Hank Meshorer, Proceedings of 28th Annual Rocky Mountain Mineral Law Institute (1982)

Although the matter of federal reserved rights has been with us for over 80 years, the issues involved therein have shown a remarkable ability to remain both novel and contemporary. This paper will center on some of those questions which represent in the main the cutting edge of this foremost federal-state controversy in the West. Being on the front line of the reserved right imbroglio, the discussion is necessarily from the perspective of the litigator. That is, in analyzing the problems confronting the barrister in searching for a resolution of these issues, the metaphysical has been subordinated to the pragmatic. Aside from the opening discussion of the history and nature of reserved rights, there is an assumption throughout that the reader is familiar with the fabric of federal reserved rights. In some cases, no particular answers are given simply because there are none. Indeed, in many instances, the issues themselves have yet to be fully articulated. In those areas, however, possible avenues of resolution have been suggested.

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I. The Doctrine of Federal Reserved Rights

Litigation involving the reserved rights doctrine is, in the main, premised upon the concepts of real property law and the legal authority of the United States, through its ownership, to reserve the right to use, as against appropriation by others, the unappropriated wate