Water of Hallett Creek Stream System, In re

• Decision Date: 18 February 1988
• Docket Number: S.F. 25133
• Citation: 44 Cal.3d 448,749 P.2d 324,243 Cal.Rptr. 887
• Court: California Supreme Court
• Parties: , 749 P.2d 324, 56 USLW 2493, 18 Envtl. L. Rep. 20,690 In re Determination of Rights to WATER OF HALLETT CREEK STREAM SYSTEM. STATE WATER RESOURCES CONTROL BOARD et al., Petitioners and Appellants, v. UNITED STATES of America, Claimant and Respondent; Sierra Club, Inc., Intervener and Respondent.

Page 887

243 Cal.Rptr. 887

44 Cal.3d 448, 749 P.2d 324, 56 USLW 2493,

18 Envtl. L. Rep. 20,690

In re Determination of Rights to WATER OF HALLETT CREEK STREAM SYSTEM STATE WATER RESOURCES CONTROL BOARD et al., Petitioners and Appellants, v. UNITED STATES of America, Claimant and Respondent Sierra Club, Inc., Intervener and Respondent.

S.F. 25133.

Supreme Court of California.

Feb. 18, 1988.

Rehearing Denied March 16, 1988.

John K. Van de Kamp, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Roderick E. Walston and Clifford T. Lee, Deputy Attys. Gen., for petitioners and appellants.

Kronick, Moskovitz, Tiedemann & Girard, Janet K. Goldsmith, Edward J. Tiedemann, A.B. Ewell, Jr. and Gary W. Sawyers as Amici Curiae on behalf of petitioners and appellants.

F. Henry Habicht II, Asst. Atty. Gen., Roger J. Marzulla, Deputy Asst. Atty. Gen., Donald B. Ayer, United States Atty., Sandra K. Dunn, Robert L. Klarquist, Albert M. Ferlo, Jr., Edward J. Shawaker and Russell J. Mays, Washington, D.C., for claimant and respondent.

Laurens H. Silver and Betsy Dodd, San Francisco, for intervener and respondent.

Gibson, Dunn & Crutcher, A. Randall Farnsworth, Charles J. Meyers and Michael E. Miner as amici curiae on behalf of claimant and respondent and intervener and respondent.

KAUFMAN, Justice.

In this case we must decide whether the United States has California riparian water rights on federal land reserved for national forest purposes, and, if so, whether such rights are inherently "defeasible," or subordinate to all other approved water uses. As to the first issue, we conclude that the federal government does have such riparian rights; as to the second, that those rights are no more defeasible than the riparian rights of other California landowners. The facts and the law underlying this controversy are set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1976, a private water rights claimant petitioned the State Water Resources Control Board (Board) for a determination of the rights of various claimants to the use of the waters of Hallett Creek Stream System in Lassen County. ¹ After a preliminary investigation, the Board determined the public interest would be served by such a determination and granted the petition. (Wat.Code, § 2525.) Thereafter, various parties submitted proofs of claims to the water of Hallett Creek, including the United States acting on behalf of the United States Forest Service, a branch of the United States Department of Agriculture. (Wat.Code, §§ 2526, 2528.)

The United States claimed water for use in the Plumas National Forest. The rights claimed were of two kinds: (1) a "reserved" water right under federal law for "primary" national forest purposes, defined as firefighting and roadwatering, and (2) riparian ² water rights under California law for "secondary" national forest purposes, described by the United States as "wildlife enhancement." ³

After an evidentiary hearing, the Board issued its findings and determination, declaring and quantifying the rights of the various claimants. The Board upheld the United States reserved-rights claim, authorizing the Forest Service to divert and use up to 95,000 gallons of water annually for firefighting and roadwatering during timber harvesting. ⁴ The Board rejected, however, the United States request for recognition of unexercised riparian water rights for future wildlife-enhancement use. The Board concluded that under California law the federal government was not entitled to riparian rights, and ruled that in any event Congress had voluntarily "severed" or relinquished all proprietary claims to water within the national forest through the enactment of a series of nineteenth-century public land laws.

The Board filed its order of determination with the Lassen County Superior Court. (Wat.Code, § 2750.) The United States filed a notice of exceptions to the order of determination (Wat.Code, § 2757), objecting to the findings and order "to the extent that they [did] not allow the claim of the United States for an unexercised riparian water right...." The Sierra Club successfully moved to intervene on behalf of the United States. After further briefing and a hearing, the superior court sustained the exceptions of the United States and the Sierra Club, ruling that the United States was entitled to the same riparian rights under California law as any other property owner, and, further, that federal legislation which had subordinated federal riparian rights to appropriative rights in the "public domain" did not apply to "reserved" lands in the Plumas National Forest. ⁵ The trial court's decree thus recognized that the United States had an unexercised riparian right to the use of the waters of Hallett Creek, but held that the United States must apply to the Board or to the court when and if it sought to exercise that right. The Board appealed.

The Court of Appeal affirmed the trial court's decree insofar as it recognized the United States claim to unexercised riparian rights under California law, but held that pursuant to federal legislation such rights were absolutely "defeasible," i.e. automatically subordinate to the rights of subsequent appropriators. All three parties--the United States, the Board and the Sierra Club--filed petitions for review.

The United States and the Sierra Club challenge the Court of Appeal's holding that United States riparian rights are automatically subordinate to the claims of subsequent appropriators. The Board assails the Court of Appeal's conclusion that California law recognizes any riparian rights, defeasible or otherwise, in federal lands. We granted all three petitions and subsequently permitted the Association of California Water Agencies, the Turlock and Modesto Irrigation Districts, and the Friant Water Users Authority to file amicus curiae briefs. ⁶

We shall affirm that portion of the Court of Appeal judgment which recognizes riparian rights on federal reserved lands, but reverse that portion of the judgment which would subordinate such rights to all other approved uses.

INTRODUCTION

The issues presented are both novel and potentially significant. The United States has not heretofore claimed riparian rights in connection with its reserved lands in California. The Board asserts that recognition of such a claim could have far-reaching consequences, since the federal government owns a sizable percentage of the land in California. ⁷

The Board and the United States ⁸ vigorously dispute the meaning of water rights doctrines, congressional enactments, and federal and state judicial decisions which date from as early as the mid-nineteenth century. A brief introduction to the subject, therefore, may be useful.

As noted earlier, the United States claims water in the Hallett Creek System on two separate grounds--"reserved" water rights under federal law, and "riparian" rights under California law. The reserved water rights doctrine provides that when the United States reserves land from the public domain for federal purposes, it implicitly reserves sufficient water to accomplish the purposes of the reservation. (See Cappaert v. United States, supra, 426 U.S. at pp. 138-142, 96 S.Ct. at pp. 2069-2071; United States v. New Mexico, supra, 438 U.S. at p. 698, 98 S.Ct. at p. 3013.) The United States thereby acquires a "reserved" water right (subject to whatever rights may have vested while the lands were in the public domain) which vests on the date of the reservation and is superior to the rights of future appropriators. ( Cappaert v. United States, supra, 426 U.S. at p. 138, 96 S.Ct. at p. 2069.) The reservation doctrine thus constitutes an exception to the plenary authority which the states otherwise enjoy over the nonnavigable waters within their borders. ( California v. United States, supra, 438 U.S. at p. 662, 98 S.Ct. at p. 2994.)

In the seminal case of United States v. New Mexico, supra, 438 U.S. 696, 98 S.Ct. 3012, the United States Supreme Court construed the reservation doctrine narrowly, holding that a reservation of federal lands impliedly reserved only so much water as was necessary to accomplish the "primary" or "specific" purposes of the reservation. (Id. at pp. 705-718, 98 S.Ct. at pp. 3016-3023.) In New Mexico, as here, the United States sought to acquire water for wildlife enhancement of certain reserved lands--the Gila National Forest in New Mexico. The Supreme Court held, however, that wildlife preservation constituted a "secondary" purpose of the national forests, the primary purposes being limited to timber and water preservation. (438 U.S. at pp. 696, 711-715, 98 S.Ct. at pp. 3012, 3019-3022.) Therefore, the court held, water for wildlife preservation purposes was not available under the reserved rights doctrine. (Id. at pp. 711-713, 98 S.Ct. at pp. 3019-3021.)

In so holding, however, the high court noted that the United States was free to seek water for wildlife preservation under state law. "Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. [Citation.] Where water is necessary to fulfill the very purposes for which a reservation was created, it is reasonable to conclude, even in the face of Congress' express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator." (438 U.S. at p. 702, 98 S.Ct. at p. 3015, italics added.)

The only available method of acquiring water under New Mexico law was appropriation. California, however, is one of the few states which recognizes both appropriative and riparian rights. ( National Audubon Society v....