Federal Reserved Rights Flashcards
Is statehood a limitation on the federal government’s ability to make reservations?
No.
Are federal reserved water rights limited to certain kinds of reservations?
Yes, congressionally approved reservations.
Do federal reserved water rights have to be explicit?
Nope. Can be implicit.
What water is subject to federal reserved rights?
Unappropriated water at the time of the reservation . Must be used on appurtenant lands for specific federal purpose.
What are the limits on the amount of water that can be federally reserved?
Must be for:
1) Primary purpose of reservation; and
2) Amount of water without which the purpose of the reservation would be defeated.
How do courts determine the amount of a reserved right?
Look to:
1) Treaty document/statute
2) History of tribe
3) Needs of tribe to maintain themselves under changed circumstnaces.
What are the limitations on transfers of federal reserved rights?
1) In-stream rights can’t be turned into out of stream rights.
2) Out of stream rights may be turned to instream rights (possibly with condition that cannot injure non-tribal appropriators)
3) Whether rights can be sold/used of reservation depends on language of treaty, jurisdiction.
4) Tribal members can’t lose rights by non-use, but non-tribal “Walton” rights can.
Do federal reserved rights for tribes cover only present needs?
No; also intended to satisfy future needs?
What is the measure of a tribal reserved right for irrigation, and how is it calculated?
Practicably irrigable acreage
Amount of land that is susceptible to irrigation at reasonable costs.
What is the priority of a reserved right?
Date of reservation, unless its instream, then “time immemorial.”
Do reserved rights apply to groundwater?
Yes—if groundwater is necessary (Coahuilla); also, government can enjoin GW pumping that affects surface reserved rights.
When can a state join the federal government or a tribe in an adjudication?
When it is a general adjudication of all rights in a stream. McCarran Amendment.
How is a non-consumptive tribal reserved right quantified?
The “moderate living” standard—enough to support a moderate livelihood from fishing/hunting. From Adair.
