Real Property- Water Rights

Question 1

Michigan Citizens v Nestle

Answer 1

• found Nestle’s proposed withdrawal unreasonable
• it would be unjust to permit defendant to impose on plaintiffs the entire burden of the harms created by the depletion of the
  Dead Stream’s flow while retaining all the benefits
• Although defendant should be permitted to have a “fair participation” in the
  common water resources of the area, if defendant is permitted to pump at
  the maximum permitted rate, it will effectively appropriate for its own needs
  approximately 24 percent of the base flow of the Dead Stream. This is more
  than a fair participation.

Question 2

Balancing Test

Answer 2

(1) ensuring fair participation in water use by the largest number of users; (2) a protected use must itself be reasonable; and (3) an interference must be substantial to be unreasonable

Question 3

Factors under the balancing test

Answer 3

(1) the purpose of the use; (2) the suitability of the location for the use; (3) the substantiality of the harm; (4) the benefits of the use; and (5) whether the user uses more water than is necessary

Question 4

Winters Doctrine

Answer 4

Where U.S. reserves land (for Tribe or federal govt.), it also “reserves water to the extent it is necessary to accomplish the purpose of the reservation, and it only reserves water if it is appurtenant to the reserved land.

In sum, the Winters doctrine does not distinguish between surface water and groundwater. Rather, its limits derive only from the government’s intent in withdrawing land for a public purpose and the location of the water in relation to the reservation created.

Question 5

Kim v Pollution Control Hearings Board

Answer 5

• the words “for industrial purposes” must be applied according to their plain terms, and that their plain terms include the Kims’
  commercial nursery.

-reject the view that an administrative agency can alter the plain meaning
of a statute to meet changing societal conditions. When a statute is rendered obsolete by changing conditions, the remedy is for the legislature to amend it; neither an administrative agency nor
the courts may read it in a way that the enacting legislature never intended.