State High Court Upholds U.S. on Rights to Water

The state Supreme Court today waded through more than a century of complex doctrines and judicial decisions about water rights in the West, ruling the federal government has the same riparian water rights in its forests in California as a private landowner.

The unanimous decision written by Justice Marcus Kaufman disappointed Roderick Walston, the assistant state attorney general who represented the state in the appeal of the case involving the Hallett Creek stream system in Plumas National Park in Lassen County.

“We think that the decision will have a potentially destabilizing effect on California water rights law, particularly with the certainty to existing water rights, . . . “ Walston said. “It opens the door for the federal government to claim a riparian water right that in some cases or many cases may be paramount to rights that are now being used by private appropriators in California.”

The Supreme Court said the federal government can apply to the state Water Resources Control Board to exercise this water right. In the Hallett Creek case it wanted up to 95,000 gallons of water for “wildlife enhancement.”

Walston said that because the ruling was based on federal law principles, the state will consider appealing to the U.S. Supreme Court.

Robert Klarquist of the U.S. Justice Department in Washington, D.C., said that while the federal government owns about 40% of the land in California, the decision affects only national forests, which account for about half of its holdings.

Walston said he was uncertain after initial reading of the decision how much leeway the state water board will have in reviewing any federal government water rights requests, and whether various water projects and irrigation districts will be deemed less needy or deserving.

“I’m not clear as to precisely how broad the state’s authority is to examine the federal right,” he said.

“It (the decision) raises a lot of new questions that will have to be resolved,” Klarquist said, adding that they probably will have to be addressed in a case-by-case basis before the water board.