PART V
BYPASS FLOWS AND MCCARRAN ADJUDICATIONS
The Colorado Bypass Flow controversy (Part III) and the attempt in Arizona to coerce the transfer of non-federal water rights obtained under state law to the United States (Part IV) illustrate the very significant impacts to water users that result from Forest Service attempts to use its permitting authority to force the de facto reallocation of water and water rights to federal purposes. From a policy perspective, however, an equal, if not greater problem is presented by the destructive effect of bypass flows on McCarran adjudications. The implications of this issue extend beyond the National Forests to all public lands, as the relevant provisions of FLPMA also apply to lands administered by the Department of the Interior.
Bypass Flow Conditions are inconsistent with the purpose of McCarran Adjudications. As is recognized by the letters to the Task Force from Governor Racicot of Montana and Attorney General Norton of Colorado, and the comments of the State Engineers of Nevada and Idaho, the threat of bypass flows undermines the certainty that is intended to be provided by McCarran adjudications. States, water users, and the federal government are spending millions of dollars on McCarran Act adjudications under "an all inclusive statute concerning the adjudication of "the rights to the use of water of a river system" which in [43 U.S.C.] § 666(a)(1) has no exceptions and which, [as read by the Supreme Court], includes appropriat[ive] rights, riparian rights, and reserved rights". The protection of instream flows is the assertion of a riparian right.
If the Forest Service has the authority to impose bypass flow conditions on the operation of water facilities which are different from or inconsistent with its federal reserved water rights, the relative priorities of right of use of water that have or will be established in the McCarran adjudications are meaningless. Simply put, for most National Forests there would be no purpose in the assertion of federal reserved water rights by the United States if it could control the use of water through land use conditions. Likewise, a water right for a ditch located on National Forests that is senior to all federal water rights is meaningless if the Forest Service can limit the diversion of water by that ditch in order to achieve federal purposes. Congress understood that a partial adjudication of rights to waters from the same source would defeat the purpose of having an adjudication in the first place:
[S. 18] is not intended to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value.
Further proof that the scope of McCarran proceedings includes federal claims to the use of water for National Forest purposes such as instream flows is provided by the unsuccessful attempt by the United States to persuade Congress to amend the legislation to exclude these types of claims so that it would not be bound by the allocation of water to non-federal parties.
The Departments of the Interior and Justice opposed what later became the McCarran Amendment. In a letter from Mastin G. White, Acting Assistant Secretary of the Interior, to Senator McCarran, the Department of the Interior expressed a fear that this legislation would lead to a situation where the United States "would be forever precluded from asserting" those "rights and interests which the United States has in the stream systems of the Nation" which were not asserted in a general water adjudication. Interior also suggested that the waiver be limited to adjudications of the "rights to the consumptive use of waters within that State" that were based on state law.
William Veeder, who testified before the Senate Judiciary Committee on behalf of the Department of Justice, also expressed a concern that the waiver of sovereign immunity would result in a "multiplicity of suits," and that the United States would overlook some of its claims and be bound by the decrees entered in the general adjudications:
. . . . I know of no stream system of any size at all in which you wouldn't have a general adjudication if we were sued in connection, for instance, with the Forest Service rights . . . . Where the United States is a party the United States of necessity must come in and bring in, for instance its forest service rights, its soil conservation rights, its Indian rights, and when that occurs you must have every one in there or the decree will not be effective or you will be charged with splitting a cause of action, res judicata, one or the other.
Record of April 25, 1951 hearing of United States Senate Subcommittee of Committee on the Judiciary at 6-7
(emphasis added). Notwithstanding the objections of Interior and Justice, the Committee (and ultimately Congress and the President) concluded that the legislation was "meritorious." By rejecting the request that McCarran be limited to claims for consumptive uses of water acquired under state law, Congress intentionally acted to preserve the all-inclusive or universal nature of the general adjudications which would result from the waiver of sovereign immunity, and made it clear that claims to the use of water for instream flow purposes of the National Forests must be asserted in a McCarran proceeding.Water allocated to non-federal water rights in McCarran Adjudications cannot be taken by the Forest Service to achieve National Forest Purposes. The obvious reason for the unsuccessful opposition to the McCarran Amendment by the Departments of Justice and Interior was that they recognized that the decrees entered in these proceedings would be a binding determination of the rights to the use of water for federal and non-federal purposes. These federal agencies wanted to be free to obtain water in the future without having to respect prior allocations of water to non-federal claimants. Congress disagreed with this position, and as the Colorado Supreme Court has held:
The doctrine of res judicata bars the United States from re-opening reserved water rights adjudications even where prior claims have not been adjudicated or the United States erroneously has omitted certain claims
The United States Supreme Court has a similar view of the finality of water adjudication decrees:
Simply put, the doctrine of res judicata provides that when a final judgment has been entered on the merits of a case, "it is a finality as to the claim or demand in controversy, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. . . . The policies advanced by the doctrine of res judicata perhaps are at their zenith in cases concerning real property, land and water.
The inescapable conclusion is that McCarran is "all inclusive" in scope, and all federal claims to the use of water must be asserted in a McCarran proceeding. Otherwise, the intent of Congress to provide certainty through "comprehensive" adjudications would be defeated. The federal claims to water which must be asserted are not limited to those claims which it elects to assert in the form of "water rights," nor are they limited to consumptive uses or water rights obtained under state law. The doctrine of res judicata applies to decrees entered in McCarran adjudications, which means that the United States is bound by the relative priorities of the water rights which were adjudicated. Finally, a failure of the United States to assert a claim to the use of water will mean that the newly discovered or previously omitted federal claim to the use of water, if it is later determined to be authorized by Congress, will be postponed, or junior to, intervening water rights.
Accordingly, attempts to impose bypass flow conditions are 1) an attempt by the United States to undermine the certainty that is to be provided by a McCarran adjudication, 2) a claim to the use of water which it either did not assert, or which was asserted and rejected, in McCarran proceedings, and which is now barred by the doctrine of res judicata, and 3) violative of McCarran decrees that have already or will in the future allocate water to non-federal parties.
The lack of a policy justification for allowing the assertion of bypass flows to undercut the "all-inclusive" nature of a McCarran proceeding is best understood by returning to a prior attempt by the United States to evade the comprehensive nature of these proceedings.
In Colorado River Water Conservation Dist. v. United States, the United States Supreme Court considered the claim by the United States that the McCarran waiver of sovereign immunity did not include federal reserved water rights for Indian reservations and concluded that:Thus, bearing in mind the ubiquitous nature of Indian water rights in the Southwest, it is clear that a construction of the Amendment excluding those rights from its coverage would enervate the Amendment's objective.
The Court then considered the intent of McCarran, and again concluded that it was all inclusive and intended to allow comprehensive adjudications of all claims to the use of water, regardless of the legal theory underlying such claims:
The clear federal policy evinced by that legislation is the avoidance of piecemeal adjudication of water rights in a river system. . . . [T]he concern . . . is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property. This concern is heightened with respect to water rights, the relationships among which are highly interdependent. The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means of achieving these goals.
If the Supreme Court was unwilling to allow the United States to "enervate" McCarran by excluding "ubiquitous" Indian water right claims that are asserted in fulfillment of the trust responsibility of the United States, then the Forest Service cannot be allowed to eviscerate McCarran by the simplistic device of redefining federal uses of water as something other than a water right in order to obtain water for the even more common claims to the use of water for attaining the secondary purposes of the National Forests.
The Forest Service has failed to explain why, when even Indian water rights claims must be satisfied in priority, an exemption to the all inclusive scope and binding effects of a McCarran adjudication is justified for its desire for water for secondary purposes of the National Forest, such as fisheries and recreation.