What Every Nevadan Should Know About Western Water Law

by Carl Haas

lthough what we now call Nevada—its land and appurtenances* —was acquired by the United States from Mexico in the Treaty of Guadalupe-Hildalgo in 1848, the U.S. divested itself of claims to its water when Congress passed the Act of July 26, 1866. This act was the foundation of subsequent western water law because it recognized the common-law practices that American settlers in the new territories had already put in place. The law reads as follows:

Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but when ever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. (43USC 661)

By the Act of July 26, 1866, the federal government obligated itself to not only protect the rights of individual possessors of the water, but also to recognize the local customs, laws and decisions of the state courts. Water within states’ boundaries was already looked upon as owned by the states, and its use by private individuals in the West was to be determined by state law and precedent.

THE 1907 FOREST SERVICE ‘USE’ BOOK

Four decades later, this rule was still entirely acknowledged—not just in the states but throughout the federal government. For example, in 1907 Gifford Pinchot, "father" of the United States Forest Service and its first Chief Forester, explicitly reassured westerners and constitutionalists across the country, as follows:

"The creation of a National Forest has no effect whatever on the laws which govern the appropriation of water," wrote Pinchot in a forest service ‘use’ book. "This is a matter governed entirely by State and Territorial laws."[emphasis added] That ‘Use’ book—a small maroon-red booklet bearing the title, "Use of the National Forests"—was published and distributed the same year that the federal government formed the Toiyabe National Forest within the boundaries of Nevada. Within the booklet’s small pages, Pinchot explained to ranchers, miners, loggers and others on western lands how the new national forest system was going to work.

Consistent with Pinchot’s pledges and the rules Congress had established in 1866, the Toiyabe National Forest issued its first grazing permits by using the standard of ‘past use’—the criterion specified in the Forest Service Use books of both 1905 and 1907.

Early correspondence between the local forest rangers and their superiors in Washington, D. C., provide us with the actual names of ranch operators at the time and the numbers of livestock. This is valuable information in light of some of the arguments that the U.S. Forest Service has sought to make in Nevada’s current Monitor Valley water adjudication.

For example, in a November 20, 1907 letter from District Ranger Mark G. Woodruff to his superiors in Washington, Woodruff provided information on past use and made his recommendations as to numbers of use and priority classification. Class A priority was given to the local land owner, class B to "a man who owns land and a home a little farther away," and class C to those "who own no land or home anywhere near the Forest"— a category consisting mostly of "tramp sheepmen" from northern Nevada who brought herds down to graze the area during the spring, summer and fall months.

In early 1997, copies of these early letters (including the names and numbers of the "users") were filed as evidence in the Monitor Valley water adjudication hearing before the state engineer. Woodruff, 90 years earlier, had believed "that the various Forests would reasonably support, without injury to the range, the amount of stock named in the following estimates":

Toiyabe: 8,000 cattle

Toiyabe: 28,500 sheep

Toiyabe (Shoshone range): 1,500 cattle

Toiyabe (Shoshone range): 5,000 sheep

Monitor: 2,000 cattle

Monitor: 10,000 sheep

It is important to remember that these numbers—high, no doubt, in the view of today’s Forest Service—applied only to the hillsides and mountaintops where the national forests had been established, and not to the valley floors. The latter were subsequently put under the administrative authority of the U. S. Department of Interior’s Bureau of Land Management (BLM). In December 1907, Woodruff’s Washington bosses wrote back. A. F. Potter, assistant forester, notified Woodruff that the Secretary of Agriculture "has authorized the grazing of 9,500 head of cattle and horses and 17,500 head of sheep on the Toiyabe National Forest during the season of 1908…"

BLM ESTABLISHED

On June 28, 1934, Congress passed the Taylor Grazing Act, establishing what is now known as the BLM. Once again, the rule of 1866 and common law usage was followed. Grazing permits were to be issued on the basis of past use "to those within or near a district who are land owners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, etc…" Further, said the law, "nothing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes…" State law continued to be recognized as determinative, and the rights of individual possessors of water and other appurtenant rights would be protected. Or so went the federal government’s promise.

FOREST SERVICE AND BLM REDUCE PERMITS

Actually, however, notwithstanding federal commitments, livestock grazing by Monitor Valley ranches was gradually being restricted year by year by both the BLM and the Forest Service. From the time that Monitor ranchers’ water rights were originally vested in the 1800s up into the 1980s livestock grazing in the valley ranches dropped more than 50 per-cent. The so-called "tramp sheepherders"—many of them Basque immigrants who later became prominent in the larger Nevada community— were eliminated altogether.

These reductions were not voluntary. On the contrary, they were the result of increasing restrictions by the Forest Service and the BLM in the numbers of animals permitted to graze. GE 9 RE ON PAGE 23. FOR LONGER VERSIONS OF THESE STORIES  

BUREAUCRATS START PUSH FOR TAKEOVER

In 1976, Congress passed the Federal Land Management Policy Act requiring the BLM and Forest Service to prepare land and resource management plans for the various allotments. Shortly thereafter, the Forest and BLM began to administratively formulate new water rights policies regarding grazing. Increasingly the agency bureaucracies ignored or completely repudiated the principles of prior appropriation law that had governed the American West since its settling.

For example, in a letter dated June 29, 1984, Robert H. Tracy, Director of Watershed and Air Management for the Forest Service, stated nine reasons why his agency needed to control waters and why stock water rights should remain with the land rather than the ranchers holding the grazing permits. It was an explicit admission that the agency was setting out on a course hostile to the heirs of western settlers.

AGENCIES IGNORE STATE AND FEDERAL LAW

In ensuing years here in Nevada, the Forest Service and BLM have filed hundreds of stock water rights claims directly on top of those previously vested by the actual original users and their successors in interest. Virtually every water source in Monitor Valley was surveyed by the agencies after which alleged proofs of vested stock water rights or reserved rights were filed by the agencies with the state engineer’s office. The expense to the taxpayers must have been incredible.

In the case of RO Livestock, the Forest Service filed twenty-one claims on 18 stock waters previously vested by RO Livestock’s predecessors. Many times this number were filed on the vested waters of Wayne Hage and others.

In the ensuing Monitor Valley adjudication process on behalf of RO Livestock, I filed with the state engineer eighteen stockwater proofs with thousands of pages of supporting documents consisting of recorded copies of transfers, pertinent Nye County tax rolls related to livestock numbers and hay production, water volume measurements, historic letters from individuals testifying as to actual use, chattel mortgages, and a mountain of other factual evidence beginning in the 1860s, in order to show the state engineer and the court the actual past use.

On the other hand, the U.S. Government, represented by the officials of the BLM and Forest Service, has taken the position that proofs are merely ‘claims,’ regardless of any supporting documentation, and that one statement is as good as another. If that sounds extraordinarily brazen, it’s because it is. Most of the federal proofs filed with the state engineer have subsequently been classified by him as spurious on their face, the main reason being simply that the filing federal agencies did not even exist at the time the waters were put to beneficial use.

But the U.S. Government officials in this adjudication refuse to quit spending the taxpayers’ money, apparently believing that the unlimited legal budget of the federal government can eventually make them prevail and eventually bring credibility to their declaration that the U.S. owns all of the stock waters merely because they say so.

Black’s Law Dictionary defines this position as "Ipse dixit," and if Ambrose Bierce were alive today he would define it as the "Exercise of the Royal Prerogative." That is, the right of the government to be wrong— nevertheless trying to force its way against its own citizens. u

Footnote

* In law, a right, privilege, or minor property that is considered incident to the principal property for purposes such as passage of title, conveyance, or inheritance.   American Heritage Dictionary of the English Language, 1969     [back]

Carl Haas, a principal of Haas & Associates, is a water rights specialist.


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