OCR Text |
Show Impounded water, whether natural or man-made, is America's favorite medium for recreation. quantity or legality of the use, such as whether the use is properly implied from the creation of the withdrawal or reservation. At the present time there is no procedure for doing this. There is no effective judicial machinery to permit the resolution of the many issues raised by the reservation doctrine, even if a case-by-case approach to its clarification and refinement were desirable, and we do not believe that it is. Although the United States is free to initiate such a suit, the doctrine of sovereign immunity bars such actions by non-Federal water users or state administrative agencies unless Congress has consented to such a suit. The McCarran Act,9 which on its face consents to certain kinds of water adjudications, is an unsatisfactory vehicle for obtaining definition of Federal reservation claims. The courts have held that all water users on a river system must be joined under that Act,10 and this is 943U.S.C. §666 (1964). 10 Miller v. Jennings 243 F. 2d 157 (5th Cir.), cert, denied, 355 U. S. 827 (1957). 148 not always possible or feasible. Moreover, the issue of whether the McCarran Act permits adjudication only of rights held under state law and not of Federal reserved rights, as the Department of Justice contends, is now before the United States Supreme Court.11 Although we elsewhere recommend that Congress provide for judicial review of public land decisions by aggrieved parties, we are not prepared to go that far with respect to all Federal water right questions. Not only are the questions more complex, but they go far beyond this Commission's jurisdiction, since they usually affect multiple-purpose project developments having little or no public land connection and are best dealt with by the National Water Commission. However, we do recommend provision for judicial review of at least the limited questions of the reasonableness of the quantity claimed under the 11 U.S. v. Colo. Dist. Ct. for Eagle City, 458, P2d 760 (1969), cert, granted, 38 U.S. Law Week 3377 (Mar. 30, 1970 No. 1178). |