Tony Francois

As many American farmers and ranchers are aware, these days the U.S. Forest Service is no friend to privately held water rights.

Right now, for instance, the agency is proposing broad new restrictions and controls on groundwater rights in and near national forests. These mandates would apply wherever the exercise of water rights would affect forest resources (a vague concept that allows regulators maximum discretion to pick and choose which water-rights owners they will target).

Under the proposals, when property owners need a permit from the Forest Service, they could be forced to surrender groundwater rights as the price of receiving it. And water-rights holders will be subject to onerous construction, operating, and reporting standards for wells and water pipelines — which many smaller groundwater users will have difficulty meeting.

Many private property owners have weighed in against what amounts to a sweeping attempt to transfer private water rights to public ownership or control.

To the extent these regulations would lead to the confiscation of water rights without compensation, they violate the Takings Clause of the Fifth Amendment. Water rights are a form of private property, after all. But there is another basic problem — and fundamental irony — as well: The proposed rules are in tension with the historic mission of the Forest Service itself.

Indeed, the agency’s current adversarial stance toward private water rights represents a 180-degree reversal from its original purpose and objectives. It is time to restate those objectives — and to demand that the agency recommit itself to them.

In this context, there are two important facts to keep in mind about the national forests and the Forest Service.

First, by the time they were established, most of the land within them that was available for farming had been settled and was under private ownership, and the water resources necessary for agriculture had already been largely developed and subject to privately held water rights.

Second, one of the principal purposes of the establishment of national forests was to ensure that these water resources, which had been previously developed, could be effectively used by farming communities — by “securing favorable conditions of water flows,” as the founding statute put it.

At the time the national forests were designated, thousands of small towns, settlements, farms, ranches and homesteads already existed within, nearby and downstream from the forests’ boundaries. The federal laws establishing national forests recognized the senior rights of all of these private property owners to their land and their water. Moreover, several early forest designations that prevented homesteading on available water resources were actually rescinded to allow additional settlement.

For decades the Forest Service supported those who had established prior rights, while administering a robust timber supply for a growing nation.

For example, the establishment of national forests served to protect water rights and the development of communities and agriculture by safeguarding the snow pack in high-mountain watersheds. Previously, people had been indiscriminately clear cutting public timber above the snow line in many mountainous areas, leading to rapid snow melt, catastrophic floods, and inadequate water for summer irrigation for communities in and downstream of the forests. The Forest Service was charged with curtailing that destructive practice by implementing an orderly commercial harvest of timber.

However, Forest Service policy towards water rights changed radically in the last several decades, and is now at odds with privately held water rights in and near the national forests. In general stream adjudications throughout the Western states, the Forest Service absurdly claims federal reserved water rights for Forest Service purposes under the Winters Doctrine, as well as ownership of privately held stock water rights that were perfected before the forests were established under federal law.

The U.S. Supreme Court rebuffed the Forest Service’s water rights aspirations, in the 1978 case of United States v. New Mexico, which holds that the purposes for which national forests are created do not support awarding water rights to the Forest Service. And both state and federal courts have held that the citizens who actually use water on national forests own the water rights; the Forest Service cannot claim ownership merely by virtue of managing the land.

Despite these court decisions foreclosing Forest Service acquisition of privately held water rights, the agency persists in demanding that permit holders surrender their property rights in water, and in claiming these rights in stream adjudications.

The proposed new groundwater policy takes the further step of directing the Forest Service to claim federal reserved water rights in groundwater in pending water rights adjudications. This novel expansion of the Winters Doctrine promises years of resource conflicts to come.

It is long past time for the Forest Service to rediscover its true historic responsibility to protect and enhance private water rights, rather than expropriate and suppress them. America’s farmers and ranchers deserve the real Forest Service, not the evil twin that has taken its place.

Tony Francois is an attorney with the Pacific Legal Foundation. He authored PLF’s comments to the U.S. Forest Service in opposition to the agency’s proposed new mandates on owners of groundwater rights.