Water, water (rights) everywhere…
Water is fundamental to life. It is fundamental to human life, and city life, and agricultural life, and wildlife, and . . . . You get the idea. Water is also generally recognized as a “thing” that can be property. In the West, water rights are governed by state law (as most property rights are). But, in the West, a fair amount of waters straddle state lines or pass through several states. Lake Tahoe and the Colorado River are two such examples. This can make the application of state water law a little more difficult.
Further complicating things is the simple fact that there exist more water rights than actual molecules of H2O.
As with many such situations, litigation ensues. Presently, the Nevada Supreme Court has been asked by the Ninth Circuit Court of Appeal to discuss the interplay between Nevada’s doctrine of prior appropriation against the doctrine of public trust.
These esoteric issues of law will ultimately trickle down into pragmatic decisions on who can use actual water, and whether a government action limiting a person’s use of their water right can be a compensable “taking” of private property.
I was very pleased to work with the Pacific Legal Foundation to advance the PLF’s position on these legal issues in a brief of amicus curiae (friend of the court brief), setting forth the position that the public trust doctrine should not be applied to water rights in such a way that strips away those prior appropriated water rights, and further that if any vested water rights are stripped away under the public trust, that those property rights must be compensated. Link below.