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S.J.R. 4 Enrolled

             1     

JOINT RESOLUTION ON WATER RIGHTS ON GRAZING

             2     
LANDS

             3     
2014 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: Kevin T. Van Tassell

             6     
House Sponsor: John G. Mathis

             7     
             8      LONG TITLE
             9      General Description:
             10          This joint resolution of the Legislature declares sovereign the rights of the state of Utah
             11      and Utah livestock producers to put the state's livestock water rights located on public
             12      lands to beneficial use.
             13      Highlighted Provisions:
             14          This resolution:
             15          .    declares that Utah has a sovereign right to put the state's livestock water rights
             16      located on public lands to beneficial use through development and maintenance;
             17          .    recognizes the right of a livestock owner to access the state's water to put it to
             18      beneficial use, including crossing public land, grazing the livestock as necessary
             19      while livestock drink, and ultimately developing and maintaining watering facilities
             20      on necessary appurtenant public lands to put the state's water to beneficial use; and
             21          .    expresses support for H.R. 3189, the Water Rights Protection Act, to protect state
             22      sovereignty and the water rights of livestock producers.
             23      Special Clauses:
             24          None
             25     
             26      Be it resolved by the Legislature of the state of Utah:
             27          WHEREAS, Utah is the second most arid state in the nation;
             28          WHEREAS, water is essential to the life, health, safety, and welfare of Utah's citizens;
             29          WHEREAS, Utah has the right to exercise the state's jurisdiction over water resources


             30      within the state;
             31          WHEREAS, the state of Utah has long established water rights based on the principle
             32      of prior appropriation or "first in time, first in right";
             33          WHEREAS, Utah's water users can and have demonstrated the ability to put the water
             34      to beneficial use;
             35          WHEREAS, "beneficial use," as defined by Utah law, includes the watering of
             36      livestock on federal lands;
             37          WHEREAS, Congress has spoken clearly and often on state water sovereignty,
             38      including:
             39          1. The Act of July 26, 1866, subsequently known as the Mining Act or Ditch Act of
             40      1866, which recognized common-law practices of the time, declaring, "Whenever, by priority
             41      or possession, rights to the use of water for mining, agriculture, manufacturing, or other
             42      purposes, have vested and accrued, the same are recognized and acknowledged by the local
             43      customs, laws and decisions of the courts . . ."
             44          2. The Desert Land Act of 1877, which recognized, "All surplus water over and above
             45      such actual appropriation and use . . . shall remain and be held free for appropriation and use of
             46      the public for irrigation, mining and manufacturing . . ."
             47          3. The Taylor Grazing Act of 1934, which stated, "nothing in this Act shall be
             48      construed or administered in a way to diminish or impair any right to the possession and use of
             49      water for mining, agriculture, manufacturing and other purposes . . ."
             50          4. The McCarran Amendment of 1952, which "waives the sovereign immunity of the
             51      United States for adjudications for all rights to use water"
             52          5. The 1976 Federal Land Policy and Management Act (FLPMA), which states, "All
             53      actions by the Secretary concerned under this act shall be subject to valid existing rights";
             54          WHEREAS, to further underscore congressional intent, the United States Senate and
             55      the United States House of Representatives are considering action through H.R. 3189, the
             56      Water Rights Protection Act, to prohibit the United States Forest Service (USFS) and the
             57      Bureau of Land Management (BLM) from "conditioning any permit, lease or other land use


             58      agreement on the transfer, relinquishment or other impairment of any water right";
             59          WHEREAS, this legislation would protect livestock water rights and the sovereign
             60      water rights of the states;
             61          WHEREAS, federal land management agencies have created ownership uncertainty for
             62      ranchers with water rights on federal lands through over-filing and diligence claims that
             63      challenge ownership on privately held livestock water rights;
             64          WHEREAS, federal land management agencies have sought ranchers' approval of
             65      "change of use" applications and agreement to "joint ownership" of livestock water as a
             66      condition of access to their federal grazing allotments;
             67          WHEREAS, these federal land management agencies have implemented practices
             68      aimed at reducing or eliminating livestock grazing on federal grazing allotments that have
             69      resulted in lost livestock water rights and de facto federal water claims;
             70          WHEREAS, in blatant disregard for the long-established state jurisdiction over the
             71      state's water resources, the federal government, principally by and through the USFS, has
             72      engaged in a persistent pattern and course of conduct to exert control and influence over water
             73      resources within Utah and across the West;
             74          WHEREAS, the apparent intention of the federal government is to expand its water
             75      holdings in the western states, including in Utah, in accordance with 16 U.S.C. Sec. 526, which
             76      states, "There are authorized to be appropriated for expenditure by the Forest Service such
             77      sums as may be necessary for the investigation and establishment of water rights, including the
             78      purchase thereof or of lands or interests in lands or rights-of-way for use and protection of
             79      water rights necessary or beneficial in connection with the administration and public use of the
             80      national forests";
             81          WHEREAS, federal land management agencies, including USFS and BLM, are
             82      negatively impacting the water resources of Utah and other western states by unilaterally
             83      reducing the number of livestock grazing permits;
             84          WHEREAS, this reduction in livestock grazing permits is part of a strategy of resource
             85      control, including control of the state's water resources on federal lands;


             86          WHEREAS, federal land management agencies have precluded some of Utah's water
             87      right holders from putting the state's waters to beneficial use by denying access, reducing
             88      livestock rights, and denying holders of water rights from developing or maintaining livestock
             89      water rights associated with grazing permits appurtenant to federal lands;
             90          WHEREAS, a USFS Intermountain Region Guidance Document states that the federal
             91      government will not invest in livestock water improvements, "nor," according to 36 C.F.R.
             92      222.9(b)92, "will the agency authorize water improvements to be constructed or reconstructed
             93      with private funds where the rights are held solely by the livestock owner";
             94          WHEREAS, in the spring of 2012, agents of the USFS attempted to coerce Tooele
             95      County livestock producers to sign "change" applications or "certificates of joint ownership" on
             96      privately held livestock water rights or face the possibility of not being allowed to "turn out"
             97      cattle to graze their forage rights associated with their USFS grazing allotment;
             98          WHEREAS, a USFS Intermountain Region Guidance Document declares "until the
             99      court issues a decree accepting these claims, it is not known whether these claims will be
             100      recognized as water rights";
             101          WHEREAS, this document reflects an intention to undermine state water sovereignty;
             102          WHEREAS, when USFS allows improvements, including developing, redeveloping,
             103      and maintaining a livestock rancher's water rights, all the improvements are claimed as the
             104      property of the United States, even when it is the livestock owner's investment that enables the
             105      water to be put to beneficial use, as prescribed by state law, and the livestock owner covers all
             106      costs;
             107          WHEREAS, court records for the United States District Court for the District of
             108      Nevada indicate that USFS and BLM have actively sought to reduce or eliminate livestock
             109      grazing and watering rights from western public lands, often resulting in protracted litigation;
             110          WHEREAS, the litigation includes the 2012 conviction of two public servants
             111      employed by the USFS and BLM for contempt of court and witness intimidation, and the
             112      determination that the regional forester in charge of Utah lied to the court regarding the
             113      agency's antigrazing bias intended to reduce or eliminate livestock grazing on public lands;


             114          WHEREAS, Intermountain Region forest service agents testified that the United States
             115      controls all access on federal lands;
             116          WHEREAS, this control creates a situation where the only way a rancher could use the
             117      water on the rancher's federal grazing allotment, with its associated livestock water rights,
             118      without USFS approval would be "to lower the cattle out of the air";
             119          WHEREAS, in seeking to expand water rights claimed by the United States, the USFS
             120      has filed more than 16,000 diligence claims on Utah water associated with forest grazing
             121      allotments, claiming that livestock were grazing on land that not only belonged to the United
             122      States but whose water rights were established on behalf of the United States prior to Utah's
             123      statehood;
             124          WHEREAS, USFS claimed long-held livestock water rights in Idaho, arguing that the
             125      water belonged to the United States based on its ownership and control of the public land;
             126          WHEREAS, the Joyce Livestock Company prevailed against the United States in a
             127      unanimous Idaho Supreme Court decision, in which the court held that, under the constitutional
             128      method of appropriation, "the United States did not actually apply the water to beneficial use,"
             129      and therefore had no claim to the livestock water right;
             130          WHEREAS, the United States cannot obtain Utah's sovereign water rights, nor can it
             131      obtain long-held livestock water rights established on public lands, through any federal laws;
             132          WHEREAS, the United States Supreme Court determined, in Solid Waste Agency of
             133      Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)), that the
             134      administrative authority of federal government agencies is limited, declaring "Where an
             135      administrative interpretation of a statute invokes the outer limits of Congress's power, we
             136      expect a clear indication that Congress intended the result . . . Congress does not casually
             137      authorize administrative agencies to interpret statute to push the limit of Congressional
             138      authority. This concern is heightened where the administrative interpretation alters the
             139      federal-state framework by permitting federal encroachment upon traditional state power";
             140          WHEREAS, in United States v. Bass, 404 U.S. 336, 349 (1971), the United States
             141      Supreme Court stated, "Unless Congress conveys its purpose clearly, it will not be deemed to


             142      have significantly changed the federal-state balance";
             143          WHEREAS, the development and maintenance of the states dispersed livestock water
             144      rights is important to the health of the ecosystem, to Utah's wildlife populations, and the state's
             145      recreation interests;
             146          WHEREAS, water rights are sovereign rights of the state of Utah; and
             147          WHEREAS, the state of Utah has the right and obligation to protect this scarce resource
             148      to protect the health, safety, and welfare of its citizens:
             149          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah
             150      declares its sovereign right to put the state's livestock water rights located on public lands to
             151      beneficial use through development and maintenance of the resource.
             152          BE IT FURTHER RESOLVED that the Legislature of the state of Utah recognizes the
             153      right of the livestock owner to access the state's water to put it to beneficial use, including
             154      crossing public land, grazing the livestock as necessary while livestock drink, and ultimately
             155      developing and maintaining watering facilities on the necessary appurtenant public lands to put
             156      the state's water to beneficial use.
             157          BE IT FURTHER RESOLVED that the Legislature of the state of Utah expresses
             158      support for H.R. 3189, the Water Rights Protection Act, to protect state sovereignty and the
             159      water rights of Utah livestock producers.
             160          BE IT FURTHER RESOLVED that a copy of this resolution be sent to the United
             161      States Forest Service, the United States Bureau of Land Management, the Utah Department of
             162      Natural Resources, the Utah Department of Agriculture and Food, each county commission in
             163      the state of Utah, and the members of Utah's congressional delegation.


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