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HARDY MYERS Attorney General |
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DAVID SCHUMAN
Deputy Attorney General
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DEPARTMENT OF JUSTICE GENERAL COUNSEL DIVISION |
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MEMORANDUM |
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| DATE: | September 30, 1999 |
| TO: | Richard Bailey, Adjudicator
Water Resources Department |
| FROM: | Meg Reeves, Assistant Attorney General
Natural Resources Section
Walter, Perry Assistant Attorney General Natural Resources Section |
| SUBJECT: | Klamath Adjudication/National Park Service Claims
DOJ File No. 690-600-GN0269-97 |
The National Park Service (NPS) has made various claims in the Klamath Basin Adjudication to reserved water rights in the Crater Lake National Park. You have asked for our assessment of the NPS’s entitlement to the reserved water rights claimed. We conclude that, as qualified below, when Congress created the Park it reserved sufficient water for Park purposes, which include domestic and administrative uses, fire protection, preservation of the Park’s scenic, natural and historic conservation uses, and preservation of wildlife, with a priority date of 1902. Later additions to the Park reserved water for all Park purposes as of the date of the later acquisitions.
We emphasize that our advice is preliminary, and may change based on arguments made, or evidence presented, by the claimants and others over the course of the adjudication.
I. The Claims
The NPS has made eleven instream claims, ten of which are for “Preservation and protection of all natural and historic objects, timber and wildlife, and conservation of scenery,” and one of which is for “Preservation and protection of Crater Lake, including all of its natural and historic objects, wildlife, and conservation of scenery.” The NPS has also made ten consumptive use claims, all of which encompass two stated purposes: “Domestic, Administrative, Wildlife,” and “Fire Protection.”
The NPS asserts that the water rights claimed are necessary to fulfill the primary purposes of the reservation, as encompassed by the documents withdrawing land for the Park, creating the Park, and creating the NPS: a) Executive Order of February 1, 1886;1 b) Act of May 22, 1902, ch. 820, 32 Stat. 202 (1902); c) the Act of Aug. 25, 1916, ch. 408, 39 Stat. 535 (1916); d) Act of May 14, 1932, ch. 184, 47 Stat. 155 (1932); e) Act of Dec. 19, 1980, Pub. L. No. 96-553, 94 Stat. 3255 (1980); and f) Act of Sept. 8, 1982, Pub. L. No. 97-250, 96 Stat. 709 (1982).2 While the NPS relies upon the Act of 1916 (establishing the NPS) and the Act of 1982 (correcting the boundary of the Park) in stating the purposes of the reservation, the NPS does not appear to rely upon those statutes for claimed priority dates.
