The New Melones Dam Decision Roderick Walston

Hastings Law Journal Volume 30 | Issue 6 Article 1 1-1979 Reborn Federalism in Western Water Law: The New Melones Dam Decision Roderick Walston Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Roderick Walston, Reborn Federalism in Western Water Law: The New Melones Dam Decision, 30 Hastings L.J. 1645 (1979). Available at: https://repository.uchastings.edu/hastings_law_journal/vol30/iss6/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Reborn Federalism in Western Water Law: The New Melones Dam Decision By RODERICK WALSTON* American federalism, wrought by early patriots who feared a concentration of national power, is a product of the unique history, tradition, and experience of the American nation. In response to historical necessity or convenience, however, the federal tradition has been eroded over the years by an increasing concentration of power at the national level. The activities of all branches of the federal government have contributed to this erosion; the judicial branch has more expan- sively defined federal power and the legislative and executive branches have more willingly wielded it. This development, however, has been partially reversed by the emergence of a new federalism, under which both Congress' and the courts 2 have given new emphasis to the role of * A.B., 1958; LL.B. 1961. The author is a Deputy Attorney General for the State of California. He represented California in California v. United States, 438 U.S. 645 (1978), discussed herein. The views expressed are solely those of the author, and should not be attributed to the State of California or any agency thereof. I. Congress has recently enacted several laws that allow the states to exercise substan- tial authority in matters affecting national policy. For instance, the Clean Water Act of 1972 authorizes the states to adopt permit systems for the control of water pollution and to apply their permit systems to federal agencies. See 43 U.S.C.A. §§ 1251-1376, 1323 (West Supp. 1978). The Clean Air Act of 1977 similarly authorizes states to adopt implementation plans for the control of air pollution and to apply their plans to federal agencies. See 42 U.S.C. §§ 7401-7642, 7418 (West Supp. 1978). The Deepwater Ports Act of 1975, 33 U.S.C. §§ 1501-1524 (1976), gives the U.S. Department of Transportation authority to license deepwater ports, but gives the states a veto power over the licensing of such ports. Id. §§ 1503(c)(9)-(10), 1508. The Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451- 1464 (1976), encourages the states to develop management plans for the protection of their coastal areas, and provides that the plans must follow guidelines set forth in the Act and must be federally approved; federal agencies are required to comply with such plans "to the maximum extent practicable." Id. § 1456(c)(l)-(2). 2. The Supreme Court recently held that Congress lacks constitutional power to apply its minimum wage laws to the states qua employers, reversing its decision in Maryland v. Wirtz, 392 U.S. 183 (1968). See National League of Cities v. Usery, 426 U.S. 833 (1976). The Court has also held that the states do not necessarily waive their immunity from suit under the eleventh amendment when engaged in activity regulated by Congress under its commerce powers, modifying its decision in Parden v. Terminal Railway, 377 U.S. 184, 186 [1645] THE HASTINGS LAW JOURNAL [Vol. 30 the states in our constitutional order. The federal tradition, once threatened with dormancy, has recently gained new life. These historical events are significant for purposes of this Article in that they reflect, and in large part explain, events that have taken place in the field of land reclamation. In 1902, Congress established a national program to build dams that would conserve the West's sparse water supply and reclaim its arid lands.3 In keeping with the federal tradition, Congress provided that the western states would control the water stored behind the dams. Congress cast doubts on the continuing viability of the state role in reclamation, however, by subsequently ex- panding the federal role without defining its exact scope. Moreover, as the Supreme Court expanded the definition of federal power in other areas, it expanded the definition of federal power in the field of reclamation, eventually holding that the federal government has exclusive control of water stored behind federal dams. Little was left of the federal tradition that underlay Congress' original reclamation program, which had recognized the states as having such control. In its recent decision in California v. United States,4 known as the New Melones decision, the Supreme Court abruptly changed the course of western water law. It held that the states have a right to control the water in federal dams to the extent not inconsistent with specific con- gressional directives. By accommodating federal and state interests rather than perpetuating a pervasive federal supremacy, the Court gave rebirth to the tradition of federalism in the field of reclamation. Its decision further diffuses national power in an era in which the limits of effective national power have been freshly appreciated, and, not coinci- dentally, provides another sign that the judicial activism of former years has been replaced with a new sense of judicial restraint. After examining the historic federal tradition in western water law and the reasons why Congress chose to follow it in its original reclamation program, this Article will trace the erosion of this tradition by the (1964). See Edelman v. Jordan, 415 U.S. 651 (1974). See generally Heldt, The Tenth Amendment Iceberg, 30 HASTINGS L.J. 1645 (1979). In preemption cases, the Court now appears to favor "a flexible conception of federal-state relations rather than one of absolute federal supremacy." Note, The Preemption Doctrine: Shifting Perspectiveson Federalism and the Burger Court, 75 COLUM. L. REv. 623, 641 (1975). On the same day that the Court issued its decision in California v. United States, 438 U.S. 645 (1978), known as the New Melones case, the Court also limited federal control of water under the reserved rights doctrine, thus broadening the states' rights to control water. See United States v. New Mexico, 438 U.S. 696 (1978); see text accompanying notes 53-56 infra. 3. See notes 5-13 & accompanying text infra. 4. 438 U.S. 645 (1978). July 1979] NEW MELONES DAM DECISION general expansion of federal power over water in the West and by the specific expansion of federal power in the field of reclamation. The Article will then examine the Supreme Court's decision in the New Melones case to see how the Court gave new meaning to the federal tradition, even to the point of overruling several of its prior decisions. Finally, this Article will demonstrate that the decision, rather than solving all problems of federalism in the field of reclamation, opens the door to new problems: in providing for an accommodation of federal and state interests, the Court left open the exact kinds of interests to be accommodated. After examining these new problems, this Article will suggest how they should be solved. The Reclamation Act of 1902 By the turn of the present century, the American nation had long abandoned the notion that the American West was the "howling wil- derness" depicted earlier by Daniel Webster.5 As part of its manifest destiny, the nation had committed itself to the task of extending its civilization to the lands of the West, lands recently won by treaty and conquest. Since nature had deprived the area of a plentiful water supply, the lands could be made habitable and productive only by the in- tervention of man, by the construction of reclamation works that would overcome the vagaries of nature. Encouraged by President Theodore Roosevelt, 6 Congress decided to undertake a massive reclamation effort on a national level. It authored the Reclamation Act of 1902,7 which provided for federal construction and operation of projects that would divert, store and distribute the waters of the western states and territories.8 5. 1 KINNEY, IRRIGATION AND WATER RIGHTS 8 (2d ed. 1912) [hereinafter cited as KINNEY]. 6. President Roosevelt stated, in his annual message to Congress in 1901: "Great stor- age works are necessary to equalize the flow of streams and to save the flood waters. Their construction has been conclusively shown to be an undertaking too vast for private effort. Nor can it best be accomplished by the individual States acting alone. Far-reaching inter- state problems are involved; and the resources of single States would often be inadequate. It is properly a national function, in at least some of its features. 35 CONG. REc. 6775 (1902). 7. Pub. L. No. 57-161, 32 Stat. 388-90 (current version at 43 U.S.C. §§ 371-600 (1976)). The act applies to the states of Arizona, California, Colorado, Idaho, Kansas, Mon- tana, Nevada, Nebraska, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington and Wyoming. Pub. L. No. 57-161, § 1, 32 Stat. 388 (1902) (current version at 43 U.S.C. § 391 (1976)). 8. A major question faced by Congress, in deciding whether to pass the Act, was whether reclamation was a national or local function. Those who opposed the Act, all from states which received no direct benefits from its enactment, argued that reclamation was a THE HASTINGS LAW JOURNAL [Vol.

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