May 17, 2013

PLF warns forest service not to take water rights

By Anthony L. Francois Senior Attorney

Several of America’s best known ski areas operate on national forests under permits from the Forest Service.  They own private water rights to make snow as well as basic services at their ski lodges, restaurants, and hotels.  The ski areas did not get these water rights from the Forest Service, which cannot grant any water rights.  They, just like every other private water right holder, acquire water rights under state law in the Western states, through proper state agencies.

For decades, the Forest Service has coveted the water rights of private parties that hold permits to work on national forests.  The campaign to take water rights from cattle ranchers in the forests is well known to Liberty Blog readers.  In the past few years, the Service has added ski area water rights to its list of ‘must-take’ private property.

One of the Forest Service’s bogus legal theories is that when a permit holder uses water rights in the forest, the Service is entitled to the water right.  US and state law flatly refute this nonsense, but being wrong has not stopped the Forest Service from making the claim.  After landmark losses in court, the Forest Service started taking a more sinister approach: threats to revoke permits if ski areas do not hand over their water rights.

Last December, the National Ski Areas Association won a lawsuit against the Forest Service in federal district court in Colorado.  The court ruled that the Forest Service illegally adopted the water rights permit term it was forcing on ski areas to exact their water rights from them.  Since the permit term was illegally adopted, the court did not address the merits of whether the permit term itself violates the Takings Clause of the U.S. Constitition.

So the Forest Service has gone back to the drawing board, to cure the process errors in drafting a water rights seizure policy.  PLF recently submitted a comment letter laying out the basic problem with the Forest Service’s view of water rights.  The Forest Service will be taking private property without compensation if it exacts ski area water rights as a condition of holding or renewing their permits.  The Forest Service should avail itself of state water law forums to protect any real interests it may have in ski area water rights, and otherwise leave the ski areas’ privatge property in peace.

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