Water Rights ?

[et1955]

Does a person owning a claim in California own the water rights ?

 

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[Bodfish Mike]

Water does not pass the test of being a solid so it is not considered a mineral although ice; which is solid, is classified as a mineral as long as it is naturally occurring. Thus ice in a snow bank is a mineral, but ice in an ice cube from a refrigerator is not.

From Google.
Mike

 

[Goldwasher]

Does a person owning a claim in California own the water rights ?

yes if you have a claim you have Riparian water rights. Doesn't matter what state county or locality.

 

[Bamadad53]

Actually you do not have Riparian water rights in California. You have the appropriation doctrine that controls water usage there.

https://en.wikipedia.org/wiki/Prior-appropriation_water_rights

 

[Bamadad53]

Correction:

"California and Texas recognize a dual doctrine system that employs both riparian and prior appropriation rights."

 

[winners58]

A riparian right entitles the landowner to use a correlative share of the water flowing past his or her property.
Riparian rights do not require permits, licenses, or government approval, Riparian rights have a higher priority than appropriative rights.
State Water Resources Control Board

some discussion on riparian rights & knowing your rights;
Are Permits Needed For Highbanking In California? - ICMJ

Water Board Faq's
if you mouse over the hi-lighted beneficial use on this link, it includes mining

of course using water pumps for off stream mining could be something
that would need to be addressed at these upcoming waterboard meetings.
(ie. has nothing to do with a suction dredge permit)

 

[Bejay]

This may prove to be another feather in the hat of miners within the Public Domain and their Granted rights to utilize water per the mining laws of 1866, 1870, and 1872 which is supported again in current law: Title 30 Chapter 2...... Another varification of "NOT" a State!
Just some info for those who have questions of such things.
http://farmfutures.com/story.aspx/supreme-court-rules-riverbed-ownership-17-57585
U.S. Supreme Court Rules on Riverbed Ownership
High court overturns Montana Supreme Court ruling that power company owes state rent.
Compiled by staff
Published: Feb 24, 2012
The U.S. Supreme Court ruled in the case PPL vs. Montana that the waterfalls of the Missouri River near Great Falls, Mont., are not navigable and therefore power company PPL does not owe the state rent and the state cannot claim ownership of the riverbed. By law states hold title to riverbeds only if the rivers are navigable.
"Farmers and ranchers prevailed this week when the U.S. Supreme Court unanimously ruled in favor of landowner property rights in the case of PPL v. Montana," said American Farm Bureau President Bob Stallman. "This decision puts ownership of streambeds and stream banks in the hands of their rightful owners."
The American Farm Bureau Federation filed a friend-of-the-court brief along with the Montana Farm Bureau in the case. Colorado Farm Bureau and Utah Farm Bureau also filed briefs in the case in support of the petitioning landowners.
Despite the ruling in favor of PPL, Montana Attorney General Steve Bullock still has plans to attempt collecting rent from PPL, who has dams on the Missouri, Madison, and Clark Fork rivers.
The Supreme Court did hand the case back to state courts for other disputed stretches of river, encouraging them to use the guidance of the federal court's decision. Justice Anthony Kennedy wrote that there is a significant likelihood that some of the other river stretches will fail this navigability test.
According to University of Montana School of Law associate professor Kristen Juras this decision is very important not only for PPL bur also for any landowners with property abutting rivers. She says the broader you describe navigability the less property rights riparian landowners have.
"I think it's an important decision really for all Montanans who enjoy or use the rivers for their businesses," PPL spokesman David Hoffman said.
PPL had argued that charging the power company rent would lead to the state charging irrigators and agricultural uses near rivers, which state officials had said wouldn't happen.
"This decision also helps ensure that farmers and ranchers will not have to pay government for the use of land or water from streambeds that run alongside or through their property," Stallman said. "This week's decision is a win for Farm Bureau members, farmers and ranchers nationwide and all private property owners."
(Miners within the Mineral Estsate Grant are rightful property owners of both the surface and the subsurface)....title is held in trust until patent aplication is complete. Yes I know the patent process has been out on an emergency stay since 1994. But the Grant has not.....the "Right of Possession" is alive and well.
bejay

 

[SunshineMiner]

yes if you have a claim you have Riparian water rights. Doesn't matter what state county or locality.

Oh yea? What about Oregon? Those guys are worse than california!

 

[Hoser John]

New regs in calif in 2016 says they think they even own the rain for gods sake. Will look up when possible but monster storm brewing mandates flood precautions and home more important at this time. John

 

[Goldwasher]

Correction:

"California and Texas recognize a dual doctrine system that employs both riparian and prior appropriation rights."

And if you have a claim (property of the united states) you have the Riparian water rights. Therefore the right of beneficial use.

 

[Bejay]

Oh yea? What about Oregon? Those guys are worse than california!

I thought it might be interesting to see how a State (in this case Oregon) might come to feel they have water rights over the miner, who was Granted those exclusive rights to water per the Federal Mining Laws. In other words where does the State of Oregon get the idea they can require a miner get a dredge permit.....where is their projected authority derived? Now the following is from the current Oregon Law Book of Water Resources. (sorry for the poor foremat but best I could do)
From the 2010 Oregon Law Book:
537.334 Findings.
The people of the State of Oregon find and declare that:
(1) Public uses (of water) are beneficial uses.
(2) The recognition of an in-stream water right under ORS 537.336 to 537.348 shall not diminish the public’s rights in the ownership and control of the waters of this state or the public trust therein. The establishment of an in-stream water right under the provisions of ORS 537.332 to 537.360 "shall not take away or impair any permitted, certificated or "decreed right" (do you suppose the Federal Grant is a decreed right?) which [" is a legislative grant, and being given by act of congress, is equivalent to a patent from the United States to the same."] to any waters or to the use of any waters vested prior to the date the instream
water right is established pursuant to the provisions of ORS 537.332 to 537.360." [1987 c.859 §3]
537.335
Wow....that is pretty dinamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 ACT
541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developingthe mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams or such public and beneficial use is "granted".
NOW NOTE THAT THE ABOVE REFERENCES THE Oregon Water Law of 1899. IF YOU GO TO THE SWOMA SITE AND LOOK UP THE ACUTAL WATER LAW OF 1899 YOU WILL BE VERY SURPRISED OF YOUR FINDINGS!

========================================================================

30 U.S. Code § 51 - Water users’ vested and accrued rights; enumeration of uses; protection of interest; rights-of-way for canals and ditches; liability for injury or damage to settlers’ possession
Current through Pub. L. 113-100. (See Public Laws for the current Congress.)
US Code
Notes
Updates
Authorities (CFR)
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Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

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/uscode/text/43/1303"HYPERLINK "/uscode/text/43
UNITED STATES CODE CLASSIFICATION TABLES
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Bejay

 

[goldenIrishman]

Ahhhh.... If I only had to worry about water rights here in my little corner of the desert southwest. I'd almost be willing to kill to have flowing water in my area that is not just a flash flood tearing down a wash during the monsoons! If I want to use water out in the field I have to haul it in myself. Of course some idiot will whine if I do that because I'm polluting the desert with water, thereby ruining the natural balance of the desert eco-system. Never mind that I paid for that water, hauled it over rough terrain and that I recycle as much of it as I possibly can. Then again, some people would whine if ya hung them with a new rope.

 

[winners58]

Oregon is complicated best to have pre 1909 rights with your property or mine or you can buy in, I'm sure someone will take your $
https://osbsustainablefutures.files.wordpress.com/2014/03/the-oregon-system-of-water-rights.pdf
for small-scale there are exemptions for 5,000 gallons a day single industrial or commercial purpose
or 15,000 gallon a day personal use exemption Oregon Revised statutes 537.545

 

[Bejay]

So as always we notice that just because the LAW says the miner has "Granted Rights" via both the Federal mining laws, and even State Statutes stating miners have rights to use water, a State can/will ignore such Lawful Language and concoct its' own scheme of denial. In the "Oregon anti placer mining case" we observed that the acting Governor ignored the States DOJ statement that the "anti placer mining law "was not lawful". But we again saw the State legislature, along with an acting Governors' DOJ crony, proceeded to ignore the initial recommendation stating; the anti measures were "unlawful"....... and went ahead and passed legislation to stop placer mining. We even observed legislative tactics by the Dems that were contrary to correct legislative procedure in order to pass the anti legislation. So that leaves the mining community in a battle with an adversary that is willing to force judicial resolve. Now the State is set on contriving support for their position and arguing against anyone who wants to challenge their authoritative power.
As always the miners suffer and are left with an endless political battle.

Bejay

 

[chlsbrns]

yes if you have a claim you have Riparian water rights. Doesn't matter what state county or locality.

Wrong!

Mining claims have rights to minerals. Water is not a mineral.

Riparian rights are held by those who OWN the land. Those with mining claims do not OWN the land.

State Water Resources Control Board

 

[chlsbrns]

And if you have a claim (property of the united states) you have the Riparian water rights. Therefore the right of beneficial use.

Wrong!

State Water Resources Control Board

 

[Goldwasher]

True actually. The riparian right is for the gov't land and once you locate a claim you have an appropriated water right, so it is no longer the riparian water right. Either way on land that can be claimed you have the right to use the water.

 

[chlsbrns]

Once you locate your claim is not public domain and you attain the riparian right. The locatable land is public domain and as a recreational user you do not have the water rights. Riparian rights are one of the benefits you gain when you locate the valuable mineral.

State Water Resources Control Board

 

[chlsbrns]

True actually. The riparian right is for the gov't land and once you locate a claim you have an appropriated water right, so it is no longer the riparian water right. Either way on land that can be claimed you have the right to use the water.

Wrong yet again!

"Water right permits and licenses issued by the State Water Board and its predecessors are appropriative water rights"

State Water Resources Control Board

 

[winners58]

the state says a riparian right does not apply un-appropriated un-developed federal lands, not sure if that's correct but
a mining claim is appropriated property with annual improvement requirements, fee title is with the U.S. but is an estate held in trust until patent.

US v. Shumway: “The Supreme Court has established that a mining ‘claim’ is not a claim in the ordinary sense of the word—a mere assertion of a right
—but rather is a property interest, which is itself real property in every sense, and not merely an assertion of a right to property.”

the full title of the 1966 mining act;
Mining Act of 1866
An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes

section 9 contains right a way grant;
SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water
for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same
are recognized and acknowledged by the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be maintained and protected in the same; and the
right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed:
Provided, however , That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch
or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage
shall be liable to the party in jured for such injury or damage.

this was carried over to the mining law of 1872
in title 30 U.S.C. 42 section 2339 with close to the same wording