GHOST RIGHTS TO WATER CAN BE SPOOKY

In 1948, the classic song "Ghost Riders in the Sky" was published. Depicting a haunting cowboy legend, it became popular first in 1949 by the deep voice of Vaughn Monroe, but subsequently recorded by over 50 performers.

Now, it appears that there may be ghost water rights in rivers and lakes on earth. In the 1600s, colonists in America began to use water from rivers to power their mills. In doing so, they also assumed rights to use water for these purposes. The formation of states, and the United States, occurred some 100 years later, and the formal regulation of water rights even later.

A recent news story focuses on a thorny issue: do pre-regulation water rights, sometimes called "ghost water rights", survive subsequent governmental regulation of water rights?* According to the article, two pioneer landowners in the Black Hills of South Dakota obtained water rights in 1896 to divert substantial flow from Rapid Creek. The then stated purpose of the water diversion was "for milling, manufacturing, irrigating, domestic and other useful purposes." These water rights were recorded prior to the the adoption in 1907 of state water use laws providing for regulation and permitting of water rights. According to the article, there were hundreds of water rights recorded prior to state regulation.

The article states that the subject water rights, if exercised, would divert almost one-half of the entire flow of the Creek in a typical year. In 1908, a state engineer surveyed pre-existing water rights and found that they claimed large amounts of water. He wrote "the natural tendency was to make the claim large enough to cover all possible requirements, and in most cases greater than there was any expectation of using...This resulted in many instances in absurd and speculative claims, and the records show numerous cases where each of a number of claims to the water of a stream, filed in accordance with the former statutes, involved a larger quantity of water than had ever flowed in it, even during flood periods."

Now, the state board regulating water rights is considering termination of ghost water rights. However, such termination presents several potential issues. For example, do pre-existing water rights ever expire or can they be terminated? If water rights were never used, do they still exist? Do they run with the land benefited from the water rights? Can water rights be abandoned, and if so, what evidence establishes abandonment? If a water right is used partially, does the unused balance still exist? Can a pre-exisist water right be reduced in scope?

Another issue may be Constitutional. If a state terminates or reduces a pre-existing water right, is this a taking under the Fifth and Fourteenth Amendments, requiring compensation?

Ghost water rights appear to be both daunting and haunting. Allocation of the rights to divert water from rivers and lakes can be a complex and contentious exercise. Indeed, to reference the song, ghost rights in the water can be spooky.

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*Tupper,"'Ghost Claims'Haunt SD Waters,"
Rapid City Journal, September 25, 2016,
page A1

© Daniel J. Kucera 2016