Naval Air Warfare Station China Lake (NAWSCL)

How the DOD and Navy created a ‘FRWR’ loophole to exploit SGMA in their quest for strategic water dominance in the western United States

Naval Air Weapons Station China Lake homepage (navy.mil)

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surreptitiously adverb

1. In a surreptitious manner; stealthily, furtively, secretly.
2. in a surreptitious manner
3. The Century Dictionary.More at Wordnik

The “doctrine” of federal reserve water rights originates from case law beginning in 1908: when the United States sets aside an Indian reservation, it impliedly reserves sufficient water to fulfill the purposes of the reservation. Indian Reservations are permanent withdrawals. Navy’s withdrawal of BLM Public Land is a temporary withdrawal of 25 years or less.

Department of Justice “Federal Reserve Water Rights” web page

Winters v. United States, 207 U.S. 564 (1908). There, the United States Supreme Court ruled, when the United States sets aside an Indian reservation, it impliedly reserves sufficient water to fulfill the purposes of the reservation, with the priority date established as of the date of the reservation.

Department of Justice “Federal Reserve Water Rights” web page

Arizona v. California, 373 U.S. 546 (1963). In that case, the Court held that the reserved rights doctrine is not limited to Indian reservations, but also applies to all federally reserved public lands, such as national forests, national recreation areas, and national wildlife refuges.

Department of Justice “Federal Reserve Water Rights” web page

Cappaert v. United States, 426 U.S. 128 (1976), the Court upheld an injunction against groundwater pumping that would have jeopardized one of the purposes for which the national monument at issue had been established – preservation of the desert pupfish – thereby extending the reach of the reserved rights doctrine to protect federal reserved rights both from injurious surface and groundwater diversions.

Department of Justice “Federal Reserve Water Rights” web page

United States v. New Mexico, 438 U.S. 696 (1978), the Court denied the Forest Service’s instream flow claim for fish, wildlife and recreation uses. Specifically, the Court denied the claim on the grounds that reserved water rights for National Forest lands established under the Forest Service’s Organic Act of 1897 are limited to the minimum amount of water necessary to satisfy the primary purposes of the Organic Act – conservation of favorable water flows and the production of timber – and were not available to satisfy the claimed instream flow uses. This decision established that questions concerning the existence and quantity of reserved water rights are largely dependent upon the reservation’s authorizing legislation and the specific purposes for which the land was reserved.

Department of Justice “Federal Reserve Water Rights” web page

Navy made the claim of federal reserve water rights using misleading “Caps”, Federal Reserve Water Rights, implying that “FRWR” is a federal Law, not a “doctrine”.

See 2 Capt. Dale Letters See also Cmdr Benson

Navy’s claim that it has FRWR’s is contrary to both the doctrine of federal reserve water rights as well as being unsupported based on previous Statements made to Congress by the Department of Interior and the Bureau of Land Managment (H.R. 4458 -McCarthy CA, S.1230-Barrasso WY)

Documented herein

“The use of the doctrine of “federal reserve water rights” by a department of the U.S. Military is unprecedented and has far reaching consequences for communities sharing groundwater basins with military reservations on 16,000,000 acres of BLM Public Lands, Status Withdrawn.“

Plaintiff

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July 18 2020 IWVGA Meeting, Closing Comments from Navy Representative, Commander Peter Benson:

Navy continues to be a committed partner to help the GA and the community on strategies to bring the basin into sustainable yield and will lean in as far as we can within the unique and specific federal legal limitations.

As we understand the purpose of SGMA, it is NOT to make decisions on water rights in the basin, but rather allocations to bring the basin into sustainable yield.

In response to the GA and to further their SGMA goals, Navy submitted a report to outline historic pumping, changes in pumping, current pumping, anticipated base growth and demographics of off-base personnel in support of the mission, in good faith to aid the GSP development. As part of that report, the Navy agreed to an allocation of 2041 ac-ft through the GSP process to support on base activity, to include anticipated growth.

The Navy did not provide a Federal reserve water right (FRWR) number, as that will be decided through an adjudication after extensive discovery and cross examination.

The IWVGA alone made the decision to use Navy’s pumping data to estimate a FRWR.

Additionally, the IWVGA made the allocation decisions to transfer the IWVGA estimated FRWR.

The Navy did not direct, ask or imply that the IWVGA should transfer the estimated FRWR balance.

Commander Peter Benson June 18 2020

https://roadrunner395.com/2021/10/11/kevin-mccarthys-navy-base-scores-the-hat-trick-sgma-battered-blm-beaten-and-coso-geothermal-splits-profits-50-50-whats-next-at-naws-china-lake-secret-city/

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surreptitious sûr″əp-tĭsh′əs adjective

• Obtained, done, or made by clandestine or stealthy means. synonym: secret.
• Done or made by stealth, or without proper authority; made or introduced fraudulently; clandestine; stealthy.
• stealthy, furtive, well hidden, covert (especially movements)
• The American Heritage® Dictionary of the English Language, 5th Edition.More at Wordnik

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Arguments

“We are right, the U.S. Navy and SGMA are wrong.”

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Your private property and water rights have been undermined and violated by the U.S. Navy (“Navy”).

Navy’s assertion of “federal reserve water rights” (“FRWRs”) during the formation of and allocation of groundwater by the IWVGA’s Groundwater Sustainability Plan (GSP) in the Indian Wells Valley groundwater Basin has no legal precedent and is meaningless. The Navy is asserting a water right that doesn’t exist for military reservations on Bureau of Land Managment (BLM) Public Lands and Navy’s assertion is a question of law, at best.

Mike Sinnott, Trustee of the Pauline B. Sinnott Revocable Family and Lead Plaintiff

The Navy exercised undue influence and subterfuge to surrupticiously introduce their claim of “Federal Reserve Water Rights” on BLM Public Land, Status Withdrawn.

Navy’s assertion is without legal precedent for a temporary military reservation located on Public Land (“Land”) under the oversight of the Bureau of Land Managment and the U.S. Department of Interior.

U.S. Navy’s assertions were accepted without question by the Indian Wells Valley Groundwater Authority (“IWVGA”) and the Board was advised by legal counsel they could not do so as it was a matter of the Supremacy Clause and that Navy’s FRWRs must be repected in full according to SGMA.

The federal government (DOD by reference) “may participate in the preparation of the Groundwater Sustainability Plan or administration of a groundwater sustainability plan or groundwater management plan.” This is clearly more than “sitting at the table” when asserting superior water rights claims to legally vested water rights holders.

Plaintiff

The IWVGA has purchased an Option to Buy treated wastewater “wastewater” for a period of five years beginning November 19, 2020 from the City of Ridgecrest “City”. The City hasn’t announced when the wastewater will be produced as the City’s planned construction of a new Wastewater Treatement Facility (“WTF”) has not been announced.

Plaintiff

Potential Class Members are currently paying a “Replenishment Fee” to the IWVGA to buy potable water and/or treated wastewater as “imported water” that hasn’t been purchased, and it’s unknown where it’s coming from or how much it will cost.

The consequential damages resulting from the insertion of the DOD into SGMA 10720.3 for establishing DOD’s capture of and inclusion in federal reserved water rights doctrine are incalculable. In addition, this has resulted in DOD’s power and influence to be exerted in State laws to the extent that the DOD has undermined the private property rights and water rights of all property owners in the State of California. Much of the damage is real and has become more apparent as new information becomes available. Congressional oversight is needed to prevent this from happening again.

For Example 1: Setting the “price” of imported water. Price fixing influenced by DOD’s assertion of frwrs and allocations…

Members of the Class Action will continue to incur real and quantifiable financial damages a result of Navy’s influence on the IWVGA, Navy’s assertion of “federal reserve water rightprs” and IWVGA’s acceptance of Navy’s assertion that as per SGMA, federal reserve water rights “must be respected in full”.

Additional Statements to come. Any information published and statements made herein are subject to change, correction, modification or deletion prior to any legal action taken by the Lead Plaintiff.

Mike Sinnott, Trustee of the Pauline B. Sinnott Revocable Family Trust (Undated pending filing in Federal District Court)

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