| | | A little more complicated than that yet, because not all water rights are created equal. The original allotments in use that existed before 1905 are all "grandfathered"... meaning that the rules and management schemes that do apply to water rights that have been granted after that, don't now and never have applied to those that pre-existed the establishment of the controls.
So, if they did prevent Bundy from accessing his grazing rights... it would still take 10 years for the water rights be able to be declared defunct by non-use... and, even then, there could be a dispute about it due to the tenure issue. But, since Bundy never quit using the water... in spite of the all the wrongful efforts being made to try to restrict his use of water, and to wrongly limit his grazing rights, all intending to force him to fail ? The result was... he didn't fail... and that meant the non-use clock never got started on his water rights.
That inequality in water rights also means that some water rights are worth more than others ?
So, first, even if they did try to exercise eminent domain to take his ranch, and his grazing rights, the water rights that apply to the Federally controlled surface land (minus the grazing and water rights) would still belong to Bundy. They are his real property... but are not subject to eminent domain.
What they've been trying to accomplish... is putting him out of business to enable STEALING his water rights... but, to accomplish that... they need his business to fail. And, it has to fail in a way that would require him to sell while keeping the water rights intact. Then, when forced to sell... they'd be able to get the EXISTING water rights... intact... with the value of grandfathering meaning they didn't have the usual limits in usage or current management schemes applying to their "pre-existing right" to use water. Otherwise, newer allocations are subject to all of the later restrictions, including that they could end up being shut off... as you see happening in California now due to a drought. In a drought... they will shut off all the recently awarded rights... in order to sustain the flows to the "grandfathered" original allocations which have a SUPERIOR claim to use the water.
If they did exercise eminent domain... they wouldn't get the water rights ? With non-use... and assuming Bundy didn't find a way to sell the rights to someone else first... those rights would eventually revert to ownership of the state... and be subject to reallocation based on the CURRENT law and management scheme... thus, at a minimum, they'd be permanently losing the existing benefit of having the "grandfathered" rights Bundy owns ?
If I were Bundy... and faced with losing it all... before I surrendered... I'd deed the water rights to a private organization to control them irrevocably, non-transferably, and in perpetuity for the benefit of the turtles (and other plant and animal life on site... don't give them any incentive to go on another turtle killing rampage)... with the proviso that they never allow them to fall into mis-use, never allow water to be used for fracking, etc.
I'd also consider similar tactics with other elements... If Bundy still owns mineral rights... he should carve them out and transfer them... to ensure no one else will be able to obtain them if they somehow do take the ranch.
Make it so they can't win... if they win.
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