Sierra Club v. Lyng
Citation: 17 ELR 21127
No. No. 84-K-2, 661 F. Supp. 1490/(D. Colo., 06/03/1987) Reconsideration denied, Forest Serv. plan remanded
The court reaffirms its earlier holding that federal water rights were impliedly reserved when Colorado's wilderness areas were designated, and holds that the Forest Service's three-page plan to protect those rights is inadequate under the Wilderness Act and the Administrative Procedure Act (APA). The court initially notes that the intervenors' motion for summary judgment, which argues that there are no reserved water rights in wilderness areas based on legislative history behind § 4(d)(7) of the Wilderness Act discovered after the court's earlier decision, is in reality a motion for reconsideration of that opinion. The court then holds that § 4(d)(7) of the Act does not preclude the existence of federal reserved water rights in wilderness areas. The section, which provides that nothing in the Act shall constitute either a claim or a denial by the federal government concerning exemption from state water laws, is merely a disclaimer by Congress to preserve the status quo of basic water law. The provision does not make substantive changes to any water law doctrines, including the reserved rights doctrine. The court's holding is further supported by case law from the Colorado and United States Supreme Courts. Moreover, in 1979 the Solicitor General of the Department of the Interior expressly stated that formally designated wilderness areas have reserved water rights and that § 4(d)(7) does not undercut those rights.
The court then holds that the plan prepared by the Forest Service to protect the wilderness areas' water rights, mandated by the court as part of its earlier decision, is inadequate under the Wilderness Act. The plan rejects the option of having the extent of the federal water rights adjudicated now, on the grounds that only a few adjudicated water rights exist in the affected areas, those rights were established prior to the designation of the areas as wilderness and are therefore senior to the government's water rights, and the validity of certain nonadjudicated rights is doubtful. The court holds that the plan does not satisfy the government's statutory duty to protect wilderness water resources since it provides no facts concerning the nature of the other water rights involved and only a cursory discussion of the advantages and disadvantages of pursuing a prompt water rights adjudication in state court. The court rejects the government's position that claiming reserved water rights at this time is only a marginally effective means of protecting wilderness water resources in Colorado. Although federal water rights cannot be totally eliminated by the government's inaction, they can effectively be rendered meaningless since Colorado law provides for the subordination of senior water rights where junior appropriators adjudicate the extent of their rights first. Moreover, determining the extent of the water needed to support the wilderness areas would eliminate the uncertainty that otherwise hangs over other water rights holders. The court reaffirms its earlier holding, however, that it does not have the authority to require the federal government to claim reserved water rights for the wilderness areas in state adjudications and that how the government chooses to meet its statutory duty to protect wilderness water resources is within its discretion. The court also holds that the plan's listing of alternative methods of protecting wilderness water resources without seeking an adjudication is inadequate and an abuse of discretion under the APA. The alternatives are listed in one or two sentences without any explanation of how each would be implemented and without answers provided to crucial questions.
Counsel for Plaintiff
Sierra Club Legal Defense Fund, Inc.
Symes Bldg., 820 16th St., Suite 514, Denver CO 80202
Counsel for Defendant
John R. Hill Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Richard Nolan, Ass't U.S. Attorney
1961 Stout St., Suite 1200, Fed'l Office Bldg., Drawer 3615, Denver CO 80294