Water for Wilderness: Colorado Court Expands Federal Reserved Rights

Laura H. Kosloff

Editors' Summary: A federal district court in Colorado recently added fuel to the fires of state-federal conflicts by ruling that federal reserved water rights apply to wilderness areas. The reserved rights doctrine, the focus of controversy ever since it was first recognized by the Supreme Court in 1908, is disliked by many western water users since water is a limiting factor in continued western urban and industrial development and water appropriated for federal interests means less is available for state and private interests. This comment discusses the ruling in Sierra Club v. Block and analyzes the potential for adverse impacts on existing water rights and the practical implications for wilderness.

[16 ELR 10002]

The federal district court for Colorado recently held that the federal reserved water rights doctrine applies to water resources in wilderness areas designated under the Wilderness Act of 1964.¹ The court also held that the federal officials responsible for implementing the Act do not have a statutory duty to assert these water rights in state water appropriation proceedings, although they do have a statutory duty to protect and preserve wilderness water resources. Many water users have followed the progress of this case with interest and increasing concern, since the "first in time, first in right" rule dominant in western water law could lead to the federal government having priority over ranchers, miners, and municipalities whose claims to their water arose after an area was designated as wilderness. Because the court did not address all the questions and because the Colorado areas in question are located well upstream, the decision is not likely to directly affect many existing rights. If applied to wilderness areas generally, its impacts could be far-reaching. Fears that expansion of the reserved rights doctrine will spell doom for upstream development in areas in which there is already serious competition for the scarce resource have been felt in Congress, where concern over this case has slowed debate on at least one pending wilderness bill.²

Background

The doctrine of reserved water rights was first applied in 1908 to Indian reservations. In Winter v. United States,³ the Supreme Court held that Congress' creation of a reservation not only sets aside land, but impliedly sets aside sufficient water to accomplish the purposes of the reservation. The Court did not specify how much water would be adequate to fulfill the purposes of the reservation. The doctrine was later extended to include other federal reservations, including military reservations and national forests, where the land was withdrawn from the public domain and reserved for a specific federal purpose.⁴ National forests, for example, were deemed to have been withdrawn from the public domain and reserved for the specific purposes of managing water flow and regulating timber production by the Forest Service's Organic Act of 1897.⁵ Until Sierra Club v. Block, no court had specifically held that Congress had reserved new water rights for wilderness areas, a category of public land created by the Wilderness Act out of national forest lands previously withdrawn from the public domain.⁶ The Supreme Court, however, had considered the effect of a subsequent enactment on the scope of the reserved water rights in the national forests, holding that the Multiple-Use Sustained-Yield Act (MUSYA)⁷ did not change the nature of the federal water rights established with the original reservation of the national forests.⁸

In 1964, Congress passed the Wilderness Act⁹ with the goal of statutorily approving earlier Executive Branch [16 ELR 10003] withdrawals of primitive areas and assuming control over future designations.¹⁰ The 1964 Act listed most of the areas that had been previously set aside, but Congress has since added millions of acres of federally-owned land managed by the Forest Service or the Bureau of Land Management to the National Wilderness Preservation System.

Context of the Case

Colorado has 24 wilderness areas that were originally part of the national forest system; some of these were designated when the wilderness system was established in 1964, and some were added later on.¹¹ In early 1984 the Sierra Club filed suit against the Secretaries of Agriculture and the Interior, Chief of the Forest Service, Director of the National Park Service, and Colorado State Engineer, contending that the Wilderness Act impliedly grants federal reserved water rights to these areas for conservation, recreation, and scenic purposes; that the federal defendants had a duty under the Wilderness Act to assert these rights in state appropriation proceedings adjudicating water rights; and that the defendants had failed in this duty.¹² The club was concerned that wilderness areas would come out the losers in state water rights adjudication proceedings that quantify the amount of water to which each user on a stream is entitled. If their streams were to periodically run dry as a result of users with superior rights taking their share, wilderness areas would lack an important component of their natural character.¹³

The District Court Decision

The court in Sierra Club v. Block broke the case into three linked issues. It first considered whether or not the Wilderness Act withdrew lands in the public domain and reserved them for a specific public purpose. Although the lands in question had been withdrawn and reserved for national forest purposes, the subsequent enactment of the Wilderness Act presented the question of whether there had been a second withdrawal and reservation. The second issue, whether Congress had intended to reserve unappropriated water in the Wilderness Act for the land, would not arise unless the court held there had in fact been a withdrawal and reservation. If the court had to reach the second issue, it would also have to look at the specific purposes for which the reservation had been made to determine the extent of the reserved water right.¹⁴ The third issue was that of the extent of the federal agencies' duties under the Wilderness Act to assert the reserved rights, if they exist, in state proceedings.¹⁵

The court held that Congress did withdraw and reserve wilderness areas in the Wilderness Act and that it intended to reserve unappropriated water for conservation, recreation, and scenic purposes. Since it concluded that there were no material issues of fact relating to the question of whether reserved rights exist, it granted Sierra Club's motion for summary judgment. The court declined to hold that the federal defendants have a statutory duty under the Act to assert the water rights in state adjudicatory proceedings, however, because Congress did not expressly mandate such a duty. The government's failure to assert the rights, therefore, is not arbitrary and capricious action or agency action unlawfully withheld under the Administrative Procedure Act (APA).¹⁶ The court held that defendants do have a statutory duty to protect wilderness water resources, although the assertion of reserved water rights may not be the only means of fulfilling this duty; the court left it to the federal agencies to evaluate how they can best fulfill this duty. Lastly, although the government does have a duty under the public trust doctrine to protect the public lands, the statutory duties under the Wilderenss Act comprise all the defendants' public trust responsibilities.

Reservation and Withdrawal¹⁷

Federally-owned land is generally classified as either in the public domain or as reserved. Land in the public domain [16 ELR 10004] is subject to settlement, sale, and the hard-rock mining law; reserved lands have been expressly removed from the public domain and designated for specific purposes by statute, executive order, or treaty. Although reserved lands are by definition withdrawn, the district court in Sierra Club v. Block carefully clarified the differences between the act of withdrawal, which removes the land from the operation of the mining, homestead, and other use-related laws, and that of reservation, which takes the next step and designates the land for a specific federal purpose.¹⁸ To qualify for reserved water rights, Congress must have made both the withdrawal and the reservation.¹⁹ The Colorado wilderness areas had already been withdrawn from the public domain and reserved when they were made national forests, but no determination had been made as to whether they had been withdrawn and reserved again as wilderness.

The court concluded that by designating a new category of public land in a newly created management scheme the Wilderness Act effected a new reservation and withdrawal, independent of the earlier one. In support of this conclusion, the court relied on the Wilderness Act itself. Section 4 of the Act expressly withdraws minerals in wilderness areas from all forms of appropriation under the mining laws, as well as forbidding any commercial enterprise or permanent roads. The Act permits livestock grazing only if established prior to the Act's enactment, and water diversion only if the President determines that it is necessary in the public interest.²⁰ The court found this sufficient evidence of Congress's intent to remove these lands from the public domain. Additionally, the court found that several other provisions of the Act specify the federal purposes to which Congress dedicated the wilderness areas. Section 2(a) designated wilderness areas for the purpose of "preservation and protection in their natural condition."²¹ Section 2(c) defines wilderness to be land that "contain[s] ecological, geological, or other features of scientific, educational, scenic, or historical value."²² Section 4(b) mandates that wilderness "shall be devoted to the public purposes of recreation, scenic, scientific, education, conservation, and historical use."²³ Even beyond the language in the Act, numerous statements in the legislative history indicate individual members' intent that wilderness areas be reserved to protect them for future generations.²⁴

The court rejected the argument that a withdrawal must be directly from the public domain for reserved water rights to exist. Although the Supreme Court spoke in its reserved water rights cases of withdrawals "from the public domain,"²⁵ the Sierra Club v. Block court did not infer that the doctrine applies only to lands originally withdrawn. In fact, in another context the Supreme Court had granted reserved water rights for a second withdrawal and reservation, although it did not discuss the distinction.²⁶ The district court also rejected the argument that the Wilderness Act is merely a land management statute. Defendants argued that the Wilderness Act is akin to the MUSYA,²⁷ Federal Land Policy Management Act,²⁸ Taylor Grazing Act,²⁹ and Wild Free-Roaming Horses & Burros Act,³⁰ all of which are land management schemes that do not effect withdrawals and reservations of land. The court disagreed. None of these statutes created a new category of land or a new system for administering such land; the Wilderness Act, in contrast, did both, although it also mandates land management responsibilities.

Congressional Intent To Reserve Water Rights

The court's conclusion that the Wilderness Act effected a new reservation and withdrawal shaped its consideration of whether Congress intended to reserve unappropriated water for wilderness areas. The scope of any reserved water rights would be determined with reference to the conservation, recreational, and scenic purposes of the Wilderness Act rather than simply looking at the water flow and timber production purposes of the national forests. This was critical to the outcome of the case, because it steered the court around a Supreme Court decision that arguably pointed to a different result. In United States v. New Mexico³¹ the Court held that the MUSYA did not create additional federal reserved water rights for the national forests for recreation, aesthetics, grazing, and wildlife preservation.³² The MUSYA did create these new purposes for the national forests, but they were secondary to the original primary purposes of water flow regulation and timber production. The New Mexico Court ruled that Congress did not intend to reserve water for these secondary purposes.³³ The Court did not expressly consider whether the MUSYA effected a separate withdrawal and reservation, but focused on congressional intent to add to the primary purposes of the national forests.

The district court dealt with New Mexico in two ways, [16 ELR 10005] first reasoning that the purposes evinced in the Wilderness Act are, unlike those in the MUSYA, consistent with the national forest purposes; and second, concluding that the Wilderness Act created a new reference point. In New Mexico, the Supreme Court was concerned that the additional MUSYA purposes of recreation and wildlife preservation would conflict with the primary purposes of the national forests, to conserve water flows and furnish a continuous supply of timber.³⁴ Although Congress specifically indicated in the Wilderness Act that nothing in the new statute should be deemed to interfere with the purposes for which the national forests were created,³⁵ the district court concluded that the conservation and recreational purposes of the Wilderness Act do not conflict with the original purpose of the national forests.³⁶ After extensive analysis, the court found that, to the contrary, conservation of water flows is consistent with the Wilderness Act's stated purposes; Congress wished to protect watersheds in wilderness areas and preserve water flows for downstream irrigation and domestic use. The prohibition of commercial development in wilderness areas actually enhances water flows.³⁷ In a footnote, the court added that the Wilderness Act purposes also are consistent with timber production.³⁸

The court went on to hold that the conservation, recreation, and scenic purposes described in the Wilderness Act, unlike those in the MUSYA, are primary purposes for an entirely new federal reservation, not secondary purposes applying within the basic national forest framework.³⁹ The court noted that the reservation of water for conservation and recreation purposes does not mean a decrease in the water available for irrigation and domestic use, since wilderness is a nonconsumptive user of water.⁴⁰

Duty of Federal Agencies To Assert Water Rights

The Wilderness Act clearly imposes duties on the federal agencies administering the Act to preserve the wilderness areas and protect them in accordance with the specified purposes of the Act;⁴¹ the court found these duties to include the duty to protect wilderness water resources.⁴² However, the Act does not explicitly impose a duty to claim reserved water rights. The court declined to hold that the failure to assert the rights is agency action unlawfully withheld under APA § 706.⁴³ The court similarly declined to hold that the agencies' inaction was arbitrary and capricious or otherwise unlawful under APA § 706(2)(A) in recognition of the controversy prior to this decision regarding the existence of reserved water rights in wilderness areas.⁴⁴ The court did express its concern over defendants' "benign neglect" and their failure to take any action to determine whether or not reserved rights existed.⁴⁵

Since the court did hold that the defendants had general duties under the Wlderness Act to protect wilderness water resources, it had to address whether their failure to assert reserved water rights conflicted with this duty, regardless of whether it violated the APA. The court concluded that the briefs and administrative record did not provide sufficient information for it to rule on this question.⁴⁶ Although Sierra Club contended that assertion of reserved water rights was the only alternative the agencies could use to protect the wilderness resources, the court was not convinced there were no other means available. The court noted that defendants should be given the opportunity to evaluate alternatives now that the uncertainty regarding federal reserved water rights in the wilderness areas has been resolved; for this reason, it directed defendants to prepare a memorandum outlining how they intend to comply with the decision.⁴⁷

Public Trust Doctrine

In dismissing Sierra Club's public trust claim, the court concluded that even if the public trust doctrine applied and the federal defendants violated the trust by not asserting the reserved water rights, it would not be able to order the relief requested by Sierra Club. The court noted that it is up to Congress to determine how the trust shall be administered, and Congress has set out the relevant statutory duties in the Wilderness Act.⁴⁸ Nor is application of the doctrine necessary in this case since the Wilderness Act already imposes trust duties.

Analysis of the Case

In some ways, Sierra Club v. Block was no surprise. The expansion of the reserved rights doctrine has followed the general expansion of federal authority under the Commerce and Property Clauses,⁴⁹ and the case is consistent with the doctrine as it has developed over the years. The only case which appears to constrict the doctrine is United States v. New Mexico, a case that the district court here takes pains to distinguish. Whether the court was successful remains to be seen. Although no earlier decision discussed the question of wilderness area reserved water rights, the Solicitor of the Department of the Interior under the Carter Administration concluded that such rights exist to accomplish preservation purposes.⁵⁰ The conclusions reached in 1979 by the Solicitor and now by this district court are, however, by no means universally shared.⁵¹ [16 ELR 10006] Nonetheless, it is difficult to consider the purposes of the Wilderness Act fulfilled if upstream water users may completely empty those areas' streams and rivers in dry seasons.

The district court's analysis is unsatisfying in some respects. Although it is relatively easy to see the court's argument that the new purposes of the wilderness areas established by the Wilderness Act do not conflict with the national forests' original mandate of water flow conservation, it is more difficult to see how the purposes of recreation, aesthetics, and scenic beauty reconcile with the goal of maintaining an even flow of timber production. Since Congress specifically indicated in the Wilderness Act that nothing in the new statute should be deemed to interfere with the purposes for which the national forests were created, both must be addressed. Yet the court spent several pages analyzing how the Act is consistent with preservation of water flows, and dedicated only a footnote towards the end of the discussion to the more troubling question of how wilderness areas are consistent with timber production. That note relied on a Senate report to conclude that Congress never intended for the wilderness areas to be subject to timber harvest, despite the timber production purpose of the national forests. In addition, the court's conclusion that wilderness is primarily a nonconsumptive user of water appears sound, but does not adequately address the fact that the Supreme Court in New Mexico concluded that reservation of water for essentially similar instream purposes could conflict with the needs of other users. The district court's holding that the Wilderness Act was a new withdrawal and reservation arguably means that New Mexico is not controlling, but the Act's statement of consistency with national forest purposes remains.⁵² One might argue that the provision refers not to individual wilderness areas, but to the relationship between the wilderness and national forest systems, but the court did not consider this question. In any event, regardless of one's views of the court's reasoning, it is clear that Sierra Club v. Block has not ended the controversy over water rights in wilderness areas.

Implications

The federal government's reserved water rights vest as of the date Congress created the reservation in question. This date sets the priority of the government's water rights as compared to those of other users along the same water body.⁵³ The concern of those opposed to federal reserved water rights in wilderness areas is that the government will have priority rights to an undetermined amount of water in the watershed; in many cases, by virtue of the date the particular wilderness area was created it will have a higher priority to the water than many other users currently appropriating water from the stream. Should there be a dry year, "junior" appropriators could be cut off from their supply.

It is to clear, however, that the district court's holding will seriously interfere with non-wilderness uses of water in Colorado. The court correctly observed that recreation, conservation, and scenic values do not, for the most part, use water consumptively, since they involve instream uses. Maintenance of instream flows could have an impact on the amount of water available to junior appropriators in dry years. However, the 24 national forest wilderness areas in Colorado are located in high alpine areas, and the impact on upstream development is therefore not likely to be significant. In addition, even the earliest wilderness areas in this country only date to 1964. Many western water rights under state law date back to the last century; the federal government, even if it asserts reserved water rights for wilderness areas, is quite the junior appropriator itself. One can question whether this means not only that assertion of wilderness reserved water rights will have little impact on future development, but whether maintenance of instream flows can be preserved with a priority date of 1964, in a system where many watercourses have been overappropriated for years.

Even if this decision has little immediate practical effect, it throws a wrench into the established water rights legal system. The Colorado wilderness areas are located high in the mountains, but many national forest and Bureau of Land Management areas are at lower elevations. Also, even a junior appropriator is entitled to be a party to proposed diversions that may affect his or her rights, and the uncertainty inherent in unquantified rights could increase the amount of water rights litigation.

The concerns of those who have been strongly opposed to wilderness reserved water rights have been expressed in recent wilderness bills. The Nevada wilderness bill currently before Congress exemplifies these concerns and the controversy.⁵⁴ The House Interior Committee defeated by only one vote an amendment to H.R. 3302 that would have expressly denied the existence of federal reserved water rights in the proposed wilderness areas;⁵⁵ the amendment may be resurrected when the bill comes to the House as a whole. The sponsor of the amendment, Representative Michael Strang (D-Colo.), introduced it specifically because of the possibility that the district court would decide this case, then pending, as it in fact has. The 1984 Colorado wilderness bill stalled in Congress and did not pass because of the uncertainty caused by the pending litigation.⁵⁶

Conclusions

Although Congress spoke clearly in the Wilderness Act and its legislative history as to its intent to preserve and protect these areas for future generations, increased development in the West and the accompanying heavy competition for water has focused new attention on wilderness [16 ELR 10007] areas and the reasons for their creation. The controversy surrounding Sierra Club v. Block indicates many western water users' concerns if the federal reserved water doctrine is expanded. Although Sierra Club v. Block applies only to national forest wilderness areas in Colorado, which limits its immediate practical effect, the potential exists for more significant impact if other federal courts follow the lead of the Colorado court. The seriousness of the threat to existing users is as yet unclear, and may actually be overstated; most wilderness areas are not situated at low elevations and the water rights assigned to them will be subject to many existing uses. Given the controversy, the case is certain to be appealed. The definitive answer may be some time in coming, and the ball may be thrown back to Congress to either restate its strong commitment to wilderness or retrench in the light of the fears that have been expressed.

1. Sierra Club v. Block, No. 84-K-2 (D. Colo. Nov. 25, 1985).

2. H.R. 3302. The bill was reported by the House Committee on Interior and Insular Affairs November 6, 1985. 131 CONG. REC. D1327 (daily ed. Nov. 6, 1985).

3. 207 U.S. 564 (1908).

4. Arizona v. California, 373 U.S. 546 (1963); Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (1976).

5. United States v. New Mexico, 438 U.S. 696, 707, 8 ELR 20564, 20567 (1978).

6. Sierra Club v. Block, No. 84-K-2, slip. op. at 12.

7. 16 U.S.C. §§ 528-531, ELR STAT. 41406.

8. United States v. New Mexico, 438 U.S. 696, 8 ELR 20564 (1978).

9. 16 U.S.C. §§ 1131-1136, ELR STAT. 41411.

10. In the 1920s and 1930s, the Secretary of Agriculture and Chief of the Forest Service set aside certain national forest lands as primitive areas. Concern grew concerning the legality of the executive actions, which Congress has not authorized, and the possibility of future arbitrary executive action concerning these areas. See generally, McCloskey & Desautels, A Primer on Wilderness Law and Policy, 13 ELR 10278 (1983).

11. Sierra Club v. Block, No. 84-K-2, slip op. at 32.

12. Sierra Club v. Block, No. 84-K-2, ELR PEND. LIT. 65817 (D. Colo. complaint filed Jan. 3, 1984). The State Engineer is the official responsible in Colorado for overseeing the distribution of water rights. The district court dismissed the suit against him on Eleventh Amendment grounds. Sierra Club v. Block, 14 ELR 20626, 20627 (D. Colo. July 29, 1984).

13. Failure to recognize reserved water rights in wilderness areas would not necessarily mean the areas would have no water rights at all. The federal government could apply for water rights, just like any other user. However, under the appropriative system of water rights operating in most of the western states, the user must put the water to a beneficial use. The status of instream uses, such as recreation and scenic uses in wilderness areas, has not been determined in many states and is far from clear. In addition, appropriative water rights are subject to those of existing users; hence the phrase, "first in time, first in right." As an applicant for water rights under ordinary state rules, the federal government would receive a priority date as of the date it could establish it had used the water for a beneficial use, which might be never if the state did not recognize instream water uses; with recognition of reserved water rights, the priority date is the date Congress designated the wilderness area.

14. Reserved water rights apply only to primary purposes for which the reservation was created; secondary purposes added on later may be worthy, but the court will not imply reserved water rights for such purposes. United States v. New Mexico, 438 U.S. at 715, 8 ELR at 20569.

15. State adjudication proceedings are brought for the purpose of quantifying each user's water rights within a particular stream or watercourse. If a user participates in the proceeding but fails to assert a claim, the water right is lost. The United States had been joined as a party in several water rights adjudications in Colorado; it had not claimed reserved water rights for wilderness areas within the state, although it did claim reserved water rights for other federal reservations. Sierra Club v. Block, No. 84-K-2, ELR PEND. LIT. 65817 (D. Colo. complaint filed Jan. 3, 1984).

16. 5 U.S.C. §§ 501-576, ELR STAT. 41001, 5 U.S.C. §§ 701-706, ELR STAT. 41005.

17. The court initially ruled that Sierra Club has standing to sue under § 10 of the APA. The organization had alleged sufficient injury in fact by alleging harm to aesthetic, conservational, and recreational values of the Colorado wilderness areas. The club also had standing to sue on behalf of its members: its members had standing to sue in their own right, since they used these wilderness areas for aesthetic and recreational purposes; the interests the club sought to protect are consistent with its goals of protecting the country's natural heritage; and the relief requested did not require the participation of individual organization members. The club also satisfied the requirement that the injury be within the zone of interests protected by the Wilderness Act. Congress mandated that the federal agencies responsible for implementing the Act preserve and protect the wilderness areas; Sierra Club's contention that it had been adversely affected by the federal defendants' failure to assert water rights for the wilderness areas was arguably within the zone of interests. Sierra Club v. Block, No. 84-K-2, slip op. at 3-5.

18. Id. slip op. at 13.

19. See supra text accompanying note 4.

20. 16 U.S.C. § 1333, ELR STAT. 41415.

21. 16 U.S.C. § 1331(a), ELR STAT. 41411.

22. 16 U.S.C. § 1332(c), ELR STAT. 41411.

23. 16 U.S.C. § 1333(b), ELR STAT. 41415.

24. Sierra Club v. Block, No. 84-K-2, slip op. at 15-16.

25. Cappaert v. United States, 426 U.S. at 138, 6 ELR at 20542; United States v. New Mexico, 438 U.S. at 698-699, 8 ELR at 20565.

26. Arizona v. California, 373 U.S. at 601.

27. 16 U.S.C. §§ 528-531, ELR STAT. 41406.

28. 43 U.S.C. §§ 1701-1782, ELR STAT. 41458.

29. 43 U.S.C. §§ 315-351o-1.

30. 16 U.S.C. §§ 1331-1340, ELR STAT. 41834.

31. 438 U.S. 696, 8 ELR 20564.

32. The MUSYA essentially supplemented the Organic Administration Act of1897, 16 U.S.C. §§ 473-482, the statute that created the national forests, by adding new purposes for the national forests to those in the original reservation. The original purposes were "[t]o conserve the water flows and to furnish a continuous supply of timber for the people." 16 U.S.C. § 475; United States v. New Mexico, 438 U.S. at 707, 8 ELR at 20567, citing 30 CONG. REC. 967 (1897) (Rep. McRae). The MUSYA added outdoor recreation, range, and wildlife; the five purposes together constitute the "multiple use" mandate the statute gave the national forests. 16 U.S.C. § 528.

33. "Without legislative history to the contrary, we are led to conclude that Congress did not intend in enacting the Multiple-Use Sustained-Yield Act of 1960 to reserve water for the secondary purposes there established … Congress intended the national forests to be administered for broader purposes after 1960 but there is no indication that it believed the new purposes to be so crucial as to require a reservation of additional water. By re-affirming the primacy of a favorable water flow, it indicated the opposite intent." United States v. New Mexico, 438 U.S. at 715, 8 ELR at 20569 (emphasis in original) (footnote omitted).

34. United States v. New Mexico, 438 U.S. at 715, 8 ELR at 20569.

35. 16 U.S.C. § 1133(a), ELR STAT. 41415.

36. Sierra Club v. Block, No. 84-K-2, slip op. at 19, 22.

37. Id., slip op. at 19-20.

38. Id., slip. op. at 22, n. 13.

39. Id., slip op. at 22.

40. Id.

41. 16 U.S.C. § 1131(a), ELR STAT. 41411.

42. Sierra Club v. Block, slip op. at 27.

43. Id.

44. Id., slip op. at 28.

45. Id., slip op. at 28-29.

46. Id., slip op. at 29.

47. Id.

48. Id., slip op. at 30.

49. See generally, Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (1976) (federal authority to reserve water rights); Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976) (federal authority on public lands); Sporhase v. Nebraska 457 U.S. 273, 12 ELR 20749 (1982) (federal authority over interstate movement of groundwater).

50. Op. Solic. Dep't of Interior, 86 Interior Dec. 553 (1979).

51. See, e.g., Waring & Samelson, Non-Indian Federal Reserved Water Rights, 58 Den. L.J. 783 (1981) (Solicitor's conclusions regarding wilderness reserved water rights are not supported by Supreme Court's decision in New Mexico); Reid, Wilderness Areas Ruled to Have Water Rights, Washington Post, Nov. 29, 1985 (district court ruling "sent shock waves through the water industry in the West"); Wilderness Ruling Raises Questions on Water Use, New York Times, Dec. 1, 1985, at 27 (quoting several opponents to decision concerned that recognition of right will impede future development in state).

52. 16 U.S.C. § 1133(a), ELR STAT. 41415.

53. The system of water law operating in most of the western states is prior appropriation, as opposed to the riparian rights system functioning in the East. The primary distinction is that in an appropriative system, use determines one's water rights; in a riparian system, land ownership adjacent to the water body determines one's rights.

54. H.R. 3302, as reported by the Interior Committee, would designate more than 900,000 acres of national forest land in Nevada as wilderness and would create Nevada's first national park. 131 CONG. REC. D1327 (daily ed. Nov. 6, 1985).

55. 131 CONG. REC. D1327 (daily ed. Nov. 6, 1985).

56. S. 2916, introduced by Senator Armstrong (R-Colo.), would have precluded federal reserved water rights. 130 CONG. REC. S10018 (daily ed. Aug. 8, 1984).