On June 7, 1976, the United States Supreme Court unanimously extended the Winters doctrine¹ of implied federal reservation to apply to subterranean water as well as surface water. In addition to the fundamental significance of such an extension, the Court's decision in Cappaert v. United States² tacitly recognizes an in situ use (leaving water in place) as part of a governmental purpose which may be served by the implied reservation doctrine,³ a recognition which promotes continued expansion of the arguments of environmental advocates that natural resources are entitled to legal protection on the same basis as economic interests. This Article will attempt to explicate salient aspects of the Cappaert decision and anticipate the extent of Cappaert's impact.

I. The Winters Doctrine of Implied Water Rights Reservation

The complex historical forces which led to implied federal reservation of water are dramatically reflected in the law of water use in the arid western states. Major federal enactments passed in the aftermath of the gold rush and the Civil War recognized the rights of those who had been using water found on public lands in the west and gave those rights priority over later-acquired rights.⁴ Subsequent grantees and patentees of public lands took their lands from the government subject to the water rights acquired by previous users of the water, who were neither titleholders of the land on which the water was found, nor titleholders of the land traversed by canals and ditches transporting the water to the site of use. Subsequently, the Desert Land Act of 1877⁵ severed all remaining unappropriated water rights from the vast expanse of federally owned western lands and held the water free for appropriation according to local custom. Eventually, the 13 states⁶ involved assumed control of the administration of the appropriation of waters situated within their boundaries. Although the state schemes of appropriative rights varied, all had a similar outline — a scheme of quantified priorities was established for those making beneficial use of the limited supply of water.⁷

Rather surprisingly, no explicit provisions were made with respect to water rights, if any, retained by the federal government. These issues were partially resolved some 30 years after the Desert Land Act's severance of water rights from the vast public domain in Winters v. United States.⁸ Winters, a 1908 Supreme Court decision, resolved a conflict between those who claimed water as appropriators under state law and Indians of the Fort Belknap Reservation who claimed as beneficiaries of an implied federal reservation. The Winters Court observed the "undeniable," constitutionally established power of the federal government "to reserve the waters and exempt them from appropriation under the state laws"⁹ and concluded that such a reservation had been made at the time the Indian lands were set aside. The latter conclusion rested upon a discussion of the purpose of the federal government in establishing the Indian reservation. The Court felt that anticipated future use of the waters for irrigation was an important element in the Treaty which created the Indian reservation; therefore, the Court implied sufficient water for this purpose was also reserved when the treaty was made.

Winters greatly unsettled the foundation of western water law. In effect, Winters and its subsequent applications to other federal enclaves¹⁰ gave federal reserved water rights claimants a status superior to many state water rights claimants. Under Winters, these federal claimants had a right to an indefinite amount of water sufficient to accomplish the purposes for which the federal land was set aside. Moreover, this right accrued at the time the federal government first acted to set aside the land without regard to the water was ultimately applied in aid of the purpose. The adverse social and economic implications of such rights are obvious,¹¹ since a secure source of water is a basic requirement for any significant settlement or development of land. Once federal lands are withdrawn from the public domain for a particular federal use, all future state law appropriators obtain uncertain water rights, and would limit their investment in land development accordingly.

While the negative effects of Winters cannot be ignored, it must be noted that there are some practical limits to the scope of its application. Initially and most obvious, the Winters doctrine does not vitiate state-granted water rights acquired prior to the date of the federal reservation. Equally fundamental, not all federally-owned land is part of a reservation; most of the [7 ELR 50044] federal lands in the West are simply public lands.¹² Moreover, no federal reservation will be construed to reserve water rights unless such water rights can be implied as necessary to accomplish the purposes of the reservation, and that such implied reservation was within the intent of the federal government.¹³ Finally, the amount of water which the federal government may claim pursuant to the Winters doctrine must "reflect the nature of the federal enclave"¹⁴ and is subject to quantification in an appropriate proceeding.¹⁵

Prior to the Cappaert decision the litigation clarifying the judicially created Winters doctrine involved only surface waters. From its origins as a means of guaranteeing adequate water to Indian reservations created by treaty, judicial decisions extended the Winters doctrine to other types of reservation¹⁶ from the public domain.¹⁷ Against this background, the Cappaert case, involving apparent groundwater reservation for national monument purposes, can be meaningfully discussed.

II. The Cappaert Decision

A. Facts and Background

1. The Physical and Historical Setting

Since the Cappaert case essentially presents a dispute between two neighboring landowners involving use of a single groundwater basin which underlies both properties, detailed description of the area involved is appropriate. Similarly, since a significant part of the resource management scheme involved is based on the doctrine of prior appropriation,¹⁸ careful attention should be given to the sequence of events.

Devil's Hole is a unique limestone cavern, much of which is filled by a deep pool of water which is the remnant of a prehistoric lake system. The United States has exercised continous ownership of the cavern and the surrounding land since its acquisition by the Treaty of Guadalupe-Hidalgo.¹⁹ In 1952, President Truman withdrew a 40-acre tract from the public domain by Proclamation and made it a detached component of the extant Death Valley National Monument.²⁰ As the land was withdrawn pursuant to the Preservation of American Antiquities Act,²¹ the Proclamation made specific reference to protection of the unique pool and its inhabitants, "a peculiar race of [desert] fish, which is found nowhere in the world…."²² The Proclamation placed Devil's Hole under the auspices of the National Park Service, part of the Department of the Interior.

In contrast to the relatively compact spatial limits of Devil's Hole, the Cappaert ranch used for raising cattle covers nearly 20 square miles, one-third of which is in cultivation to provide food for the cattle. The ranch is a multi-million dollar investment and constitutes a meaningful part of the regional economy.²³ In 1968 the Cappaerts began significant groundwater pumping on their land with the intent of irrigating forage crops. The wells used for pumping were located throughout the ranch, the closest being between two and one-half and three miles distant from Devil's Hole. The Cappaert wells and Devil's Hole both overlay the same underground pool, part of a 4,500 square mile groundwater basin.²⁴ With the advent of pumping from the Cappaert wells the water level in Devil's Hole began to decline precipitously.²⁵ The declining water level, in turn, [7 ELR 50045] threatened the Devil's Hole pupfish (cyprinodon diabolis) with extinction by reducing their primary spawning and feeding habitat, a rock ledge just below the surface of the water in Devil's Hole.

2. The Course of Litigation

The United States Supreme Court decision in Cappaert v. United States is the climactic event in a lengthy litigation which remains incomplete.²⁶ The first stages of litigation began six years earlier when the Cappaerts applied to the Nevada State Engineer for permits which would allow them to change and enlarge the use made of pumped groundwater.²⁷ Learning of the proposed change in use from published notice,²⁸ employees of the United States National Park Service, who feared that the changes proposed by the Cappaerts might adversely affect the already declining water level in Devil's Hole National Monument,²⁹ filed a notice of protest with the state engineer. Although not formally served as a party to the adjudication, the federal government presented evidence that studies were underway to determine the hydrological relationship between the Cappaerts' groundwater pumping and the Devil's Hole water level. The Nevada State Engineer granted the Cappaerts' application "subject to existing rights,"³⁰ noting that the Cappaerts' groundwater pumping interfered with no recorded federal water right.³¹ No appeal of the state engineer's order was taken by the National Park Service or any party to the proceedings.³²

Approximately eight months later the United States filed a complaint in United States District Court for the District of Nevada. The complaint claimed that the 1952 Proclamation establishing Devil's Hole as part of the Death Valley National Monument reserved unappropriated waters in an amount sufficient to accomplish the purposes of the reservation. Since the Cappaerts' appropriative rights to the groundwater did not arise until 1970, the federal government asserted it was entitled to an injunction restraining the Cappaerts' pumping to protect the rights reserved in 1952. In order to effectuate the pumping order of the state engineer, Nevada intervened as a party defendant.

United States District Court Judge Foley issued a preliminary injunction in June 1973 and a permanent injunction in April 1974³³ limiting pumping.The court appointed a special master to establish a more specific set of pumping limitations and to monitor the water level in Devil's Hole. The decision was appealed by both the Cappaerts and the State of Nevada; the Ninth Circuit affirmed on all issues³⁴ and the United States Supreme Court granted certiorari.³⁵

B. Chief Justice Burger's Opinion

Cappaert v. United States and Nevada ex. rel. Westergard v. United States were decided together on June 7, 1976 in a single unanimous opinion authored by Chief Justice Burger. It is a relatively short opinion in which the Court construed "the scope of the implied reservation of water rights doctrine"³⁶ and affirmed the judgments below which applied the doctrine to protect the federal reserved rights claimed in relation to Devil's Hole.

Initially, the opinion of the Court focuses upon the Winters doctrine and its subsequent applications. The Court rejected the suggestion that the Winters doctrine is an equitable doctrine by reference to the facts of Winters itself. The Court stated that to test for federally reserved rights:

… the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created.³⁷

The Court easily found in President Truman's 1952 Proclamation the requisite intent to reserve unappropriated waters. Since the Cappaert state-perfected priority dated from 1970 and any Cappaert lands acquired from the federal government by land exchange were transferred to the Cappaerts "subject to any vested and accrued water rights for … other (federal) purposes,"³⁸ the 1952 federal rights were superior to the Cappaert [7 ELR 50046] claims. The extent of the federaly-reserved rights is limited to "that amount of water necessary to fulfill the purposes of the reservation."³⁹ In regard to Devil's Hole the proclaimed purpose of the reservation included preservation of the pupfish. As a result, the federal right, although not explicitly quantified, was defined as a limitation on subsequent state law appropriators measured by maintenance of the water level in Devil's Hole at a specified height.

In support of its conclusion the Court enigmatically resisted the argument that the Winters doctrine does not apply to groundwater. Despite facts which suggested that the Cappaert case would resolve the applicability of the Winters doctrine to groundwater, the opinion of the Court skirted the issue by simply noting that the subterranean pool in Devil's Hole is reserved surface water which is protected "from subsequent diversion whether the diversion is of surface water or groundwater."⁴⁰ There appears to be no logical necessity to limit the holding in this manner, for the Court was careful to point out the hydrological interrelationship of surface water and groundwater. Similarly, there is no reason that the governmental intent standard of implied reservation is any less applicable to intent to reserve groundwater.⁴¹ Several lesser issues which are of little moment to the scope of this Article were also resolved by the Court.⁴²

III. The Aftermath of Cappaert

The Cappaert decision, apart from its obvious ecological consequence of protecting the Devil's Hole pupfish, had several other significant impacts. Foremost among these is the indication that the Winters doctrine of implied reservation can be applied to virtually all types of federal reservation in the arid West. The Cappaert opinion, in its brevity and citation of Arizona v. California⁴³ without thorough discussion, is strong evidence that the Supreme Court is unwilling to examine critically the policies involved in expanded application of the Winters doctrine. The immediate consequence of this position is to multiply the uncertainty occasioned by the existence of unquantified federal rights which enjoy a priority retroactive to the time of withdrawal from the public domain. In this regard it will be valuable to explore whether the Winters doctrine can logically be extended as in Cappaert, and the means of clarification of federal reserved rights available in the wake of the Cappaert precedent. A final major aspect of the Cappaert decision is the possibility that the Winters doctrine may now become a significant component of Western economic and environmental management.

A. The Logic of Cappaert

To an important degree western water law is a pragmatic response to the problems of management of a scarce resource. As a result, development of water law doctrines should not be allowed to take place in a vacuum in which the practical effects of a legal decision are ignored. Similarly, to the extent that the governmental goal in managing scarce resources is the maximization of the social benefits derived from the resource complex, a decision like Cappaert must be reviewed critically.⁴⁴ Should the impacts on resource use be less than optimal, the legal doctrine supporting the decision should be put to careful scrutiny to avoid any possibility that the suboptimal resource related result is unnecessary to the preservation of important legal principles. Stated more succinctly, if the practical result is not ideal, the decision must be examined carefully to assure its rectitude.

In terms of regional development the decision in Cappaert must be judged to see if it aids the accomplishment of the central purposes of water law:

The purpose behind much of water law is to insure that water users will receive a future supply that will enable them to continue their uses, plan for the future and realize their expectations. While the law gives absolute and unqualified certainty to few property interests and may ascribe different degrees of security to different interests in or uses of a resource, it generally follows a strong policy of encouraging enterprise and development with a system of property rights that will give some assurance that the activity will not be subjected to premature termination without compensation.⁴⁵

Initially, it seems simple to conclude that the decision in Cappaert will fail to reinforce the above stated purpose of water law. The Cappaert's ranching operation represents a heavy investment entered into with reliance upon groundwater pumping to sustain the irrigation of forage crops. Moreover, the general severity of conditions in the area and the extreme aridity make [7 ELR 50047] development impossible without water for irrigation. Nevertheless, after the Supreme Court's ruling it is unlikely that the "water users will receive a future water supply that will enable them to continue their uses." With pumping effectively limited to the relatively small amount of annual recharge of the underlying aquifer,⁴⁶ the Cappaerts will be unable to pump as much water as they had pumped and used in the first few years of operation. Judged in this light, the Cappaert decision seems to frustrate one of the primary purposes of western water law.On the other hand, the above stated purpose of water law was limited to the realization of expectations. It is fatuous to assume that a large commercial enterprise doing business in the arid West was unaware of the possibility of continued expansion of federally reserved water rights. As Dean Meyers has noted, one can feel sympathy for those who discover that a federal reservation enjoys an earlier priority.

[B]ut, at least since 1908 when Winters was decided, anyone planning a water project could have learned of the Indians' rights, and even before that it would not have taken much imagination to suppose that Indian reservations were entitled to some irrigation water. The parks, monuments, forests, wildlife refuges, recreation areas, and so forth are less obvious.⁴⁷

Once Arizona v. California⁴⁸ recognized the existence of federal reserved rights for parks, Indians, and refuges, however, it should have been equally obvious that regardless of rationale, state law appropriations took subject to reservations for all types of federal withdrawals from the public domain. Thus, to assign the adverse economic effects to the whole of the Cappaert decision alone is not appropriate. The fault, if fault exists, lies either in the narrow aspect to Cappaert which extends Arizona v. California to subterranean surface water regardless of type of diversion, or in Arizona v. California itself.

1. Extension to Groundwater

As noted before,⁴⁹ Chief Justice Burger's opinion semantically skirts a central issue: should the Winters doctrine apply with equal force to groundwater. This question takes on added significance when one considers that in many cases groundwater is preferable to surface water as a source of supply, since it is often available closer to the place of application, its availibility fluctuates less with season, and, frequently, it is a source of more uniform and higher quality water than surface streams or impoundments.⁵⁰ Focusing first on the physical comparison of the two types of water source, the Supreme Court accurately noted the growing awareness that groundwater and surface water are a hydrologically interrelated resource network.⁵¹ Since withdrawals of water by groundwater pumping or surface diversion affect the remaining water supply it seems consistent to treat them similarly for Winters' purposes.

Although the physical aspects of groundwater militate for extension of the Winters doctrine, the history of state legal control of groundwater reveals that it has generally been treated independently of surface water by state law. Nevertheless, the more modern approach to state regulation seems to favor integrating the two systems as to priority while retaining a slightly different administrative procedure and recording system.⁵² This type of regulation reflects the differences of state interest in adjudicating and monitoring the various water withdrawals, but allows a unified scheme for resolution of disputes between surface water appropriators and groundwater appropriators in time of scarcity.⁵³

A more significant legal issue is whether the federal authority from which the Winters doctrine emanated can be said to encompass groundwater. Three possible bases for federal authority have been asserted with respect to reserved rights. Originally, since the Winters case involved an Indian reservation created by treaty, some possibility existed of basing the reserved rights doctrine on the treaty power in the Constitution.⁵⁴ This theory is appealing because it tracks the discussions in Winters regarding the appropriate interpretation of the treaty creating the Indian reservation in issue and confines the implied reservation doctrine to a rather narrow ambit. However, such a view belies the gist of one of the two authorities cited by the Winters opinion as authorizing federal reservation of water exempt from state appropriation law,⁵⁵ and is flatly disregarded by later cases where congressional withdrawals from the public domain were construed to simultaneously reserve requisite unappropriated waters.⁵⁶

Two other constitutional foundationshave been advanced and have endured (by dint of repetition) as the basis for implied reservation of water rights: the Commerce Clause, Article I, § 8 as to navigable streams, and [7 ELR 50048] the Property Clause, Article IV, § 3 as to federal lands generally.⁵⁷ Obviously the Property Clause alone can be the basis for groundwater reservations such as Cappaert. Its scope is plenary:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….⁵⁸

Congressional power in the exercise of the Property Clause authority has been interpreted to include the reservation of unappropriated water along with lands withdrawn from the public domain.⁵⁹ Similarly, federal statutes specifically relating to withdrawal of lands from the public domain.⁶⁰ evidence some intent to make use of otherwise unappropriated waters.⁶¹ Thus one can be satisfied that Congress enjoys the constitutional authority to reserve from the public domain lands and with it the unappropriated groundwater and surface water, and that the Cappaert Court was legally justified in extending the Winters' holding.⁶²

2. Criticism of pre-Cappaert Precedents

Inquiry into the rectitude of the implied reservation doctrine was prompted by the fact that it leads to uncertainty among subsequent state law appropriators in areas where federal reservations may be granted superior water rights even though no present beneficial use is being made. States adversely affected by the reservation doctrine urge that the Desert Land Act of 1877⁶³ had as its purpose maximizing certainty of water rights, thereby aiding development of the arid West. They urge in the "Colorado doctrine"⁶⁴ that even the federal government has to qualify as a state-law-prior-appropriator to enjoy legally protected rights. In California Oregon Power Co. v. Beaver Portland Cement Co.⁶⁵ the Supreme Court seemingly gave the Desert Land Act such an interpretation when it said:

The fair onstruction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all non-navigable waters thereon should be reserved for the use of the public under the laws of the states and territories named.⁶⁶

A subsequent case, Ickes v. Fox, held farmers' state law appropriation rights⁶⁷ in waters of the public domain superior to those of a federal irrigation district. Thus, there is some precedent that the Desert Land Act of 1877 could be used to buttress a claim that even federal projects must perfect asserted water rights according to state law to be accorded priority.⁶⁸ Under this view the state law priority system would have universal authority over claims to non-navigable waters and could provide the desired certainty by maintenance of an efficient recording system.

This line of reasoning which would require abandonment of the Winters doctrine has three major shortcomings, one doctrinal and two pragmatic, which will be considered in turn: (1) it misconstrues the relevant federal statutes and uncritically limits the distinction between public domain and reserved federal lands to being a restriction on entry,⁶⁹ (2) it excludes the possibility of adequately preserving sufficient water supply for future federal governmental purposes, and (3) it is totally insensitive to the problems of the Indians whose actual beneficial uses of western waters have developed slowly owing to the benign neglect of the Bureau of Indian Affairs⁷⁰ and the inability to meet the large capital requirements prerequisite to extensive utilization of reserved water rights.⁷¹

Although little certainty is likely to be gained at this late date regarding the precise congressional intent as to the asserted distinction between public lands and reserved lands, both the federal judiciary⁷² and the commentators⁷³ have adequately demonstrated that the Acts [7 ELR 50049] of 1866,⁷⁴ 1870,⁷⁵ and the Desert Land Act of 1877,⁷⁶ while severing rights to unappropriated waters from lands of the public domain, did not transfer that water to the states or grant them plenary authority over it. This view prevails despite some inconsistent action by affected federal agencies entitled to claim reserved rights. One view is exemplified by the litigation in the Pelton Dam case.⁷⁷ The Federal Power Commission believed that earlier federal power site reservations reserved by implication the unappropriated waters thereon.⁷⁸ In contrast, a study of the water policy of the U.S. Forest Service prior to the decision in Arizona v. California indicates that the Forest Service thought it advisable and possibly necessary to perfect water rights on national forest lands in accordance with state law.⁷⁹

The first of the two pragmatic defenses interposed on behalf of the implied reservation doctrine, the need to reserve water for future federal needs, bespeaks a useful criticism of traditional state law appropriation systems. These systems require actual diversion or pumping and application to a beneficial use in conjunction with the touchstone maxim "prior in time is prior in right." Proponents of the implied reservation doctrine urge that federal governmental foresight is frustrated by a system which protects only actual uses and thus encourages overrapid appropriation leaving little water and less legal protection for future needs. It would seem sufficient rebuttal to suggest that some states provide a means of presently appropriating water for future use⁸⁰ and other states could be statutorily required to create such a scheme as to waters found on the public domain and reserved lands. By this method, certainty of priority could be established without legally cognizable loss of federal planning flexibility.

Nevertheless, rejection of the implied reservation doctrine even if replaced by state systems allowing appropriation for future use will result in a loss of federal flexibility. Under the present reserved rights doctrine no determination of the specific nature and quantity of federally reserved rights is made until litigation of some form is completed. Consequently no federal declaration of specific intent and proposed future use need be made at the time of reservation. By deferring such declaration, the federal government need not foreclose options that may be related to the specific purpose of the withdrawal from the public domain.

This "wait and see" position is further strengthened by judicial solicitude which has not scrutinized whether public domain withdrawals were made with an intent to imply reservation of water rights. For example, the special master in Arizona v. California took the view that intent to reserve water should be implied unless the party opposing the reservation produced evidence of lack of such intent.⁸¹ Virtually no attention was given this issue by the Superme Court which said only, "we agree with the conclusion of the Master that the United States intended to reserve water sufficient for the future requirements…"⁸² of federal recreation areas, wildlife refuges and national forests. As recreational development of federal reserved lands becomes more intensive, retention of the implied reservation doctrine will tend to subsidize⁸³ the enterprise by providing water rights in amounts necessary to fulfill present federal purposes with a priority which dates back to the original withdrawal. Thus, retention of the implied reservation doctrine offers the benefit of federal planning flexibility which cannot otherwise be achieved without substantially increasing the cost of future federal projects which rely on more intensive water uses than would have been foreseen at the time the reservation was established.

The final argument favoring retention of the implied reservation doctrine is perhaps the most convincing; as to Indian lands, there remains no presently available alternative. Historically, most Indian land was set aside prior to the major periods of economic expansion in the arid states.⁸⁴ The ensuing economic expansion was often water intensive, relying on state law to protect appropriative water rights, usually for mining or irrigation. Not infrequently, such state law claims have virtually exhausted the available supply ofwater.⁸⁵ During this period Indian lands remained undeveloped owing to a combination of factors, predominated by lack of capital needed to make "beneficial use" of the water and federal abdication of its fiduciary responsibility toward these Indian lands.⁸⁶ Since all agree that most of the Indian [7 ELR 50050] reserved lands are valueless without water, a means must be found to provide water to these tracts, otherwise Indian treaties will be but an empty bargain. The Winters doctrine is well suited to solution of this otherwise difficult problem because it assures the Indians of available water for use on reserved lands.⁸⁷ Thus, despite the uncertainty caused by the Winters doctrine and its burden of judicial supervision to establish the quantity of water reserved⁸⁸ and the uses to which the water may be put,⁸⁹ its continued application can be defended on pragmatic as well as doctrinal grounds.

B. Clarification of Federal Rights After Cappaert

Having opted for the uncertainty involved in the legal recognition of unquantified federal water reservations, it in necessary to seek to minimize the disruptive effect of that uncertainty.

1. The Appropriate Forum

An obvious protective device for states or state law appropriators likely to be affected is to initiate a proceeding, either state or federal, to obtain declaratory quantification of federally reserved rights in the affected water source. As the flexibility interest of the federal government cuts against voluntary participation in such proceedings, avoidance of sovereign immunity of an otherwise unconsenting government is accomplished by invoking the McCarran Amendment.⁹⁰ As construed in Dugan v. Rank,⁹¹ the intent of the McCarran Amendment was to allow "a general adjudication of all of the rights of various owners on a given stream…."⁹² Subsequently, in the Eagle County litigation⁹³ the reserved rights of the United States as to federal enclaves were held to be within the purview of McCarran Amendment consent to state court adjudications, and the definition of general adjudications for McCarran Amendment purposes was significantly clarified and relaxed.Finally, the recent decision in Colorado River Water Conservation District v. United States⁹⁴ extends McCarran Amendment consent to Indian Winters⁹⁵ rights and explores the relative roles of the state and federal judiciary in water adjudications. The Supreme Court concluded that the policy of the McCarran Amendment opposed piecemeal litigation of such highly interdependent claims as water rights in a single stream. Accordingly, the Court held that otherwise valid exercise of later-invoked concurrent federal jurisdiction should be foregone because the pending state proceeding is analogous to state court acquisition of control over property in other circumstances.⁹⁶ Thus, clarification proceedings can be brought in state court or federal court⁹⁷ so long as the proceeding is one of a general nature within the expanded definition of Eagle County.

2. The Difficulty of Quantification

Historically, one of the major benefits of the prior appropriation doctrine was the simplicity of quantification, especially with regard to surface waters. A priority was established in an amount equal to the amount actually diverted and beneficially used, and junior appropriators on the stream could literally see the appropriation. Moderate complexity arose when an appropriator sought to increase water withdrawals after downstream junior appropriators had secured vested rights in the interim, but no doubt existed about the proper amount to be allocated to each appropriator in time of scarcity. Additionally, the system largely avoided waste. The appropriative right had to be put to beneficial use, and abandonment of rights could be found after short periods of non-use. Federal reserved rights are not so easily quantified, nor can they be divested by non-use. Absent an obvious measure such as actual use, the courts have sought a measure which bears a rational relation to "… the implied reservation doctrine … [which] reserves only that amount of water necessary to fulfill the purpose of the reservation, no more."⁹⁸

An illustrative example of the difficulty of quantification is provided by the case closest to the essence of the reserved rights doctrine: Indian reservations. The Supreme Court's opinion in Winters itself silent on the subject to quantification, but it does affirm a decision below based on an irrigation-related standard.⁹⁹ The [7 ELR 50051] subsequent Supreme Court decision in Arizona v. California also relied on a standard which reserves enough water to irrigate all irrigable acreage on the Indian reservations.¹⁰⁰ This standard gains principal support from the inference that changing Indian culture from nomadic to agrarian was an essential purpose of federal Indian policy.¹⁰¹ Winters states, "It was the policy of the Government, it was the desire of the Indians, to change those [nomadic and uncivilized] habits and to become a pastoral and civilized people."¹⁰²

The irrigable acreage standard can be rather mechanically applied. As was done by the special master in Arizona v. California, determinations are made fixing the boundaries of reservations, extent of irrigable areas and amount of water needed to irrigate those tracts; thereafter a routine mathematical calculation quantifies the reserved right. The irrigable acreage standard appears not to be as unmanageable as had been anticipated, yet few courts or commentators appear willing to accept it.¹⁰³

The first stumbling block is the waste occasioned by decrees which assign to Indian reservations amounts of water which exceed the uses made. The thrust of the argument is that while Indian uses may eventually grow and make actual use of the entire quantity allocated, such growth of population or agricultural capacity may not occur for generations, or may not occur at all. In the interim, non-Indian appropriators will be unable to make precise plans and investments necessary to capture the unused portion of the Indian reserved water rights. Studies show that the disparity between present use and quantities reserved by the irrigable acreage standard is often substantial, but such studies alone are an unsatisfactory means of ameliorating this extravagant non-use of a scarce resource.¹⁰⁴ In Conrad Investment Co. v. U.S.¹⁰⁵ a lower court decree was affirmed quantifying the Indians reserved water rights only slightly in excess of the amounts presently used. However, the court expressly provided that the decree was "subject to modification, should the conditions on the reservation at any time require such modification."¹⁰⁶ The open-ended power of modification is akin to having no quantification at all. By way of contrast, the Ninth Circuit in U.S. v. Walker River Irrigation District¹⁰⁷ studied the patterns of Indian development on the reservation in question and concluded that Indian demand for water had remained stable throughout a 55-year period and quantified the reserved right accordingly.¹⁰⁸

The Walker River approach is more than superficially appealing. It is consonant with the previously identified purpose of the federal Indian policy and it incorporates the major assets of the prior appropriation system. However, three failings severely limit, or entirely prohibit, the application of the approach. First, seldom will the history of an Indian reservation be stable enough to allow a confident projection that use will continue at a specified level.¹⁰⁹ Second, and more telling, the pattern of development on Indian reservations is highly dependent on the fiduciary actions of the federal government as trustee.¹¹⁰ There is strong evidence that the government has not discharged its fiduciary responsibilities in the utmost good faith and has sometimes compromised [7 ELR 50052] reserved Indian water rights rather than seeking to promote their exercise and development by the Indians. Finally, it is unrealistic to shackle Indians with a measurement that fails to respond to changing times. Reservations need not indefinitely remain a collection of rural farms. The Walker River standard will tend to freeze uses on a reservation, prohibiting economic and cultural development that parallels the development of the surrounding region. In the face of these and other¹¹² difficulties, it is not surprising that two authoritative planning studies should reach opposite conclusions regarding the advisability of quantification of reserved rights.¹¹³

Turning next to consider quantification of federal non-Indian reserved water rights, prior to the Cappaert decision quantification had been addressed only in the terse section of Arizona v. California which states: "We agree with the conclusions of the Master that the United States intended to reserve water sufficient for the future requirements of [the affected recreation area, wildlife refuges and national forest]."¹¹⁴ The report of the special master sheds little light on the legal basis for the quantities ultimately decreed¹¹⁵ except that these amounts "are reasonably necessary for the operation of refuges and that the necessary water was reserved by the United States for the refuges when they were created."¹¹⁶ Prior decisions regarding federal non-Indian reservations have, in essence, implied the existence of such rights independent of state law appropriation schemes;¹¹⁷ questions of quantification were not presented.

As an exercise in quantification, the Cappaert decision is very direct. Proceeding succinctly from the maxim stated earlier that the reservation right includes "only that amount of water necessary to fulfill the purpose of the reservation, no more,"¹¹⁸ Chief Justice Burger concludes that junior state water rights are entitled to water only after fulfillment of the federal priority. Since the total quantity of water available for use in the relevant groundwater basin is not measurable to the same extent as stream flows, quantification by exclusion is, although somewhat novel, both logically and pragmatically sound.

Wholly apart from the aspect of quantification by exclusion, the Cappaert decision represents an essential departure from traditional modes of recognition given reserved rights by acknowledgment of leaving water in place as a beneficial use. Accepting the usufructary nature of western water rights, previous decisions had always treated implied federal rights to as yet unused reserved waters as potential appropriative rights which had to be used to vest despite being protected against loss by non-use.¹¹⁹ Holders of superior reserved rights cannot enjoin junior appropriators unless the acts of the juniors interfere with actual use of the rights reserved. Even Arizona v. California fails to recognize in situ uses in its discussion of the Lake Mead National Recreation Area. Although Special Master Rifkind extensively describes the impoundment capacity of Hoover Dam¹²⁰ and the myriad irrigation and power contract obligations to be fulfilled,¹²¹ he did not expressly recognize contemplated and actual recreational uses of the 162,700-acre surface area of Lake Mead. Instead, the special master, as with the wildlife refuges, focused solely on consumptive uses dependent upon actual diversion of water for supply.¹²² Finding these uses de minimus, no quantified right was established. The Cappaert decision recognizes a novel use and dispenses with the requirement of actual diversion as a step toward securing legal protection for such uses.

C. Impact on Regional Management

Having established that a two-fold change in the quantification of federal reserved rights was announced by the Cappaert decision, it is appropriate to anticipate the impact of these changes on regional management. In making this assessment the discussion will also focus on other doctrines relating to use of reserved rights to see if other changes will ensue as a result of Cappaert.

1. Pro-Conservation Uses of Cappaert

In regard to federal conservation reservations,¹²³ an immediate consequence of Cappaert's quantification by exclusion is that courts determining the amount of water to be allocated to a conservation enclave need not labor for absolute specificity of quantification. This result is not insignificant. In Arizona v. California Special Master Rifkind took great pains to ensure a quantified priority of sufficient magnitude to continue full operation of the Havasu National Wildlife Refuge and the Imperial [7 ELR 50053] National Wildlife Refuge.¹²⁴ Nevertheless, owing to incorrect estimation of evaporation and seepage, the amount of water reserved is not sufficient.¹²⁵

More important, legal recognition of in situ uses raises the likelihood that implied reservations may be recognized to protect minimum stream flows. Many federal acts establishing reclamation and irrigation¹²⁶ projects routinely recite fish, waterfowl, and wildlife conservation as an explicit purpose. The maintenance of these fish, fowl, and animal populations is impossible absent a baseline continous flow. Of like impact are statutory provisions applicable to the preponderance of the national forest system which speak in terms of securing "favorable conditions of water flows"¹²⁷ and administration for "outdoor recreation, range, timber, watershed and wildlife and fish purposes."¹²⁸ These purposes could equally demand minimum stream flows and, quantifying their rights by exclusion of incompatible use, command injunctions against any junior appropriators whose uses impinge on the accomplishment of the purposes.

The recognition of in situ reserved rights may have even more extraordinary effects in the context of Indian reserved rights. Not all Indian reservations were founded with the intention of limiting Indian sustenance to the single mode of irrigation. Many Indian tribes continue today their heavy reliance on fishing practices begun long before white settlement. A possible result of consumptive appropriative use is the eventual destruction of the fish habitat. An obvious conflict between resdrved rights and appropriative rights arises. One such case is already in litigation seeking a decree which would protect the claimed reserved water rights of the Pyramid Lake Paiute Indian Reservation.¹³⁰ After Cappaert, there is no doubt that the Indians are entitled to lake level protection against subsequent appropriators.¹³¹ More generally, throughout the northwest, Indian tribes not only depended on fish as a major food source, but anthropological arguments are readily available that protection of fish (and wildlife) habitat would have been within the Indians' view of reserved rights.¹³²

2. Anti-Conservation Uses of Cappaert

The substantially increased attention being given to development of oil shale and coal resources found in the American West is the focal point for anti-conservation uses of the reserved rights doctrine. Vast amounts of water are required to extract these resources.¹³³ In regard to oil shale, exceedingly rich deposits are located below federally-owned lands, much of which has been reserved for oil shale purposes.¹³⁴ The magnitude of the potential application of reserved water can only be understood by reference to the size of the deposits involved:

It is estimated, perhaps optimistically, that the shale in those states [Colorado, Utah, Wyoming] contains 1.5 trillion barrels of oil…. Approximately 75% of these deposits are in the Piceance Creek Basin of Colorado which contains the largest quantity of oil recoverable by demonstrated mining and retorting methods — estimated at 280 billion barrels…. The federally owned acreage contains 79% of the oil in place.¹³⁵

Coupled with estimates that as much as 455,000 acre feet per year could be required to extract two million barrels of oil a day,¹³⁶ it is seen that the water needs are immense. Efforts to secure use of the water necessary to develop these resources for the production of oil may rely on the Cappaert decision.

The executive orders withdrawing the oil shale lands from the public domain fall into two separate categories: two earlier orders were intended to guarantee oil for future Navy use, but the 1930 executive order, which covers far more acreage, was less decisive about its purposes. The lands were withdrawn for investigation and classification related to oil shale development, but not specifically for production of oil. Additionally, while the Naval oil shale reservations claimed exclusive use and benefit for the United States, the 1930 executive order focused on eliminating further public entry to the affected land.¹³⁷

Even prior to the Cappaert decision little doubt existed whether the Naval oil shale reservations would be able to successfully invoke the implied reservation doctrine to assure [7 ELR 50054] a supply of water adequate for fuel extraction.¹³⁸ The existence of reserved rights follows comfortably after Arizona v. California explicitly recognized reserved rights for federal reservations and Eagle County recognized such rights in regard to a military enclave, the Air Force Academy, while resolving McCarran Amendment issues.¹³⁹ Cappaert lends ease to the further conclusion that the intent of the withdrawals was to reserve sufficient water to develop the oil despite the absence of mention of water in the text of the executive orders. This is closely analogous to the Cappaert holding that failure of President Truman to mention water to maintain the pool in Devil's Hole did not negate the necessary intent.¹⁴⁰

Although a definite conclusion is not possible, Cappaert also sheds some light on how the Supreme Court will view the more enigmatic general oil shale withdrawal. It has been argued that the 1930 executive order does not evidence intent to reserve water beyond the minimal needs of geological classification.¹⁴¹ This conclusion relies primarily on the text of the executive order. The Cappaert opinion begins with a textual examination but also expands the inquiry to include purposes which are announced in the statutes referred to in the Presidential Proclamation reserving Devil's Hole.¹⁴² Significantly, since the proclamation expressly entrusted management of the withdrawal to the Director of the National Park Service pursuant to congressionally established purposes,¹⁴³ the Cappaert opinion concluded that intent was present to "conserve natural and historic objects and the wildlife therein…."¹⁴⁴

In contrast, the Cappaert opinion relief on the act authorizing the withdrawal, the Act for the Preservation of American Antiquities,¹⁴⁵ only to the extent necessary to conclude that the reservation could include the waters needed to maintain Devil's Hole.¹⁴⁶ This distinction between purpose and authority helps to confirm the previous interpretation of the 1930 oil shale reservation. Although the recited authorizing statutes contain language which could include reservation of water for oil shale extraction,¹⁴⁷ Cappaert suggests that such language is not used to divine the purpose of withdrawal. Thus, Cappaert strongly suggests that the implied reservation doctrine cannot be used to secure a 1930 priority for waters needed to develop the bulk of the rich federal oil shale deposits. On the other hand, the Cappaert opinion will be conclusive authority that any forthcoming executive or congressional reservation of waters for such purposes will create reserved rights superior to all subsequent state law appropriators in an amount necessary to fulfill the extractive needs.

The reach of the Cappaert decision does not include the major issues of federal reserved water rights and western coal development. Unlike oil shale, to date little of the public domain has been reserved for coal development or classification, and thus the major issue is not whether the reservation included water to develop the resource on a large scale. Additionally, as more of the coal-rich lands lie in the Northern Great Plains region, an area where there is substantially more land reserved for the Indians, the major issues will likely revolve around whether Indian water reserved by the Winters doctrine can be used for coal development which was not foreseen at the time of reservation. Closely related problems arise when the Indians, owing to lack of capital, or other circumstances, allow non-Indian developers to apply Winters' water in their endeavors. Similar legal issues arise when the federal government allows transferees to use reserved water in the development of resources found on reserved and or acquired lands.

Cappaert does not directly involve any of these problems, but its endorsement of liberal interpretation of previous Supreme Court precedents together with the decision in Colorado River Conservation District v. United States¹⁴⁸ do allow some basis for prediction. Read together these decisions establish that the extent and validity of reserved rights, Indian or federal, is to be determined as a matter of federal law. This repudiation of the so-called "Colorado Doctrine"¹⁴⁹ avoids state law hostility to any expansion of the scope of reserved rights, and allows one to seek authority in federal decisions. Most directly in point is the report of the special master in Arizona v. California which asserts that purpose of the reservation is the yardstick by which to quantify, but once rights are quantified, "[t]hey may be utilized regardless of the character of the particular use."¹⁵⁰

This is a marked contrast to the prevailing body of state law which does not generally allow change of use. As to transferability, the federal precdents are also favorable because they allow assertion of Indian Winters' rights by non-Indians.¹⁵¹ Again the report of the special master in Arizona v. California explicitly found that once quantified by a court "the decree establishes a property [7 ELR 50055] right which the United States may utilize or dispose of for the benefit of the Indians as the relevant law may allow."¹⁵² This suggests a dual limitation of transferability in the coal context: the federal government must exercise fiduciary responsibilities should it act to sell or lease the Indians' reserved water rights¹⁵³ and such transfers would require congressional authorization.¹⁵⁴

IV. Conclusions

The decision in Cappaert v. United States provided the United States Supreme Court with an opportunity to substantially clarify the scope of the expanded Winters' doctrine of implied reservation of water rights. The opportunity was largely declined, with the case decided on relatively narrow grounds reflecting a sound construction of the intent of President Truman in adding the Devil's Hole to the Death Valley National Monument. Nevertheless, several general observations appear after close examination of the Cappaert decision. Reserved rights to water can exist in furtherance of a purpose which requires that water be left in place for its fulfillment. These reserved rights can be protected by an injunction against infringement, even if they have not been explicitly quantified. Both the existence and quantification of these reserved rights present justiciable federal questions. These general conclusions, together with other precedents cited with favor by the Cappaert court, allow a basis for prediction of future legal development of federal reserved water rights.

Conservationists will find the doctrine a potent weapon in attempts to ensure a secure water supply for federal enclaves established with the purpose of preserving natural amenities. Simultaneously, the reserved rights doctrine may prove destructive of those same values when wielded in aid of federally supported energy development programs. Finally, regardless of the environmental consequences, it remains a harsh economic fact that state law water appropriators find their rights jeopardized by possible federal reservations of unknown magnitude slowing to some extent¹⁵⁵ future non-federal water dependent economic development in the western states.

1. Winters v. United States, 207 U.S. 564 (1908).

2. 426 U.S. 128, 6 ELR 20540 (1976). The case was decided together with Nevada ex rel. Westergard v. United States.

3. For extended discussion of the doctrine see, e.g., Ranquist, The Winters Doctrine and How It Grew, 1976 B.Y.U.L. REV. 639, 640-52 (1976) [hereinafter cited as Ranquist, Winters Doctrine].

4. Act of July 26, 1866, 14 Stat. 253, 43 U.S.C. § 661 (1964); Act of July 9, 1870, 16 Stat. 218, 43 U.S.C. § 661 (1964).

5. Ch. 107, 19 Stat. 377 (1877) as amended, 43 U.S.C. § 321 (1970).

6. Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming.

7. See generally, R. CLARK, WATERS AND WATER RIGHTS § 19.2 (1967).

8. 207 U.S. 564 (1908).

9. Id. at 576.

10. See Federal Power Comm'n v. Oregon, 349 U.S. 435 (power reservation) (1955); Arizona v. California, 373 U.S. 546, 601 (1963) (affirming Report of Special Master, 292-93, 296-98 (1960) as to reservation for national forests, recreation and wildlife areas).

11. See Sondheim & Alexander, Federal Indian Water Rights: A Retrogression to Quasi Riparianism?, 34 S. CAL. L. REV. 1 (1960).

12. See Federal Power Comm'n v. Oregon, 349 U.S. 435, 443-44 (1955). The distinction between federal public domain and federal withdrawn land is succinctly explained as follows:

federal public domain — Land owned by the United States by virtue of sovereignty, that has never been in state or private ownership, and that is available for disposition or use under the general laws applicable to federally owned land.

federal withdrawn land — Land owned by the United States that has been formally designated for a particular purpose, therefore is withdrawn from disposition or use under the general laws applicable to federally owned land.

7 R. CLARK, WATER AND WATER RIGHTS 290 (1976).

Almost one-third of the 760 million acres of land owned by the federal government, which itself constitutes one-third of the nation's land, has been withdrawn from the public domain. This land is disproportionately located in 11 contiguous Western states (Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming), where an average of 49 percent of the land is federally owned. U.S. Dep't of the Interior, Bureau of Land Management, PUBLIC LAND STATISTICS 1975 10, 14-31 (1976).

13. Cappaert v. United States, 426 U.S. 128, 138, 6 ELR 20540, 20542 (1976).

14. United States v. District Court for Eagle County, 401 U.S. 520, 523 (1971).

15. Id. at 524, construing 66 Stat. 560, 43 U.S.C. § 666(a). But see, id. at 525-26 suggesting substantive difficulties which may arise, and Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) demonstrating possible jurisdictional difficulties.

16. See cases cited in note 10 supra. See also, United States v. District Court for Eagle County, 401 U.S. 520 (1971) (dicta concerning national forest and public lands); Nevada ex rel. Shamberger v. United States, 279 F.2d 699 (9th Cir. 1960) (military enclave).

17. The doctrine to date has not been applied to acquired lands, that is, lands which left the public domain and were subsequently acquired by the federal government and then reserved. Although beyond the scope of this article, application of Winters to acquired lands is a topic of importance as substantial tracts of the National Forest System and other federal-owned lands were acquired from private owners by land exchange programs or eminent domain.

18. See NEV. REV. STAT. § 533.010 et seq.

19. 9 Stat. 922 (1849).

20. Proclamation No. 2961, 66 Stat. ch. 18, 17 Fed. Reg. 691 (1952).

21. 16 U.S.C. § 431.

22. Proclamation No. 2961, 66 Stat. ch. 18, 17 Fed. Reg. 691 (1952).

23. Cappaert v. United States, 426 U.S. 128, 133, 6 ELR 20540, 20541 (1976); 508 F.2d 313, 315 (9th Cir. 1974); 375 F. Supp. 456, 458-59 (D. Nev. 1974).

24. Cappaert v. United States, 426 U.S. 128, 143, n. 7, 6 ELR 20540, 20543, n. 7 (1976). The size of the groundwater basin is inaccurately reported in the Supreme Court opinion as being 4,500 acres. The basin underlies 4,500 square miles. Brief for Petitioner at 15, Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (1976); Cappaert v. United States, 508 F.2d 313, 315-16 (19th Cir. 1974).

25. Cappaert v. United States, note 23, supra. Water level is measured by reference to a copper washer installed in 1962. Until 1968 the water level had been stable at 1.2 feet below the washer. In 1969 the level fell to 2.3 feet below, in 1970 — 3.17 feet below, in 1971 — 3.48 feet below, and in 1972 — 3.93 feet below. The district court also found that had the Cappaert's pumped in 1973 at 1972 levels the water level would have fallen to 4.2feet below the copper washer. 1973 pumping was restrained by issuance of a preliminary injunction (without opinion) by the United States District Court on June 5, 1973.

26. The final water level and pumping limitation has not been set at the date of this writing. The district court held a hearing on remand in December 1976. The permanent injunction is not likely to issue before June 1977. Additionally, the economic future of the Cappaert ranch is still in doubt as a result of the adverse Supreme Court determination. See Brief for Petitioner at 28, Cappaert v. United States, 426 U.S. 128, 6 ELR 20540 (1976); see also letter to the author of Samuel Lionel, counsel for the Cappaert ranch, indicating that large losses were sustained as a result of the decision. The letter is on file with the ENVIRONMENTAL LAW REPORTER.

27. The request was made pursuant to NEV. REV. STAT. § 533.325.

28. NEV. REV. STAT. § 533.360.

29. See note 25, supra.

30. The State Engineer's ruling was oral, but its content appears as a quotation. Cappaert v. United States, 426 U.S. at 135, 147, 6 ELR 20541, 20545.

31. As a general rule, the federal government, like all other would-be users of western water, must perfect its water rights according to state law. See generally, 43 U.S.C. § 321.

32. NEV. REV. STAT. § 533.450 provides judicial review of the state engineers's order for "[A]ny person feeling himself aggrieved…." Thus, although not a party to the proceeding, state law clearly provided for the United States to seek review of the decision.

33. 875 F. Supp. 456 (D. Nev. 1974). Prior to the issuance of the permanent injunction, an appeal to the United States Circuit Court of Appeals for the Ninth Circuit resulted in a remand for a modification in the preliminary injunction. United States v. Cappaert, 483 F.2d 432 (9th Cir. 1973).

34. United States v. Cappaert, 508 F.2d 313 (9th Cir. 1974).

35. Cappaert v. United States, 422 U.S. 1041 (1975).

36. Cappaert v. United States, 426 U.S. 128, 138, 6 ELR 20540, 20542 (1976).

37. Id. at 139, 6 ELR 20542-42.

38. Id. at 139, n. 5, 6 ELR 20543, n.5.

39. Id. at 141, 6 ELR 20543.

40. Id. at 143, 6 ELR 20543.

41. Perhaps the Court wished to avoid any unnecessary enlargement of the Winters doctrine which is itself not free from criticism. See, e.g., text at notes 63-68 infra.

42. The Court reaffirmed the Pelton Dam view that federal reserved water rights arise independently of the state appropriation system. See Federal Power Comm'n v. Oregon, 349 U.S. 435 (1955). The Court also held that the McCarran Amendment, 43 U.S.C. § 666, had no bearing on the case at bar. Its abrogation of federal sovereign immunity to state court suit did not deprive the federal court of concurrent jurisdiction and it did not alter the substantive basis of reserved rights claims. (But see Colorado River Water Conservation District v. United States 424 U.S. 800 (1976), which ruled that a state court McCarran Amendment suit might oust federal jurisdiction.) Finally, the Court rejected the argument that the federal government, because of its participation, was bound by the Nevada State Engineer's adjudication. The thrust of the Court's view was that the United States was not a party in the state proceeding. Moreover, the limited mutuality of estoppel doctrine of Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 320-26 (1971), which sometimes binds non-parties, was inapposite because the United States did not attempt to have its rights adjudicated in the Nevada proceeding.

43. 373 U.S. 546 (1963).

44. "An[other] essential of water law is that it should follow and implement a wise policy of resource allocation, one that will insure the use of the resource to produce maximum benefits for man and for society as a whole." TRELEASE, FEDERAL-STATE RELATIONS IN WATER LAW, NAT'L WATER COMMISSION, LEGAL STUDY NO. 5, 2-8 (1971).

See also Meyers, The Colorado River, 19 STAT. L. REV. 1, 65-73 (1966); POSNER, ECONOMIC ANALYSIS OF LAW 10-13 (1972).

45. TRELEASE, FEDERAL-STATE RELATIONS IN WATER LAW, NATIONAL WATER COMMISSION, LEGAL STUDY NO. 5, 2-8 (1971) (emphasis added).

46. This is accomplished by the final order enjoining pumping when the water level in Devil's Hole falls below a predetermined level. Each year additional water (recharge) will find its way into the aquifer with the likely result that the water level in Devil's Hole will rise toward the original level, a level at which some pumping is again legally permitted and ecologically tolerable.

47. Meyers, The Colorado River, 19 STAN, L. REV. 1, 72 (1966).

48. 376 U.S. 346 (1963).

49. See text accompanying notes 40-41, supra.

50. See THOMAS, UNDERGROUND SOURCES OF OUR WATER, U.S.D.A., THE YEARBOOK OF AGRICULTURE — 1955 (HOUSE DOC. NO. 32, 84th Cong., 1st Sess.) at 63-77, reprinted in part in C. MEYERS & D. TARLOCK, WATER RESOURCE MANAGEMENT 553-56 (1971).

51. 426 U.S. at 142, 6 ELR at 20543 (1976), citing with approval CORKER, GROUNDWATER LAW, MANAGEMENT AND ADMINISTRATION, NATIONAL WATER COMMISSION LEGAL STUDY NO. 6, XXIV (1971).

52. See 5 R. CLARK, WATER AND WATER RIGHTS § 441 (1972).

53. See, e.g., ALASKA STAT. § 46.15.030; COLO, REV. STAT. ANN. 1963, § 148-18-1; IDAHO CODE ANN. § 42-101; N.D. CENT. CODE § 61-01-01; WASH. REV. CODE ANN. § 90.44.020 et seq.

54. Winters v. United States, 207 U.S. 564, 577 (1907); citing United States v. Winans, 198 U.S. 371 (1905). See also interesting and informative discussion in Meyers, The Colorado River, 19 STAN L. REV. 1, 66-69 (1966).

55. Winters v. United States, 207 U.S. 564, 577, citing United States v. Rio Grande Ditch & Irrigation Co., 174 U.S. 690, 702-03 (1898).

56. See Arizona v. California, 373 U.S. 546, 597-98 (1963) (opinion), 376 U.S. 340, 344-46 (1964) (decree).

57. See Cappaert v. United States, 426 U.S. at 138, 6 ELR at 20542 (1976); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); United States v. District Court for Eagle County, 401 U.S. 520, 522-23 (1971); Arizona v. California, 373 U.S. 546, 597-98 (1963); Federal Power Comm'n v. Oregon (Pelton Dam), 349 U.S. 438, 442-43 (1955); United States v. Rio Grande Ditch & Irrigation Co., 174 U.S. 690, 702-03 (1898).

58. U.S. CONST. art. IV, § 3, cl. 2.

59. Federal Power Comm'n v. Oregon, 349 U.S. 435, 443-48, construing the relationship between the Federal Power Act, 16 U.S.C. §§ 791a-825a, and the Desert Land Act of 1877, 43 U.S.C. § 321. But see text acompanying notes 63-68 infra.

60. 43 U.S.C. §§ 141-158.

61. See 43 U.S.C. §§ 141, 148.

62. But see National League of Cities v. Usery, 426 U.S. 831 (1976), which suggests the Tenth Amendment may stand as a bar to heretofore unquestioned exercises of enumerated powers when the subject regulated is close to the heart of state sovereignty. See also Colorado Water Conservation District v. United States, 424 U.S. 800 (1976), discussed in note 42 supra, and text accompanying notes 94-97 infra, which recognizes water adjudications as involving a strong state interest.

63. 43 U.S.C. § 321.

64. See Note, Federal-State Conflicts Over the Control of Western Waters, 60 COLUM. L. REV. 967, 974 (1960).

65. 295 U.S. 142 (1935).

66. Id. at 162.

67. Ickes v. Fox 300 U.S. 82 (1937), rehearing denied, 300 U.S. 640 (1937).

68. See Nevraska v. Wyoming, 325 U.S. 589, 611 (1945).

69. "Entry" in this context is a term of art which describes the act of coming onto lands of the public domain and by performance of specified acts receiving title to the land.

70. See generally Garton, South Dakota's System of Water Management and Its Relation to Land Use and Economic Development, 21 S.D.L. REV. 1, 60 (1976), especially footnote 335 quoting from United States v. Ahtanum Irrigation District, 236 F.2d 321, 337 (9th Cir. 1956). See also Veeder, Federal Encroachment on Indian Water Rights and the Impairment of Reservation Development, in JOINT ECONOMIC COMMITTEE, TOWARD ECONOMIC DEVELOPMENT FOR NATIVE AMERICAN COMMUNITIES: A COMPENDIUM OF PAPERS, 91st Cong., 1st Sess., Vol. 1, 460 (1969) [hereinafter cited as Veeder, Federal Encroachment].

71. See Price & Weatherford, indian Water Rights in Theory and Practice: Navajo Experience in the Colorado River Basin, 40 LAW & CONTEMP. PROB. 97 (1976).

72. E.g., Federal Power Comm'n v. Oregon, 349 U.S. 435 (1955); Arizona v. California, 363 U.S. 546 (1963).

73. Trelease, Powers and Rights of Various Levels of Government — States Rights v. National Powers, 19 WYO. L.J. 189, 199 (1965); Goldberg, Interposition — Wild West Water Style, 17 STAN. L. REV. 1, 11 (1966); Morreale (Hanks), Federal-State Conflicts over Western Waters — A Decade of Attempted "Clarifying Legislation," 20 RUTGERS L. REV. 423, 446 (1966).

74. Act of July 26, 1866, ch. 262, § 9, 14 Stat. 251, 253, 30 U.S.C. § 51.

75. Act of July 9, 1870, ch. 235, § 17, 16 Stat. 217, 218, 30 U.S.C. § 52.

76. Ch. 107, § 1, 19 Stat. 377, as amended, 43 U.S.C. § 321.

77. Federal Power Comm'n v. Oregon, 349 U.S. 435 (1955).

78. The actual issue decided did not force the Court to rule that implied federally reserved water rights were superior to those of an immediate state law appropriator. Instead, the federal power over the waters on reserved lands was held to be free from regulation by the State of Oregon. See Bradshaw, Water in the Woods: The Reserved Rights Doctrine and National Forests Lands, 20 STAN. L. REV. 1187, 1195 (1968).

79. Id. at 1193-95.

80. The present opportunities in this area are rather limited, but are nevertheless instructive. In Montana, governmental units (including the federal government) may reserve water rights for future use. MONT. REV. CODE ANN. ch. 89-890.

81. Report of the Special Master 293, 335 (1960), Arizona v. California, 373 U.S. 546 (1963) [hereinafter cited as Master's Report].

82. Arizona v. California, 373 U.S. 546, 601 (1963).

83. The federal government, stripped of the advantage of liberally implied reserved water rights, could use powers of eminent domain to condemn and purchase state water rights which vest in the period between reservation and application to federal uses which were not actually foreseen at the time of reservation.

84. See generally, R.R. TRENNERT, ALTERNATIVE TO EXTINCTION: FEDERAL INDIAN POLICY AND THE BEGINNINGS OF THE RESERVATION SYSTEM (1975); W. WASHBURN, RED MAN'S LAND — WHITE MAN'S LAW (1971).

85. See Veeder, Federal Encroachment, note 70 supra.

86. See Veeder, Confiscation of Indian Winters Rights in the Upper Missouri River Basin, 21 S.D. L. REV. 282, 282-83 (1976) [hereinafter cited as Veeder, Confiscation].

87. But see id.

88. Even when judicially quantified the Indians Winters rights may still include indefinite amounts for future use. Conrad Investing Co. v. United States, 161 F. 829 (9th Cir. 1905); United States v. Ahtanum Irrigation District, 236 F.2d 321, 327 (9th Cir. 1956), 330 F.2d 897 (9th Cir. 1964); but see United States v. Walker Irrgation District, 104 F.2d 334 (9th Cir. 1939).

89. The issue of change of use will be discussed in text accompanying notes 150-54 infra.

90. McCarran Amendment to the Department of Justice Appropriation Act of July 10, 1952, 43 U.S.C. § 666.

91. 372 U.S. 609 (1962).

92. Id. at 618, quoting S. REP. NO. 755, 82d Cong., 1st Sess. 9 (1951).

93. United States v. District Court in and for the County of Eagle, 401 U.S. 520 (1971), and its companion case United States v. District Court in and for Water Division No. 5 et al., 401 U.S. 527 (1971).

94. 424 U.S. 800 (1976).

95. Id. at 809. In spite of the potential significance of this holding due to the alleged hostility of state forums to Indian claims, Justice Brennan's opinion never considers the issue to be open after Eagle County. But see Ranquist, The Winters Doctrine and How It Grew: Federal Reservation of Rights to the Use of Water, 1975 B.Y.U.L. REV. 639, 697.

96. Colorado River Water Conservation District v. United States, 424 U.S. 800, 818-19 (1976). Other factors advanced were the relatively scant proceedings in federal court, the extensive nature of litigation comprising over 1,000 defendants and the distance between the federal court and the affected resource.

97. Jurisdiction over the United States as a defendant can be asserted under 28 U.S.C. § 1346. Similarly, jurisdiction can be obtained over the United States as trustee for reserved Indian rights, invoking 28 U.S.C. § 1353. Finally, adjudication of the extent of reserved rights can be said to involve a federal question within the meaning of 28 U.S.C. § 1331.

98. Cappaert v. United States, 426 U.S. 128, 141, 6 ELR 20540, 20543 (1976), citing Arizona v. California, 373 U.S. 546, 600-01 (1963).

99. The Ninth Circuit opinion in Winters said, "We are of the opinion that it was the intention of the treaty to reserve sufficient waters of Milk River, as was said by the court below, 'to insure to the Indians the means wherewith to irrigate their farms,' …" 143 F. 740, 746 (9th Cir. 1906).

100. Arizona v. California, 373 U.S. 546, 600-01 (1963), which states, "We have concluded, as did the Master, that the only feasible and fair way by which reserved water for reservations can be measured is by irrigable acreage." See also Report of Special Master at 262-66 (1960). Accord, Conrad Investing Co. v. United States, 161 F. 829, 832 (9th Cir. 1908); United States v. Ahtanum Irr. Dist., 236 F.2d 321, 326-27, modified on other grounds, 330 F.2d 897 (9th Cir. 1964). But see United States v. Walker River Irrigation Dist., 104 F.2d 334 (9th Cir. 1939) (measurement according to actual use over a period of years), and Meyers, The Colorado River, 19 STAN. L. REV. 1, 70-71 (1963), which suggests that the opinion in Arizona v. California can be read as merely approving the quantities found by the master to be reserved and not the irrigable acreage standard. See 373 U.S. 546, 600-01 (1963).

101. Further elaboration can be found in Special Master Rifkind's Report at 262 which states:

The magnitude of the water rights created by the United States is measured by the amount of irrigable land set aside within a Reservation, not by the number of Indians inhabiting it. At the times of the creation of the five Indian Reservations in question, it was impossible to predict the future needs of the Indians who might inhabit them. Indeed, in some instances it was not clear which Indian tribes would ultimately be settled on a particular Reservation. What the United States did in withdrawing public lands for these Indian Reservations, was to establish areas that could be used in the indefinite future to satisfy the needs of Indian tribes in the United States as those needs might develop. It follows from this that the United States intended to reserve enough water to make the lands productive, in other words, enough to irrigate all of the practically irrigable acreage. Only by reserving water in this manner could the United States ensure that the Reservation lands would be usable when needed to support an Indian economy.

102. Winters v. United States, 207 U.S. 564-576 (1908).

103. See, e.g., Ranquist, Winters Doctrine, supra note 3 at 659-62, and cases cited in notes 110-117 infra.

104. See generally, Sondheim & Alexander, Federal Indian Water Rights: A Retrogression to Quasi-Riparianism?, 34 S. CAL. L. REV. 1 (1960); see also Petition for Leave to Intervene of the United States in case of Arizona v. California at 56-57 (asserting claims for reserved Indian rights amounting to 233 percent of existing Indian uses); United States v. Walker River Irrigation Dist., 104 F.2d 334 (9th Cir. 1939) (noting that on irrigable acreage allotment was five times as large as the amount of water presently used).

105. 161 F. 829 (9th Cir. 1908).

106. Id. at 835; cf., Tweedy v. Texas Co., 286 F. Supp. 383, 385-86 (D. Mont. 1968); United States v. Ahtanum Irrigation Dist. 236 F.2d 321, 341 (9th Cir. 1956, cert. denied, 352 U.S. 988 (1957).

107. 104 F.2d 334 (9th Cir. 1939) See also Note, Proposal for the Quantification of Reserved Indian Water Rights, 74 COLUM. L. REV. 1299 (1974), suggesting the similar standard of "present use and need," id. at 1313-14.

108. United States v. Walker River Irrigation Dist., 104 F.2d 334, 340 (9th Cir. 1939), relying on the stability of both irrigated acreage and population.

109. See Airzona v. California, 373 U.S. 546, 601, which notes, "How many Indians there will be and what their future needs will be can only be guessed."

110. See, e.g., Morton v. Ruiz, 415 U.S. 199, 236 (1974); United States v. Kagama, 118 U.S. 375, 383 (1866).

111. See Veeder, Confiscation of Indian Winters Rights in the Upper Missouri Basin, 21 S.D.L. REV. 282 (1976) and materials cited in footnotes 3 and 4 therein, id. at 283; Price and Weatherford, Indian Water Rights in Theory and Practice: Navajo Experience in the Colorado River Basin, 40 LAW & CONTEMP. PROB. 97 (1976); see also Gratton, South Dakota's System of Water Management and Its Relation to Land Use and Economic Development, 21 S.D.L. REV. 1, 60 (1976).

112. Substantial problems arise as to the transferability of reserved Indian water rights, especially if not conveyed with land to which the rights are appurtenant. See Skeem v. United States, 273 F. 93 (9th Cir. 1921); United States ex rel. Ray v. Hibner, 27 F.2d 909 (D. Idaho, E.D., 1928); Leaphart, Sale and Lease of Indian Water Rights, 33 MONT. L. REV. 266 (1972).

113. Compare, PUBLIC LAND LAW REVIEW COMM., ONE THIRD OF THE NATION'S LAND: A REPORT TO THE PRESIDENT AND TO THE CONGRESS 144, 146 (Recommendation 56) (1970), with NATIONAL WATER COMMISSION, WATER POLICIES FOR THE FUTURE, THE REPORT OF THE NATIONAL WATER COMMISSION 467-68 (1973).

114. 373 U.S. 546, 601 (1963).

115. Arizona v. California, 376 U.S. 340, 350 (1964) (decree).

116. Report of the Special Master at 298.

117. Nevada ex rel. Shamberger v. United States, 165 F. Supp. 600 (D. Nev. 1958), aff'd on other grounds; 279 F.2d 699 (9th Cir. 1960); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275 (1958); cf. Federal Power Comm'n v. Oregon, 349 U.S. 275 (1955).

118. Cappaert v. United States, 426 U.S. 128, 141, 6 ELR 20540, 20543 (1976).

119. Cf. Wiel, On Water Rights, 3d Ed. (1911) at §§ 276-277; Ranquist, Winters Doctrine, supra, note 3, at 655-56, 659.

120. Report of Special Master at 32-33 (1960).

121. Id. at 201-247.

122. Id. at 291-95.

123. E.g., wildlife refuges, wild and scenic rivers and national monuments, etc.

124. Report of the Special Master at 292-300 (1960).

125. Ranquist, The Winters Doctrine and How It Grew: Federal Reservation of Rights to the Use of Water, 1975 B.Y.U.L. REV. 639, 679.

126. See, e.g., 43 U.S.C. § 616K.

127. The Organic Administration Act of June 4, 1897, 16 U.S.C. § 475, ELR 41405 (1964).

128. The Multiple Use-Sustained Yield Act of June 12, 1960, 16 U.S.C. §§ 528-531, ELR 41406 (1964).

130. United States v. Truckee Carson Irrigation Dist., Civ. No. 2987 JBA (D. Nev., filed Dec. 21, 1973).

131. See Ranquist, Winters Doctrine, supra note 3, at 657-58. Mr. Ranquist notes that the Indian right may be defeated on other grounds owing to previous non-assertion. Id. at 658 n. 80.

132. See Reed, Should Rivers Have Running? Toward Extension of the Reserved Rights Doctrine to Include Minimum Stream Flows, 12 IDA. L. REV. 153, 165 (1976).

133. See, e.g., Delaney, Water for Oil Shale Development, 43 DENVER L.J. 72, 73 (1966); U.S. DEPT. OF THE INTERIOR, WATER FOR ENERGY, MANAGEMENT TEAM, REPORT ON WATER FOR ENERGY IN THE NORTHERN GREAT PLAINS AREA WITH EMPHASIS ON THE YELLOWSTONE RIVER BASIN (1975).

134. Executive Order No. 5327, April 15, 1930, available in 53 Interior Doc. 127 (1933); Executive Order of December 6, 1916; Executive Order of September 27, 1924.

135. Hillhouse, The Federal Reserved Water Doctrine — Application to the Problem of Water for Oil Shale Development, 3 LAND & WATER L. REV. 75, 76 (1968). [Hereinafter cited as Hillhouse, Water for Oil].

136. Delaney, Water for Oil Shale Development, 43 DENV. L.J. 72, 73 (1966).

137. See Executive Orders n. 134, supra.

138. See Hillhouse, Water for Oil, n. 135, supra, at 97-98.

139. The conclusion was not doubted before that time. See Nevada ex rel. Shamberger v. United States, 165 F. Supp. 600 (D. Nev. 1958), aff'd on other grounds, 279 F.2d 699 (9th Cir. 1960).

140. See Cappaert v. United States, 426 U.S. 128, 139-40, 6 ELR 20540, 20543 (1976).

141. Hillhouse, Water for Oil, n. 135, supra, at 95-97.

142. Cappaert v. United States, 426 U.S. 128, 140-41, 6 ELR 20540, 50543 (1976).

143. Proclamation No. 2961, 66 Stat. ch. 18, 17 Fed. Reg. 691 (1952), prescribing authority to manage the reservation in accordance with 16 U.S.C. §§ 1-3, 39 Stat. 585.

144. 16 U.S.C. § 1, quoted in Cappaert v. United States, 426 U.S. at 141, 6 ELR at 20543 (1976).

145. 16 U.S.C. §§ 431-433, 34 Stat. 225.

146. Cappaert v. United States, 426 U.S. at 141-42, 6 ELR 20543 (1976).

147. 36 Stat. 847, 37 Stat. 497.

148. 424 U.S. 800 (1976).

149. See Note, Federal-State Conflicts Over Control of Western Waters, 60 COLUM. L. REV. 967 (1960).

150. Report of the Special Master at 265-66 (1960).

151. United States v. Powers, 305 U.S. 527 (1938) and Skeem v. United States, 273 F. 93 (9th Cir. 1921) (non-Indian transferees of allotted lands in which Winters' rights were appurtenant); United States v. Hibner, 27 F.2d 909 (9th Cir. 1928) (Winters' rights transferrable to non-Indians, but thereafter subject to state appropriation law, especially as to divestment); cf. Federal Power Comm'n v. Oregon, 349 U.S. 435 (1965) (Indian consent to federal government power project on Indian reserved lands).

152. Report of the Special Master at 266 (1960) (emphasis added).

153. There is strong evidence that the government is violating its fiduciary obligation in the coal development context. See Veeder, Confiscation of Indian Winters Rights in the Upper Missouri Basin, 21 S.D.L. REV. 282 (1976).

154. See Meyers, The Colorado River, 19 STAN. L. REV. 1, 71 (1966).

155. The actual impact of the doctrine of implied reservation is not known. Although ultimately defending the conclusion that the effects will be substantial, one leading commentator has written, "There is an air of unreality to the controversy over the reservation doctrine. No one is badly hurt, at least as yet." Trelease, Water Resources on the Public Lands: PLLRC's Solution to the Reservation Doctrine, 6 LAND & WATER L. REV. 89, 103 (1970).

7 ELR 50043 | Environmental Law Reporter | copyright © 1977 | All rights reserved