Sierra Club v. Block

No. 84-K-2 (D. Colo. July 29, 1984)

The court rules that the United States holds federal reserved water rights in favor of national forest wilderness areas. The court rules that the United States holds reserved water rights any time it withdraws lands from the public domain. Although the United States therefore holds reserved rights for wilderness areas, the court declines to rule on the nature or extent of those rights, since the United States is party to a pending state proceeding where the issue may be settled.

The court proceeds to consider whether it may hear plaintiff's claim that the government has unlawfully failed to assert those rights in state proceedings. The court holds it has jurisdiction to hear the claim, and that the Sierra Club has standing. Further, the Forest Service has statutory authority to assert reserved water rights in state proceedings. The court rules that the Wilderness Act mandates assertion of the reserved rights if necessary to preserve wilderness character in perpetuity. The court declares that it will examine the administrative record concerning the Forest Service's decision not to assert the rights and determine if the decision was arbitrary, capricious, or otherwise not in accordance with law. Finally, the court dismisses the Colorado State Engineer from the suit, and denies motions for a speedy hearing and for attorneys fees.

Counsel for Plaintiff
Lori Potter
Sierra Club Legal Defense Fund
820 16th St., Suite 514, Denver CO 80202
(303) 892-6301

Counsel for Defendants
John Hill
Department of Justice
1961 Stout St., Denver CO 80294
(303) 844-2892

[14 ELR 20626]

Kane, J.:

Memorandum Opinion and Order

This is an action seeking declaratory relief because of the alleged failure of the Secretary of Agriculture and Chief of the Forest Service to claim federal reserved water rights for some 24 wilderness areas in Colorado. Plaintiff Sierra Club seeks a judgment declaring that the United States has federal reserved water rights in these wilderness areas and that the federal defendants have acted arbitrarily in not perfecting those rights in pending state proceedings.¹ Plaintiff also asks me to define the nature of these rights, to set a hearing on this matter and to award attorney fees under 28 U.S.C. § 2412. The matter is before me on separate motions to dismiss for lack of jurisdiction; one by the federal defendant, John Block, and the other by the state defendant, Jeris Danielson.

I. Reserved Water Rights

Plaintiff asks me to declare that the United States has federal reserved water rights in wilderness areas. The United States has reserved water rights any time it withdraws land from the public domain:

This Court has long held that when the Federal Government withdraws its lands from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In doing so the United States acquires a reserved water right in the unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.

Cappaert v. United States, 426 U.S. 128, 138 [6 ELR 20540] (1976). Unlike lands under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 701 et seq. (1976 as amended), wilderness areas have been withdrawn from the public domain. See Barker v. Harvey, 181 U.S. 481 (1901) (the public domain is subject to sale or disposal; wilderness areas are not so subject); cf. Sierra Club v. Watt, 659 F.2d 203 [11 ELR 20880] (D.C. Cir. 1981) (FLPMA lands are subject to disposal). No one in this case contests the fact that wilderness areas have been withdrawn from the public domain; therefore, the United States has reserved water rights which are unperfected at this time.

Even though the United States has unperfected reserved water rights in wilderness areas, I cannot determine the extent or nature of those rights. The United States has been joined in a pending state proceeding where such issue can be decided. I may only review the agency's decision not to perfect the reserved water rights. Thus, the request for a judgment defining the nature of such rights is denied.

II. Defendant Block's Motion to Dismiss

A. Jurisdiction

I find that jurisdiction over the parties is proper under 28 U.S.C. § 1331(a)² and the Administrative Procedures [sic] Act,³ 5 U.S.C. § 701 et seq. See also Califano v. Sanders, 430 U.S. 99, 97 (1977); Carpet, Linoleum and Resilient Tiles v. Brown, 656 F.2d 564, n.5 (10th Cir. 1981); City and County of Denver v. Bergland, 517 F. Supp. 155, 177 [12 ELR 20097] (D. Colo. 1981), modified on other grounds, 695 F.2d 465 (10th Cir. 1982). I also find that the Sierra Club has standing to sue as it represents the rights of its members who have alleged an injury in fact. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 73-74 [8 ELR 20545] (1978); Serra Club v. Morton, 405 U.S. 727, 734-35 [2 ELR 20192] (1972). The crucial inquiry, however, is whether I can review the Secretary of Agriculture's failure to claim reserved water rights in various wilderness areas.

B. Review of Agency Action

In order to review agency action, I must determine whether the Forest Service has the authority to fulfill plaintiff's request, the law that the Forest Service must follow and the standard of review. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 184, 28 L. Ed. 2d 136 [1 ELR 20110] (1971); Denver v. Bergland, supra, 517 F. Supp. at 180. As to the first requirement, I find that 16 U.S.C. § 526 gives the Forest Service authority to assert reserved water rights on behalf of the United States in state court:

There are authorized to be appropriated for expenditure by the Forest Service such sums as may be necessary for the establishment of water rights, including . . . protection of water rights necessary or beneficial in connection with the administration and public use of the national forest.

See also United States v. District Court, 401 U.S. 520, 525 [1 ELR 20189] (1971). It is inconsequential whether the Justice Department actually litigates the issue in state court because of the presumption that an agency will do what it is lawfully required to do. Dunlop v. Bachowski, 421 U.S. 560 (1975). Dunlop also asserts that the proper remedy upon a finding that an executive agency wrongfully withheld suit is to presume that it will proceed appropriately after the court's ruling.

Secondly, I must determine what law, if any, the agency must follow. The law which the Forest Service must follow in asserting reserved water rights is set out in 11 U.S.C. § 1131(1) which directs that wilderness areas

shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character . . . .

This standard, to preserve the wilderness character for future use, [14 ELR 20627] is infused by the doctrine of reserved water rights to preserve the purpose of the reservation. This does not mean, however, that reserving the rights is the only way to preserve the purpose of the reservation. In this review, it is appropriate to examine whether the Forest Service's alternatives, if any, do indeed preserve the wilderness character for future use, which means use in perpetuity.

Thirdly, I must determine the standard of review. Since there was no adjudicatory hearing regarding the failure of the Forest Service to assert reserved water rights, the substantial evidence standard of review does not apply. See Overton Park, 401 U.S. at 414. I am limited to determining whether the agency's choice was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making this determination I must consider whether the agency's decision was based on a consideration of relevant factors and whether there has been a clear error of judgment. 401 U.S. at 416; Denver v. Bergland, 517 F. Supp. at 180. I do not compete with the agency; I review its decision and will affirm the decision if a rational basis is offered. Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 290 (1974). However, the review is not superficial: "the inquiry into the facts is to be searching and careful . . . ." 401 U.S. at 416; 517 F. Supp. at 181. If the agency has completely ignored the purposes of the statute, then it has abused its discretion. Carpet, Linoleum, 656 F.2d at 568. If the agency proposes alternatives that in fact preserve the wilderness character of the land in perpetuity, I may not order a different path to be taken even though to some it may be a better one. I may only direct an agency to do what it is required to do — no more.

In summary, the requirements for jurisdiction are satisfied because there exists a cause of action which is ripe for resolution. Therefore, I deny Block's motion to dismiss for lack of jurisdiction.⁴ I hereby orderthat the defendants present, within twenty (20) days, the administrative record for review in accordance with 5 U.S.C. § 706.

III. Defendant Danielson's Motion to Dismiss

Jeris Danielson, the Colorado State Engineer, has also moved for dismissal. He is in the case because plaintiff wants me to order him to distribute the United States' water rights, according to his statutory duty, if the United States does indeed perfect its water rights. This issue is not ripe for review, however, as it is not at all apparent that the United States will have to perfect its rights in the state proceedings. Even if the issue were ripe, as a federal judge I have no jurisdiction to tell Danielson how to fulfill his state statutory duties. Pennhurst State School and Hospital v. Halderman, U.S. , 104 S. Ct. 900 (1984). He is therefore dismissed from this action.

IV. Remaining Motions

I must deny the remaining motions for a speedy hearing under Rule 57 F.R. CIV. P. and attorney fees under 28 U.S.C. § 2412. Plaintiff has made no showing that time is of the essence in the state court proceedings and I can think of no other reason for granting the motion. Neither has plaintiff shown that counsel for defendants have acted other than as "reasonable litigation attorneys," see Blanchettev. Heckler, __ F. Supp. __ (D. Colo. 1984); Trujillo v. Heckler, 582 F. Supp. 701, 704 (D.Colo. 1984), therefore the motion for attorneys' fees is denied.

1. The United States has been joined, pursuant to the McCarran Act, 43 U.S.C. § 666 in several state water adjudications. These proceedings convern water rights which may affect the 24 wilderness areas. By the McCarran Act, the United States explicitly gives consent to joinder in a state court proceeding to adjudicate water rights. It waives sovereignimmunity in these proceedings and also waives the defense that state law does not apply against it.

2. 28 U.S.C. § 1331(a) provides that "[t]he district courts shall have original jurisdiction of all civil actions wherein the matter . . . arises under the Constitution, laws, or treaties of the United States . . . ." No jurisdictional limit exists in suits against the United States, or its agencies, officers or employees acting in official capacity.

3. 5 U.S.C. § 702 provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review . . . ." Sovereign immunity of the United States is waived in actions under the APA.

4. In his brief, Block argues that the United States has other ways to protect the purpose of the wilderness areas besides asserting the reserved water rights. This may be so, but such requires a factual determination. Under a Rule 12(b) motion I may treat the motion as one for summary judgment but only if all the parties have been "given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Summary judgment, however, is not possible in a review of agency action. The determination must be made upon a review of the administrative record. Riverside Irr. Dist. et al. v. Andrews, 568 F. Supp. 583 [13 ELR 21091] (D. Colo. 1983).