AVONDALE IRRIGATION DISTRICT, Dalton Gardens Irrigation District, and Hayden Lake Irrigation District, Plaintiffs, v. NORTH IDAHO PROPERTIES, INC., an Idaho Corporation, et al., Defendants, and United States of America, Intervenor-appellant, and Robert J. Adamson et al., and R. Keith Higginson, Director of Water Administration, Idaho State Department of Water Administration, Intervenor-respondents. John SODERMAN and Martha Soderman, husband and wife, Farrell Stoor and Margaret Stoor, husband and wife, Frank Stoor and Pat Stoor, husband and wife, Oscar Vias and Verda Vias, husband and wife, Alfred Vias, a single man, Jack Nuffer and Phyllis Nuffer, husband and wife, Leith R. Somson and Virginia Somson, husband and wife, and Dan Moran, a single man, Plaintiffs, v. Dr. Evan KACKLEY and Lois Kackley, husband and wife, J. C. Smith and Vera D. Smith, husband and wife, Blue Mountain Grazing Association, Inc., a corporation, United States of America through the United States Forest Service, Department of Agriculture, the Bureau of Indian Affairs, Department of the Interior, the State Engineer, Department of Reclamation, State of Idaho, Defendants. R. Keith HIGGINSON, Director, Idaho Department of Water Resources, Cross-claimant, Appellant, v. UNITED STATES FOREST SERVICE, Cross-defendant, Respondent.
Nos. 12174, 12482
Supreme Court of Idaho
March 15, 1978
Rehearing Denied May 1, 1978
577 P.2d 9
BAKES, Justice.
These two cases, which have been consolidated on appeal, raise common issues concerning federal reserved water rights for non-consumptive use to the natural flow of several streams in two national forests.1 A brief statement of the cases’ histories will place these common issues more clearly in focus.
I
Soderman v. Kackley. This action was originally commenced by private parties to adjudicate their water rights in Gravel, Lincoln (Harrison) and Wayne Creeks in Caribou County. The Department of Water Resources and the United States were named as defendants.2 In its answer, the United States asserted as an affirmative defense that under the federal reservation doctrine it had non-consumptive water rights to the entire natural flow of these three creeks from the point where they arise in the Caribou National Forest to the point where they exit that national forest. The United States claimed that water right dated from January 15, 1907, the date the Caribou National Forest was reserved pursuant to presidential proclamation. The Department of Water Resources filed a cross complaint against the United States disputing the validity of that non-consumptive water right.
Following a trial in November of 1974, the district court found that the entire natural flow of these streams was necessary to preserve the forest ecosystems and fish and wildlife, to serve as fire barriers, and for recreational and aesthetic purposes. The district court concluded that these purposes were among those for which the Caribou National Forest was created, and therefore, under the federal reserved water rights doctrine, the United States was entitled to the non-consumptive water rights it claimed. A judgment to this effect was entered on April 14, 1975. However, because private parties had requested additional time to submit material for incorporation in a stipulation, that judgment did not adjudicate the water rights of those private parties. The Department of Water Resources appealed that judgment, but this Court dismissed the appeal because no final judgment had been entered adjudicating all the water rights between all the parties. Soderman v. Kackley (Soderman I), 97 Idaho 850, 555 P.2d 390 (1976). After a judgment determining the rights of the other parties had been entered by the district court, the Department filed this second appeal.3
Avondale Irrigation Dist. v. North Idaho Properties, Inc. This action was originally commenced by three Idaho irrigation districts to adjudicate water rights in Hayden Lake and its tributaries. The United States, as an intervenor, asserted water rights under the federal reserved water rights doctrine. The Idaho Department of Water Resources, also an intervenor, contested that claim. The district court ruled that the United States did hold reserved water rights, but required that those reserved rights be quantified. On appeal from that decision, this Court ruled that the United States is required by state law to quantify the amount of water claimed under the reservation doctrine at the time of a general adjudication of water rights. This Court remanded the case to allow the United States an opportunity to quantify those rights. Avondale Irrigation Dist. v. North Idaho Properties, Inc. (Avondale I), 96 Idaho 1, 523 P.2d 818 (1974). On remand, the district court reopened the proceedings for quantification of the reserved water rights, but in its order provided that “the Idaho Department of Water Resources may raise the issue of law of whether the United States is entitled to include in such quantification minimum stream flows.”
The United States claimed a non-consumptive right dating from November 6, 1906, the date the Coeur d‘Alene National Forest was reserved by presidential proclamation, to the entire natural flow of the Yellow Banks, Mokins and Hayden Creeks within the boundaries of the Coeur d‘Alene National Forest. All three creeks originate in the Coeur d‘Alene National Forest and are tributaries of Hayden Lake. The Yellow Banks and Hayden Creeks enter Hayden Lake on non-federal land. Mokins Creek enters the lake on national forest land, but only after crossing two intervening parcels of non-federal land. Various witnesses called by the United States testified that the entire natural flow of all three creeks is necessary to preserve fish cultures and for wildlife, recreational and aesthetic purposes. The testimony introduced at trial, however, primarily supported the claim that the entire natural flow is necessary to preserve the fish habitat. In addition, the United States introduced in evidence the historical maximum stream flow and annual volume within the boundaries of the national forest of these three creeks.4 The United States also claimed a minimum stream flow of 3.57 cfs from April 1 to June 30 of each year in the downstream part of Hayden Creek flowing through private land. Testimony indicated that this minimum stream flow is necessary to enable fish in Hayden Lake to swim upstream to the national forest for spawning.
The district court concluded that a claim to the entire natural flow is not a sufficient quantification and therefore ruled that any non-consumptive water rights of the United States would be limited to those maximum quantities specifically set out in evidence; any water in excess of those amounts would be subject to appropriation. The district court further ruled that the purposes for which the United States claimed these non-consumptive water rights—preservation of fish and wildlife, recreation and aesthetics, and fire and erosion control—were not the purposes for which the national forest was created and therefore the United States was not entitled to water rights for those purposes under the federal reserved water
In these two appeals the United States is not arguing that it has consumptive rights, rights to divert and consume the entire natural flow of the streams, but only that it has the right to the non-consumptive or instream use of the natural flow. Accordingly, the water rights claimed by the United States generally would not affect appropriators downstream of the national forests. The exceptions would be the minimum stream flow claimed in the portion of Hayden Creek crossing private land downstream of the Coeur d‘Alene National Forest and downstream appropriators who divert water upstream on the national forest for gravity flow or storage purposes. In theory the rights claimed by the United States would affect upstream users, but in these cases the streams involved all originate within the national forests. The claimed water rights would affect appropriative rights appurtenant to non-federal land within these national forests. The amount of non-federal land within the boundaries of these national forests is not insignificant. Testimony in Avondale, for example, indicated that within the Coeur d‘Alene National Forest there are approximately 44,000 privately owned acres and 13,480 acres owned by the State of Idaho.
The United States claims that these non-consumptive water rights date from the time these national forests were created—the Coeur d‘Alene National Forest in 1906, the Caribou National Forest in 1907. Accordingly, the United States acknowledges that the reserved rights it claims would be subordinate to water rights with priority dates prior to the creation of these national forests.
The Idaho Department of Water Resources does not dispute the federal reserved water rights doctrine or its applicability to these cases, but does dispute: (1) that the non-consumptive rights claimed by the United States are necessary to accomplish the purposes for which these two national forests were created; (2) that a claim to the entire natural flow is a sufficient quantification of those rights; and (3), in Avondale, that the United States is entitled to a right to a minimum stream flow downstream of the national forest on private land.
III
It is now well established that when the federal government reserves land from the public domain it also, by implication, reserves rights to the appurtenant and then unappropriated water necessary to accomplish the purpose of the reservation. This reserved water right vests on the date of the reservation and is superior to the rights of subsequent appropriators. Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976); Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); 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.
Similarly, in these two cases the United States asserts a reserved non-consumptive right to the natural flow of these several streams in two national forests. However, as the Supreme Court made clear in Cappaert, the United States is entitled to such a water right only if, and only to the extent it “is necessary to fulfill the purpose of the reservation, no more.” 426 U.S. at 141, 96 S.Ct. at 2071.
In Cappaert the United States Supreme Court ascertained the purpose for which the Devil‘s Hole National Monument was reserved by examining the presidential proclamation creating it and the statutory authorization for the reservation. We must do the same in these cases in order to determine the purposes for which the Coeur d‘Alene and Caribou National Forests were created.
These two national forests were created by presidential proclamations—the Coeur d‘Alene National Forest on November 6, 1906, 34 Stat. 3256, and the Caribou National Forest on January 15, 1907, 34 Stat. 3267.6 These proclamations do not indicate the purpose for the reservations, but do state that the reservations were made pursuant to section 24 of the Creative Act of 1891. Section 24 of that Act states:
“The President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as [national forests], and the President shall, by public proclamation, declare the establishment of such [forests] and the limits thereof.” Ch. 561, § 24, 26 Stat. 1095, 1103 (1891) (codified at
16 U.S.C. § 471 ).
That statute does not state the purpose for which the President may reserve public lands as national forests, just the requirement that the public land reserved be covered with timber or undergrowth. However, the congressional debates and memorials read in those debates suggest that Congress was concerned with the preservation of timber stands in order to assure a continuous supply of timber and the protection of watersheds in mountainous areas in order to control the water flows in the lower valleys.7
Six years later Congress passed what is now referred to as the Organic Administration Act of 1897.8 That Act provided that
national forests were to be established in accordance with the following provisions:
“All public lands heretofore designated and reserved by the President of the United States under the provisions of the Act approved March third, eighteen hundred and ninety-one, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as [national forests] under said Act, shall be as far as practicable controlled and administered in accordance with the following provisions:
“No [national forest] shall be established, except to improve and protect the forest within the reservations, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of the Act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.” Ch. 2, § 1, 30 Stat. 11, 34-35 (1897) (codified at
16 U.S.C. § 475 ).
In this Act Congress stated that national forests were to be established for the purpose of securing favorable conditions of water flows and a continuous supply of timber.9 The United States argues that the phrase “to improve and protect the forest within the boundaries” is a separate and distinct purpose for the creation of national forests and refers not only to the protection of trees, but also to the protection and improvement of the entire forest ecosystem, including fish and wildlife, and the forest‘s aesthetic and recreational qualities. This argument, however, finds no support in the legislative history of the Act. Despite repeated references in the congressional debates to the need to preserve timber resources and protect watersheds, no mention is made of fish and wildlife or the aesthetic and recreational qualities of the forests. Moreover, the Organic Act expressly provides that water within the national forest may be used for domestic, mining, milling and irrigation purposes.10 It would indeed be anomalous for this Court to infer, as the United States asks it to do in these cases, a congressional intent to reserve the entire natural flow of these streams when Congress explicitly authorized and contemplated private consumptive use of these same streams.
The Organic Act further provides that it is not to be “construed to prohibit the egress and ingress of actual settlers” or to “prohibit any person from entering upon such forest reservation for all proper and lawful purposes.”11 The Secretary of Agri-
“From the various acts relating to the establishment and management of forest reservations, it appears that they were intended ‘to improve and protect the forest and to secure favorable conditions of water flows.’ It was declared that the act should not be ‘construed to prohibit the egress and ingress of actual settlers’ residing therein, nor to ‘prohibit any person from entering upon such forest reservations for all proper and lawful purposes, . . . .’ (Citations omitted). It was also declared that the Secretary ‘may make such rules and regulations and establish such service as will insure the objects of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; . . . .’ (Citations omitted).
“Under these acts, therefore, any use of the reservation for grazing or other lawful purpose was required to be subject to the rules and regulations established by the Secretary of Agriculture. To pasture sheep and cattle on the reservation, at will and without restraint, might interfere seriously with the accomplishment of the purposes for which they were established. But a limited and regulated use for pasturage might not be inconsistent with the object sought to be attained by the statute. The determination of such questions, however, was a matter of administrative detail. What might be harmless in one forest might be harmful to another. What might be injurious at one stage of timber growth, or at one season of the year, might not be so at another.” Id. at 515-516, 31 S.Ct. at 482.
Congress chose not to prohibit all public use of the national forests, but chose to permit lawful uses of the forest land and water subject to regulation to insure that such uses did not interfere with the purposes, timber management and watershed protection, for which the reservations were created. However, the diverse uses which the public has made of the forests cannot be equated with the purposes for which they were originally created. Mimbres Valley Irr. Co. v. Salopek, 90 N.M. 410, 564 P.2d 615 (1977), cert. granted sub nom. United States v. New Mexico, — U.S. —, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978). See also McMichael v. United States, 355 F.2d 283 (9th Cir. 1965). Had Congress intended that national forests be created for the purposes of recreation, aesthetics, and fish and wildlife preservation, Congress would have so stated as it did in 1890 when Congress set aside public lands in California as “reserved forest lands” for the “preservation from injury all . . . natural curiosities or wonders . . . in their natural condition [and protection of] fish and game. . . .” Ch. 1263, §§ 1 & 2, 26 Stat. 650-51 (1890), and in 1916 in the National Park Service Act which provides that the “fundamental purpose of the said parks, monuments and reservations . . . is to conserve the scenery and the natural and historic objects and the wildlife therein
The United States also argues that the Multiple-Use Sustained-Yield Act of 1960,
“It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title.”
16 U.S.C. § 528 .
In response to this same argument, the New Mexico Supreme Court in Mimbres Valley Irr. Co. v. Salopek, supra, recently concluded:
“The Multiple-Use Sustained-Yield Act can just as easily be interpreted to exclude the additional purposes as part of the original intent of the Organic Act. The fact that Congress declared them to be ‘supplemental to’ the purposes for which the national forests were established clearly indicates that Congress did not envision them as having been included in the original Act. The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897.
“We thus conclude that the original purposes for which the Gila National Forest was created were to insure favorable conditions of water flow and to furnish a continuous supply of timber. Recreational purposes and minimum instream flows were not contemplated.” Id., 564 P.2d at 618.
We likewise conclude that the purposes for which the forests were created are determined by the law in existence at the time of their creation, and that the additional “supplemental” purposes described were not among those for which national forests were created pursuant to the Creative and Organic Acts. See West Virginia Div. of Izaak Walton League of Am., Inc. v. Butz, 522 F.2d 945 (4th Cir. 1975).
We appreciate the growing public concern for the protection of fish and wildlife and the preservation of the aesthetic and environmental qualities of the national forests. We are also sensitively aware of the increasing use of these forests for recreational purposes. We are likewise aware that in an arid state like Idaho there often is simply not enough water to fully accommodate all the worthwhile but competing uses. However, the United States Supreme Court made it very clear in Cappaert that claims for federal reserved rights are not to be analyzed in terms of an equitable balancing of competing interests, and we do not do so in these cases. Rather, the United States is entitled to previously unappropriated waters necessary to accomplish the purpose for which the reservations were originally created—no more and no less.
We conclude, therefore, that the Coeur d‘Alene and Caribou National Forests were created pursuant to the Creative and Organic Acts for the purpose of preserving a perpetual supply of timber and protecting watersheds to secure favorable conditions of water flows. United States v. Grimaud, supra; Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911); United States v. Shannon, 160 F. 870 (9th Cir. 1908); Honchok v. Hardin, 326 F.Supp. 988 (D.Md.1971); United States v. Johnston, 38 F.Supp. 4 (S.D.W.Va.1941); Mimbres Valley Irr. Co. v. Salopek, supra. The preservation of fish cultures and habitats and wildlife, and recreational and aesthetic purposes were not contemplated. Mimbres Valley Irr. Co. v. Salopek, supra. Accordingly, any non-consumptive water rights reserved by the United States in these two national forests are limited to the amount necessary to accomplish the purposes of timber and watershed protection.
In its conclusions of law in Avondale the district court ruled that fire and erosion control were not among the purposes for which the Coeur d‘Alene National Forest was created. This conclusion was erroneous. The control and prevention of forest fires is an integral part of the greater purpose of timber protection and a purpose clearly contemplated by Congress. Bassman, The 1897 Organic Act: A Historical Perspective, 7 Nat.Res.Law. 503 (1974). Similarly, erosion control is an integral part of watershed protection. However, a review of the record in Avondale reveals no testimony or other evidence that the non-consumptive use of the entire natural flow or any minimum stream flow is necessary for fire or erosion control.14 On the basis of evidence adduced at trial, we agree with the district court that the accomplishment of the purposes of timber and watershed protection in the Coeur d‘Alene National Forest does not require any minimum stream flow in the Hayden, Yellow Banks and Mokins Creeks. We have already concluded that the propagation of fish is not a purpose for which the Coeur d‘Alene National Forest was created. It follows, therefore, that the United States is not entitled to a minimum stream flow in the downstream portion of Hayden Creek crossing private land to enable fish to spawn in the national forest. For these reasons, we affirm the district court‘s decision in Avondale.
V
In Soderman the district court found that:
“[Finding of Fact] 6. The witnesses offered by the United States testified and I find that the non-consumptive use claimed under the federally reserved water right doctrine is necessary in this particular case in order to preserve the forest ecosystems, maintain timber growth, serve as a fire barrier, and provide vegetation and a stream bed conducive to maintenance of a viable fish hatchery for eastern brook trout. A reduction in the natural flow of the stream would destroy the aquatic fishery resources by degrading habitat, degrading beneficial cover of overhanging banks and bank vegetation which extends into the streamflow.
“[Finding of Fact] 7. The evidence also established wildlife and recreational usage of the natural flow of the three streams and that each stream adds to the aesthetic beauty of the forest as an integral segment and part of the forest reserve.
“[Finding of Fact] 8. The non-consumptive use claimed by the United States will preserve the streams in their natural condition for the use and benefit of the public and is also necessary for animal life, fishery, and recreational uses.”
Some of the purposes stated by the district court—timber growth and fire barriers—are of course part of the larger purpose of timber protection and therefore proper purposes for which the United States may claim a reserved water right. However, the other purposes forming the basis of the district court‘s decision—preservation of fish and wildlife, recreation, and aesthetics—are not. Since the district court did not find whether the entire natural flow of these streams is necessary for these purposes collectively or individually, we remand the case for further proceedings to determine what non-consumptive rights, if any, are necessary for the purposes of timber and watershed protection.
VI
Assuming arguendo that on remand in Soderman II the United States is able to prove that a non-consumptive right to the entire natural flow is necessary for these two purposes, the question whether the en-
In Avondale I we held that “under
“10.
I.C. 42-1409 . Note that reserved rights, unlike state created appropriative rights, do not depend upon diversion from the stream and application to beneficial use. 19 Stan.L.R. 1, at p. 65 (1967); Arizona v. California, supra; National Water Commission Report, Federal State Relations in Water Law, supra, at p. 147j. Likewise, since the doctrine is based upon the supremacy clause, it supercedes Idaho law on speculative water rights (see Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974)) since some speculation is necessarily required in a present quantification of reserved water rights.” Id. at 5, 523 P.2d at 822.
In these cases the United States argues that the right to the non-consumptive use of the entire natural flow of these streams is necessary to accomplish the purpose of the reservation. The periodic natural variations in stream flows with “just the flexibility which nature provides without interference by man” are said to fulfill the varying needs of the United States more effectively than could be done by any attempt to specify these varying needs in terms of cubic feet per second or acre feet. The United States is not arguing that a right to a fixed minimum stream flow, with any excess above the minimum flow available for appropriation, is necessary to accomplish the purposes of the national forests, but that the right to the entire natural flow with all its natural and seasonal variations is necessary for that purpose. Again, assuming arguendo that the United States can prove that a right to the entire natural flow is in fact necessary to accomplish the limited purposes for which the Caribou National Forest was established, then the United States would be entitled to that water right under federal law. In such case any application of
However, that does not mean that the United States is entitled to the entire stream flow in the Soderman case. There are strict standards which must be met in order for the United States to be entitled to the entire stream flow pursuant to its reserved water rights. In Cappaert the United States Supreme Court determined that the preservation of a rare desert fish species was the purpose for the creation of the Devil‘s Hole National Monument and that unless the water level in a pool in that monument was maintained at a specific minimum level the fish species would become extinct and the congressional purpose defeated. Accordingly, the Supreme Court ruled that under the federal reserved water rights doctrine the United States was entitled to maintain the water level of the pool at the minimum level necessary for preservation of the fish. That minimum level—three feet below a certain brass marker—was actually lower than the level of the pool prior to the inception of groundwater pumping by the Cappaerts, at which time the water level was only 1.2 feet below the brass marker. The Court did not rule that the United States was entitled to that 1.2 foot “natural” level below the marker, or that all groundwater pumping which caused any decrease in the level of the pool must be curtailed. The Court ordered the pumping curtailed only to the extent necessary to maintain the minimum level necessary for the accomplishment of the purpose of the reservation, the propagation of the fish, and no more.
If on remand in Soderman the United States can prove that the entire natural flow at all times is necessary to accomplish the purposes of the national forest, timber management and watershed protection, then it is entitled to that entire natural flow. However, water which merely contributes to or is helpful in achieving these purposes but the absence of which would not frustrate their accomplishment does not satisfy the test. A strict standard of necessity must be applied in these cases. Cappaert v. United States, supra.
Therefore, if on remand it is found by the district court that at any time in the seasonal and yearly variations in stream flows the entire natural flow will exceed the minimum flow necessary to achieve the purposes for which the Caribou National Forest was created, the court must find the necessary minimum flow so that the marginal excess may be available for use and appropriation. In such case,
Avondale, affirmed; Soderman, reversed and remanded.
McFADDEN and BISTLINE, JJ., concur.
SHEPARD, C. J., and DONALDSON, J., concur in Parts I through V.
SHEPARD, Chief Justice, dissenting.
I am unable to agree with and must dissent from Part VI of the majority opinion. In my judgment it errs in holding that the entire natural flow of the streams in question can be a sufficient quantification of the rights of the United States to waters of the streams. Such is merely another way of stating a minimum flow right.
The McCarran Amendment requires the federal government to submit its claims to water in streams to the adjudicatory process of the states. It is true that the federal government in those adjudicatory processes may assert “reserved rights” dating back to the establishment by Congress of the particular federal facility. To that extent as stated by the majority “federal law, because of the supremacy clause, supersedes Idaho law and controls the volume and scope of federal reserve rights.” That language was used in Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). I see nothing in the Cappaert decision or any previous decisions of the U.S. Supreme Court which even suggests, much less holds, that the United States, although a party to the adjudicatory state process, need not prove the need to its water rights in measurable quantities.
Clearly, in the instant case since we are dealing largely with claimed nonconsumptive uses, diversion and application to a beneficial use may not be required under our statutory scheme if such conflicts with preeminent federal law. I find no inconsistency in that view since the same result was reached in State Department of Parks v. Idaho Department of Water Administration, 96 Idaho 440, 530 P.2d 924 (1974), when an Idaho statute authorized and directed appropriation without diversion. That statute conflicted with and controlled over a prior legislative enactment requiring an actual diversion.
I am fortified in my belief and conclusion, as above set forth, by my analysis of the major cases in the field. The first significant case of the U.S. Supreme Court which established the doctrine of federal reserved water rights is Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Winters involved Indian lands in the state of Montana and as stated by Justice McKenna in his preliminary statement which is not part of the opinion,
“In the year 1889, and long prior to the acts of the defendants * * * the United States, through its officers and agents at the reservation, appropriated and took from the river a flow of 1,000 miners’ inches * * *. Afterwards, but a long time prior to the acts of the defendant complained of * * * the Indians residing on the reservation diverted from the river for purpose of irrigation a flow of 10,000 miners’ inches * * *.” 207 U.S. at 566, 28 S.Ct. at 208.
The Montana courts enjoined other persons from diverting waters upstream which would prevent the flow of the stream from reaching reservation lands in an amount necessary to satisfy the previously established irrigation needs of the Indians. That
Next came Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The major thrust of that opinion, of course, was the distribution of the waters of the Colorado river as between the various states. It seems as if the claims of the United States for the allocation of certain waters to not only Indian reservations but national forests, recreation and wildlife areas was almost an afterthought. It was only in the very late language of that opinion without any amplification, explanation or rationale that the Court reaffirmed the Winters doctrine and extended it beyond Indian reservation lands to national recreation areas and national forests. The Court, in my judgment, had clearly in mind the quantification of water and “the use of enough water from the Colorado to irrigate the irrigable portions of the reserved lands.” 373 U.S. at 596, 83 S.Ct. at 1496. There the Court affirmed the master‘s report which held there was, “reserved for all the reservations * * * about 1,000,000 acre-feet, to be used on around 135,000 irrigable acres of land.” Id.
Thereafter, of course, came the McCarran Amendment,
The Eagle series of cases, United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); United States v. District Court for Water Div. No. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284 (1971), arose in the Colorado courts and were ultimately decided by the U.S. Supreme Court. They were actions wherein the state of Colorado sought to utilize the provisions of the McCarran Amendment and the United States in turn contended that the McCarran Amendment did not relate to “reserved” waters which had been created in the Winters case. The Supreme Court rejected the contentions of the United States and held that the McCarran Amendment was controlling and affirmed the decree entered by the Colorado Supreme Court holding that the McCarran Amendment required the United States to adjudicate its reserved rights in a general state adjudication. Again, I see nothing in the Eagle cases which compels the conclusion that federal law will govern over state law in the process of adjudicating water rights of the United States as contrasted with those of private parties. [But see 401 U.S. at 526, 91 S.Ct. 998—also Cappaert indicates there is a federal question.] Specifically, I find nothing which would indicate the existence of any federal law which would exempt the federal government from quantifying its reserved water rights.
In March 1976, Colorado River Water Conservation District v. United States (Akin v. United States), 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, came down from the U.S. Supreme Court wherein the U.S. Supreme Court tightened down even further its decisions in the Eagle cases. There, the United States had attempted to go to the U.S. District Court in Colorado for a determination of its reserved water rights and thereby oust the Colorado courts from the jurisdiction established by the McCarran Amendment. The Supreme Court struck that effort down, albeit in some waffling language relating to the doctrine of abstention. The Court said, among other things in Akin,
“The clear federal policy evinced by that legislation [McCarran Amendment] is the avoidance of piecemeal adjudication of water rights in a river system. This policy is akin to that underlying the rule requiring that jurisdiction be yielded to
the court first acquiring control of property, for the concern in such instances is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property. This concern is heightened with respect to water rights, the relationships among which are highly interdependent. * * * The consent to jurisdiction given by the McCarran amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.” 424 U.S. at 819, 96 S.Ct. at 1247. (Emphasis supplied.)
I would interpret the above language as meaning, at least at this time, that the United States stands on no different basis in an adjudicatory process than any other party excepting only as to the backdating of its water right to the date of the reservation of the particular federal land for the particular federal purpose.
Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976), was decided June 7, 1976, shortly after the Akin case. Cappaert is unusual in that a state adjudicatory proceeding was held by the state of Nevada. Even though the United States was not a party to the proceeding, officials of the National Parks Service filed protest, appeared and testified and a decree was issued adverse to the position of the United States and no appeal was taken therefrom. Thereafter the United States sought and obtained an injunction in United States district court to limit the pumping from certain wells which allegedly lowered the level of the pool within which swam the fabled pup fish. The Cappaert opinion is brief, confusing and cryptic. No mention is made of the McCarran amendment nor of the Colorado cases just then recently decided by the U.S. Supreme Court. The reserved water rights doctrine was again affirmed and my best guess would be that Cappaert extended the doctrine of reserved federal water rights to ground water. The Court, however, blithely ignored that question since, although enjoining the pumping of underground waters, it simply stated, “Here, however, the water in the pool is surface water.” Nevertheless, I find no language therein which exempts the United States from the necessity of quantifying their claimed water right in a state adjudication process when the United States is a party thereto. Nor do I find any language which provides overriding federal law when the adjudication process is in the state court. It was noted that one of the reasons for the decision was that albeit the United States had filed a protest in the state adjudicatory process and had appeared and testified, nevertheless, it was not a party to the proceedings.
From the above I conclude there is no law as enunciated by the U.S. Supreme Court which exempts the federal government from stating its claimed reserved water rights in specific quantities.
In the case at bar the federal government made claim to consumptive water rights in precise quantities of water based on diversion and placement to beneficial use. Some of those consumptive rights were alleged to have a priority of 1882. At the same time and in the same stream the federal government claimed all the water on the basis of a reserved right with a priority of 1907. I cannot understand nor accept that illogical posture of the federal government. As to the exact position of the federal government in this case, I note the opening statement of counsel for the federal government, i. e., “Our right that we‘re claiming here under the reservation doctrine is just the right to have water continue to flow in its natural state.” (Emphasis supplied.)
As stated by the federal government witness Hanks,
“Q. Is it possible under what you just said that the United States could claim the entire natural flow of the Salmon River if necessary for [ecosystems] ecural systems?
A. Could be if necessary for [ecosystems] ecural systems.”
Even if the majority was correct in its analysis of the law, I submit that the evidence in the instant case was not sufficient to establish the federal government‘s need
“Q. How wide are these streams?
A. They‘re real narrow, I‘d say one to two feet.
* * * * * *
Q. But the creeks you‘re talking about aren‘t all necessarily an effective fire guard considering the small size?
A. That‘s true.”
I then arrive at my conclusion. Here the federal government desires to assert a right to a minimum flow of water in the particular streams. They attempt to mask their intent by arguing that their needs dictate their usage of water in the streams in a defined, quantifiable amount, to wit, all of it.
I submit that such is not such a required quantification as will permit an orderly adjudication and administration of the waters nor fair usage of the waters as between the government for its reserved rights/needs and those of private appropriators. Such certainly defeats the congressional intent and purpose as expressed in the McCarran Amendment.
It may be that the U.S. Supreme Court will ultimately decide the question in favor of the federal government. Suffice that day should come without encouragement or premature action by this Court.
DONALDSON, J., concurs.
Larry L. JACOBSEN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.
No. 12425.
Supreme Court of Idaho.
March 30, 1978.