Reserved Water Rights for Wilderness Areas - Current Law and Future Policy
By Brian T. Hansen
INTRODUCTION
The Wilderness Act of 1964 established the National Wilderness Preservation System in order to assure that continued settlement and mechanization did not “occupy and modify all areas within the United States . . . leaving no lands designated for preservation and protection in their natural condition.” Under the Act:
[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, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness.
Pursuant to the Wilderness Act, lands previously classified by the Secretary of the Agriculture as “wilderness,” “wild,” or “canoe” became wilderness areas. In addition, the Secretary was directed to consider the suitability of “primitive” forest lands under his jurisdiction for possible wilderness designation and to report the findings to the President, who would make recommendations to Congress. Similarly, the Secretary of the Interior was required to review roadless areas of five thousand acres or more in national parks and other areas under his jurisdiction for possible wilderness designation. Since 1964, approximately 450 wilderness areas have been established within national forests, parks, monuments and wildlife refuges and on Bureau of Land Management (BLM) lands.
Recent controversy has arisen over whether the creation of wilderness areas impliedly reserves water under the “federal reserved water rights” doctrine. Courts have previously used this doctrine to provide national parks, forests, recreation areas, wildlife refuges, and other federal land reservations with water rights sufficient to meet the needs of these areas, subject only to preexisting water rights. However, a July 1988 opinion of the Solicitor of the Department of the Interior concluded that wilderness designation does not give rise to federal reserved water rights. The 1988 Solicitor's Opinion “modified and superceded” a 1979 Solicitor's Opinion which concluded that reserved water rights do exist for wilderness areas.
Judicial authority defining possible federal reserved water rights for wilderness areas is extremely limited. However, in Sierra Club v. Block, (styled Sierra Club v. Lyng on remand), the district court held that wilderness areas previously designated as national forests and currently located within national forest boundaries have federal reserved water rights. The case is currently on appeal in the United States Court of Appeals for the Tenth Circuit. Block and Lyng are the only published court decisions discussing possible federal reserved water rights for wilderness areas.
This note analyzes the controversy over federal reserved water rights for wilderness areas. Section I examines the history of the federal reserved water rights doctrine and predicts that the controversy over federal reserved water rights for wilderness areas will intensify as more BLM lands receive wilderness designation. Section II analyzes the central issues of the controversy through an examination of Sierra Club v. Block and concludes that wilderness areas meet the traditional requirements for receiving federal reserved water rights. Section III discusses section 4(d)(6) of the Wilderness Act and the conclusion of the 1988 Solicitor's Opinion that this section waives possible federal reserved water rights for wilderness areas. Section IV reviews recent Congressional sentiment that wilderness legislation should expressly address the reserved water rights issue and suggests possible strategies for wilderness advocates.
The Wilderness Act of 1964 established the National Wilderness Preservation System in order to assure that continued settlement and mechanization did not “occupy and modify all areas within the United States . . . leaving no lands designated for preservation and protection in their natural condition.” Under the Act:
[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, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness.
Pursuant to the Wilderness Act, lands previously classified by the Secretary of the Agriculture as “wilderness,” “wild,” or “canoe” became wilderness areas. In addition, the Secretary was directed to consider the suitability of “primitive” forest lands under his jurisdiction for possible wilderness designation and to report the findings to the President, who would make recommendations to Congress. Similarly, the Secretary of the Interior was required to review roadless areas of five thousand acres or more in national parks and other areas under his jurisdiction for possible wilderness designation. Since 1964, approximately 450 wilderness areas have been established within national forests, parks, monuments and wildlife refuges and on Bureau of Land Management (BLM) lands.
Recent controversy has arisen over whether the creation of wilderness areas impliedly reserves water under the “federal reserved water rights” doctrine. Courts have previously used this doctrine to provide national parks, forests, recreation areas, wildlife refuges, and other federal land reservations with water rights sufficient to meet the needs of these areas, subject only to preexisting water rights. However, a July 1988 opinion of the Solicitor of the Department of the Interior concluded that wilderness designation does not give rise to federal reserved water rights. The 1988 Solicitor's Opinion “modified and superceded” a 1979 Solicitor's Opinion which concluded that reserved water rights do exist for wilderness areas.
Judicial authority defining possible federal reserved water rights for wilderness areas is extremely limited. However, in Sierra Club v. Block, (styled Sierra Club v. Lyng on remand), the district court held that wilderness areas previously designated as national forests and currently located within national forest boundaries have federal reserved water rights. The case is currently on appeal in the United States Court of Appeals for the Tenth Circuit. Block and Lyng are the only published court decisions discussing possible federal reserved water rights for wilderness areas.
This note analyzes the controversy over federal reserved water rights for wilderness areas. Section I examines the history of the federal reserved water rights doctrine and predicts that the controversy over federal reserved water rights for wilderness areas will intensify as more BLM lands receive wilderness designation. Section II analyzes the central issues of the controversy through an examination of Sierra Club v. Block and concludes that wilderness areas meet the traditional requirements for receiving federal reserved water rights. Section III discusses section 4(d)(6) of the Wilderness Act and the conclusion of the 1988 Solicitor's Opinion that this section waives possible federal reserved water rights for wilderness areas. Section IV reviews recent Congressional sentiment that wilderness legislation should expressly address the reserved water rights issue and suggests possible strategies for wilderness advocates.
