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. . . . . 0243rhere is further no support for the Solicitor's assertion that (1) the 1926 Executive Order applies to lams which becorre of the character contenplated in the order subse::Iuent to the date of the order, 56/ and (2) also applies to lands upon which is located a spring or a water hole for which a private vested right to use the water was granted under state law, but which was subsequently abandoned or forfeited. 57/ As previously noted, Section 10 of the Stockraising Hanestead Act of 1916 speaks in tenus of the witlrlrawal of lands urrler a prior act; namely, the pickett Act. As noted by the authors of the exhaustive study of reserved rights prepared for the Public Lard Law Review Can- mission in 1969: "'L'he Picket Act does not appear to authorize the issuance of such "floating" orders, but contemplates withdrawals by the executive of specific lands." 58/ While conceding that the language an::l. legislative history of public ,and water role vlithdrawals canpels the conclusion that the purposes were "relatively narrO\-l arul specific," 59/ the Solicitor concludes that the quantity of water reserved at each-and every public water hole and spring is the total yield of each source. 60/ Furthennore, contrary to a decision by the Tenth Circuit in 1976, 61/no exception is ITBde for springs which are a tributary to water courses or other lxxlies of surface water off the reservation. The Solicitor's opinion in this regard is contrary to recent Supreme Court pronouncerrents concerning the scope of reserved rights. In united States v. New Mexico, 62/ the Court reviewal its earlier decision in Cappaert v. United States.-63/ There, the Court upheld the government's claims to reserved rights in a pool of water in Devil's Hole in order to preserve a species of desert pupfish. Hcwever, the Court Emphasized that Congress reserved "only that amount of water necessary to fulfill the purpose of the reservation, no m:Jre." In discussing this case, the Court in the New Mexico case stated as follows: "Without a certain quantity of water, these fish would not be able to spawn arrl would die. This quantity was therefore impliedly reserved when the rronurrent was proclaimed..." The Court, hO\-lever, went on to note that the pool, "need only be preserved, consistent with the in- tention expressed \-lith the proclamation, to the extent necessary to preserve it's scientific interest... The district court thus tailored it's injunction, very appropriately, to minimal need, =tailing puq:>ing only to the extent necessary to preserve an adequate water level at Devil's Hole, thus implementing the stated objectives of the proclamation." 64/ The decisions by the Court in these cases came as a result of a careful examination of I:oth of the asserted water right and the specific purposes for which the land was reserved. It is difficult to conceive of the same court accepting the ki:rrl of blanket claim to the entire yield of springs am water holes on lands withdrawn fran the public danain around the western states, as asserted by the Solicitor's opinion. If a reserved right is relied upon, at the very least it is required that it be limited to minimal need. '!he Solicitor asserts that the purposes of the spring an::l. water hole withdra\-lals are stock watering, human consumption, agriculture irrigation, and flocxl, soil, am erosion control. Such a broad inter- pretation nu.lSt be considered as based entirely on speculation, for no -9- 90.