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. . Kleppe v. New Mexico 104/ was also not a water rights case. The Court held that the federal Wild Free-Roaming Horses arrl Burros Act preenpts enforcement of the New Mexico's estray law. A three-ju:J.ge court had held that the wild Horses Act was unconstitutional, because it was in excess of Congress' power un::ler the property clause. The Suprere Court reversed. The Court noted the detailed firrlings which Congress had rrade on the need to protect wild horses and burros as an integral part of the public larrls. In reviewing con:;ressional intent, the Court noted that "while courts must eventually pass upon them, detenninations under the property clause are entrusted primarily to the judgement of Congress." 105/ Thus, while the case IlI3kes it clear that the property clause gives Congress the authority to enact le:jislation protecting federal property, it does not sustain similar prercgatives on the part of an administrative agency in the absence of explicit congressional directions. Kleppe is particularly inappropriate where con:Jressional intent has been declared to be that federal agencies will cCIUflly with state law for the acquisition of water rights, with the exception of the reservation d=1:rine arrl the navigation servitu:J.e, . " , The case of United States v. Grand River Darn Authority 106/ in- volved the question of whether the construction of a hydroelectric power project on a non-navigable river by the United States involved a t:akin:J un::ler the 5th arneru:lrrent, because it frustrated the darn authority's expectations to develop a hydroelectric project at the sane site. The federal power project was a part of a =nprehensive plan for regulation of navigation, floed control an:1 pc:Mer developuent on the Arkansas River, a navigable river in Oklahcma. The Suprerre Court held that the dam authority's interests were not canpensable because an assertion of the United States superior authority un::ler the corrmerce clause to inprove navigation is not a taking under the fifth arrendment. Thus, the case does not support a so-called non-reserved water right, but rather involves United States supremacy over navigation un::ler the camerce clause. . The SU[Jrane Court's decision in United States v. District Court for Eagle County 107/ is also cited by the Solicitor. The Court held that the United States is subject to the jurisdiction of state courts in a general stream adjudication pursuant to the /1cCarran Arren:lrrent. The Court specifically held that all federal rights are subject to such adjudication. The Solicitor refers to the phrase in the McCarran Amendment "water rights which the United States has othe:rwise acquired" as an indication of the existence of non-reserved rights. H~ver, the Court in Eagle County specifically interprets "otherwise" to ITEaI1 reserved rights. 108/ The Solicitor draws partiCUlar attention to the language by the Supreme Court in Cappaert v. United States 109/ to the effect that "federal water rights are not depenient upon state law or state pro- cedures...." 110/ Cappaert was a reserved rights case, which upheld ,the goverrnrent's claim to reserved rights to protect a species of pupfish. The ci ted language must be examined in context and there is nothing in the opinion to show that the Court was considering anything other than a reserved right. The Court's language was in response to the petitioner's argl.lrrent, as restated by the Court, that "the federal goverrnrent must perfect its :implied (reserved) water rights according to state law." 111/ Thus, the language cited by the Solicitor does not support the proposition of another exception to state jurisdiction in the fom of non-reserved federal water rights, . -16- 90.