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3 UNCERTAIN WATER RIGHTS The quantity of water that sustains park rivers, streams, lakes, wetlands, geysers, springs and seeps is not adequately protected by the "reserved right" doctrine or other water right systems. Increasingly, our national parks are facing demands to divert and use, and inevitably diminish, waters that are critical to maintaining their natural and aes- thetic values. Protection for park waters may often be available through establishment of a "water right" - a legal entitlement to a certain level of flows. But few park water rights have actually been legally asserted or confirmed. Moreover, the legal process for estab- lishing awater right is complex and expensive; the adjudicated water right may be inadequate to protect park values; and some parks may have no basis for a right at all. Finally, the Park Service has confronted serious political obstacles in merely trying to assert water rights that could protect park values. In short, the existing legal structure is not adequate to ensure protection of the water that flows through our parks. ^ Problems with protecting park water under the federal reserved water rights doctrine: The fed- eral reserved water rights doctrine provides the pri- mary legal basis for protecting park water resources against threats to water quantity. The doctrine was first directly asserted by the U.S. Supreme Court in protecting Native Americans' right to the water needed for productive use of tribal reservation lands.s It is based on a judicial inference that in "reserving" or setting aside federal lands for specified purposes, Congress intended also to "reserve" all of the water appurtenant to the land to the extent necessary to ful- fill the purposes of the reservation. Now treated more or less conclusively as a governing principle of law, the Supreme Court has expanded application of the doctrine to many other reservations of federal land, including national parks. Reserved rights, however, have yet to be legally established for waters in most national parks. And the Park Service and its attorneys face complex and uncertain legal standards and procedures in adjudi- cating and quantifying park reserved rights. First, there is danger that courts (primarily state courts) may misapply a 1978 U.S. Supreme Court case to improperly narrow the purposes for which parks' reserved rights may be claimed, thereby limit- ing the amount of water protected. In United States v. New Mexico,b the U.S. Supreme Court held that reserved water rights for the Gila National Forest were limited to the two narrow purposes specified by the 18971egislation authorizing the President to reserve national forest lands - "to conserve the water flows" of the forest and "furnish a continuous supply of timber." Concluding that the Gila Forest had been reserved (in 1899) under that original authorizing legislation, the Court held that reserved water rights for the forest could not be claimed for "secondary" purposes specified by later legislation in 1960 which directed that forests should also be managed for recreation, wildlife and fish. In the same New Mexico case, however, the Supreme Court contrasted the narrow purposes for which reserved rights could be filed for early national forest reservations with "the broader language Congress used to authorize the establishment of national parks." Stressing that the 1916 National Park Service Organic Act provides "an instructive compari- son" with the early national forest legislation, the Court emphasized that parks are reserved for all of the broad purposes identified in the Park Organic Act 21 The future of Zion National Parh's Virgin River, and of waters in many other parhs, depends on whether the Justice Department effectively defends, and the courts uphold, federal reserved water rights for parks.