23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

requiring bypass flows under specific grants of power under FLPMA and the Organic Act, and
the United States' inherent powers as property owner.
Intervenors rely on United States v New Mexico, 438 U.S. 696 (1978), in asserting that
Congress intended that water for fish and wildlife protection purposes be appropriated by the
Forest Service in priority and subject to the rights of prior users. In US. v. New Mexico, the
Supreme Court stated,
Where water is necessary to fulfill the very purposes for which a federal
reservation was created, it is reasonable to conclude, even in the face of Congress'
express deference to state water law in other areas, that the United States intended
to reserve the necessary water. Where water is only valuable for a secondary use
of the reservation, however, there arises the contrary inference that Congress
intended, consistent with its other views, that the United States would acquire
water in the same manner as any other public or private appropriator.
Id. at 702.
The Supreme Court determined that, pursuant to the Organic Act of 1897, Congress intended
national forests to be reserved for only two purposes — to conserve the water flows, and to furnish
a continuous supply of timber for the people. Id. at 707. "National forests were not to be
reserved for aesthetic, environmental, recreational, or wildlife - preservation purposes." Id. at 708.
In 1960, Congress passed the Multiple -Use Sustained -Yield Act ( MUSYA), which provides that
the national forests shall be administered for additional purposes, including wildlife and fish.
However, the New Mexico Court concluded that while MUSYA "was intended to broaden the
purposes for which national forests had previously been administered, ... Congress did not
intend to thereby expand the reserved rights of the United States." Id. at 713. The Court noted
that a reservation of additional water for secondary purposes "could mean a substantial loss in
the amount of water available for irrigation and domestic use, thereby defeating Congress'
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