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0031:Q oo~ci.<=\ Potter ~ co"'iA..dfrcm Pag.l while western states' SlalUtes, !he law of reserved rights. and popular sentiment3 now support strollg protection for wilderness water resources, there remains a strong resistance to this notion. That resistance - and the controversy over Block - seem to be , grounded in a philosophic disagreement over the desirability of wilderness waler protection, rather than in a legalistic disagreement Over the existence of a wilderness reserved righL Sierra Club v. Block contained a thorough. 'careful analysis of the underpinnings of (edernlly reserved water rights, beginning with the 1899 Rio Grande case.4 In doing so, the opinion made a logical extension of the doctrine which ensures the government adequate water as a propeny right incident to (ederallandownership. This line of cases, culminating in Uniled Slales v. New Mexico,S makes the applicability of the doctrine to wilderness areas clear; in the court's words, It is beyond cavil that water is the li(eblood of the wilderness ar~s. Without water, the wilderness would become desened wastelands. In other words, without access to the requisite water, the very purposes (or which the Wilderness Act was established would be entirely def~ted. 6 Thus,' wilderness areas lOOk their place with national parks,1 national monuments,S national recreation areas and wildlife refuges,9 military facilities, to national forests,ll and Indian reservationsl2-alJ of which have been found to possess reserved water rights. More so than any of the other varieties of federal reserved rights, wilderness water rights inure to the sole and direct benefit of the land itself. Unlike [ndian irrigation rights, the wilderness water right is entirely in place and nonconsumptive: unlike some of the rights for parks and (orests, the wilderness water right serves no administrative purposes. since there are no visitor cemers or administrative living quarters within the wilderness areas. Unlike national forest rights, wilderness water rights protect fish and wildlife habilat and do not compete with water collection or diversion systems for flows, since the Wilderness Act and the reserved right limit water collection to the forest, BLM, or private lands downstream.13 Unlike water rights reserved for hydropower production. wilderness water rights exist to protect natural flow regimes. Thus, a wilderness reserved right is clearly and unmisUlbbly a right for preservation purposes. It srands in stark contrast to the rights exercised and administered in traditional ways, through dams, canals, pipelines, and ditches. But its value is manifesL Providing strong protection for wilderness water resources guarantees the integrity of our world-renowned wilderness. First, this fosters the tourist inJustry, one which direcrly or indirectly supplies at least 104,400 Coloradans with a job.l4 Not only is lOIlrism the SlalC'S third largest industry, it is a relatively stable industry, somewhat insulated from the vicissitudes of teChnological development and international economics that rock the energy and agricultural sectors. Wilderness constiUJles an important part of the tourist dr.lw: to nibble it away with water projects and diversions would undermine that dr.lw. Second, as Congress Slated in the legislative process. wU~' , and its water resources serve as a son of "laboratory" for scientific slUdy.IS Existing in its untouched condition, wilderness provides us with a baseline or control against which changes in the environment can be compared and tested. For example, pristine mountain lakes, untouched by other types of pollution, form an imponant part of the sample in tests 10 determine the scope and effects of acid rain. By protecting endangered plant and animal species and by preventing the endangerment of others, wilderness enhances the pool of genetic diversity from which researchers can draw. The legislative process which resulted in the Wilderness Act explicitly acknowledged that wilderness shelters a myriad of lifc forms whose impact on the future of humanity may be greater than anyone of us can yet realize.16 TItinI. wilderness protects the quantity and the quality of Our drinking water. The Wilderness Act's prohibitions on mining and timber cutting prevent contamination and erosion of our alpine watersheds. Wilderness wetlands buffer our critical groundwater supplies. (The wetlands which were protected in the 1964 designations alone were estimated 10 have an acquisition value of $150 million.) Watershed protection was a primary motive of Congress in eSlablishing a wilderness preservation system, and the Court in Sierra Club v. Block found that a wilderness reserved right fulfills that purpose,17 Finally, wilderness water protection is a component o( the important philosophic purpose which wilderness serves. Plainly, the existence of wilderness is critical for those who use it for recreation and spiritual regeneration. But additionally. wilderness serves a special purpose for others who are not wilderness users themselves: those who take comfon in knowing that it is there, that it serves science, that it protects water, and that it awaits future generations. This powerful notion has come to be known as the "bequest value" of wilderness. In sum, wilderness figures into our conception of the quality of life, for ourselves, for others. and for future generations. ,I The initial reaction against Block - panicularly in response to the Coon's preliminary ruling that the right existslS - ignored the benefits of wilderness water protection and fell into three general categories: st:lte court eonlrol, anledation, and nOlice. Traditional water uscrs complained that federal reserved rights fall "outside the prior appropriation system." This claim does not jive with a firm line of precedent, placing the adjudication of these rights in state couns.19 While reserved rights have different elements of proof than do appropriative rights, the steps for the actual adjudication of either one are essentially identical, and the areoa for adjudication is the SlJIte system. The reserved right's ability to oblain anledation (i.e., a priority as of the date the reservation was eslablished) played a central pan in the resistance to the fU'St general reserved rights adjudications. since those cases involved national forests whose establishment dated to the turn of the eentury.2C Such was not the case with Colorado's 2.5 million acres of wilderness, some of which daleS to 1964, but the bu\Jc of which received Congressional designation as recently as 1980. Thus, neither the non,appropriative nature of the right, nor the antedation principle gave cause for extraordinary concern. -2- (CofllVslUd 0'1 Pagt 5)