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Beaton, <<m'u.wdfrom Pa,. 1 0 lJ 313 4 Incfuin reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.2 The potential impact of this doctrine is enormous, since the federal govemment owns an average of 46% of the lands in westem states; over 60% of the average annual water yield in these states is from federal land reservations. Many of the federal land reservations (national forests, national parks and monuments, elc.) were established in the late 1800's and the early pan of this century. As such, the creation of the federal reservations has generally been prior in time 10 a substantial amount of water development on western rivers and streams. Thus, the claimed reserved rights, with an effective priority date as of the establishment of the federal land reservation, would be senior to, and satisfied before, private water rights initiated after the reservation. The National Water Commission noted several elements of the reservation doctrine that connict with state water law: If a reserved Federal water right is delermined to have been created, it has characteristics which are quite incompatible with Stale appropriation water law: (I) it may be created Willwul diversion or beneficial use, (2) it is not lost by nonuse, (3) its priority daleS from the lime of the land withdrawal, and (4) the measure of the right is the amount of water reasonably necessary 10 satisfy the purposes for which the land has been withdrawn.3 What is harsh and inequitable about the implied reserved water doctrine is its polentially disruptive affect on state appropriations. Farmers, ranchers, cities, and companies commenced using water with virtually no notice of the federal claims. The Stale appropriators have used and relied on their water rights for decades and now face the prospect of panial or complete curtailment of their water use. In practice, the adjudication of federal reserved waler rights has infrequently resulted in contlicts with state waler rights. This is because most federal land reservations (national parks and forests) are located at the headwaters of river systems in mountainous areas where there are few state water rights. Of course, there are exceplions--\he most common ones being transmountain diversion projects. In rare instanccs. the federal land reservations are silualed at the bottom of the river drainage (see Dinosaur National Monwnen~ for example),4 and reserved instream tlow rights for these reservations would drastically affecl the upstream state water rights. As to whether federal reserved water rights in wilderness areas will affect stale water users, opinions arc divided. Given that there are genuine contlicts between state and federal waler rights, discussion of the implied reservation doctrine is. therefore, nOl an idle exercise. Determination of the extent of federal reserved water rights is currently taking place in both state and federal couns. In a recent decision, Sierra Club, v. Block,S the implied reserved water rights doctrine was used for the purpose of flllding that reserved water rights existed for Colorado wilderness areas. This opinion is troubling because at the time that Congress passed the Wilderness ACl6 it was familiar with a number of legislative proposals addressing federal reserved water rights. If Congress intended to reserve water rights for wildemess areas, why did it not do so explicitly? In Ibe context of wilderness areas and recently. established federal reservations, the doctrine of implied reserved water rights has outlived its purpose. In order 10 set the stage for this discussion, a brief recount of the history of the doctrine is necessary. History of the Doctrine of Implied Reserved Water Rights. At the outset it must be understood that the doctrine of implied federal reserved rights has always been an extraordinary exception. When the West was seuled, no laws were in place to govern use of water, and as a matter of necessity people diverted water from the streams and applied it 10 beneficial use. Soon a body of customary water law developed, based on the concept of prior right, which regulated mining claims. This law of prior righ~ also known as the appropriation doctrine, was codified early on in many of the western staleS' cOlIStilutions and statuleS. Congress, rather than enacting general federal water laws, encouraged the developmenl of individual state water laws. By a series of acts starting in 1866, Congress deferred to the water laws that had been passed in the western Slates, and recognized water uses made by private appropriators pursuant to those laws'? 'Thc end result is a set of state water laws which pervasively conlrolthe use of water in western states. The notable anomaly to state water laws is the implied reserved rights doctrine. Its roots extend back to the United States Supreme Court's decision in Winters v. United Stales.s There, the Court construed an 1888 treaty seuing aside a land reservation for the Gros Ventre and Assiniboine Indian tribes. The reservation, known as the Fon Belknap Indian Reservation, borders the Milk River. When seltlers began occupying lands surrounding the reservation, a dispute arose between the settlers, the federal government, and the Indians over the use of water from the Milk River for irrigation and stockwalering, The Supreme Court recognized Ibat the federal government had the power to reserve water and exempt il from appropriation under state law, and held that the government, in establishing the reservation. had reserved water of the Milk River for the benefit of the Indians; therefore, the Indians' entitlement to use of the Milk River was superior to thaI of the subsequent settlers. The Court acknowledged that the case "as we view i~ turns on the agreement of May, 1888, resulting in the creation of Fort Belknap Reservation".9 Tne treaty contained no express reservation of the waters of the Milk River. While noting that there was a contlict of implication as to whether water had been reserved. the Court deferred to the rule that in interpreting agreements with Indians, ambiguities would be resolved in the Indians' favor. The issue faced by the Supreme Court in Winters. and the methcxl used by the Court in addressing that issue, should nOl be lost in the myriad of complexities surrounding the implied reservation doctrine. The Court was called upon to construe a statute of law, in that case a treaty. and in so doing the Court resorted to the standards governing interpretation of statutes and laws. -3- Until 1955. it was commonly believed thai the existence of (CofIJUuud 0'1 Pall! 4)