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Bea tO~r <"",,,..,4 fr"'; P.,d (l 0 31 3 5 implied reserved water rights was limited solely 10 Indian reservations. In that year the United Slates Supreme Court handed down its decision in Federal Power Commission v. Oregon.1O 'The controversy really dealt with the Federal Power Commission's authority 10 issue a license for a hydroelectric plant on the Deschutes River in Oregon, though the majority and dissenting opinions spent considerable time discussing the applicability of Slate water laws, The dictum in the majority opinion led one 10 conclude that there could be reserved water rights for all federal land reservations, not just Indian reservations. The disscnt of Justice Douglas in Federal Power Commission v. Oregon is instructive. After pointing out that Congress had a long- term policy of deferring 10 Slate water laws, he noted: I assume that the United Slates could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and why should we not construe any law as achieving that result unless the purpose of Congress is clear. . . . If by mere Executive action the federal lands may be reserved and all the water rights appunenant 10 them returned to the United States, vast dislocations in the economies of the Western Slates may foUow.... Federal officials have long sought that authority. It has been constantly denied them. We should deny it again) 1 Perhaps more important than the Supreme Coun's opinion in Federai Power Commission v. Oregon was the stir it created. Beginning right after the decision and continuing on inlO the 1970's bills were introduced in Congress 10 resolve the difficulties presented by the implied reservation of federal water rights doctrine)2 There is no doubt whatsoever lhat from 1955 on Congress was weil aware of lhe concept of federal reserved water rights. While Congress debated lhe manner in which federal reserved water rights should be addressed, the courts carried on the business of determining lhe existcnce of lhese rights. In Arizona v. California.t3 almost as an afterthought, lhe Coun agreed that the United States intended 10 reserve water sufficient for a national recreational area, two national wildlife refuges. and a national forest 14 In Cappaert v. United SIates,I5 the Coun upheld a reserved water right for a pool containing a peculiar species of desen fish found nowhere else in lhe world. The significant feature of lhe Cappaert decision is that lhe reservation lhere was express, not implied. 'The law establishing lhe Devil's Hole National Monument, a 1952 Presidential Proclamation, specifically referred to the outstanding scientific importance of lhe pool. and the Supreme Coun properly ruled that "[t]he pool need only be preserved, consistent with the intention expressed in the Proclamation. to the extent necessary 10 preserve its scientific inlereSt" t6 The contours of lhe implied reservation of water doctrine were circumscribed in United States v. New Mexico.17 'The Coun , ' determined that national forests were not primarily reserved for aesthetic, environmental, recreation, or wildlife preservation uses, and thus rejected claims to Implied reserved water rights for those purposes.IS In applying the implied doctrine, the Court mandated that there be a careful examination of "both lhe asserted water right and the specific purposes for which the land was reserved," and the trier of fact must conclude "that withOut the water the pwposes of the reservation would be entirely defeated:t9 Surra Club v. BIDck The most recent judicial excursion into the course of implied reserved water rights is Sierra Club v, Block,20 a case wilh an unusual procedural setting. Proceedings 10 adjudicalC claims to federal reserved water rights have been laking place in the Colorado State courts since 1969. The issue of federal water rights for wilderness areas arose not in the context of these adjudications, but rather in a suit by the Sierra Club against the Secretaries of Agriculture and Interior, the Chief of the Forest Service, and the Director of the National Park Service. The Sierra Club argued that reserved water rights for designated wilderness areas exislCd by implication from the Wildemess Ac~ and maintained further that the fedcral defendants violated their statutory and trust obligations by failing to assert lhese water rights in lhe state adjudication procee<lings. The Wilderness Act contains no express reservation of unappropriated water for wilderness purposes. The flfSt hurdle overcome by lhe Court was whether the establishment of wilderness areas willlin existing federal land reservations still gave rise to implied reserved water rights, Answering this question affIrmatively, the Coun stated that wilderness designation created an entirely new category of lands dedicated to preservation and conservation uses. Next, the provisions of the Wildemess Act and its legislative history were examined. and an implied reservation of federal water rights for wilderness purposes was determined to exist. While lhe federal defendants were reproved for their "benign neglect," the Coun stopped short of requiring lhe defend,mts to claim reserved water rights for the wildemess areas in state adjudications. The Coun indicated that the issue remained whelher lhe failure 10 assen lhe wilderness water rights conflicted with the general statutory duty to protect lhe wilderness areas, and remanded lhe matter to the federal defendants for a memorandum and plan explaining how the statutory obligations were to be met The case is now on appeal 10 the Tenth Circuit Coun of Appeals. The Implied Reserved Water Rights Doctrine is Not Valid for Wilderness Areas and Recent Federal Land Reservations.. Early aulhority advises us that everything is proper in its own time,2t and this rule holds true for the implied doctrine. With respect 10 these federal land reservations established in the latter pan of the 19lh Century and the early pan of this century, the doctrine was well suited for its purpose. Congress and federal offIcials at that time were not familiar with federal reserved water rights. and the Courts, therefore, indulged in lhe judicial creation of the implied reservation of water doctrine 10 remedy the federal govenunent's failure to expressly refer 10 water rights. -4- However, lhe reaction 10 the 1955 decision in Federal Power Commision v. Oregon changed the underlying circumstances. (COfI/UwuJ Oil Pale 7)