WSP06802

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 6/16/1982
• Author: USDOJ
• Title: Federal Non-Reserved Water Rights
• Water Supply Pro - Doc Type: Report/Study

..

0086

The Court accepted the primary purpose/secondary use
distinction drawn by the New Mexico Supreme Court:

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. (emphasis added). Based on the legislative history
of the Forest Service's Organic Administration Act, the Court
concluded that Congress' intent in authorizing reservation of the
Gila National Forest was "that water would be reserved only
where necessary to preserve the timber or to secure favorable,
water flows for private and public uses under state law." Id.
at 718. 481 The Court found recreation, wildlife, and stock-
watering~o be secondary uses rather than primary purposes
of the reservation, and therefore upheld the state court's
denial of reserved rights for those uses. The Court did
not address the further question whether, if the Forest
Service applied under state law for appropriative rights not
available under the reserved right doctrine, the state could

481 The opinion of the Court also concluded that the Multiple-
Use Sustained-Yield Act of 1960, 16 U.S.C. S 528 (MUSYA),
which provides that national forests "shall be administered
for outdoor recreation, range, timber, watershed, and wildlife
and fish purposes," does not provide any basis for assertion
of reserved rights in forests existing as of the effective
date of the MUSYA "for the secondary purposes there established."
438 U.S. at 715. The Court "intimate[d] no view as to whether
congress [in the MUSYA] authorized the subsequent reservation
of national forests out of public lands to which a broader
doctrine of 'reserved rights' might apply." Id. at n.22. As
Justice Powell pointed out in his partial dissent from the
court's opinion, the Court's statements on the effect of
the MUSYA are probably dicta because the United States did
not argue that the MUSYA reserved additional water for use
on national forests, but only that the Act confirmed Congress'
intent in the Organic Administration Act to establish multiple
purposes that include fish, wildlife and recreation. See
id. at 718 n.1.

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