Sierra Club v. Block: a Second Reserve Water Right for Wilderness Areas?
| Publication year | 1986 |
| Pages | 233 |
| Citation | Vol. 15 No. 2 Pg. 233 |
1986, February, Pg. 233. Sierra Club v. Block: A Second Reserve Water Right for Wilderness Areas?
A substantial controversy exists over whether Congress impliedly reserved water rights when it enacted the National Wilderness Preservation System in 1964 ("Wilderness Act").(fn1) In an attempt to address this controversy, the Sierra Club filed a suit against the Secretary of Agriculture, Chief of the Forest Service, Secretary of the Interior and Director of the National Park Service.(fn2) The Club hoped to seek a declaratory judgment which would establish a federal reserve water right in Colorado wilderness areas. On November 25, 1985, the United States District Court for the District of Colorado issued a memorandum opinion and order which held that federal reserve water rights did indeed exist in Colorado wilderness areas. This decision promotes the interests of the Sierra Club to the detriment of prior adjudicated water rights.
A reservation of water may be implied when the federal government removes land from the public domain for a federal purpose if water is necessary to carry out the purpose of the reservation of land. "It is clear ... that the United States often has reserved water rights based on withdrawals from the public domain."(fn3) However, to determine whether the withdrawal of land carries with it a reserve water right, the following steps must be taken: examine the document reserving land and the underlying legislation authorizing reservation; determine the federal purpose to be served by such legislation; determine whether water is essential for the primary purposes of the federal reservation; and ascertain the amount of water minimally required for such purposes.(fn4)
In Colorado, much of the water comes from the land which has been reserved by the federal government. "More than 60% of the average annual water yield in the 11 Western States is from federal reservations ... [with] a high of 96% in the Upper Colorado region."(fn5)
The purpose of the reservation of a tract of land is an important element in deciding whether a reserve water right exists. If the purpose of the reservation requires water, then it can be inferred that Congress intended to reserve the water. This is illustrated by the case of Cappaert v. United States, which stated:
In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve ... water. Intent is inferred if the ... water [is] necessary to accomplish the purposes for which the reservation was created.(fn6)
To find a reserved water right, the court must conclude "that without the water the purposes of the reservation would be entirely defeated."(fn7)
The Wilderness Act established wilderness areas composed of federally owned lands.(fn8) A wilderness area is defined as
an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.(fn9)
All lands under the Wilderness Act had previously been withdrawn and reserved, and designated as either national forests or national parks. When these tracts were designated as wilderness areas, an issue arose as to whether the wilderness area designation constituted a new withdrawal and reservation which carries with it an implied reservation of water.
The court in Sierra Club v. Block specifically held that "federal[ly]...
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