Cappaert v. United States Nevada Westergard v. United States, s. 74-1107

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation48 L.Ed.2d 523,426 U.S. 128,96 S.Ct. 2062
PartiesFrancis Leo CAPPAERT et al., Petitioners, v. UNITED STATES et al. NEVADA ex rel. Roland D. WESTERGARD, State Engineer, Petitioner, v. UNITED STATES et al
Docket NumberNos. 74-1107,74-1304,s. 74-1107
Decision Date07 June 1976

Devil's Hole, a deep cavern on federal land in Nevada containing an underground pool inhabited by a unique species of desert fish, was reserved as a national monument by a 1952 Presidential Proclamation issued under the American Antiquities Preservation Act, which authorizes the President to proclaim as national monuments, Inter alia, "objects of historic or scientific interest" situated on federal land. In 1968 the Cappaerts, petitioners in No. 74-1107, who own a nearby ranch, began pumping groundwater coming from the same source as the water in Devil's Hole, thereby reducing the water level in Devil's Hole and endangering its fish. Subsequently, the Cappaerts applied to the Nevada State Engineer for permits to change the use of water from several of their wells. Although the United States was not made a party to that proceeding, the National Park Service filed a protest, seeking either a denial of the application or a postponement of a decision until it could be determined whether the pumping of the Cappaerts' wells should be limited to prevent lowering of the water in Devil's Hole. The State Engineer overruled the protest and granted the permits. The United States then filed suit in the District Court seeking to limit the Cappaerts' pumping of their wells. The District Court permanently enjoined pumping that would lower the water below a certain level necessary to preserve the fish, holding that in establishing Devil's Hole as a national monument, the President reserved appurtenant, unappropriated waters necessary to the purpose of the reservation, including preservation of the pool and its fish, that the federal water rights antedated those of the Cappaerts, and that the United States was not estopped from injunctive relief against the use of water under land exchanged with the Cappaerts. The Court of Appeals affirmed. Held: As of 1952 when the United States reserved Devil's Hole, it acquired by reservation water rights in unappropriated appurtenant water sufficient to maintain the level of the underground pool to preserve its scien- tific value and thereby implement the Presidential Proclamation. Pp. 138-147.

(a) When the Federal Government reserves land from the public domain, by implication it reserves water rights sufficient to accomplish the purposes of the reservation, and here the 1952 Proclamation expressed an intention to reserve unappropriated water. Pp. 138-141.

(b) The purpose of reserving Devil's Hole being the preservation of the underground pool, the District Court appropriately tailored its injunction to the minimal need, curtailing pumping only to the extent necessary to preserve a water level adequate to protect the pool's scientific value as the natural habitat of the fish species sought to be preserved. P. 141.

(c) The American Antiquities Preservation Act authorized the President to reserve the pool in Devil's Hole, since such pool and its rare inhabitants are "objects of historic or scientific interest" within the meaning of that Act. Pp. 141-142.

(d) Since the implied-reservation-of-water doctrine is based on the necessity of water for the purpose of the federal reservation, the United States can protect its water from subsequent diversion, whether the diversion is of surface water or groundwater. Pp. 142-143.

(e) Since the Desert Land Act of 1877, which provides that patentees of public land acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law, does not apply to water rights of federal reserved land, FPC v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215, determination of such reserved water rights is not governed by state law but derives from the federal purpose of the reservation, and thus the fact that the water rights here reserved apply to nonnavigable rather than navigable water is irrelevant. Pp. 143-146.

(f) That the National Park Service filed a protest to the Cappaerts' pumping permit application in the state administrative proceeding, did not bar the United States, by res judicata or collateral estoppel, from litigating its water-rights claim in federal court. The United States was not made a party to the state proceeding, was not in privity with the Cappaerts, and did not assert any federal water-rights claims in such proceeding; and thus the issue raised in the District Court was not decided in the state proceedings. Pp. 146-147.

508 F.2d 313, affirmed.

Samuel S. Lionel, Las Vegas, Nev., for petitioners Cappaert et al.

George V. Allison for petitioner Nevada ex rel. Westergard.

Raymond Randolph, for respondents United States et al.

[Amicus Curiae Information from page 130 intentionally omitted] Mr. Chief Justice BURGER delivered the opinion of the Court.

The question presented in this litigation is whether the reservation of Devil's Hole as a national monument reserved federal water rights in unappropriated water.

Devil's Hole is a deep limestone cavern in Nevada. Approximately 50 feet below the opening of the cavern is a pool 65 feet long, 10 feet wide, and at least 200 feet deep, although its actual depth is unknown. The pool is a remnant of the prehistoric Death Valley Lake System and is situated on land owned by the United States since the Treaty of Guadalupe Hidalgo in 1848, 9 Stat. 922. By the Proclamation of January 17, 1952, President Truman withdrew from the public domain a 40-acre tract of land surrounding Devil's Hole, making it a detached component of the Death Valley National Monument. Proclamation No. 2961, 3 CFR 147 (1949-1953 Comp.).1 The Proclamation was issued under the American Antiquities Preservation Act, 34 Stat. 225, 16 U.S.C. § 431, which authorizes the President to declare as national monuments "objects of historic or scientific inter- est that are situated upon the lands owned or controlled by the Government of the United States . . .."

The 1952 Proclamation notes that Death Valley was set aside as a national monument "for the preservation of the unusual features of scenic, scientific, and educational interest therein contained." The Proclamation also notes that Devil's Hole is near Death Valley and contains a "remarkable underground pool." Additional preambulary statements in the Proclamation explain why Devil's Hole was being added to the Death Valley National Monument:

"WHEREAS the said pool is a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System, and is unusual among caverns in that it is a solution area in distinctly striated limestone, while also owing its formation in part to fault action; and

"WHEREAS the geologic evidence that this subterranean pool is an integral part of the hydrographic history of the Death Valley region is further confirmed by the presence in this pool of a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region; and

"WHEREAS the said pool is of such outstanding scientific importance that it should be given special protection, and such protection can be best afforded by making the said forty-acre tract containing the pool a part of the said monument . . .."

The Proclamation provides that Devil's Hole should be supervised, managed, and directed by the National Park Service, Department of the Interior. Devil's Hole is fenced off, and only limited access is allowed byhe Park Service.

The Cappaert petitioners own a 12,000-acre ranch near Devil's Hole, 4,000 acres of which are used for growing Bermuda grass, alfalfa, wheat, and barley; 1,700 to 1,800 head of cattle are grazed. The ranch represents an investment of more than $7 million; it employs more than 80 people with an annual payroll of more than $340,000.

In 1968 the Cappaerts began pumping groundwater on their ranch on land 21/2 miles from Devil's Hole; they were the first to appropriate groundwater. The groundwater comes from an underground basin or aquifer which is also the source of the water in Devil's Hole. After the Cappaerts began pumping from the wells near Devil's Hole, which they do from March to October, the summer water level of the pool in Devil's Hole began to decrease. Since 1962 the level of water in Devil's Hole has been measured with reference to a copper washer installed on one of the walls of the hole by the United States Geological Survey. Until 1968, the water level, with seasonable variations, had been stable at 1.2 feet below the copper marker. In 1969 the water level in Devil's Hole was 2.3 feet below the copper washer; in 1970, 3.17 feet; in 1971, 3.48 feet; and, in 1972, 3.93 feet.

When the water is at the lowest levels, a large portion of a rock shelf in Devil's Hole is above water. However, when the water level is at 3.0 feet below the marker or higher, most of the rock shelf is below water, enabling algae to grow on it. This in turn enables the desert fish (Cyprinodon diabolis, commonly known as Devil's Hole pupfish), referred to in President Truman's Proclamation, to spawn in the spring. As the rock shelf be- comes exposed, the spawning area is decreased, reducing the ability of the fish to spawn in sufficient quantities to prevent extinction.

In April 1970 the Cappaerts, pursuant to Nevada law, Nev.Rev.Stat. § 533.325 (1973), applied to the State Engineer, Roland D. Westergard, for permits to change the use of water from several of their wells. Although the United States was not a party to that proceeding and was never served,...

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