Mimbres Valley Irr. Co. v. Salopek, 11094

• Decision Date: 23 May 1977
• Docket Number: No. 11094,11094
• Citation: 564 P.2d 615,90 N.M. 410,1977 NMSC 39
• Parties: , 11 ERC 1901, 7 Envtl. L. Rep. 20,696 MIMBRES VALLEY IRRIGATION CO., Plaintiff-Appellee, v. Tony SALOPEK et al., Defendants-Appellees, v. DEPARTMENT OF AGRICULTURE FOREST SERVICE, Defendant-Appellant, State of New Mexico, Plaintiff-in-Intervention-Appellee.
• Court: New Mexico Supreme Court

Page 615

564 P.2d 615

90 N.M. 410, 11 ERC 1901, 7 Envtl. L. Rep. 20,696

MIMBRES VALLEY IRRIGATION CO., Plaintiff-Appellee, v. Tony SALOPEK et al., Defendants-Appellees, v. DEPARTMENT OF AGRICULTURE FOREST SERVICE,

Defendant-Appellant,

State of New Mexico, Plaintiff-in-Intervention-Appellee.

No. 11094.

Supreme Court of New Mexico.

May 23, 1977.

[90 NM 410] Victor Ortega, U.S. Atty., James B. Grant, Asst. U.S. Atty., Albuquerque, Peter R. Steenland, Jr., Land & Natural Resources Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Toney Anaya, Atty. Gen., Paul L. Bloom, Richard A. Simms, Asst. Attys. Gen., Santa Fe, for State of New Mexico, intervenor.

J. Wayne Woodbury, Ben Shantz, Silver City, for appellees.

OPINION

PAYNE, Justice.

This suit was filed in 1966 as a private action to enjoin alleged illegal diversions of the Rio Mimbres which flows through the Gila National Forest in southwest New Mexico. In 1970 the State of New Mexico, on the relation of the State Engineer and pursuant to § 75--4--4, N.M.S.A.1953 (Repl.Vol. 11, Pt. 2, 1968), filed a complaint-in-intervention seeking a general adjudication of water rights in the Rio Mimbres and its tributaries. The complaint-in-intervention named as defendants all parties claiming any interest in and use of the waters of the Rio Mimbres. The State's motion to intervene was granted and the suit proceeded as a general statutory adjudication of all the water rights on the stream system.

Among the named defendants in the complaint-in-intervention was the United States of America, joined pursuant to 43 U.S.C. § 666 (1970). The United States claimed reversed water rights for minimum instream flows and for recreational purposes within the Gila National Forest. The matter was referred by the trial court to a special master to determine the rights of the parties. The master entered findings of fact and conclusions of law which supported the United States' claim to 6.0 cubic feet per second of water in the Gila National Forest for minimum instream flows and recreational purposes. The State of New Mexico, pursuant to N.M.R.Civ.P. 53(e)(2) ¹, objected to the master's report. The district court reversed, holding that the United States had not reserved water rights in the Gila National Forest for its claimed purposes. We affirm the decision of the district court.

The 'reservation' doctrine, as it applies to federal enclaves, was initially recognized in Winters, v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). The issue decided therein was whether the United States, at the time of the creation of the Fort Belknap Indian Reservation in Montana, had impliedly reserved a water right for future use of the Indians upon those lands. The United States Supreme Court upheld the power of the federal government to reserve the waters and exempt them from appropriation under state laws.

The exact meaning of the principle articulated in the Winters case has been subject to inconclusive debate through the years. It was further clarified, however, in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), a case that also involved waters flowing through the Gila National Forest. The United States Supreme Court reaffirmed the viability of the Winters doctrine, and for the first time extended the reservation doctrine to other non-Indian federal enclaves. Although it refused to discuss the non-Indian related claims, the Court said:

The Master ruled that the principle underlying the reservation of water rights for Indian Reservations was equally applicable to other federal establishments such as National Recreation Areas and National Forests. We agree with the conclusions of the Master that the United States intended to reserve water sufficient for the future requirements of the Lake Mead National Recreation Area, the Havasu Lake National Wildlife Refuge, the Imperial National Wildlife Refuge and the Gila National Forest.

373 U.S. at 601, 83 S.Ct. at 1498.

More recently the Supreme Court has given additional guidance on the application of the principle of reserved water rights. In Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976), the Court stated:

(W)hen the Federal Government reserves land, by implication it reserves the water rights sufficient to accomplish the purposes of the reservation.

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 unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created . . . (Citations omitted.)

426 U.S. at 139, 96 S.Ct. at 2070.

The implied-reservation-of-water doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. . . . (Citation omitted.)

Id. at 141, 96 S.Ct. at 2071.

The Cappaert decision restricts the application of the reservation doctrine to the limited purposes for which the reservation was created.

The final decree entered in Arizona v. California ² concludes that the United States had reserved water rights in 'quantities reasonably necessary to fulfill the purposes of the Gila National Forest.' Applying the Cappaert Rule, we must now determine for what purpose the Gila National Forest was originally established and whether those purposes necessarily require an implied reservation of water.

The Gila National Forest was established by separate presidential proclamations dated March 2, 1899, July 2, 1905, February 6, 1907, June 18, 1908 and May 9, 1910. In subsequent years portions of other national forests were transferred to the Gila National Forest so that it now comprises about 2,787,093 acres of land in southwestern New Mexico. Approximately 92,622 acres of privately owned land is encompassed by the forest. The legislative act under which the establishment of national forests was authorized is the Creative Act of March 3, 1891. 16 U.S.C. § 471 (1970). It reads as follows:

The President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as national forests, and the President shall, by public proclamation, declare the establishment of such forests and the limits thereof.

The statute did not set forth the purposes for which the forests were withdrawn nor did it set up the means of administration of the forests. Further congressional action to remedy this situation resulted in the passage of the Organic Act of 1897. 16 U.S.C. § 475 (1970); see Bassman, 'The 1897 Organic Act: A Historical Perspective,' 7 Nat.Res.Law. 503 (1974). The pertinent provision of that Act reads as follows:

§ 475. Purposes For Which National Forests May Be Established And Administered.

. . . No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these rpovisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.

The Act limits the purposes for which national forests are authorized to: 1) improving and protecting the forest, 2) securing favorable conditions of water flows, and 3) furnishing a continuous supply of timber.

The United States asserts that additional recreational purposes were envisioned when the act was passed. It likewise argues that minimum instream flows are necessary for aesthetic, environmental, recreational and 'fish' purposes. We do not disagree with the objective of preserving the aesthetic and environmentally pleasing qualities of the forests and we appreciate the availability of the forests for recreational purposes. We cannot agree, however, that these objectives come within the original intent of Congress when creating national forests. The United States would equate these other 'uses' of the forest as part of the original 'purposes' for which it was established, and argues that the 'us...