Sierra Club v. Yeutter

• Decision Date: 10 August 1990
• Docket Number: 88-2918,Nos. 88-2777,88-2871,88-2920 and 88-2922,s. 88-2777
• Parties: 21 Envtl. L. Rep. 20,083 SIERRA CLUB, a nonprofit California corporation, Plaintiff-Appellee, v. Clayton K. YEUTTER, in his official capacity as Secretary of Agriculture; Max Peterson, in his official capacity as Chief of the Forest Service, Defendants-Appellants, Mountain States Legal Foundation, a nonprofit Colorado corporation, on behalf of named and unnamed members; Colorado Cattlemen's Association, a nonprofit Colorado corporation; Colorado Farm Bureau, a nonprofit Colorado corporation; National Cattlemen's Association, a nonprofit Colorado corporation; Colo. Water Congress; Colorado Water Conservation Board; The City and County of Denver, acting By and Through its Board of Water Commissioners, Defendants-Intervenors-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1405

911 F.2d 1405

21 Envtl. L. Rep. 20,083

SIERRA CLUB, a nonprofit California corporation, Plaintiff-Appellee, v. Clayton K. YEUTTER, in his official capacity as Secretary of Agriculture; Max Peterson, in his official capacity as Chief of the Forest Service Defendants-Appellants Mountain States Legal Foundation, a nonprofit Colorado corporation, on behalf of named and unnamed members Colorado Cattlemen's Association, a nonprofit Colorado corporation; Colorado Farm Bureau, a nonprofit Colorado corporation; National Cattlemen's Association, a nonprofit Colorado corporation; Colo. Water Congress; Colorado Water Conservation Board; The City and County of Denver, acting By and Through its Board of Water Commissioners Defendants-Intervenors-Appellants.

Nos. 88-2777, 88-2871, 88-2918, 88-2920 and 88-2922.

United States Court of Appeals, Tenth Circuit.

Aug. 10, 1990.

Lori Potter, Sierra Club Legal Defense Fund, Denver, Colo., for plaintiff-appellee Sierra Club.

Robert L. Klarquist, Atty., (Peter R. Steenland, Jr., Edward J. Shawaker, Attys., Land and Natural Resources Div.), Donald A. Carr, Acting Asst. Atty. Gen., Washington, D.C., Michael J. Norton, U.S. Atty., John R. Hill, Jr., Atty., Land and Natural Resources, Denver, Colo., and Stuart L. Shelton, Office of General Counsel, Dept. of Agr., Washington, D.C., for defendants-appellants Yeutter and Peterson.

Lois Witte, Deputy Atty. Gen., Natural Resource Section, Denver, Colo., for defendant-intervenor-appellant Colorado Water Conservation Bd.

Gregory J. Hobbs, Jr., Donna Melson Arthur & Bennett W. Raley, of Davis, Graham & Stubbs, Denver, Colo., for defendant-intervenor-appellant Colorado Water Congress.

Wayne D. Williams, Michael L. Walker & Henry C. Teigen, Counsel for City and County of Denver, acting by and through its Bd. of Water Com'rs, Denver Colo., for defendant-intervenor-appellant City and County of Denver.

Eric Twelker, Mountain States Legal Foundation, Denver, Colo., for defendants-intervenors-appellants Mountain States Legal Foundation, Colorado Cattlemen's Ass'n, Colorado Farm Bureau, and Nat. Cattlemen's Ass'n.

Christopher H. Meyer, Nat. Wildlife Federation, Boulder, Colo., for amici curiae Nat. Wildlife Federation, American Rivers, American Wilderness Alliance, Colorado Environmental Coalition, Colorado Wildlife Federation, Nat. Audubon Society, Nat. Parks and Conservation Ass'n; Southern Utah Wilderness Alliance, Trout Unlimited, and The Wilderness Society.

Kathryn A. Oberly & Kerry Edwards Cormier (John J. Rademacher, General Counsel, and Michael J. Stientjes, Asst. Counsel, American Farm Bureau Federation, Park Ridge, Ill., with them on the brief), of Mayer Brown & Platt, Washington, D.C., for amicus curiae American Farm Bureau Federation.

Before LOGAN and TACHA, Circuit Judges, and THEIS, ^* Senior District Judge.

TACHA, Circuit Judge.

This is an appeal from the order of the United States District Court for the District of Colorado granting the Sierra Club's request for a declaratory judgment that the Wilderness Act of 1964, Pub.L. No. 88-577, 78 Stat. 890 (codified at 16 U.S.C. Secs. 1131-1136), creates federal reserved water rights in all twenty-four wilderness areas administered by the United States Forest Service ("Forest Service"). Secretary of Agriculture Yeutter and Chief of the Forest Service Peterson ("federal defendants" or "government") appeal, contending that the district court is without jurisdiction and that the district court rendered an unconstitutional advisory opinion. The federal defendants also challenge the district court's order directing the Forest Service to prepare a plan to ensure the protection of wilderness water values. The defendant-intervenor-appellants, various groups representing water development and management interests ("intervenors"), also appeal. They contend: (1) that the district court does not have jurisdiction; and (2) that the Wilderness Act does not create federal reserved water rights. We dismiss and vacate the judgment below.

I.

Sierra Club commenced this litigation in 1984 against the Secretary of Agriculture and the Chief of the Forest Service. In its second amended complaint, the Sierra Club stated that the United States had been joined in various water rights adjudications in the Colorado state courts. The complaint alleged that the United States had not claimed any federal reserved water rights based on the Wilderness Act ("wilderness water rights") for the twenty-four wilderness areas on national forest lands. The complaint contained three requests for relief: (1) that the court "declare that the United States possesses federal reserved water rights to fulfill Wilderness Act purposes in the Colorado wilderness areas under the control of the defendants;" (2) that the defendants' failure to attempt to claim wilderness water rights in the ongoing Colorado water rights adjudications "constitutes a violation of their duties under 16 U.S.C. Sec. 526 and the Wilderness Act, is arbitrary and capricious, and constitutes unlawfully withheld agency action in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq."; and (3) that the failure to claim wilderness water rights constituted a violation of the public trust. The complaint concluded with a request for declaratory relief, specifically "[a]n order requiring defendants to take such action as this Court finds is necessary to protect reserved rights in Colorado wilderness areas."

The federal defendants moved to dismiss the complaint for lack of jurisdiction, contending that their nonassertion of reserved water rights fell within the Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), presumption of unreviewability. Alternatively, the federal defendants contended that the existence of reserved water rights under the Wilderness Act was uncertain and therefore that the failure to claim such rights in the Colorado proceedings was not arbitrary and capricious.

The district court denied the motion to dismiss. Sierra Club v. Block, 615 F.Supp. 44 (D.Colo.1985). The district court found that sections 2(a) and 4(b) of the Wilderness Act provide "clear and specific directives" requiring "the Forest Service to protect the wilderness areas, including water resources" and that the "Wilderness Act provides both legislative direction and manageable standards by which to judge the agency's failure to act in this case." Id. at 47-48. The district court thus concluded that the presumption of unreviewability was rebutted and that review was proper. The court deferred deciding the federal defendants' alternative argument that their failure to assert wilderness water rights was not arbitrary and capricious because the existence of wilderness water rights was uncertain.

In a subsequent decision, the district court ruled upon various motions for dismissal or for summary judgment presented by Sierra Club and the intervenors. Sierra Club v. Block, 622 F.Supp. 842 (D.Colo.1985). The district court first found that Sierra Club had standing to pursue this action. Id. at 847-49. On Sierra Club's cross motion for summary judgment, the court held that "federal reserved water rights do exist in the designated Colorado wilderness areas." Id. at 851. The court held, however, that although the federal defendants are under a "general duty under the Wilderness Act to protect and preserve all wilderness resources," id. at 864, "[t]here is, however, no specific statutory duty to claim reserved water rights in the wilderness areas even though Congress impliedly reserved such rights in order to effectuate the purposes of the Act...." Id. (emphasis in original). The court ruled that it was without power to order the Attorney General to initiate litigation to obtain such rights in the Colorado state court proceedings. The court explained that under the doctrine of separation of powers, it could not order the executive to litigate the wilderness water rights in the absence of a statute requiring the executive to do so. Id. (quoting Sierra Club v. Department of the Interior, 424 F.Supp. 172, 175 (N.D.Cal.1976)). The court also held that because of the controversy over the existence of federal reserved water rights under the Wilderness Act, the federal defendants had not acted arbitrarily and capriciously in failing to claim such rights. Id. at 864-65.

The court then stated that it "must determine whether federal defendants' failure to assert federal reserved water rights in the wilderness areas conflicts in any way with their general statutory duty to protect wilderness water resources." Id. at 865. The court noted that reserved water rights represent only one alternative available to the federal defendants to fulfill their statutory duty to preserve wilderness water resources. After concluding that the briefs and administrative record were not adequate to evaluate fully Sierra Club's assertion that reserved water rights were the only means to protect water resources, the court remanded the matter to the federal defendants with directions ordering them to "come forward with a memorandum explaining their analysis, final decision, and plan to comply with their statutory obligations...." Id. Finally, the court dismissed Sierra Club's public trust doctrine claim. Id. at 865-66.

Following an unsuccessful attempt to appeal to this court, which was denied due to lack of finality, Sierra Club v. Lyng, Nos. 86-1153, 86-1154 & 86-1155 (10th Cir. Oct. 8, 1986), the Forest Service submitted the plan ordered by the district court. ¹ In response, Sierra Club contended that the first report was inadequate and that the other methods of preserving wilderness water values presented in the first report were arbitrary and capricious. The intervenors also moved the district court to reconsider its earlier decision declaring the existence of federal reserved water rights under the Wilderness Act.

The district court addressed these contentions...