U.S. v. Cappaert
| Decision Date | 04 December 1974 |
| Docket Number | Nos. 74-1690,74-2186,s. 74-1690 |
| Citation | 508 F.2d 313 |
| Parties | 5 Envtl. L. Rep. 20,494 UNITED STATES of America, Plaintiff-Appellee, v. Francis Leo CAPPAERT et al., Defendants-Appellants, State of Nevada ex rel, Roland D. Westergard, State Engineer, Intervenor. UNITED STATES of America, Plaintiff-Appellee, v. Francis Leo CAPPAERT et al., Defendants, State of Nevada ex rel. Roland D.Westergard, State Engineer, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Samuel S. Lionel, Lionel, Sawyer, Collins & Wartman, Las Vegas, Nev., for defendants-appellants.
V. DeVoe Heaton, U.S. Atty., District of Nevada, Las Vegas, Nev., for plaintiff-appellee.
Ralph E. Hunsaker, Phoenix, Ariz., for amicus curiae, Arizona Water Commission.
George V. Allison and Peter D. Laxalt, Special Deputy Atty. Gen., Carson City, Nev., for State of Nevada.
Before CARTER and CHOY, Circuit Judges, and SOLOMON, * District judge.
Pupfish (cyprinodon diabolis) live in Devil's Hole, in the Death Valley National Monument in Nevada. They are a unique and endangered species. In an action filed by the United States (Government) to protect these fish, the district court limited the amount of water which the owners of a nearby cattle ranch may pump. The Cappaerts, owners of the ranch, and the State of Nevada, which intervened on ths side of the Cappaerts, appeal.
The Cappaerts' ranch consists of 12,000 acres, of which 4,000 acres are in cultivation. The ranch, which represents an investment of more than 7 million dollars, has an annual payroll of more than $340,000 and employs more than 80 people. Between 1700 and 1800 head of cattle are fed on the ranch.
The Cappaerts drilled wells and pump groundwater 1 on their land for irrigation. Devil's Hole, a part of the Death Valley National Monument, is located within three miles of several wells on the ranch. Devil's Hole Consists of a 40-acre tract in which there is a deep limestone cavern. At the bottom of this cavern there is a pool about 65 feet long, 10 feet wide, and more than 200 feet deep. There are steep rock walls on three sides of the pool, but on the fourth side there is a sloping rock shelf on which algae grows. This pool is part of the 4,500 square mile groundwater system from which the Cappaerts pump their water.
The Devil's Hole Pupfish live in this pool. These pupfish evolved after the Death Valley Lake System dried up, isolating this species of fish from its ancestral stock. The pupfish population varies from 200 in the winter to 800 after spawning in the spring and depends for its survival on the sloping rock shelf which provides food and a spawning ground. The Devil's Hole Pupfish are less than one inch long and do not exist anywhere else in the world. They have been designated an endangered species under the Endangered Species Act of 1973, 16 U.S.C. 1533 (1974), 50 C.F.R. 17.
The water level in the pool is measured from a copper washer which the U.S. Geological Survey placed on the shelf in 1962. Between 1962 and 1968 the average water level was 1.2 feet below the marker. In 1968, after the Cappaerts began to pump, the summer water level 2 steadily decreased: in 1970 to 3.17 feet below the marker; in 1971 to 3.48 feet and in 1972 to 3.9 feet. At these water levels large areas of the critical rock shelf are exposed. At 3.6 feet below the marker, 42 per cent of the shelf is exposed, and at 3.7 feet the exposure increases to 55 per cent. The shelf exposure decreases the algae production and limits the spawning area which in turn reduces the Devil's Hole Pupfish's chance to survive.
On June 5, 1973, following a number of hearings, the court granted the Government's motion for a preliminary injunction. This injunction required that pumping on the Cappaerts' ranch be limited so that the mean water level of 3.0 feet below the copper washer be attained within 90 days. The court also appointed a special master to control the pumping of other wells in order to reach and maintain this water level.
Among the extensive findings entered by the District Court were the following:
'9. Through the Presidential Proclamation of January 17, 1952, and its publication in the Federal Register on January 23, 1952 (17 Fed.Reg. 691), the unappropriated waters in, on, under and appurtenant to Devil's Hole were withdrawn from private appropriation as against the United States and reserved to the extent necessary for the requirements and purposes of the said reservation.'
'The purposes of the reservation of Devil's Hole as part of Death Valley National Monument includes the preservation of the pool of water and the preservation of the Devil's Hole pupfish (Cyprinodon diabolis) which live therein.'
Both the Cappaerts and the State of Nevada appealed. The Cappaerts also filed motions to modify, pending appeal, the preliminary injunction to permit them to pump down to 3.7 feet below the copper washer. Pending appeal, this Court permitted the Cappaerts to pump so long as the water level did not go lower than 3.3 feet below the copper washer.
On January 17, 1952, President Truman, by Presidential Proclamation 2961, withdrew Devil's Hole from the public domain and made it part of the Death Valley National Monument. U.S.Code Cong. & Adm.News, 82d Cong., 2d Sess., Vol. 1 at p. 964 (1952); 17 Fed.Reg. 691. The Proclamation was issued under the Act for the Preservation of American Antiquities, 16 U.S.C. 431 (1974), which authorizes the President to declare '. . . objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments . . ..'
The Government contends that the Proclamation, with its express reservation of the Devil's Hole Pool and the surrounding land from the public domain, contains an implied reservation of enough groundwater to assure preservation of the pupfish in that pool.
The implied reservation of water doctrine originated in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). 3 The Court in Winters held that private landowners could not impair Indian rights in a river which formed one boundary of a reservation, even though the Congressional grant of the land to the Indians had not mentioned water rights. The land reserved for the Indians was arid. The Court held that a grant of water rights must be implied because Congress intended by the grant of land to encourage the Indians to become farmers.
In Arizona v. California, 373 U.S. 546, 601, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), the Supreme Court extended the reservation doctrine of Winters to include waters reserved for federal lands which had been set aside for recreation, wildlife, or forests. This was reaffirmed and extended in United States v. District Court for Eagle County, 401 U.S. 520, 522-523, 91 S.Ct. 998, 1001 L.Ed.2d 278 (1971). There the Court held that the Federal Government's authority 'to reserve waters for the use and benefit of federally reserved lands . . .' extended to 'any federal enclave.'
The Cappaerts contend, however, that the doctrine of implied reservation of water does not apply to groundwater, but only to surface water. Although these Supreme Court cases involved only surface water rights, the reservation of water doctrine is not so limited.
Two cases in the Ninth Circuit approved the application of the doctrine of implied reservation of groundwater when water was needed to accomplish the purpose of the reservation. Nevada ex rel. Shamberger v. United States, 165 F.Supp. 600 (D.Nev.1958), aff'd on other grounds, 279 F.2d 699 (9th Cir 1960); Tweedy v. Texas Co., 286 F.Supp. 383 (D.Mont.1968).
In our view the United States may reserve not only surface water, but also underground water. 4
The Cappaerts assert that the 1952 Presidential Proclamation was intended to preserve only the Devil's Hole pool with its unique limestone formationand not to protect the pupfish, and that therefore there was no implied reservation of groundwater. We reject that argument.
The Proclamation added the Devil's Hole pool to the Death Valley National Monument after reciting:
'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 . . ..'
The fundamental purpose of the reservation of the Devil's Hole pool was...
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