ELR Citation: ELR 20782
No(s). 84-K-2 (D. Colo. Jul 16, 1985)

The court holds that the Forest Service's failure to assert federal reserved water rights, for the Colorado wilderness areas it administers, is a reviewable agency action under the Administrative Procedure Act (APA). Defendants argue that review is precluded by the exception to the general rule of reviewability provided in §701(a) of the Act for action committed to agency discretion by law, relying on the Supreme Court's recent decision in Heckler v. Chaney. In Chaney, the Court created a rebuttable presumption that an agency decision not to take enforcement action was immune from review. The presumption is rebutted if there is "law to apply" that provides a meaningful standard by which to judge the agency's failure to act. This court holds that although the Forest Service's failure to act arguably falls within Chaney's rebuttable presumption of unreviewability, the presumption is overcome by the clear legislative directives in the Wilderness Act calling for the protection of wilderness areas, including water resources. Therefore, the Forest Service's failure to assert reserved water rights is reviewable under the Act. The court defers decision on defendant's alternative argument that it is entitled to summary judgment because the existence of federal reserved water rights is uncertain and therefore it did not act unlawfully in failing to assert those rights.

Counsel for Plaintiff
Lori Potter
Sierra Club Legal Defense Fund, Inc.
Suite 514, 820 16th St., Denver CO 80202
(303) 892-6301

Counsel for Defendants
Stuart Shelton
Office of General Counsel
Department of Agriculture, Washington DC 202450
(202) 447-7121

Richard Nolan
U.S. Attorneys Office
Suite 1200, Federal Bldg., 1961 Stout St., Denver CO 80294
(303) 327-2081