ELR Citation: ELR 20083
No(s). s. 88-2777 et al (10th Cir. Aug 10, 1990)

The court holds that an environmental organization's claim that the Wilderness Act creates federal reserved water rights is not ripe. The Sierra Club had alleged that the Forest Service's failure to claim wilderness water rights on ongoing water rights adjudications violated federal law and the public trust. The district held that, although the Forest Service is under no statutory duty to claim reserved water rights in wilderness areas, Congress implicitly reserved such rights to effectuate the purposes of the Wilderness Act. Citing the U.S. Supreme Court's decision in Lujan v. National Wildlife Federation, 20 ELR 20962, the court holds that the alleged harm is too remote and speculative for review. Even if the alleged federal reserved water rights are threatened by state water development claims, it does not inevitably follow that wilderness water values are threatened. Absent a diversion within or above the wilderness area, it is difficult to envision what harm might befall wilderness water values that assigning wilderness water rights could prevent. The court further holds that the Forest Service's land and water management decisions are not reviewable unless they pose an irreconcilable threat to the Wilderness Act's preservation mandate. The Forest Service's position is not that federal reserved water rights do not exist, but that their assertion at this time is unnecessary. If the Forest Service were to permit mining, road construction, or other action directly inconsistent with the Wilderness Act, the court could review that action. The court also holds that any hardship to the parties from delaying judicial consideration until a more imminent threat to wilderness water values arises is outweighed by the advantages of waiting for development of a full record.

[The district court's decision is published at 17 ELR 21127. Prior related decisions are published at 14 ELR 20626, 15 ELR 20782, and 16 ELR 20177.]

Counsel for Plaintiff-Appellee
Lori Potter
Sierra Club Legal Defense Fund
Symes Bldg., 820 16th St., Ste. 514, Denver CO 80202
(303) 623-9466

Counsel for Defendants-Appellants
Robert L. Klarquist, Peter R. Steenland, Edward J. Shawaker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Michael J. Norton, U.S. Attorney
Land and Natural Resources
1200 Federal Office Bldg., Drawer 3615, Denver CO 80294
(303) 844-2081

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