United States v. City of Challis , 133 Idaho 525 ( 1999 )

Justice KIDWELL,

specially concurring.

I am pleased to join the majority in holding that the Multiple-Use Sustained-Yield Act is not a federal reservation of land that would create an implied federal water right in Idaho. However a subtle, but critical point needs to be clarified in my opinion. The majority opinion cites Cappaert v. United States, 426 U.S. 128, 140, 96 S.Ct. 2062, 2070, 48 L.Ed.2d 523, 535 (1976), for the proposition that “an intent to reserve unappropriated water is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created.” While this statement is an accurate partial holding of Cappaert, I believe it could be misread to imply that all unappropriated waters are reserved. The holding in Cappaert is much more limited than this possibly over-broad interpretation.

The U.S. Supreme Court emphasized that the “implied-reservation-of-water-rights doctrine, ... reserves only that amount of water necessary to fulfill the purpose of the reservation, no more.” Cappaert, 426 U.S. at 140, 96 S.Ct. at 2071, 48 L.Ed.2d at 535 (citing Arizona v. California, 373 U.S. 546, 600-01, 83 S.Ct. 1468, 1497-98, 10 L.Ed.2d 542, 578-79 (1963)). This means that once an implied federal reservation of water has been found, the district court must determine the “minimal need” of the reservation necessary to “implement[] the stated objectives.” Cappaert, 426 U.S. at 141, 96 S.Ct. at 2071, 48 L.Ed.2d at 536.

This discussion and distinction becomes critically important as the Court considers other federal legislation and cases before us that contain other re-designations or reservations of federal land and the attendant question of whether federal water rights are going to be created by implication in the State of Idaho.

Justice SCHROEDER, concurs.