specially concurring:
I concur with the reasoning and result reached by the court. I write separately to *647express my view that the MeCarran Amendment has very limited relevance in a state water adjudication like the present one in which the United States is the water applicant and not the “defendant.”
The court does not clearly state the procedural origin of the federal reserved claims at issue here. The court’s opinion at footnote 15, quoting United States v. City and County of Denver, 656 P.2d 1, 9-11 (Colo.1982) (Denver I), seems to indicate that the NOSR claims were “cross-filed” by the United States in private water adjudications in which the United States had been involuntarily joined under the MeCarran Amendment. This implication is incorrect. Although many cases involving federal rights were pending in the water courts in 1971, the record clearly shows that the present case at its inception was filed by the United States as water applicant under the 1969 Water Rights Act. In re the Application for Water Rights of the United States of America, No. W-467 (Water Div. No. 5 filed Dec. 31, 1971). More than sixty parties filed statements of opposition. In addition, Denver I expressly refers to the present action:
The federal government argues that there may be circumstances in which water not adjacent to a reservation could be reserved and in which off-reservation use of waters flowing on a reservation may be justified. These issues are presently hypothetical. We decline to resolve them in a case where there has not been a specific factual claim presenting an actual case or controversy. We are aware that a pending case involving naval oil shale reserves presents these issues in a proper factual context and will reserve our judgment accordingly. See In the Matter of the Application for Water Rights of the United States of America, No. W467 (Water Div. No. 5 filed Dec. 31, 1971).
Denver I, 656 P.2d at 35 (emphasis added). The United States is the water applicant in the present case, not the defendant-objector.
The MeCarran Amendment provides that “[cjonsent is hereby given to join the United States as a defendant_” 43 U.S.C. § 666 (1982) (emphasis added). The amendment has no express applicability when the United States originates the state-court action and does not provide that the priority of federal reserved rights is subject to modification when the water applications of the United States do not comply in every respect with state rules of civil procedure. The sole purpose of the amendment is to allow the United States to be joined as a defendant in a state water action in which it is necessary to adjudicate all outstanding private and public claims. United States v. District Court, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971). Prior to the MeCar-ran Amendment, sovereign immunity precluded involuntary joinder of the United States as a defendant in state water adjudications.
Although it is not well settled whether state procedural rules may in all situations divest federal reserved rights, some cases express a policy disfavoring modification of federal water rights on the basis of state water application procedures. See, e.g., United States v. California, 403 F.Supp. 874 (E.D.Cal.1975).
However, in the present case the United States consented to the jurisdiction of the Colorado water courts when it filed the water applications and amendment at issue here. In addition, the general policy of certainty and finality that is advanced by the MeCarran Amendment and expressed in the authorities interpreting the amendment supports the conclusion that substantive federal reserved water rights should be subject to procedural restrictions in state courts when the United States is the water applicant.
With this reservation about the meaning of the MeCarran Amendment, I concur in the reasoning and result reached by the court.
I am authorized to say that YOLLACK, J., joins in this special concurrence.