Sierra Club v. Yeutter

THEIS, Senior District Judge,

concurring.

Although I fully concur in the opinion and lucid analysis of the authored opinion, *1422I write separately only to emphasize aspects of our decision that I deem particularly significant.

We have determined that the Wilderness Act does provide limited guidelines by which courts may review the action or inaction of the Forest Service. As our opinion notes, judicial review extends to conduct of the agency that represents an abdication of its “statutory mandate to preserve the wilderness characteristics of the wilderness areas.” Supra, at note 5. It is obvious to me that if and when any future threat to the wilderness areas results from the Forest Service’s refusal to assert implied water rights, the very assumption of review under this standard should be a fair indication of the decision to follow. Congress withdrew and reserved such areas for the express purpose of providing “for the protection of these areas [and] the preservation of their wilderness character,” 16 U.S.C. § 1131(a), and commanded that they “be devoted to the public purposes of recreation, scenic, scientific, educational, conservation, and historical use.” Id. at § 1133(b). Unless one can take seriously defendant-intervenors’ suggestion that Congress created the wilderness areas with such specific language, but did not intend to reserve enough water to fulfill their central purpose, I believe that the conclusion of the district court may well be vindicated in the appropriate case.

The opinion also observes that Colorado’s postponement doctrine will not defeat any implied rights to wilderness waters reserved by the federal government under the Wilderness Act. Supra at note 7 and accompanying text. Thus, the intentional refusal or “benign neglect,” Sierra Club v. Block, 622 F.Supp. 842, 865 (D.Colo.1985), of the federal government timely to adjudicate the issue of prior reserved rights to wilderness waters should not operate to extinguish any superior federal rights. If Forest Service inaction becomes incompatible with its statutory mandate to protect and preserve the wilderness character of these areas, “the Sierra Club may either intervene in the state water proceeding ... or may seek judicial review ... in federal court.” Supra, at page 1418. I read this statement as a repudiation of defendants’ argument that under the McCarran Amendment, 43 U.S.C § 666, entertainment of this issue in federal court would never be appropriate in the face of ongoing stream adjudications in state court.