dissenting.
I am unable to agree with and must dissent from Part VI of the majority opinion. In my judgment it errs in holding that the entire natural flow of the streams in question can be a sufficient quantification of the rights of the United States to waters of the streams. Such is merely another way of stating a minimum flow right.
*42I would first observe that the holding of the majority here is clearly contradictory to and without so holding overrules the holding of this Court in Avondale Irrigation District v. North Idaho Properties, Inc., 96 Idaho 1, 523 P.2d 818 (1974) (Avondale I), “[T]he United States is bound by Idaho state law, and therefore must quantify the amount of water claimed under the reservation doctrine at the time of the general adjudication of water rights.” Id. at 4-5, 523 P.2d at 821 — 22 (footnote omitted). I have been cited to no case nor has my research disclosed any language of the U.S. Supreme Court stating that when the United States is a party to a water adjudication proceeding in a state court it need not quantify the water it claims. It is clear to me at least that such an assumption flies in the face of the clear language and intent of the McCarran Amendment, 43 U.S.C. § 666 (1970). The history of the position of the United States in claiming water rights in the West makes clear what the Congress saw as the need for the McCarran Amendment. One cannot have on the one hand an orderly adjudication, administration and use of water and thereby produce an ordered society wherein people can plan and be assured of the future, and on the other hand have an overriding, zealous federal government claim that regardless of almost 100 years of orderly administration in the states, it and it alone will determine its claims to any amount of water in any stream regardless of previous adjudication, administration or use.
The McCarran Amendment requires the federal government to submit its claims to water in streams to the adjudicatory process of the states. It is true that the federal government in those adjudicatory processes may assert “reserved rights” dating back to the establishment by Congress of the particular federal facility. To that extent as stated by the majority “federal law, because of the supremacy clause, supersedes Idaho law and controls the volume and scope of federal reserve rights.” That language was used in Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). I see nothing in the Cappaert decision or any previous decisions of the U.S. Supreme Court which even suggests, much less holds, that the United States, although a party to the adjudicatory state process, need not prove the need to its water rights in measurable quantities.
Clearly, in the instant case since we are dealing largely with claimed nonconsumptive uses, diversion and application to a beneficial use may not be required under our statutory scheme if such conflicts with preeminent federal law. I find no inconsistency in that view since the same result was reached in State Department of Parks v. Idaho Department of Water Administration, 96 Idaho 440, 530 P.2d 924 (1974), when an Idaho statute authorized and directed appropriation without diversion. That statute conflicted with and controlled over a prior legislative enactment requiring an actual diversion.
I am fortified in my belief and conclusion, as above set forth, by my analysis of the major cases in the field. The first significant case of the U.S. Supreme Court which established the doctrine of federal reserved water rights is Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Winters involved Indian lands in the state of Montana and as stated by Justice McKenna in his preliminary statement which is not part of the opinion,
“In the year 1889, and long prior to the acts of the defendants * * * the United States, through its officers and agents at the reservation, appropriated and took from the river a flow of 1,000 miners’ inches * * *. Afterwards, but a long time prior to the acts of the defendant complained of * * * the Indians residing on the reservation diverted -from the river for purpose of irrigation a flow of 10,000 miners’ inches * * *.” 207 U.S. at 566, 28 S.Ct. at 208.
The Montana courts enjoined other persons from diverting waters upstream which would prevent the flow of the stream from reaching reservation lands in an amount necessary to satisfy the previously established irrigation needs of the Indians. That *43action of the Montana Court was affirmed by the U.S. Supreme Court, but on the basis that there was a federal water reservation dating back to the establishment of the reservation. A close reading of Winters might make one speculate whether under the circumstances there was any need for a declaration of federal reserved water rights, since the doctrine of prior appropriation administered by the state courts of Montana would seem to have adequately protected the prior appropriated water rights of the Indians. Nevertheless, the opinion demonstrates the particular and precise quantification of the water involved.
Next came Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The major thrust of that opinion, of course, was the distribution of the waters of the Colorado river as between the various states. It seems as if the claims of the United States for the allocation of certain waters to not only Indian reservations but national forests, recreation and wildlife areas was almost an afterthought. It was only in the very late language of that opinion without any amplification, explanation or rationale that the Court reaffirmed the Winters doctrine and extended it beyond Indian reservation lands to national recreation areas and national forests. The Court, in my judgment, had clearly in mind the quantification of water and “the use of enough water from the Colorado to irrigate the irrigable portions of the reserved lands.” 373 U.S. at 596, 83 S.Ct. at 1496. There the Court affirmed the master’s report which held there was, “reserved for all the reservations * * * about 1,000,000 acre-feet, to be used on around 135,000 irrigable acres of land.” Id.
Thereafter, of course, came the McCarran Amendment, 43 U.S.C. § 666 (1970), wherein consent was given to join the United States as a defendant in state courts in suits seeking adjudication of water rights.
The Eagle series of cases, United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); United States v. District Court for Water Div. No. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284 (1971), arose in the Colorado courts and were ultimately decided by the U.S. Supreme Court. They were actions wherein the state of Colorado sought to utilize the provisions of the McCarran Amendment and the United States in turn contended that the McCarran Amendment did not relate to “reserved” waters which had been created in the Winters case. The Supreme Court rejected the contentions of the United States and held that the McCarran Amendment was controlling and affirmed the decree entered by the Colorado Supreme Court holding that the McCarran Amendment required the United States to adjudicate its reserved rights in a general state adjudication. Again, I see nothing in the Eagle cases which compels the conclusion that federal law will govern over state law in the process of adjudicating water rights of the United States as contrasted with those of private parties. [But see 401 U.S. at 526, 91 S.Ct. 998 — also Cappaert indicates there is a federal question.] Specifically, I find nothing which would indicate the existence of any federal law which would exempt the federal government from quantifying its reserved water rights.
In March 1976, Colorado River Water Conservation District v. United States (Akin v. United States), 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, came down from the U.S. Supreme Court wherein the U.S. Supreme Court tightened down even further its decisions in the Eagle cases. There, the United States had attempted to go to the U.S. District Court in Colorado for a determination of its reserved water rights and thereby oust the Colorado courts from the jurisdiction established by the McCarran Amendment. The Supreme Court struck that effort down, albeit in some waffling language relating to the doctrine of abstention. The Court said, among other things in Akin,
“The clear federal policy evinced by that legislation [McCarran Amendment] is the avoidance of piecemeal adjudication of water rights in a river system. This policy is akin to that underlying the rule requiring that jurisdiction be yielded to *44the court first acquiring control of property, for the concern in such instances is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property. This concern is heightened with respect to water rights, the relationships among which are highly interdependent. * * * The consent to jurisdiction given by the McCarran amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.” 424 U.S. at 819, 96 S.Ct. at 1247. (Emphasis supplied.)
I would interpret the above language as meaning, at least at this time, that the United States stands on no different basis in an adjudicatory process than any other party excepting only as to the backdating of its water right to the date of the reservation of the particular federal land for the particular federal purpose.
Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976), was decided June 7, 1976, shortly after the Akin ease. Cappaert is unusual in that a state adjudicatory proceeding was held by the state of Nevada. Even though the United States was not a party to the proceeding, officials of the National Parks Service filed protest, appeared and testified and a decree was issued adverse to the position of the United States and no appeal was taken therefrom. Thereafter the United States sought and obtained an injunction in United States district court to limit the pumping from certain wells which allegedly lowered, the level of the pool within which swam the fabled pup fish. The Cappaert opinion is brief, confusing and cryptic. No mention is made of the McCarran amendment nor of the Colorado cases just then recently decided by the U.S. Supreme Court. The reserved water rights doctrine was again affirmed and my best guess would be that Cappaert extended the doctrine of reserved federal water rights to ground water. The Court, however, blithely ignored that question since, although enjoining the pumping of underground waters, it simply stated, “Here, however, the water in the pool is surface water.” Nevertheless, I find no language therein which exempts the United States from the necessity of quantifying their claimed water right in a state adjudication process when the United States is a party thereto. Nor do I find any language which provides overriding federal law when the adjudication process is in the state court. It was noted that one of the reasons for the decision was that albeit the United States had filed a protest in the state adjudicatory process and had appeared and testified, nevertheless, it was not a party to the proceedings.
From the above I conclude there is no law as enunciated by the U.S. Supreme Court which exempts the federal government from stating its claimed reserved water rights in specific quantities.
In the case at bar the federal government made claim to consumptive water rights in precise quantities of water based on diversion and placement to beneficial use. Some of those consumptive rights were alleged to have a priority of 1882. At the same time and in the same stream the federal government claimed all the water on the basis of a reserved right with a priority of 1907. I cannot understand nor accept that illogical posture of the federal government. As to the exact position of the federal government in this case, I note the opening statement of counsel for the federal government, i. e., “Our right that we’re claiming here under the reservation doctrine is just the right to have water continue to ñow in its natural state.” (Emphasis supplied.)
As stated by the federal government witness Hanks,
“Q. Is it possible under what you just said that the United States could claim the entire natural flow of the Salmon River if necessary for [ecosystems] ecural systems?
A. Could be if necessary for [ecosystems] ecural systems.”
Even if the majority was correct in its analysis of the law, I submit that the evidence in the instant case was not sufficient to establish the federal government’s need *45for all the water in the streams. Only two witnesses testified. One was a fisheries expert who opined solely as to the need for minimum flow in the stream to sustain the fish. Under the holding of the majority relating to the established purpose of the national forest land, his testimony was clearly irrelevant. Nevertheless, he was able to quantify that need in terms of 3.4 c. f. s. The remaining witness testified as to aesthetics, i. e., the desire of people to see water, fisheries need, wildlife, livestock watering and a consumptive need at campgrounds. All such needs are irrelevant under the established purpose for the national forest lands as found by the majority. The sole need to which he testified which comports with the national forest purposes was that relating to the need for the streams for fire break protection. As to that he stated:
“Q. How wide are these streams?
A. They’re real narrow, I’d say one to two feet.
******
Q. But the creeks you’re talking about aren’t all necessarily an effective fire guard considering the small size?
A. That’s true.”
I then arrive at my conclusion. Here the federal government desires to assert a right to a minimum flow of water in the particular streams. They attempt to mask their intent by arguing that their needs dictate their usage of water in the streams in a defined, quantifiable amount, to wit, all of it.
I submit that such is not such a required quantification as will permit an orderly adjudication and administration of the waters nor fair usage of the waters as between the government for its reserved rights/needs and those of private appropriators. Such certainly defeats the congressional intent and purpose as expressed in the McCarran Amendment.
It may be that the U.S. Supreme Court will ultimately decide the question in favor of the federal government. Suffice that day should come without encouragement or premature action by this Court.
DONALDSON, J., concurs.