specially concurring.
Having now had the opportunity to further examine the federal reserved rights doctrine as it has been asserted in eases involving federal acts other than the Wilderness Act, I have come to question the continued vitality of the doctrine.
The federal reserved rights doctrine was originally developed as a means of determining legislative intent in the absence of any legislative history regarding the intent to reserve water. Because the doctrine is one of implication, the United States Supreme Court has traditionally applied it very narrowly. Additionally, in each ease in which the Court has found a federal reserved water right, the particular reservation involved was created prior to the holding in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the case in which the doctrine was originally set forth. Because Congress was not yet aware of the potential conflict between state and federal water rights, it was understandable that Congress could have remained silent about the existence of a water right, and yet still intended to reserve water for the purposes of the reservation. Thus, through the holding in Winters and its progeny, the United States Supreme Court recognized a federal reserved water right where, had Congress thought about it, it would have believed water was necessary to accomplish the purposes of the reservation.
In the case presently before this Court, however, the reservations at issue were ere*927ated long after the development of the Winters doctrine. Thus, I believe we are faced with a situation far different from any other case in which the United States Supreme Court has applied the federal reserved rights doctrine. Given the fact that the Wilderness Act of 1964 was passed almost 60 years after the Winters case, and a year after Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), which expressly expanded the doctrine to federal reservations other than Indian reservations, it must be assumed that Congress was aware of the federal reserved water rights doctrine at the time the Act was passed. Therefore, in this case, Congress was aware that conflicts had developed over the issue of water rights for federal reservations of land. Additionally, when Congress passed the Wild and Scenic Rivers Act just a few years later, it included an express reservation of the amount of water necessary to fulfill the purposes of that Act. See Potlatch Corp. and Hecla Mining v. United States, 134 Idaho 912, 12 P.3d 1256 (2000); Wild and Scenic Rivers Act, 16 U.S.C. § 1284(c). Thus, it is reasonable to believe that, at the time the Wilderness Act was passed, Congress knew how to create a water right if it believed one was necessary. Where, as in this case, Congress has chosen for whatever reason, not to create an express water right despite its knowledge of a potential conflict, I believe it can no longer be inferred that such a right is necessary to fulfill the purposes of the reservation. Therefore, while I fully concur with the Court’s opinion that water is not strictly necessary to accomplish the purposes of the reservation, I believe, under the circumstances of this case, such a result is also mandated by Congress’s failure to include an express reservation of water in the text of the Act itself.