Deputy Attorney General
DEPARTMENT OF JUSTICE
September 30, 1999
Richard Bailey, Adjudicator
Water Resources Department
Meg Reeves, Assistant Attorney
Natural Resources Section
Walter, Perry Assistant Attorney General
Natural Resources Section
Klamath Adjudication/National Park
DOJ File No. 690-600-GN0269-97
The National Park
Service (NPS) has made various claims in the Klamath Basin Adjudication to
reserved water rights in the Crater Lake National Park. You have asked for our
assessment of the NPS’s entitlement to the reserved water rights claimed. We
conclude that, as qualified below, when Congress created the Park it reserved
sufficient water for Park purposes, which include domestic and administrative
uses, fire protection, preservation of the Park’s scenic, natural and historic
conservation uses, and preservation of wildlife, with a priority date of 1902.
Later additions to the Park reserved water for all Park purposes as of the date
of the later acquisitions.
We emphasize that our
advice is preliminary, and may change based on arguments made, or evidence
presented, by the claimants and others over the course of the adjudication.
I. The Claims
The NPS has made eleven
instream claims, ten of which are for “Preservation and protection of all
natural and historic objects, timber and wildlife, and conservation of scenery,”
and one of which is for “Preservation and protection of Crater Lake, including
all of its natural and historic objects, wildlife, and conservation of scenery.”
The NPS has also made ten consumptive use claims, all of which encompass two
stated purposes: “Domestic, Administrative, Wildlife,” and “Fire Protection.”
The NPS asserts that the
water rights claimed are necessary to fulfill the primary purposes of the
reservation, as encompassed by the documents withdrawing land for the Park,
creating the Park, and creating the NPS: a) Executive Order of February 1,
1886;1 b) Act of May 22, 1902, ch. 820, 32 Stat. 202 (1902); c) the Act of Aug.
25, 1916, ch. 408, 39 Stat. 535 (1916); d) Act of May 14, 1932, ch. 184, 47
Stat. 155 (1932); e) Act of Dec. 19, 1980, Pub. L. No. 96-553, 94 Stat. 3255
(1980); and f) Act of Sept. 8, 1982, Pub. L. No. 97-250, 96 Stat. 709 (1982).2
While the NPS relies upon the Act of 1916 (establishing the NPS) and the Act of
1982 (correcting the boundary of the Park) in stating the purposes of the
reservation, the NPS does not appear to rely upon those statutes for claimed
Two other documents are
involved in the creation of the reservation: acquisitions of private land on
December 5, 1940 and January 30, 1942. While the NPS relies upon the 1940
acquisition to establish a priority date,3
the NPS does not appear to rely upon the land acquisition documents for the
primary purposes of the reservation.4
II. Federal Reserved Water Rights Generally
When the United States
reserves land for particular purposes, it implicitly reserves sufficient water
to accomplish those purposes.5 The
reservation is for “only that amount of water necessary to fulfill the purpose
of the reservation, no more.”6 In addition, water is reserved only to meet the
“primary” purpose of the reservation, not “secondary” purposes.7
Evaluation of a claim based on an implied reservation of water requires
examination of the specific purposes for which the land was reserved, and a
determination that “without the water the purposes of the reservation would be
The primary purposes of a federal reservation are
determined by examining the legislation or executive order that established the
III. Reservations - Priority Dates
In support of its
claimed priority dates the NPS relies upon the date of the Executive Order
withdrawing land for the Park, the dates of enactment of the various statutes
establishing or altering the boundaries of the Park, and the date of one of the
acquisitions of private land.
A. The Executive
The NPS relies on an
1886 Executive Order to establish reserved right priority dates. A reserved
water right may be implied by a withdrawal of land by Executive Order. For
instance, in Arizona v. California, 373 U.S. 546, 598 (1962), the United
States Supreme Court recognized priority dates based on executive orders
withdrawing lands as an Indian reservation. Here, however, the 1886 Executive
Order did not create a reservation or articulate purposes to which a reserved
water right might attach. The Executive Order merely withdrew the lands from
settlement or sale “pending legislation looking to the creation of a public park
* * *.” It did not reserve the land as a national park, or for any other
purpose. No purposes for the land were articulated until the Park’s enabling
legislation was passed in 1902. The Executive Order did not establish a federal
reservation. Therefore, 1886 is not an appropriate priority date for the Park.
Creating the Park
A reserved water right
may be created by an Act of Congress reserving public land for a particular
The NPS relies, in part, upon the Acts of 1902, 1932, and
1980 in establishing priority dates to the various claims, depending upon when
the particular reach became a part of the Park. The Act of 1902 established
Crater Lake National Park. The Act of 1932 added certain lands to the Park. The
Act of 1980 revised the boundary of the Park. Any land added to the Park by any
of these statutes carries an implied reserved right with the priority date of
enactment of the statute.
The NPS claims “1940” as
one priority date pertinent to the mainstem of Sun Creek, reflecting the date of
acquisition from private ownership. We believe a 1940 priority date for Park
purposes is appropriate.10
IV. Primary Purposes
The NPS has made eleven
instream reserved rights claims, ten of which are for preservation and
protection of all natural and historic objects, timber and wildlife, and
conservation of scenery, and one of which is for preservation and protection of
Crater Lake, including all of its natural and historic objects, wildlife, and
conservation of scenery. The NPS has also made ten consumptive use claims, all
of which encompass two stated purposes: “Domestic, Administrative, Wildlife,”
and “Fire Protection.” Generally, the NPS claims all of the unappropriated water
in the Park, in that the in-stream claims are to “all natural flows less those
amounts needed for * * * out-of-stream uses.”
In 1902, Congress
established the Crater Lake National Park “as a public park or pleasure ground
for the benefit of the people of the United States [and] for the preservation of
the natural objects within said park, and also for the protection of the timber
from wanton depredation, the preservation of all kinds of game and fish, * * *
and the prevention and extinguishment of forest fires.”11
Congress clarified and confirmed its intent in the act creating the National
Park Service in 1916. In that act Congress stated that the purposes of national
parks were “to conserve the scenery and the natural and historic objects and the
wild life therein and to provide for the enjoyment of the same in such manner
and by such means as will leave then unimpaired for the enjoyment of future
Those acts establish Congress’s intent to set aside land
for park purposes.
These purposes include
preservation of scenic, natural and historic conservation uses and preservation
of wildlife. Preservation of scenic, natural and historic conservation uses
includes ecosystem maintenance protecting forest growth, vegetative cover,
watershed protection, soil and erosion control, lawn watering and fire
protection. Also included would be maintenance of water related aesthetic
conditions as well as maintenance of natural features. Preservation and
conservation of wildlife would include bird watering, wildlife habitat
maintenance, and preservation of habitat for fish and other aquatic life. The
Water Resources Department (WRD) should recognize the minimum amount necessary
to fulfill these park purposes. WRD could conclude that an award of the entire
natural flow would be necessary to achieve this purpose.13
In addition, the park
also has public enjoyment purposes including a) visitor accommodations
(campgrounds, hotels, water and sewer); b) visitor centers (water fountains and
sewer); c) facilities for visitor enjoyment (trail maintenance, lake levels for
water borne enjoyment); and d) ranger stations and housing for park personnel.
The Act of May 14, 1932,
ch. 184, 47 Stat. 155 (1932), transfers certain land from the Crater Lake
National Forest to the Crater Lake National Park. This Act does not articulate
any new purposes of the Park.14
The lands affected would have the same primary purposes as under
the 1902 act, but with 1932 priority. Similarly, lands covered by the 1940
acquisition and the Act of 1980 would have priority as of those dates.
When Congress designated
Crater Lake National Park it reserved sufficient water for Park purposes, which
include domestic and administrative uses, fire protection, preservation of the
Park’s scenic, natural and historic conservation uses, and preservation of
wildlife, with a priority date of 1902. Later additions to the Park reserved
water for all Park purposes as of the date of the later acquisitions.
1 This “Executive Order” is a one-page
hand-written document with no apparent citation.
2 See, e.g., Statement and Proof of Claim to the Use of
Surface Waters of the Klamath River and Its Tributaries (Claimant: United States
of America, National Park Service), Claim #591 at 2 (hereinafter Claim
3 See, e.g., claim to “Mainstem of Sun Creek,” List of
Priority Dates for Crater Lake and All Stream Reaches (Exhibit App.-7), at 8.
4 See, e.g., Claim #591, paragraph 7.
5 Winters v. United States, 207 US 564, 577 (1908).
6 Cappaert v. United States, 426 US 128, 141 (1976).
7 United States v. New Mexico, 438 US 696, 715 (1978).
8 Id. at 700.
9 New Mexico, 438 US at 700.
10 The United States Supreme Court cases establishing federal
reserved rights have described such rights as arising when the federal
government reserves land “from the public domain.” See, e.g., New Mexico
at 698; Cappaert, 426 US at 138. From that it could be argued that no
reserved rights attach to acquisitions from private ownership. The Ninth
Circuit, however, has held that acquisitions from private ownership do carry
reserved water rights. United States v.
Anderson, 736 F2d 1358, 1361-1362 (9th
11 Act of May 22, 1902, ch. 820, §§ 1-2, 32 Stat. 202 (1902).
12 Act of Aug. 25, 1916, ch. 408, § 1, 39 Stat. 535 91916).
13 Based on Congress’s stated intent to leave the park
“unimpaired for the enjoyment of future generations”, the Colorado water court
stated “it appears that Congress * * * intended to reserve
all of the unappropriated water in the park
for park purposes. * * * The fact that the
entire flow is needed is sufficient quantification of the right.” Concerning
the Application for Water Rights of the United States of America for Reserved
Water Rights in Rocky Mountain National Park, No. W-8439-76, at 8-9 (Colo.
Dist. Ct. Water Div. 1, Dec. 29, 1993) (memorandum of decision and order)