Justice SILAK, dissenting.

I concur with the section of the majority opinion that holds Congress did not expressly reserve or disclaim a water right in the Wilderness Act. However, I dissent from Section III of the Court's opinion and adhere to this Court's initial determination that the United States holds a federal reserved water right to the wilderness areas designated pursuant to the Wilderness Act. I also dissent, in part, to Section IV. B. of the Court's opinion and adhere to the previous opinion.

This case hinges on the statutory interpretation of the Wilderness Act of 1964 and whether that Act implicitly reserved a federal water right. The United States Supreme Court has developed the Winters doctrine as the method of statutory interpretation regarding water rights for federal reservations. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908).

The majority opinion discusses the Winters doctrine by focusing on the particular circumstances of each case and the United States Supreme Court's application of the doctrine to those circumstances. While not misstating the facts and conclusions of the relevant cases, the Court's analysis is misleading because it lacks a thorough discussion of the Winters doctrine itself. Without more, the opinion gives the impression that the United States Supreme Court decided each case individually, without application of a common legal theory. While the majority opinion appears to accept that the Winters doctrine applies, there is no discussion of the elements of the doctrine nor any application of those elements to the facts of this case.

The majority opinion ultimately determines the Wilderness Act does not reserve a water right because the purpose of the Act would not be entirely defeated without a reservation of water and states the "purpose of the Wilderness Act is to prevent the development of land within the designated wilderness areas and to preserve those lands in their natural state for future generations." Further, the majority opinion concludes the Act's structure will prevent land-development in the wilderness areas and, therefore, preclude individuals from withdrawing water within the wilderness area, thus no water right is necessary to protect the water within the area. This conclusion is based primarily on the majority interpretation of selective portions of the legislative history of the Wilderness Act.

I disagree with the majority opinion's theory which simply stated is: because the structure of the Wilderness Act prevents development of the land in wilderness areas and, therefore, water will be protected as a natural side-effect of the limits on land-development, the federal government does not need a federal water right. The majority uses this theory as a substitute for implying a water right in wilderness areas. Although this is an attractive theory, only the United States Supreme Court may articulate new legal theories regarding federal law. This Court is bound by the precedent as defined by the United States Supreme Court in the Winters doctrine and may not avoid the Winters doctrine by defining a new theory — namely that no water right is necessary because alternative methods of water protection exist. Moreover, none of the parties has raised this argument; the majority created this theory sua sponte instead of simply applying the Winters doctrine. The Winters doctrine's analysis is clear: if water — not a water right — is essential to fulfill the primary purpose of the federal land reservation, then a water right is granted. The availability of other means of water preservation has never been a part of the Winters doctrine.

In both Sierra Club v. Block and Sierra Club v. Lyng, a federal district court addressed the argument of whether the federal government is required to assert a claim for water rights in wilderness areas if alternative means for protecting water exist. Sierra Club v. Block, 622 F. Supp. 842, 863 (D.Colo. 1985); Sierra Club v. Lyng, 661 F. Supp. 1490 (D.Colo. 1987) (reversed on other grounds by Sierra Club v. Yeutter, 911 F.2d 1405 (10th Cir. 1990)). In those cases, the court was faced with the Sierra Club's argument that the federal government's failure to assert its rights violated the government's duty to protect the water pursuant to administrative regulations and the common law public trust doctrine. The court there determined it could not order the federal government to assert a claim but did order the government to submit a detailed plan of its alternative methods of water protection.

In this case, the federal government has brought a claim for water rights pursuant to the Wilderness Act. Neither party has argued the federal government was required to assert a claim, as in the Sierra Club cases, nor has either party claimed land-development restrictions were an alternative method of water protection sufficient to substitute for a water right. Instead, the federal government is asserting its right to water in wilderness areas pursuant to the Winters doctrine. The Winters doctrine does not allow for an alternative theory of water protection to substitute for a implied water right. The doctrine is instead a method of statutory interpretation for determining whether Congress has expressly or implicitly reserved a water right. This Court is bound to the Winters doctrine and may not deviate from it by proposing its own novel theory of federal law.

The Winters doctrine is a judicial doctrine enunciated by the United States Supreme Court not as guidance or a mere recommendation to state courts, but as binding precedent on all lower courts, including this Court. State courts are required to follow the doctrine as detailed by the United States Supreme Court in Winters and its line of cases. This Court has followed the Winters doctrine in at least two previous cases. See United States v. City of Challis, 133 Idaho 525, 988 P.2d 1199 (1999); see also United States v. State, 131 Idaho 468, 959 P.2d 449 (1998). It is inappropriate for this Court to now redesign or otherwise ignore a long-standing doctrine of the United States Supreme Court. See Block, 622 F. Supp. at 852 (The existence of this doctrine is now well-established as a matter of federal law.). In this case, the Idaho Supreme Court has not been called upon to interpret Idaho's Constitution or laws, but rather to make a determination under federal law. This Court has recognized the long-standing principle that the ultimate responsibility for interpreting federal law rests with the United States Supreme Court and therefore its holdings are binding on all other state and federal courts. See State v. Holtelander, 102 Idaho 306, 309, 629 P.2d 702, 705 (1981). This concept is not novel or unique to Idaho. The Colorado Supreme Court has also held:

Under the Supremacy Clause of the United States Constitution . . . it is our duty to adhere to the principles of federal law that have been enunciated by the United States Supreme Court . . . and take cognizance of the holdings of the United States Supreme Court that articulate the basic principles of the reserved water rights doctrine.

United States v. City and County of Denver, 656 P.2d 1, 16 (1982) (citations omitted). I see no reason to deviate from this principle in this case. Accordingly, United States Supreme Court authority is binding upon this Court.

Although the majority opinion discusses the Winters doctrine, I am compelled to include my own analysis of the doctrine because the majority's discussion of the history and application of the Winters doctrine is misleading.

1. The Winters Doctrine.

While states generally have plenary control over water located within their boundaries, the United States may claim a federal reservation of water appurtenant to federally reserved land pursuant to the Commerce Clause, Art. I, § 8, the Property Clause, Art. IV, § 3, and the Supremacy Clause, Art. VI, cl. 2. See Kansas v. Colorado, 206 U.S. 46, 86, 27 S.Ct. 655, 662, 51 L.Ed. 956, 970 (1907). A claim by the United States to a federal reserved water right is an exception to a state's plenary authority over its water. See Winters, 207 U.S. at 577, 28 S.Ct. at 211-212, 52 L.Ed. at 346-347. Federal reservation of a water right may be either express or implied. See United States v. New Mexico, 438 U.S. 696, 699-700, 98 S.Ct. 3012, 3013-3014, 57 L.Ed.2d 1052, 1056-1057 (1978). In the absence of an express reservation of water by an Act of Congress, courts must consider whether Congress implicitly reserved a water right pursuant to the federal reservation of water rights doctrine, first recognized by the United States Supreme Court in Winters and later interpreted in Cappaert. See Winters, 207 U.S. at 576, 28 S.Ct. at 211, 52 L.Ed. at 346; see also Cappaert v. United States, 426 U.S. 128, 139, 96 S.Ct. 2062, 2069-2070, 48 L.Ed.2d 523, 534-535 (1976).

In Winters, the United States Supreme Court addressed whether the federal government implicitly reserved rights to water located on the Fort Belknap Indian Reservation. The Court held that when Congress created the Indian reservation it not only set aside land, but also impliedly reserved the water rights necessary to fulfill the purposes of the reservation. See Winters, 207 U.S. at 576-77, 28 S.Ct. at 211-12, 52 L.Ed. at 346-47 (determining that without water, the land would be useless and the purpose of the reservation would be defeated). The effect of Winters was to superimpose a judicially implied federal water right on a state's system of water appropriation.

The doctrine was more fully explained in a later case in which a federal reservation — this time a national park — was created to preserve certain pools containing a rare fish. See Cappaert, 426 U.S. at 129, 96 S.Ct. at 2065, 48 L.Ed.2d at 529.

This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing, the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. . . . The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.

Id. at 138, 96 S.Ct. at 2069, 48 L.Ed.2d at 534 (citations omitted). The Court in Cappaert further stated:

In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created.

Id. at 139, 96 S.Ct. at 2070, 48 L.Ed.2d at 534 (citations omitted). The Court went on to determine the purpose of the national park — to protect the area and all that is in it for future generations — "is meaningful only if the water remains" and, therefore, held that Congress intended to retain a water right when it reserved the area. Id. The Court noted that the implication of a reserved right is not without limitation since "[t]he implied-reservation-of-water-rights doctrine . . . reserves only that amount of water necessary to fulfill the purpose of the reservation, no more." Id. at 141, 96 S.Ct. at 2071, 48 L.Ed.2d at 535 (citing State of Arizona v. California, 373 U.S. 546, 600-01, 83 S.Ct. 1468, 1497-98, 10 L.Ed.2d 542, 578-79 (1963)).

The United States Supreme Court next interpreted the Winters doctrine in the context of national forest reservations. See New Mexico, 438 U.S. at 700, 98 S.Ct. at 3014, 57 L.Ed.2d at 1056. The Court stated that "[w]here water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude . . . that the United States intended to reserve the necessary water." Id. at 702, 98 S.Ct. at 3015, 57 L.Ed.2d at 1058. In New Mexico, the Court further limited implication of a reserved water right to only those situations where water was necessary to fulfill the "primary" purpose of the reservation. Id. at 702, 98 S.Ct. at 3015, 57 L.Ed.2d at 1058. The Court held that if "water is only valuable for secondary use of the reservation . . . there arises the contrary inference that Congress intended . . . that the United States would acquire water in the same manner as any other public or private appropriator." Id. The Court stated that the necessity of water must be so great that without the water the reservation would be "entirely defeated." Id. at 700, 98 S.Ct. at 3014, 57 L.Ed.2d at 1057. Ultimately, the Court's holding determined that the primary purpose of the national forest reservation, at issue, which was to protect the watershed and provide a continual timber resource, did not include a water right for the secondary purposes, such as recreation, asserted under Multiple-Use-Sustained-Yield-Act of 1960. See id. at 707-709, 98 S.Ct. at 3017-3019, 57 L.Ed.2d at 1061-1062.

The Winters doctrine has been expanded to include not only Indian reservations, but also other federal land reservations such as national recreation areas, national forests, and wildlife refuges. See Arizona v. California, 373 U.S. at 601, 83 S.Ct. at 1498, 10 L.Ed.2d at 578 (finding the same analysis underlying the reservation of water rights for Indian reservations is applicable to other federal reservations). In New Mexico, the Court made clear that the Winters doctrine "applies to all federal enclaves" which have been properly reserved for a specific federal purpose. See also Lyng, 661 F. Supp. at 1494 (quoting United States v. Denver, 656 P.2d at 20).

Congress retains an undiminished right to reserve unappropriated water necessary for lands withdrawn and reserved for a specific federal purpose indefinitely. The U.S. Supreme Court stated in New Mexico:

[W]hatever powers the States acquired over their waters as a result of congressional Acts and admission into the union, however, Congress did not intend thereby to relinquish its authority to reserve unappropriated water in the future for use on appurtenant lands withdrawn from the public domain for specific federal purposes.

New Mexico, 438 U.S. at 698, 98 S.Ct. at 3013, 57 L.Ed.2d at 1056 (citing Winters, 207 U.S. at 577, 28 S.Ct. at 211, 52 L.Ed. at 346). Congress is not bound to the original federal purpose for the reservation but is free to redesignate the withdrawn land for different uses without relinquishing its authority. See, e.g., United States v. Denver, 656 P.2d at 30-31 (national forest land re-reserved as a national park); Arizona v. California, 373 U.S. at 601, 83 S.Ct. at 1498, 10 L.Ed.2d at 578 (finding implied water rights in a recreation area previously reserved for a water project).

The practical effect of the majority's misapplication of Winters is the extinction of the doctrine of implied water rights. The majority's analysis is so restrictive that it eliminates the "implied" aspect of the Winters doctrine and leaves no room for any Act of Congress to ever imply a "water" right. According to the majority's holding in this case, expressed water rights will only be recognized when an Act of Congress specifically states that water is to be reserved, as was done in the Hells Canyon National Recreation Area Act. Consequently, the majority has taken the position that it will not recognize an implied reservation by Congress in the absence of anything less than an express clause reserving water. The ultimate result in Idaho is that there will only be either expressed reservations or no reservation; thus, the United States Supreme Court's holding in Winters and its line of cases, that water rights may be either expressed or implied, will no longer be recognized in Idaho.

The majority's conclusion that the purpose of the Wilderness Act does not require water rests, in part, on the conclusion that the Wilderness Act does not provide a standard for quantification like the Winters line of cases. The majority states:

Unlike the Presidential Proclamation in Cappaert which expressly reserved a pool to maintain a unique variety of fish, the Wilderness Act does not define purposes that necessitate a reservation of water.

However, it is not necessary that the reservation "expressly reserve a pool" in order to reserve a water right. If that were true, there would never be an implied water right. It is not for this Court to determine whether the doctrine of implied water rights should be maintained; rather, we are to apply the doctrine as defined by the United States Supreme Court. The majority states that the purposes in Winters and Arizona was to provide habitable land to Indian tribes, and that purpose necessitated water. The Court concluded that the purposes in Winters and Arizona sufficiently stated a standard for quantification while the Wilderness Act's purpose of protecting and preserving the wilderness did not amount to a standard for quantification.

Regardless of whether a standard for quantification exists, the issue of whether Congress intended to reserve a water right should focus on the purpose of the act, not whether a standard for quantification exists. Quantification need not be determined until after a water right is deemed to exist.

In order for this Court to determine whether an Act of Congress has reserved a water right in federally owned lands consistent with the Winters doctrine, the Court must determine: 1) whether there has been a reservation of land; and 2) if so, whether the applicable Act of Congress contains an express reservation of water; and 3) if not, whether the applicable Act implies a reservation of water under the implied reservation of water rights doctrine. See City of Challis, 133 Idaho at 529-30, 988 P.2d at 1203-04. An implied reservation exists where it is clear that Congress "intended to reserve" unappropriated water. See Cappaert, 426 U.S. at 139, 96 S.Ct. at 2070, 48 L.Ed.2d at 534. Intent to reserve water will be inferred if water is necessary for the primary purposes of the reservation and if, without water, the purposes of the reservation will be entirely defeated. See New Mexico, 438 U.S. at 700, 98 S.Ct. at 3014, 57 L.Ed.2d at 1056. In this case, the issue of implied reservation must be addressed in two steps; first, ascertaining the primary purpose of the Wilderness Act and second, determining whether water is necessary such that this purpose would be entirely defeated without water.

2. The primary purpose of the Wilderness Act is to preserve and protect wilderness areas.

To determine the purpose of the Wilderness Act, it is appropriate to consider: 1) the language of the Act itself and any other relevant legislation, as well as the 2) the Wilderness Act's legislative history.

a. Text of the Wilderness Act and other relevant legislation.

With regard to the language of the Act itself, a plain reading of the words of the Wilderness Act shows Congress intended to reserve a water right in wilderness areas to fulfill the primary purpose of the Act because, without water, the purpose of the reservation would be entirely defeated. Prior to enactment of the Wilderness Act, national forest land was administered under the Organic Administration Act of 1897 and wilderness purposes were protected in the national forests only as a matter of administration. In order to provide permanent heightened protection to wilderness areas, Congress passed the Wilderness Act of 1964 establishing the National Wilderness Preservation System in order to set aside and preserve certain wilderness areas and provide for future designation of additional areas. The purpose of the Wilderness Act is to provide long range planning for wilderness areas in order to preserve and protect the wilderness character of the reserved areas, and to fulfill other preexisting purposes. See 16 U.S.C. § 1131-1136; see also Block, 622 F. Supp. at 849-850. The Wilderness Act's stated purpose is to:

[S]ecure for the American people of present and future generations the benefits of an enduring resource of wilderness . . . for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness. . . .

§ 2 (a). "Wilderness" is "an area where the earth and its community of life are untrammeled by man . . . retaining its primeval character and influence . . . which is protected and managed so as to preserve its natural conditions. . . ." § 2 (c). Congress further stated the use of wilderness areas "shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use." § 4 (b). A plain reading of the Act as a whole reveals the primary purpose of the Wilderness Act is to set aside certain designated areas and preserve their untouched wilderness character, not merely to prevent land development as the majority concludes. See Block, 622 F. Supp. at 855. These provisions also make clear that any purposes previously applicable to certain areas continue to exist in wilderness areas, but that those purposes must serve and further the overriding purpose of wilderness preservation.

Most areas designated as wilderness areas under the Wilderness Act were lands formerly reserved as national forests. In New Mexico, the United States Supreme Court recognized that Congress implicitly reserved a water right in national forests to the extent necessary to provide a continual supply of timber. See New Mexico, 438 U.S. at 711, 98 S.Ct. at 3019, 57 L.Ed.2d at 1063. The Court, however, refused to recognize an expanded water right to national forest areas pursuant to MUSYA because the MUSYA purposes were secondary to the primary purpose of the reservation as a national forest. It is strange to conclude that because these same lands have now been re-reserved under an Act providing heightened protection to wilderness areas, they have somehow lost the water rights they possessed as a national forest.

The Wilderness Act differs from the situation in New Mexico. See Block, 622 F. Supp. at 859-61. The court in Block determined the Wilderness Act is not a land-management statute, nor does the Act seek to add to the primary purpose of existing reservations, as in New Mexico. The Wilderness Act is instead original legislation reserving wilderness areas. See id. It may appear that the purposes of national forests and the Wilderness Act are inconsistent. However, the conservation and recreational purposes of the Wilderness Act are consistent with the purposes of conserving water flow. See id. In passing the Wilderness Act, Congress intended to incorporate the national forest purposes:

Congress also sought to carry over and maintain the purposes for which the national forests had been established. All of the above stated purposes were deemed by Congress "to be within and supplemental to the purposes for which national forests . . . are established and administered. . . ." 16 U.S.C. § 1133(a). Further, Congress stated that "[n]othing in this chapter shall be deemed to be in interference with the purpose for which national forests are established. . . ." 16 U.S.C. § 1133(a)(1). As discussed previously, the Supreme Court has determined that the primary purposes for which national forests were created were to "conserve water flows, and to furnish a continuous supply of timber. . . ." New Mexico, 438 U.S. 696, 707, 98 S.Ct. 3012, 3017, 57 L.Ed.2d 1052, 1061 citing 30 Cong.Rec. 967 (1897) (statement of Rep. McRae).

Id. at 859.

The Wilderness Act is also distinct from the situation in New Mexico because each of the purposes surrounding the Wilderness Act were intended by Congress to be primary and crucial and, therefore, entitled to a water right unlike the secondary MUSYA purposes. See id. One such primary purpose is watershed protection and the conservation of water flows. See id. It is clear Congress intended to protect the watersheds and preserve water flows for downstream use as well as preserving the character of the wilderness and providing for recreation. Such water protection is not contrary, but instead consistent with wilderness preservation because such preservation "enhances water quality and quantity." See id. at 859. As the Block court stated:

[P]reservation of wilderness areas in their natural state actually enhances water quality and quantity. By protecting the natural state of the watersheds . . . wilderness areas improve the availability, as well as the purity, of the water for downstream users.

Id. (citing S.R. Rep. No. 109, 88th Cong., 1st Sess. at 15 (1963) (wilderness areas "provide watershed protection and clear, pure water for users below them")).

In New Mexico, the United States Supreme Court determined that national forest reservations had only a limited purpose, and therefore only a limited water right, but indicated that the broader purpose of the national parks, which is similar to the Wilderness Act's purpose, does imply a broader reservation of water.

Any doubt as to the relatively narrow purposes for which national forests were to be reserved is removed by comparing the broader language Congress used to authorize the establishment of national parks Congress created the National Park Service and provided that the "fundamental purpose of the said parks, monuments, and reservations . . . is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same . . . unimpaired for future generations."

New Mexico, 438 U.S. at 708-09, 98 S.Ct. at 3018-19, 57 L.Ed.2d at 1061-432 (citing National Park Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U.S.C. § 1 (1976 ed.)). The Court recognized that where a narrow purpose is proposed by a Congressional Act, as with national forests, that Congress would expressly reserve the water needed and, therefore, there were no implied water rights. However, where Congress specifies a broad purpose, as with national parks, Congress implicitly reserved that amount of water necessary to effectuate the broad purpose. See id. at 710-711, 98 S.Ct. at 3019-20, 57 L.Ed.2d at 1063-64. This same analysis should apply to wilderness areas because the Wilderness Act's purpose more closely resembles the purpose of national parks rather than national forests.

Further, when reviewing the two additional Acts of Congress designating the areas in Idaho, it becomes clear Congress intended to reserve water for the primary purpose of preserving the wilderness character of the areas reserved. The Selway-Bitterroot wilderness area was reserved by the Wilderness Act of 1964. The Gospel-Hump Area was reserved as a part of the Endangered American Wilderness Act of 1978, which was an effort by Congress to:

[P]reserve such areas as an enduring resource of wilderness which shall be managed to promote and perpetuate the wilderness character of the land and its specific multiple values for watershed preservation. . . .

Endangered American Wilderness Act of 1978, Pub.L. No. 95-237 § 1(b), 92 Stat. 40 (1978). Section 4(c)(1) of that Act specifically references the Gospel-Hump Area and mandates cooperation of federal and state agencies to conduct a:

[C]omprehensive fish and game research program within the Gospel-Hump Area and surrounding Federal lands in north-central Idaho . . . this research program includes detailed investigations concerning resident and anadromous fisheries resources (including water quality relationships) and the status . . . of game populations, in order to provide findings and recommendations concerning integration of land management and development with the protection and enhancement of these fish and game resources.

Id. at § 4(c)(1). It would be pointless for Congress to mandate a research program for management of fisheries if the federal government had no right to the water in the area. Later, in the Central Idaho Wilderness Act of 1980, Congress designated the River of No Return Wilderness Area (later named the Frank Church River of No Return Wilderness Area) as a protected wilderness area. See Central Idaho Wilderness Act of 1980, Pub.L. No. 96-312, 94 Stat. 948 (1980). In this Act, Congress also specifically addressed the importance of water to the fish and wildlife in the designated areas.

[T]hese wildlands and a segment of the Salmon River should be incorporated within the National Wilderness Preservation System and the National Wild and Scenic Rivers System in order to provide statutory protection for the lands and waters and the wilderness-dependent wildlife and the resident and anadromous fish which thrive within this undisturbed ecosystem.

Id. at § 2(a)(2). The Act goes on to specify that its purpose is to further the purposes of the Wilderness Act of 1964 by setting aside specific wilderness areas; moreover, the Act makes specific river designations as included in the wilderness area. See id. at § 9(a) (amending the Wild and Scenic Rivers Act to include certain portions of the Salmon River to be reserved). See Potlatch Corp. and Hecla Mining v. United States of America, 134 Idaho 912, 12 P.3d 1256 (2000).

b. Legislative history of the Wilderness Act.

The majority opinion relies on legislative history as determinative of the purpose of the Act. The majority cites, in particular, to statements from Senators Humphrey and Church as standing for the proposition that the Wilderness Act was intended to preserve only land, not water. However, the Congressional Records also contain statements from Senator Church indicating his interest in preservation of both land and water:

If we do not act now to conserve our vanishing wilderness, it will soon be lost forever. The wilderness not only is important to those who love the outdoor life and the sportsmen who hunt and fish there; it is equally needed for nature studies and general scientific inquiry, and for wise watershed and wildlife conservation.

109 Cong. Rec. 5942 (1963) (statement of Sen. Church). Senator Church further stated:

[O]ne of the purposes of the proposed legislation is to prevent a further opening up of the area, . . . so that the scenic and wilderness values, which are the predominant values, can be preserved, and so that the wildlife and the watershed can be preserved as well.

109 Cong. Rec. 5895 (1963) (statement of Sen. Church).

Statements by other Senators and members of Congress make it clear that Congress's purpose in establishing a wilderness preservation system was to protect all natural features contained in the wilderness areas, including water, and to "guarantee . . . that these lands will be kept in their original untouched natural state." 110 Cong. Rec. 17448 (1964) (statement of Rep. Cleveland). Moreover, the reason Congress promulgated the Wilderness Act was to "preserve for present and future generations, land in its original state to be used and enjoyed by all who are interested in outdoor life and conservation." 110 Cong. Rec. 17437 (1964) (statement of Rep. Riehlman). It is clear Congress intended to include water as a necessary element in the preservation of wilderness areas when it stated in the Conference Report that wilderness areas "provide watershed protection and clear, pure water for users below them." S.R. Rep. No. 109, 88th Cong., 1st Sess. at 15 (1963).

Legislative history is a difficult method of statutory interpretation to employ. Where an Act of Congress clearly identifies its purpose, delving into legislative history may confuse the plain reading of the law. In resorting to legislative history in the face of clear statutory language, a judge is likely to "put into [the legislature's] mouth things which he thinks it ought to have said." L. Hand, How Far Is A Judge Free In Rendering A Decision? In The Spirit of Liberty 106, 108, 109 (I. Dillard 2d ed. 1954). Often, especially in the case of the United States Congress, the legislative history is so voluminous that a court can manipulate the meaning of a law by choosing certain portions to emphasize. See Matter of Sinclair, 870 F.2d 1340 (7th Cir. 1989). Furthermore, legislative history consists of several different types of committee transcripts and reports. Each of the various types of legislative history are afforded different weight based on their relative credibility. See 2A N. Singer, Sutherland Statutory Coustruction §§ 48.01 et seq. (4th ed. 1984). Congressional committee reports receive greater weight than an individual legislator's comments made in the course of debate. See id.

Statutes are law, not evidence of law, and statements in the legislative history that purport to show how members of Congress intended or expected the plain language of the statute to be applied on given facts are not binding on an interpreting court. See Report to the Attorney General, Using and Misusing Legislative History: A Re-Evaluation of the Status of Legislative History in Statutory Interpretation, U.S. Dept. of Justice iv. (1989). "The legislative history of [a statute] is ambiguous. . . . Because of this ambiguity it is clear that we must look primarily to the statutes themselves to find the legislative intent." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n. 29, 91 S.Ct. 814, 821 n. 29, 28 L.Ed.2d 136, 151 n. 29 (1971).

The most compelling reason to limit our analysis to the text of the Wilderness Act itself is the structure of the legislative process in this country. The Constitution requires not only agreement on the language of legislation between both houses of Congress, but also that bills be presented to the President and subject to veto. This demonstrates that the focus of a court's statutory interpretation must center on ascertaining the meaning of the statute from the text itself. See Report to the Attorney General, Using and Misusing Legislative History supra. "It is the function of the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means." Pierce v. Underwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 2551, 101 L.Ed.2d 490, 505 (1988) (Scalia, J.); see also Holmes, The Theory of Legal Interpretation, 12 Harv. L.Rev. 417, 419 (1899) ("We do not inquire what the legislature meant; we ask only what the statute means."). When ascertaining the meaning of a statute, judges exercise the proper judicial power of interpretation when they work with the actual words of the enacted statute, which are the law — not statements made by members of Congress intended to persuade others to vote for or against a given bill.

3. The primary purpose of the Wilderness Act would be entirely defeated without water.

The second step in ascertaining whether Congress implicitly reserved a water right is the determination of whether the primary purpose of the Act would be entirely defeated without water. See New Mexico, 438 U.S. at 700, 98 S.Ct. at 3014, 57 L.Ed.2d at 1056. I can see no way to retain the wilderness character of an area without water. Where the primary purpose is to establish an area "untrammeled" and "untouched" by man, it would seem useless to merely limit man's direct physical impact on the land by limiting man's use of the land while, at the same time, depriving the wilderness and all that live there of water, which keeps it alive. The importance of water to wilderness areas was also noted in a recent law review article:

Water is integral to wilderness, essential to sustaining the communities of life that exist within the boundaries human beings draw around wild places. Without the full measure of its naturally occurring water, a wilderness will change; deprived of water it will die.

Karin P. Sheldon, Water for Wilderness, 76 Denv. U.L.Rev. 555 (1999). The article concluded that while the law may be able to "sever water from land for purposes of allocating rights of use" no one can "sever land from its need for water, or even lessen the critical role that water plays in sustaining life." Id. at 590. I agree.

Congress set aside the areas in question to preserve their wilderness character. Although the wilderness is generally a non-consumptive user of water in its streams and lakes, water is still necessary for wilderness protection. Thus it is necessary that the federal government possess a right to the water in the area in order to fulfill the primary purpose of the Wilderness Act. Without water no wilderness, or the vegetation, animals, and fish within it can survive. Just as the Indian reservations in Winters and Arizona were useless without water, the wilderness areas and all that reside or grow in them would cease to exist if deprived of water. In both Winters and Arizona, Congress set aside land for Indian reservations but did not expressly retain a water right in the land, nor did Congress need to. The United States Supreme Court determined the purpose of the areas as Indian reservations was defeated without water and, therefore, Congress must have implicitly reserved sufficient water to make the land useful. The same is true here,

Wilderness areas may not contain an express reservation of water by Congress, but the areas will never retain their "wilderness character" without water. These areas are to be preserved unchanged, but a change in the flow of streams would change their wilderness character. Therefore, Congress implicitly reserved sufficient water to fulfill the purpose of the Wilderness Act just as it did in the both the Indian reservations considered in Winters and Arizona. Further, the doctrine of implied water rights is not limited to only Indian reservations but encompasses any "enclave" where Congress has reserved an area for a specific purpose. See Lyng, 661 F. Supp. at 1494; see also Arizona, 373 U.S. at 601, 83 S.Ct. at 1498, 10 L.Ed.2d at 578 (determining the doctrine is not limited to Indian reservations but has been expanded to other federal land reservations).

The only other court to have squarely addressed the issue of whether the Wilderness Act implied a federal water right in reserved wilderness areas is the Federal District Court for the District of Colorado. See Block, 622 F. Supp. at 855. In that case, the federal court examined the Wilderness Act in relation to a suit brought by the Sierra club against the United States Forest Service for failing to assert a claim for water rights in several wilderness areas in Colorado. The court's analysis focused on "specific provisions of the Wilderness Act" and the relevant legislative history. See id. In Block, the court's determination of whether the Wilderness Act intended to reserve water centered around a full discussion of the Winters doctrine and, in light of that doctrine, an analysis of the text of the Wilderness Act. The court also quoted certain remarks from the legislative history as support for its interpretation of the text. The court then concluded that:

Congress intended to reserve previously unappropriated waters in the wilderness areas to the extent necessary to accomplish these purposes. It is beyond cavil that water is the lifeblood of the wilderness area. Without water, the wilderness would become deserted wastelands. In other words, without access to the requisite water, the very purpose for which the Wilderness Act was established would be entirely defeated. Clearly, this result was not intended by Congress. Accordingly, under the implied-reservation-of-water doctrine, it is implied from the Wilderness Act that Congress reserved water rights in the wilderness areas to the extent necessary to accomplish the purposes specified in the Act. Thus, . . . federal reserved water rights do exist in previously unappropriated water in each of the . . . wilderness areas designated as such pursuant to the Wilderness Act . . . .

Id. at 862. This was the same analysis and conclusion reached by this Court in its original opinion to this case, with which I still agree.

In sum, it is not for this Court, nor any court, to make or change the law, but to interpret the law as enacted by the legislative branch. Until Congress enacts further legislation clarifying the Wilderness Act as to federal reserved water rights, or otherwise resolves this issue, courts must apply the Winters doctrine to resolve these disputes. In applying the Winters doctrine, some states will recognize an implied federal water right via the Wilderness Act and some states will not, resulting in a patchwork of different interpretations of the same federal statute across the country. I agree with the court in Lyng who stated:

The issues in this case are permeated with conflicting philosophical views and economic interests which properly should be resolved by the political branches of government. . . . Until enlightened by a more precise articulation of legislative policy, it is my intent to enforce with vigor the intent of Congress as I perceive it to be.

Lyng, 661 F. Supp. at 1502.

I would hold there is an implied federal reserved water right in wilderness areas pursuant to the Wilderness Act whose primary purpose is to maintain wilderness areas in their pristine natural condition because, without water, that purpose would be entirely defeated.

The SRBA district court concluded the United States holds a federal reserved water right to all unappropriated flows originating in tributaries located within the Hells Canyon National Recreation Area with a priority date of December 31, 1975. The majority opinion concludes the SRBA district court correctly determined Congress expressly reserved a water right in the HCNRA, thus agreeing with the original opinion, but remands the case to the SRBA district court to quantify the "amount of water necessary to fulfill the purpose of the reservation."

However, both the appellants and the majority opinion incorrectly attempt to merge express water rights with the doctrine of implied water rights. Where, as here, Congress expressly reserves water and identifies the amount reserved that expressed reservation controls. § 1(b) of the HCNRA Act provides:

The Hells Canyon National Recreation Area (hereinafter referred to as the "recreation area"), which includes the Hells Canyon Wilderness (hereinafter referred to as the "wilderness"), the components of the Wild and Scenic Rivers System designated in section 3 of this Act, and the wilderness study areas designated in subsection 8(d) of this Act, shall comprise the lands and waters generally depicted on the map entitled "Hells Canyon National Recreation Area" dated September 1975, which shall be on file and available for public inspection in the office of the Chief, Forest Service, United States Department of Agriculture. The Secretary of Agriculture (hereinafter referred to as the "Secretary"), shall, as soon as practicable, but no later than eighteen months after the date of enactment of this Act, publish a detailed boundary description of the recreation area, the wilderness study areas designated in subsection 8(d) of this Act, and the wilderness established in section 2 of this Act in the Federal Register.

HCNRA Act § 1(b) (codified at 16 U.S.C. § 460gg(b)) (emphasis added). Only when a water right must be inferred from an Act of Congress must the Caapaert and New Mexico standards be employed to quantify the amount of water allocated to the right.

Therefore, I adhere to the Court's original opinion affirming the SRBA district court and hold that the HCNRA Act both expressly reserves a water right and expressly reserved all unappropriated flows of the tributaries of the Snake River within the HCNRA; therefore, it is unnecessary to remand the quantification issue to the district court. It is important to note, however, that the main flow of the Snake River is excluded from this expressed reservation and, therefore, not subject to a federal right. See HCNRA Act § 6(a) and (b).

C. Conclusion

Based on the foregoing, I respectfully dissent, in part, from the majority's opinion. I would hold that the Wilderness Act implicitly reserves a federal water right in the three Idaho wilderness areas. I would further hold that the HCNRA Act expressly states the amount of water reserved by the federal government and, therefore, no further quantification is necessary by the district court.

Justice WALTERS, specially concurring in the dissent by Justice SILAK and dissenting separately.

I concur with what has been written by Justice Silak. My own independent legal research and consideration of the positions urged by the parties to this action lead me to the conclusion that the federal government has an implied water right with respect to the three wilderness areas under review. I also agree that the reservation of the waters in the tributaries in the Hells Canyon National Recreation Area Act includes all of the water in those tributaries and that quantification of the amount (which would be a momentous if not impossible undertaking) is not necessary. I will add only a few additional observations.

In this case, Justice Schroeder, writing for the majority of the Court, has focused upon the question of whether there is an implied reservation of water rights created through the enactment of the Wilderness Act. On the other hand, Justice Silak not only disagrees with the conclusion reached by Justice Schroeder as to the effect of the Wilderness Act, but proceeds to take the analysis a step further and considers the language of the statutes that created the wilderness areas in Idaho that are the subject of this dispute. Justice Silak points out that the language in those statutes clearly show an intent to give the federal government the responsibility of protecting the wilderness character of the land through preserving its values for watershed and water quality relationships. This approach does not depend upon the generality of the terms of the Wilderness Act, but is tied directly to the legislation and comments specifically related to the areas set aside in Idaho pursuant to the Act.

I am persuaded that the creation of a wilderness area by the federal government included retaining control over the water needed to maintain the natural state of the environment in such an area. This seems to me logically to be necessary for the benefit of campers, hikers, photographers, kayakers, rafters, boaters and fishers who could utilize and enjoy the existence of streams, rivers, lakes and waterfalls in maintaining the pristine nature of the designated area. It would seem necessary also for the management and protection of big game animals, birds, fish and other wildlife dependent upon the water in the area, in order to preserve the character of the area as a wilderness undeveloped by man. To allow pollution or diversion of those waters by upstream owners of private property would clearly frustrate and essentially destroy the purpose of the wilderness reservations.

It could be argued that without reserved water rights, the areas in question would still remain wilderness nonetheless, albeit perhaps with a more harsh, desolate and less attractive and less desirable character than would be found with responsible management of the water flows within the boundaries of the designated areas. However, I doubt that Congress truly intended to create a "better" wilderness in the nature of an eventual desert in the forestlands of Idaho by ignoring the implied need for a water right.

Finally, I would address another concern sometimes raised with respect to the issues have been expressed about the amount and nature of control of water that may be exercised by the federal government while the water is located within the boundaries of the Idaho wilderness areas. In my opinion, the authority attendant to an implied water right does not give the government the right to control any part of that water once it flows out of the area. It is not reasonable to suggest that, in its management of the wilderness areas, the government could, for example, impound the water in the area in some great lake in order to later transport the water to another situs, or to otherwise control the use of the water once it has served its purpose within the wilderness area and flows from the area toward the sea. Such an attempted activity by the government certainly would be beyond the authority needed to carry out the objectives either of the Wilderness Act or of the legislation creating the three wilderness areas in Idaho.

Because of the disagreement among the members of the Idaho Supreme Court about the effect of the federally created Winters doctrine, I suggest that the parties seek certiorari to the United States Supreme Court for clarification of the application of that doctrine to this case.