Reversing the Winters Doctrine?: Denying Reserved Water Rights for Idaho Wilderness and its Implications

Abstract:     
Federal reserved water rights have always been a controversial doctrine in the Western United States because they threaten long-established water users with defeasance of what they thought were fixed and certain prior appropriation water rights under state law. But this federal doctrine has been firmly fixed in Supreme Court precedent since the 1908 Winters v. U.S. decision and applied to all federal land reservations since Arizona v. California in 1963.

In a series of decisions in the 1970s and 1980s, the Supreme Court read extremely broadly a statute known as the McCarran Amendment, a 1952 appropriations rider that gave the federal government's consent to be sued in state court if part of a comprehensive river basin adjudication. Thus, federal reserved rights can be subject to state court interpretation. State judges, who often are elected in the West, have proved to be fairly hostile to federal reserved rights.

The best example of this judicial hostility occured in a 2000 decision of the Idaho Supreme Court, in which the court denied - on a 3-2 vote - the existence of federal reserved water rights for wilderness areas in that state. This decision reversed an earlier one in which the same court upheld wilderness reserved rights. The reversal took place in the wake of a partisan election in which the author of the earlier opinion was defeated for reelection, largely on the basis of her reserved rights opinion. This article critically analyzes the Idaho court's opinion on wilderness water - as well as several related opinions on other federal land reserves in the state - and suggests that the result calls into question the independence of the Idaho judiciary from the state's powerful agricultural lobby.

Keywords: water law, public land law, natural resources law, federalism, environmental law

JEL Classifications: H82, K 11, K32, N50, O13, Q25, Q28

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