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 entirely defeated.”8 The primary purposes of a federal reservation are determined by examining the legislation or executive order that established the reservation.
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 Order
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.
B. Statutes Creating the Park
A reserved water right may be created by an Act of Congress reserving public land for a particular purpose.9 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.
