Edwin Meese’s Wilderness Water Rights Opinion

Former Attorney General Edwin Meese clearly prefered otherwise, but the federal government does have an obligation to protect wilderness water rights.


| January/February 1989


The Regan Administration advanced some controversial positions over its eight years, but none has proved to be a greater intellectual washout than that declared by Edwin Meese III a few days before he packed his bags and cleared out of the Justice Department.

The policy of the federal government, said the Attorney General, is not to claim wilderness water rights for the purpose of conservation. This opinion could be interpreted to cover not only congressionally designated wilderness, but also national wildlife refuges.

Waterless wilderness: Just because it’s a self-canceling idea, an oxymoron, doesn’t mean it isn’t the official policy of the government — at least at present. Strenuous efforts are under way to reverse the situation.

The Meese opinion arose following a series of legal victories by the Sierra Club Legal Defense Fund in the federal court in Colorado. Staff attorney Lori Potter had sued the Forest Service some years back for that agency’s refusal to claim water for its 24 wildernesses in water rights adjudications being conducted in the state.

The court ruled quite bluntly that “wilderness” is a legitimate and important land classification and that the Forest Service has a legal obligation to secure water to sustain it. “It is beyond cavil that water is the lifeblood of the wilderness areas,” wrote Judge John L. Kane. “Without water, the wilderness would become deserted wasteland.” He ordered the Forest Service to submit to him its plans for securing water for the wilderness lands under its control, an order to which the agency acquiesced with characteristic bad grace.

Judge Kane’s ruling affected only National Forest Service wilderness in Colorado, but the principle is equally applicable throughout the country.





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