High Country Citizens' Alliance v. Norton
| Citation | 448 F.Supp.2d 1235 |
| Decision Date | 11 September 2006 |
| Docket Number | No. CA03 WY 1712 CB(OES).,CA03 WY 1712 CB(OES). |
| Parties | HIGH COUNTRY CITIZENS' ALLANCE, the Wilderness Society, Trout Unlimited, Western Colorado Congress, Western Slope Environmental Resource Council, Environmental Defense, and National Parks Conservation Association, Plaintiffs, v. Gale NORTON, Secretary of the Department of the Interior, United States Department of the Interior, Fran Minella, Director of the National Park Service, and National Park Service, Defendants, v. Colorado Farm Bureau, Colorado State Engineer, Colorado Division Engineer for Water Division 4, Colorado Water Conservation Board, Colorado Division of Wildlife, and Colorado River Energy Distributors Association, Intervenor Defendants. |
| Court | U.S. District Court — District of Colorado |
Bartlett Phillip Miller, Western Resource Advocates, Andrew James Peternell, Trout Unlimited, Boulder, CO, Edwin Packard Aro, Hogan & Hartson, LLP, Denver, CO, Mary Anne Sullivan, Hogan & Hartson, LLP, Washington, DC, for Plaintiffs.
David William Gehlert, U.S. Department of Justice, Denver, CO, for Defendants.
Lee Edward Miller, Burns, Figa & Will, P.C., Greenwood Village, CO, Timothy J. Beaton, Moses, Wittemyer, Harrison & Woodruff, P.C., Boulder, CO, Carol D. Angel, Colorado Department of Law, Denver, CO, for Intervenor Defendants.
Chad Matthew Wallace, Colorado Attorney General's Office, Denver, CO.
ORDER GRANTING MOTION TO SET ASIDE AGENCY ACTION AND DENYING FEDERAL DEFEDANTS' MOTION TO DISMISS
This matter is before the Court on two motions. The Plaintiffs have filed a motion to set aside agency actions of the United States Department of the Interior and the National Park Service. Gale Norton, Secretary of the Department of the Interior, the United States Department of the Interior, Fran Minella, Director of the National Park Service, and the National Park Service (the federal Defendants) have filed a motion to dismiss this action for lack of justiciability, or in the alternative, uphold the challenged agency actions.1 The intervenor Defendants filed an opening brief urging the Court to deny Plaintiffs' motion to set aside the agency actions. Upon reviewing the file and administrative record, reading the briefs of the parties, hearing oral argument, and being fully advised, the Court FINDS and ORDERS as follows:
BACKGROUND
The Black Canyon of the Gunnison National Park (the Black Canyon or the canyon) is located in west-central Colorado in the center of the Gunnison River Basin. (A.R.8331.) This action involves the right to water from the Gunnison River for the preservation of the canyon. A brief overview of the river's history is helpful to understanding the issues presented for the Court's determination.
Competition for the water of the Gunnison River has often been as turbulent as the river itself. Since the initial development of the river basin in early 1900, the river water has been a highly sought commodity. Early expeditions through the Black Canyon seeking irrigation water for the nearby arid Uncompahgre Valley led to the development of the Uncompahgre Valley Reclamation Project and construction of the Gunnison Tunnel from 1901-1910. (Id. at 8334.) The tunnel diverts water upstream from the canyon under the provisions of a 1902 decree, which is one of the most senior rights in the Gunnison Basin. (Id.)
In 1933, acting pursuant to the Antiquities Act of 1906, 16 U.S.C. § 431, President Herbert Hoover designated the Black Canyon of the Gunnison as a national monument "for the preservation of the spectacular gorges and additional features of scenic, scientific, and educational interest." (A.R.5792.) As explained in more detail below, under the Winters doctrine, when the federal government reserved the Black Canyon as a national monument, it also reserved water from the Gunnison River necessary for the preservation of the monument.
After the Black Canyon was set aside as a national monument, the Taylor Park Reservoir was constructed. The reservoir was completed by 1937 to store water from the Taylor River, a headwater tributary of the Gunnison River. (A.R.8334.)
The final major development within the Gunnison River Basin was the construction of the Aspinall Reservoirs by the United States Bureau of Reclamation. The reservoirs were authorized by Congress in the Colorado River Storage Project Act of 1956. The act authorized the Secretary of the Interior to construct four storage projects, including the Aspinall Unit on the Gunnison River above the Black Canyon:
In order to initiate the comprehensive development of the water resources of the Upper Colorado River Basin, for the purposes, among others, of regulating the flow of the Colorado River, storing water for beneficial consumptive use, making it possible for the States of the Upper Basin to utilize, consistently with the provisions of the Colorado River Compact, the apportionments made to and among them in the Colorado River Compact and the Upper Colorado River Basin Compact, respectively, providing for the reclamation of arid and semiarid land, for the control of floods, and for the generation of hydroelectric power, as an incident of the foregoing purposes, the Secretary of the Interior is authorized (1) to construct, operate, and maintain the following initial units of the Colorado River storage project, consisting of dams, reservoirs, powerplants, transmission facilities and appurtenant works: Wayne N. Aspinall, Flaming Gorge, Navajo (dam and reservoir only), and Glen Canyon: Provided, That the Wayne N. Aspinall Dam shall be constructed to a height which will impound not less than nine hundred and forty thousand acre-feet of water or will create a reservoir of such greater capacity as can be obtained by a high waterline located at seven thousand five hundred and twenty feet above mean sea level ....
43 U.S.C. § 620. The Aspinall Unit is comprised of a series of three dams which begin about a half-mile upstream from the Black Canyon, the Blue Mesa Dam and Reservoir, the Morrow Point Dam and Reservoir, and Crystal Dam and Reservoir. (A.R.8334, 12786.) The Aspinall Reservoirs have significantly altered the natural flow regime of the Gunnison River upstream from the Black Canyon by diverting and regulating flows. (A.R.8326.)
A 1954 report from the Assistant Secretary of the Interior to Congress on the Colorado River Storage Project described the formation of the Black Canyon:
It is the historic flows which, over hundreds of millions of years, have carved the spectacular gorge down through the basic, precambrian geological formation to depths ranging from 1,730 feet to as much as 2,425 feet, creating a great earth gash which is, in places, deeper than the width from rim to rim. Other natural weathering forces have combined with the river to create this natural wonder. Spalls, chips, and gravels falling unhindered to the canyon bottom are annually swept away by the great spring tidal flashes of the river.
(A.R.5693.) In 1999, taking into account the Black Canyon's ecological, geological, scenic, historical and wildlife features, Congress passed the Black Canyon Act which upgraded the Black Canyon national monument to a national park. 16 U.S.C. §§ 410fff, 410fff-2. In upgrading the monument to a national park, Congress provided that nothing in the Black Canyon Act affected any water right in existence and that any new water right that the Secretary of the Interior determined necessary for the purposes of the act would be established in accordance with the procedural and substantive requirements of the laws of Colorado. 16 U.S.C. § 410fff-8(b)
Under the Winters doctrine, 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. Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976) (citing Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908)). The right is a "present perfected right" and is entitled to priority. Arizona v. California, 460 U.S. 605, 610, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). The implied reservation of water rights doctrine reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. Cappaert, 426 U.S. at 141, 96 S.Ct. 2062. As explained in United States v. New Mexico, 438 U.S. 696, 702, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978):
Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress' express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator.
In 1952, Congress enacted the McCarran Amendment which permitted the determination of federal water rights by state courts. 43 U.S.C. § 666; United States v. City and County of Denver, 656 P.2d 1, 9 (Colo.1982). The McCarran Amendment eventually led to claims by the United States in the Colorado District Courts in and for Water Divisions 4, 5, and 6 (Colorado water court) for reserved water rights covering national forests and monuments, including the Black Canyon of the Gunnison National Monument. United States v. City and County of Denver, 656 P.2d at 12. On March 6, 1978, after...
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