In re Application for Water Rights of US, 03SA321.

• Court: Supreme Court of Colorado
• Citation: 101 P.3d 1072
• Docket Number: No. 03SA321.,03SA321.
• Parties: In re: The APPLICATION FOR WATER RIGHTS of UNITED STATES of America. The United States of America, Applicant, v. Colorado State Engineer; Division Engineer for Water Division No. 4; Colorado Water Conservation Board; Colorado River Energy Distributors Association; Southeastern Colorado Water Conservancy District; Colorado Farm Bureau; Montrose County Farm Bureau; Delta County Farm Bureau; Colorado River Water Conservation District; Upper Gunnison River Water Conservancy District; and Mt. Emmons Mining, Opposers, and Environmental Defense; High Country Citizens' Alliance; the Wilderness Society; Western Colorado Congress; Western Slope Environmental Resource Council; and Trout Unlimited, Additional Opposers.
• Decision Date: 08 November 2004

101 P.3d 1072

In re: The APPLICATION FOR WATER RIGHTS of UNITED STATES of America.
The United States of America, Applicant,
v.
Colorado State Engineer; Division Engineer for Water Division No. 4; Colorado Water Conservation Board; Colorado River Energy Distributors Association; Southeastern Colorado Water Conservancy District; Colorado Farm Bureau; Montrose County Farm Bureau; Delta County Farm Bureau; Colorado River Water Conservation District; Upper Gunnison River Water Conservancy District; and Mt. Emmons Mining, Opposers, and
Environmental Defense; High Country Citizens' Alliance; the Wilderness Society; Western Colorado Congress; Western Slope Environmental Resource Council; and Trout Unlimited, Additional Opposers

No. 03SA321.

Supreme Court of Colorado, En Banc.

November 8, 2004.

101 P.3d 1074

U.S. Department of Justice, Environment & Natural Resources Division, David W. Gehlert, Denver, for Applicant

Moses, Wittemyer, Harrison & Woodruff, P.C., Timothy J. Beaton, Gabriel D. Carter, Boulder, for Colorado River Energy Distributors Association.

Ken Salazar, Attorney General, Carol D. Angel, First Assistant Attorney General, Denver, for Colorado Water Conservation Board and for Division Engineer for Water Division No. 4.

Bratton & McClow, LLC, John H. McClow, Marcus J. Lock, Gunnison, for Upper Gunnison River Water Conservancy.

Colorado River Water Conservation District, Peter Fleming, General Counsel, Jill C.H. McConaughy, Associate Counsel, Glenwood Springs, for Colorado River Water Conservation District.

Friedlob Sanderson Paulson & Tourtillott, LLC, Brian M. Nazarenus, William H. Caile, Denver, for Mount Emmons Mining Company.

Burns, Figa & Will, P.C., Lee E. Miller, Englewood, for Colorado Farm Bureau, Delta County Farm Bureau, Montrose County Farm Bureau and Southeastern Colorado Water Conservancy District.

Western Resource Advocates, Bart Miller, Boulder, for Environmental Defense, High Country Citizens' Alliance, The Wilderness Society, Western Colorado Congress, and Western Slope Environmental Resource Council.

Andrew Peternell, Boulder, for Trout Unlimited.

MULLARKEY, Chief Justice.

I. Introduction

The petitioners, various private and public Colorado entities, challenge a stay order entered by the water court that delays quantification of the United States' reserved water right in the Black Canyon of the Gunnison National Park until after federal litigation on related issues is resolved. The stay was requested by several environmental groups ("Environmental Opposers") after they filed an action in federal court contesting the administrative decision making process that led the United States to reduce the amount of water it claims for the park and amend its quantification application. In this original proceeding, petitioners challenge the water court's grant of the stay as an abdication of its jurisdiction and argue that the stay substantially and irreparably harms their ability to litigate the merits of the case. The Environmental Opposers contend that the federal case presents distinct claims over which the federal court has exclusive jurisdiction and that the need for the stay outweighs any prejudice to the petitioners. We review the water court's order for abuse of discretion and uphold it.

The McCarran Amendment, 43 U.S.C. § 666 (2004), allows a party to involuntarily

101 P.3d 1075

join the United States as a necessary party in a comprehensive state water court adjudication. The question presented by this case is whether the McCarran Amendment's waiver of sovereign immunity is so broad that it allows state courts to evaluate and adjudicate federal agencies' decision making processes related to the quantification application. Based on our review of the McCarran Amendment's text and legislative history, as well as the text and legislative history of the judicial review provisions of the federal Administrative Procedure Act, we conclude that the scope of the sovereign immunity waiver under the McCarran Amendment is not so broad. From this conclusion, it follows that there must be both state and federal proceedings to resolve all the issues related to the United States' Black Canyon water right

Because the federal court has exclusive jurisdiction over the federal claims and resolution of those claims may require the United States to claim a greater reserved water right for the Black Canyon, we hold that the water court acted within its discretion when it stayed the proceedings until the federal litigation is resolved. Comity and consideration of the relief available to the parties favor the award of a stay in the water case as well. Given the fact that the quantification proceeding for the Black Canyon has already been delayed for nearly thirty years, we see no great prejudice to the petitioners in temporarily staying the proceedings because they are not precluded from contending that the United States' water right should be narrow. Petitioners are able to, and have taken steps to, protect their rights in the federal proceeding. Given the finality of a decree once it is issued, Environmental Opposers would not be able to protect their interests and federal claims in the same way if the stay were lifted.

We issued a rule to show cause why the water court should not reverse its order granting the motion for stay. Because we find that the water court acted within its discretion in granting the stay, we now discharge the rule.

I. Facts and Procedural History

Quantification of the United States' reserved water right for the Black Canyon of the Gunnison has a long and convoluted history. The Black Canyon first became a national monument in 1933 when President Herbert Hoover designated it as such "for the preservation of the spectacular gorges and additional features of scenic, scientific, and educational interest." Black Canyon of the Gunnison National Monument—Colorado, By the President of the United States of America, Proclamation No.2033 (March 2, 1933) at 1. In 1999, Congress passed the Black Canyon Act, elevating the monument to national park status. 16 U.S.C. § 410fff (2004).

Under the reserved rights doctrine, the United States is entitled to the quantity of water from the Gunnison River necessary to satisfy the aesthetic, environmental, recreational and educational purposes for which the Black Canyon was reserved. See Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). To quantify this right, a court must determine the precise federal purpose to be served, that the purpose would be frustrated without water, and the minimum quantity of water required to fulfill the purpose. United States v. City & County of Denver, 656 P.2d 1, 18 (Colo.1982). A Colorado water court acquired jurisdiction to determine the United States' water rights to the Black Canyon by virtue of the McCarran Amendment. 43 U.S.C. § 666.

On March 6, 1978, after several years of proceedings, the water court issued an interlocutory decree awarding the United States absolute and conditional water rights for the Black Canyon. The decree recognized the United States' priority dates of 1933, 1938, and 1939 for the federal reserved water right. The decree determined the purposes of the reservation: "to conserve and maintain in an unimpaired condition the scenic, aesthetic, natural, and historic objects of the monument, as well as the wildlife therein, in order that the monument might provide a source of recreation and enjoyment for all generations of citizens of the United States." Although the court deferred quantification of the conditional water rights until they were made final at a later date, the decree explicitly recognized that the purposes of the Black

101 P.3d 1076

Canyon entitled the United States to direct flow water rights for a broad range of uses. These uses included the "development, conservation, and management of resident and migratory wildlife," "[f]orest improvement and protection uses," "[u]ses for fish culture, conservation, habitat protection, and management," and "[u]ses for the preservation of scenic, aesthetic, and other public values."

Twenty-three years later, the United States filed an application to quantify its conditional water rights for the Black Canyon. In its January 2001 application, the United States claimed year-round base flows of 300 cubic feet per second ("cfs") and higher peak and shoulder flows tied to the expected natural spring run-off each year. Depending upon the quantity of water required to maintain spring peak flows, the United States reserved the right to claim up to an additional 10,000 cfs for part of each year.

More than 380 parties, including the Environmental Opposers, filed statements in opposition to the initial quantification application, and many became parties to the water court case. The water court granted two consecutive six-month stays of proceedings so that the United States could enter into settlement discussions with the parties opposing the application. The Environmental Opposers were not invited to participate in any negotiations concerning settlement.

On April 2, 2003, the United States and the State of Colorado entered into an agreement ("April Agreement"). In the April Agreement, the United States relinquished its reserved right to peak and shoulder flows, and claimed a year-round base flow of the lesser of 300 cfs in-stream or natural flow. On the same day, to reflect this agreement, the United States filed a motion to amend its quantification application and a proposed amended application with the water court.

On July 31, 2003, the United States and the State of Colorado entered into a further Memorandum of Agreement ("MOA") concerning the federal government's water rights for the Black Canyon. Under the MOA, the United States delegated the appropriation of peak and shoulder flows to the Colorado Water Conservation Board's ("CWCB") in-stream flow program, and agreed to a 2003 priority date...