U.S. v. Jesse
| Decision Date | 13 October 1987 |
| Docket Number | No. 85SA347,No. 1,No. 2,2,1,85SA347 |
| Citation | 744 P.2d 491 |
| Parties | 18 Envtl. L. Rep. 20,275 The UNITED STATES of America, Appellant, v. Robert W. JESSE, Water DivisionEngineer; State of Colorado, Department of Natural Resources and all other Departments, Agencies and Divisions, and on behalf of the People of the State of Colorado; City and County of Denver, By and Through its Board of Water Commissioners; Southeastern Colorado Water Conservancy District; Twin Lakes Reservoir and Canal Company; City of Colorado Springs; City of Fountain; Huajatolla Water Users Association; Panadero Ski Corporation, a Colorado corporation; Baker Creek Properties, a partnership; Dwight A. Harrison; J. Lowell Goemmer; Tom L. Watson; Goemmer Land and Livestock Company, a limited partnership; CF & I Steel Corporation; Frank A. Schultz, d/b/a Twin Peak Ranches; Town of Aguilar; Spanish Peaks Soil Conservation District; the City of Cripple Creek; W.J. Runyon, Jr.; William A. Simpson, Jr.; Mount Massive Lakes, Inc., a corporation duly organized and existing under the laws of the State of Colorado, for itself, its members, and stockholders as a class and as individuals; Walter I. Auran; Ralph W. Liedholt; Rosemary B. Liedholt; R. James Nicholson; John W. Nicholson; Sophie M. Nicholson; Board of Water Works of Pueblo, Colorado; Consquistador, Inc.; Louis R. Higby, Jr. and Verna J. Higby; Pinerose Associates; Harlan-Bismuth Association; New Colorado Associates; Trout Creek Associates; Harold C. Ingersoll; St. Charles Mesa Water Association; Pueblo West Metropolitan District; Cucharas Sanitation and Water District; Public Service Company of Colorado, Hydro Production Department; Bessemer Irrigation Ditch Company; Jimmie A. Keeton, Sr.; Colorado River Water Conservation District; John M. May and Frances M. May; Colorado Water Protective and Development Association; Woodmoor Water and Sanitation District; W. Barry Hill; Purgatoire River Water Conservancy District; Randall L. Schranz and Patricia Ann Schranz; Catlin Canal Company; Fort Lyon Canal Company; Arkansas |
| Court | Colorado Supreme Court |
F. Henry Habicht, II, Asst. Atty. Gen., David C. Shilton, Robert L. Klarquist, Washington, D.C., Robert N. Miller, U.S. Atty., John R. Hill, Jr., Denver, for appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert A. Hykan, Asst. Atty. Gen., Denver, for appellee State of Colo.
Wayne D. Williams, Michael L. Walker, Casey S. Funk, Denver, Saunders, Snyder, Ross & Dickson, P.C., Jack F. Ross, Glenn G. Saunders, Denver, for appellee City and County of Denver.
Fairfield and Woods, Howard Holme, Kevin B. Pratt, Michael B. Genoways, Denver, for appellee Southeastern Colorado Water Conservancy Dist.
John U. Carlson, Denver, for Twin Lakes Reservoir and Canal Co.
Law Office of Robert F.T. Krassa, P.C., Robert F.T. Krassa, Pueblo, for appellees St. Charles Mesa Water Ass'n and Pueblo West Metropolitan Dist.
Kelly, Stansfield & O'Donnell, Timothy J. Flanagan, Denver, for appellee Public Service Co. of Colorado.
Donald H. Hamburg, Glenwood Springs, for appellee Colorado River Water Conservation Dist.
Mitchell & Mitchell, P.C., Rexford L. Mitchell, Rocky Ford, for appellees Catlin Canal Co. and Arkansas Valley Ditch Ass'n.
Davis, Graham and Stubbs, John M. Sayre, Robert V. Trout, Denver, for amicus curiae Northern Colorado Water Conservancy Dist.
Ward H. Fischer, William R. Fischer, Fort Collins, for amicus curiae Cache La Poudre Water Users Ass'n.
This is an appeal from partial summary judgment entered against the United States in a comprehensive adjudication of water rights in Water Division No. 2. The claims on which summary judgment was granted involve federal reserved water rights in the Pike and San Isabel National Forests, which are located in Water Division No. 2. The United States asserts that the withdrawal of the Pike and San Isabel National Forests from the public domain implicitly reserved appurtenant water necessary to maintain minimum instream flows over the forest lands. In United States v. City and County of Denver, 656 P.2d 1 (Colo.1982) (Denver I ), the United States failed to claim that such rights were necessary to achieve the purposes for which the national forests were created under the Organic Administration Act of 1897, 16 U.S.C. §§ 475-482 (1982) (the Organic Act). The United States now contends that recent advances in the science of fluvial geomorphology demonstrate that minimum instream water flows are necessary to preserve efficient stream channels in the national forests and "to secure favorable conditions of water flows," one of the purposes for which the national forests were created under the Organic Act. The water court for Water Division No. 2 rejected the claim and held (1) that, as a matter of law, the Organic Act did not implicitly reserve appurtenant water necessary to maintain instream water flows in the national forests, and (2) that our decision in Denver I collaterally estopped the United States from claiming a reserved right to maintain minimum instream water flows in the national forests. We reverse and remand with directions for further proceedings consistent with this opinion.
THE FRAMEWORK OF IMPLIED FEDERAL
When the United States withdraws land from the public domain and reserves the land for a federal purpose, appurtenant water then unappropriated is implicitly reserved to the extent necessary to accomplish the purpose of the reservation.
Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 2069, 48 L.Ed.2d 523 (1976); see also United States v. New Mexico, 438 U.S. 696, 699-700, 98 S.Ct. 3012, 3013-14, 57 L.Ed.2d 1062 (1978); Denver I, 656 P.2d 1, 17 (1982). The implied federal right vests on the date of the reservation and is superior to the rights of future appropriators. Cappaert, 426 U.S. at 138, 96 S.Ct. at 2069. The United States Supreme Court has recognized implied federal reserved water rights for varied federal reservations, including national forests, monuments, parks, recreation areas, wildlife refuges, and Indian reservations. See, e.g., New Mexico, 438 U.S. at 698, 98 S.Ct. at 3013 (the United States implicitly reserved appurtenant water necessary to accomplish the purposes of the Gila National Forest reservation); Cappaert v. United States, 426 U.S. at 139, 96 S.Ct. at 2070 (1952 presidential proclamation creating the Devil's Hole National Monument impliedly reserved sufficient water to preserve the Devil's Hole pupfish); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 805, 96 S.Ct. 1236, 1240, 47 L.Ed.2d 483 (1975) (the reserved water rights of the United States extend to Indian reservations, national parks, and national forests); Arizona v. California, 373 U.S. 546, 601, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1962) (the United States reserved water sufficient for the future requirements of the Lake Mead National Recreation Area, the Havasu Lake National Wildlife Refuge, and the Gila National Forest)
The reserved water rights doctrine must be narrowly construed, see Denver I, 656 P.2d at 26, and the right includes "only that amount of water necessary to fulfill the purpose of the reservation, [and] no more," Cappaert v. United States, 426 U.S. at 141, 96 S.Ct. at 2071. The application of the doctrine requires a careful examination of the asserted water rights and the specific purposes for which the land was reserved and depends upon the conclusion that the purpose of the reservation would be entirely defeated without the claimed water. New Mexico, 438 U.S. at 700, 98 S.Ct. at 3014; Denver I, 656 P.2d at 19.
In contrast to the doctrine of prior appropriation, which prevails in most of the western states and recognizes only the right to divert a quantified amount of water at a specific location for a specific purpose, see §§ 37-92-103(12), -302, -303, 15 C.R.S. (1973 & 1986 Supp.); Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962), the federal doctrine of reserved water rights vests the United States with a dormant and indefinite right that may not coincide with water uses sanctioned by state law. Boles & Elliot, United States v. New Mexico and the Course of Federal Reserved Water Rights, 51 U.Colo.L.Rev. 209, 213 (1980) (hereinafter Boles & Elliot). In a 1973 report to the President and Congress, the National Water Commission identified four characteristics of federal reserved water rights that are incompatible with the doctrine of prior appropriation: (1) the right may be created without diversion or beneficial use; (2) the priority of the right dates from the time of the land withdrawal and not from the date of appropriation; (3) the right is not lost by nonuse; and (4) the measure of the right is quantified only by the amount of water reasonably necessary to satisfy the purposes of the reservation. National Water Commission,...
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