McClowPresentation6506LegalIssuesAssociatedwiththeGunnisonBasin

Home Browse Search

LEGAL ISSUES ASSOCIATED WITH THE GUNNISON BASIN Gunnison Basin Roundtable June 5~ 2006 Page 3 of7 B. Quantification of Reserved Rightfor Black Canyon of the Gunnison National Park in thefonn of an Application to Make Absolute a Conditional Water Right. Case No. 01CW05, Water Division 4. 1. Case originally filed in 1971 (Case No. W-437) as one among hundreds of applications filed by the United States seeking to adjudicate federal reserved water rights for federal properties in Water Divisions 4, 5, and 6. 2. The doctrine of federal reserved water rights was created by the federal courts. The United States Supreme Court defines a federal reserved water right as follows: ". . . 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 (1976). 3. Based on a Master Referee's Report, a decree entered in 1978 awarding the United States a conditional water right for the Black Canyon of the Gunnison National Monument for the minimum flow necessary for, among other things, "preservation of scenic, aesthetic and other public values" and "uses for fish culture, conservation, habitat protection and management" sufficient to "fulfill the purposes of the reservation". The decree requires the United States to file an application to quantify its conditional water right within six months of the final decree in this case. 4. Denver and other opposers appealed the Water Court ruling to the Colorado Supreme Court. The Supreme Court affirmed the Water Court, holding: ". . . we approve the procedure utilized by the water court in determining the federal government's entitlements under the reserved water rights doctrine. For each federal claim of a reserved water right, the trier of fact must examine the documents reserving the land from the public domain and the underlying legislation authorizing the reservation; determine the precise federal purposes to be served by such legislation; determine whether water is essential for the primary purposes of the reservation; and finally determine the precise quantity of water--the minimal need as set forth in Cappaert and New Mexico--required for such purposes." U. S. v. Denver, 656 P.2d 1, 20 (Colo. 1982).