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<br />BLACK CANYON INFORMATION PAPER
<br />
<br />001249
<br />
<br />Oct. 2000
<br />
<br />Attachment C
<br />Brief Legal History of non-lndian Federal Reserved Rigbts
<br />and Colorado court decisions on Black Canyon
<br />
<br />The following discussion points are taken from United States v. City and County of Denver, 656
<br />P,2d 1, Colorado Supreme Court, Nov. 29, 1982.
<br />
<br />The doctrine of federal reserved water rights is judicially created The power of the United
<br />States to legislate a federal system for the use and disposition of unappropriated non-navigable
<br />waters on federal lands generally, and on reserved lands specifically, is derived from the
<br />Property Clause of the United States Constitution, U.S. Const, Art. IV, Sec. 3. Based upon a
<br />recognition of Congress' underlying power, the United States Supreme Court has constructed a
<br />body of law, derived by judicial implication from congressional actions, holding that:
<br />
<br />'Congress, in giving the President the power to reserve portions of the federal domain for
<br />specific federal purposes, impliedly authorized him to reserve 'appurtenant water then
<br />unappropriated to the extent needed to accomplish the purposes of the reservation.' United
<br />States v. New Mexico. 438 U.S. at 699-700, 98 S.Ct, at 3013-3014, quoting Cappaert v. United
<br />States. 426 U.S. at 138, 96 S.Ct. at 2069 (emphasis in original). The existence of the reserved
<br />rights doctrine is now well recognized, and the United States Supreme Court has confirmed its
<br />existence as a matter of federal law in several cases throughout the past one hundred years.
<br />(656 P,2d at 17).
<br />
<br />In CaTJpaert. the Supreme Court unanimous~v held that the reservation of the Devil's Hole
<br />National Monument under the American Antiquities Preservation Act of June 8, 1906, 34 Stat.
<br />225, 16 U.S.c. 9431 (1976), also reserved sufficient unappropriated water to sustain the
<br />scientific value of the reservation. The reservation required that the water level in Devil's Hole
<br />be maintained at the minimal level necessary to allow survival of the Devil's Hole pupfish, a
<br />unique species that had been endangered by a drop in the water level. The water level in the
<br />pool had declined due to pumping of groundwater by a nearby in'igator. The Court noted that
<br />in determining whether there is a federally reserved water right implicit in the federal
<br />reservation, the crucial issue is whether the government intended to reserve unappropriated
<br />water. 426 U.S. 15 139-40, 96 S.Ct. at 2069-70. Intent is inferred if 'previously unappropriated
<br />waters are necessary to accomplish the purposes for which the reservation was created' Id
<br />The amount of water reserved, however, was 'only that amount of water necessary to fulfill the
<br />purpose of the reservation, no more.' Id at 141,96 S.Ct. at 2070 (citations omitted). 656 P.2d
<br />at 18.
<br />
<br />In further discussion of the Cappaert case, the Colorado Supreme Court noted: The Court
<br />expressly approved the action of the lower court in tailoring its decree to satisfy the 'minimal
<br />need' of the government. Id at 141,96 S.O. 152070. Thus, the existence of afederal
<br />reservation does not in and of itself denote a reservation of water. Rather, there must be a
<br />determination of the precise federal purpose to be served, a determination that the purpose
<br />would be frustrated without the water, and a determination of the minimum quantity of water
<br />required to fulfill the purpose. 656 P .2d at 1 8,
<br />
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