Reply Brief; Case No. 04SA44 - Laserfiche WebLink

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ARGUMENT 1. THERE IS NO CONSTITUTIONAL RIGHT TO APPROPRIATE RECREATIONAL IN-CHANNEL WATER RIGHTS OF UNLIMITED SIZE AND SCOPE. As the State demonstrated in its Opening Brief, the Water Court erred in holding that it would infringe on the Colorado Constitution "[t)o preclude an Applicant from determining precisely the size and scope" of any in-channel recreational use. (Findings of Fact, Conclusions of Law and Order, ("Order"), p. 19). This Court should reverse the Water Court because this holding effectively means that the Legislature infringed on the constitution by limiting in-channel recreational uses to a"minimum stream flow." The Appellee does not specifically address whether the right to appropriate water for in-channel or instream usesi is a constitutional or a statutory right, but certain amici2 argue that there is an absolute constitutional right to appropriate water for recreational in-channel uses that cannot be limited by the Legislature. The Colorado River Conservation District ("CRCD"), on the other hand, asserts that whether there is a constitutional right to recreational in-channel uses is "largely irrelevant" because what constitutes a beneficial use is not established by the Constitution, but rather it is "based on the acts of appropriators who control water for their own purposes." (Brief, p. 8). These arguments are plainly wrong. 'The terms "in-channel" and "in-stream" are interchangeable. "Stream" is defined as a"flow of water in a channel or bed," and "channel" is defined as the "bed of a stream or river." The American Herita e? College Dictionary, 3?d Ed. (1993), pp. 1343, 234. ZOnly the Appellee and the State presented evidence at trial. Because the briefs of the Appellee and certain parties and/or amici present similar legal arguments, the State will just refer to the Appellee's brief to avoid lengthy citations, unless a different, relevant argument appears in another brief. 2