Answer Brief of the Colorado River Water Conservancy District

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 1/1/3000
• Author: Peter C. Fleming, Kristin M. Gillespie
• Title: Answer Brief of the Colorado River Water Conservancy District
• Water Supply Pro - Doc Type: Court Documents

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Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38)
Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District
Answer Brief of the Colorado River Water Conservation District
People v. Emmert is therefore misplaced and the Court should summarily reject the State's analogy
of criminal trespass law to the issues at hand in this case.
Perhaps more importantly, whether the Colorado Constitution expressly guarantees a right
to the recreational use of water is largely irrelevant because what constitutes a beneficial use is not
established by the Constitution. Rather, it is based on the acts of appropriators who control water
for their own purposes. Sante Fe Trail Ranches Property Owners Ass'n v. Simpson, 990 P.2d 46,
53, 55 (Colo. 1999) ("Sante Fe Trail v. Simpson") (beneficial use is not defined ar limited by the
Colorado Constitution; rather, "what constitutes a beneficial use tracks legislative enactments, court
decisions, and principally, the acts of appropriators who control the water for their purpose.")
(Emphasis added).
The principle confirmed in Santa Fe Trail v. Simpson, has allowed water users to obtain
water rights for numerous "new" uses of water throughout the years, including water rights for
recreational uses. This Court has had the opportunity in several important cases to acknowledge and
confirm some of the many recreational rights decreed throughout Colorado. See Board of County
Comm'rs ofArapahoe County v. Crystal CreekHomeowners'Ass'n, 14 P.3d 325, 340 (Colo. 2000)
("Recreation and fish and wildlife are recognized beneficial uses in Colorado."), citing, May v.
United States, 756 P.2d 362, 371 (Colo. 1988); Simpson v. Highland Irrigation Co., 917 P.2d 1242,
1251 (Colo. 1996)(impounded water "can be beneficially applied to fish, recreational, and flood
control uses therein."); Board of County Comm'rs ofArapahoe County v. Upper Gunnison River
Water Conservancy Dist., 838 P.2d 840, 848 (Colo. 1992) (recreational use recognized by exercise
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