Reply to Response to 56(h) Motion for Determination of Question of Law

Home Browse Search

1910); Seven Lakes Res. Co. v. Majors 196 P. 334 (Colo. 1921); North Sterling Irr. Dist. v. Riverside Reservoir & Land Co., 200 P.2d 933, 935 (Colo. 1948); Metro. Water Ass'n v. Colo. River Water Cons. Dist. 365 P.2d 273 (Colo. 1961); Bunger v. _Uncompahgre, 557 P.2d 389, (Colo. 1976); Bijou Irr. Dist. v. Empire Club 804 P.2d 175 (Colo. 1991); Bijou Irr. Dist. v. Barnett 832 P.2d 713 (Colo. 1992); In Matter of Gunnison County, 838 P.2d 840 (Colo. 1992); Southeastern Colorado Water Conservancy Dist. v. Fort Lyon Canal Co. 720 P.2d 133 (Colo. 1986); FWS Land and Cattle Co. v. State, Div. of Wildlife 795 P.2d 837 (Colo. 1990); Surface Creek Ditch & Reservoir Co. v. Grand Mesa Resort Co. 168 P.2d 906 (Colo. 1946); Water Supply and Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987); Matter of Water Rights of Bd. of County Com'rs of County of Arapahoe 891 P.2d 981 (Colo. 1995); Purgatoire River Water Conservancy Dist. v. Witte 859 P.2d 825 (Colo. 1993); Merit Land & Cattle Co., Inc. 534 P.2d 618 (Colo. 1975); In re Merit Land & Cattle Co., Inc. 534 P.2d 618 (Colo. 1975); Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co. 594 P.2d 566 (Colo. 1979); City of Aspen v. Colorado River Water Conservation Dist. 696 P.2d 758 (Colo. 1985); Northern Colorado Water Conservancy Dist. v. Rifle Ski Corp. 726 P.2d 635 (Colo. 1986); Municipal Subdistrict, Northern Colorado Water Conservancy Dist. v. Rifle Ski Corp 726 P.2d 635 (Colo. 1986). C. Recent Case Law Supports the Argument that Water Must be Impounded for Recreational Uses The Supreme Court has never allowed recreational uses where the water was not impounded or diverted for incidental recreational uses. In Fort Collins 830 P.2d at 930, the water was either diverted (the Nature Dam) or impounded (the Power Dam), and recreation was claimed only in addition to the beneficial use for municipal and wildlife purposes. Further, recreation was not claimed in the original application but was added to the amendments. Id. at 919 -920. Because the Fort Collins case involved diversion and impoundment, the only litigated case that the Applicants can cite for the proposition that water remaining in its natural course can be appropriated for recreation is the case of Golden which is currently before the Colorado Supreme Court for review. Golden is the first applicant to ask the Court for a determination that recreational uses that are not impounded or diverted from the stream are beneficial uses. The Applicants reliance on the Littleton case as support for its argument is misplaced. Littleton was a negotiated settlement that did not affect, involve or concern the Applicants. While a stipulation is binding on the parties to the stipulation in the case at issue, the stipulation obviously does not bind the parties in unrelated cases that involve other entities who were not parties to the original case and is not res judicata as to non- parties. Denver Land Co. v. Moffat Tunnel Imp. Dist., 18 P.2d 455, 458 -459; Rossi v. Colorado Pulp & Paper Co., 299 P. 19 (Colo. 1931). A stipulation negotiated for different reasons in a different case has no bearing on the State's position and does not dictate the State's relationship to the parties in this case. It is well established that an 11