Case No. 01SA252 Motion for Leave to File a Breif as Amici Curiae April 2002

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and wildlife as beneficial uses, Arapahoe County H, 14 P.3d at 340, citing May v. United States, 756 P.2d 362, 371 (Colo. 1988), even though they are almost always non - consumptive. And, Colorado law also recognizes instream uses of water. While the state instream flow program, which this Court upheld in Colorado River Water Conservation Distr. v. Colorado Water Conservation Bd., 197 Colo. 469, 594 P.2d 570 (Colo. 1979), may be the most obvious example, diversion out of the stream channel has never been legally required. Going back to the 100' century, this Court has upheld instream uses as beneficial. Larimer County v. Luthe, 8 Colo. 614, 9 P. 794 (1886) (upholding an on- channel reservoir as a beneficial use even without the diversion). There are many modern examples as well, including the release of stored water to provide beneficial recreation and fishery uses in the downstream river channel. Matter of Applications for Water Rights of Upper Gunnison Water Conservancy District in Gunnison Cty, 838 P.2d 840 (Colo. 1992). As a result of both lines of cases, Colorado law makes clear that non - consumptive in- channel uses can be a beneficial use under the law. The question then is merely whether Golden's use is beneficial. The answer to this question is a factual-analysis. See, City & County of Denver v. Sheriff, 105 Colo. 193, 204, 96 P.2d 836, 842 (1939) ( "whether a use is beneficial is a question of fact and depends on the circumstances of each case "). In Golden's case, the trial court found that the city's use of water for its kayak course was beneficial. Golden Decree, $ E.8, at 6. Therefore, the fundamental problem with the State's and State Amid's argument is the failure to understand that all beneficial uses, even non - consumptive and in- channel ones, fall within Colorado's efforts to achieve maximum utilization of the scarce water resource. The 10