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

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2. Speculation in water is not allowed in Colorado. Colorado's doctrine against speculation developed initially at common law. See, e.g., Vidler, 197 Colo. at 417, 594 P.2d at 568 (1979). The legislature then codified it in the statutory "can and will" doctrine over 20 years ago. Ch 346, sec.5, § 37- 92- 305(9)(b), C.R.S., 1977 Colo. Sess. Laws 1366, 1368. As this court has stated, "Our constitution guarantees a right to appropriate, not a right to speculate." Arapahoe County I, 891 P.2d at 959. In most cases, arguments regarding speculation arise in the context of conditional water rights. See, e.g., Id., 891 P.2d at 960. However, in their briefs, the State Amici argue that the court should deny Golden a water right —or limit such right to a fraction of the amount the trial court awarded Golden — because some future presently unknown use will emerge that is better for Colorado. C. Springs Brief at 10; Colorado Water Congress Brief at 7. Because it would lead to a denial of a beneficial use today in favor of potential future beneficial use, this argument directly conflicts both with two state doctrines — against speculation, and for maximum utilization of Colorado's water resources. In fact, this Court has stated that, "our constitution and statutes ... give no one the right to preempt the development potential of water for the anticipated future use of others." Vidler, 197 Colo. at 417, 594 P.2d at 568. Rather, the test this Court has articulated is that, "water is available for appropriation if the taking thereof does not cause injury" and "where senior users can show no injury by the diversion of water, they cannot preclude the beneficial use of water by another." Cache La Poudre Water Users Assn v. Glacier View Meadows, 191 Colo. 53, 62, 550 P.2d 288, 294 (1976). In Golden's situation, all water rights holders who initially filed objections reached stipulations to protect their rights. Golden Decree, ¶ C, at 2. As a result, the trial court did not reach the issue of injury. Thus, to deny 12