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.20. The land and Water Fund of the Rockies @ Moving Blue Mesa's Marketable Yield: A Myth Several parties to the case argued that the finding in Union Park II was unjus- tified. The River District, the Upper Gunnison District, and others submitted post- trial legal motions to Judge Brown to amend this "finding." They noted that, during the trial in Union Park II, although one witness mentioned the existence of a "mar- ketable poo!." he did not expressly quantify the pool." The River District and the Upper Gunnison District reminded the Court that the concept originated in testimony by J. Ronald Johnston in the first Union Park trial. They went on to argue that any quantification of the pool is "subject to change or even elimination based upon a vari- ety of factors. "" Another party argued that the evidence at trial as to where the mar- ketable yield might be used was conflicting and, in any event, this had not been an issue in the case."" Judge Brown was persuaded that his earlier "finding" had gone too far. In a post-trial order, he specifically rescinded his earlier finding as to the marketable yield: After studying the foregoing concerns expressed by the parties, the Court does not withdraw its basic finding that the BUREC has a sepa- rate "marketable pool" of water available for sale to water users beyond the water which is available through the BUREC's subordination poli- cy. However, the Court acknowledges that specifics with respect to the quantity of the marketable pool and conditions which the BUREC may be entitled to impose with respect to the sale of said water to any par- ticular water user are dicta which the Court used to amplify its analy- sis. Therefore the Court does nol consider its findings and conclusions in this regard to be preclusive in any subsequent litigation between the parties."' Judge Brown's opinion in the second Union Park trial was appealed to the Colorado Supreme Court. Although marketable yield was not among the six specific issues on appeal in the case, the Court spent some time discussing it. While it appears to have concluded that a marketable yield exists, it made no findings of fact, conclusions of law or holdings on marketable yield itself or its magnitude. Instead, it depended on the Water Court's non-existent "factual finding" that there was a mar- ketable yield of 240,000 AF as well as on representations of counsel for the U.S. that a marketable yield exists. The context for the discussion was the Court's rejection of Arapahoe's claim that it could appropriate water, without paying for it, out of Aspinall's water rights. The Court first set out a definition: The marketable pool represents water that could be available for bene- ficial use by other water users. The original decrees adjudicate the full amount of water to the United States for a number of decreed purpos- es, and BUREC has been using the full amount for those decreed pur- poses since the issuance of the decrees."'