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Moving Blue Mesa's Marketable Yield: A Myth o This definition deflates any notion that the pool "shall" be available; instead, it is more akin to what Mr. Johnston noted in his testimony in the first Union Park trial (i.e., that the marketable pool "could" be available for other water users if the water in the pool is not otherwise in use to meet other Aspinall purposes). The Supreme Court's reliance on a "factual finding" by Judge Brown that Aspinall's marketable pool consisted of 240,000 AF" is simply inaccurate in light of Judge Brown's post-trial order. There is no such finding anywhere in the record of the Union Park proceedings. As to the Court's reliance on representations of counsel for the United States, the Court's opinion quoted the federal attorneys as follows: The marketable yield pool is water that is currently being used for hydropower. In the future, they can sell it off and use it for other pur- poses. It could be diverted over the hill. It could be diverted upstream and it wouldn't affect the economic feasibility of the unit. [and] If [the 240,000 acre-foot marketable pool] was to be used for the other uses. . . [BUREC] would have to make elections and change the way the uses are allocated-after the NEPA process and all other environ- mental laws were complied with-and would most likely [mean] that the hydropower waters would be lessened. The marketable yield is a pool sitting there for use by anybody in Colorado, [including] trans- basin diversion." Notably, counsel for the United States avoided altogether a discussion of whether Aspinall's decrees permit trans-basin diversions, an issue that was not briefed to the Court. As indicated, we find these decrees limit the use of Aspinall Unit water to the Gunnison. Counsel for the United States did note that federal envi- ronmentallaws would condition the size of any marketable yield. And he noted that other beneficial uses would be adversely affected if water were "diverted over the hill." The Supreme Court's statements about the marketable yield are mere legal dicta, not binding precedent. Dicta are statements by a court "which do not embody the resolution or determination of the court and made without argument, or full con- sideration of the point, [and] are not the professed deliberate determinations of the judge."" The Supreme Court did not ask for or hear full argument on the quantity of any marketable yield because the issue was not one of the issues on appeal from the second Union Park trial. The quantification did not receive the deliberate determina- tion of the Supreme Court. Notably, when the same issue was given close considera- tion by Judge Brown, he expressly refused to quantify it due to a lack of information. The Supreme Court, however, failed to note the existence of Judge Brown's post-trial order and the subtle examination of the issue in testimony in the first Union Park case. Because the issues of the quantity and the place of use of any marketable yield clearly was not before the court, pronouncements on the issue are dicta. Gunnison Basin Water . 21 .