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<br />o <br /> <br />Appendix <br /> <br /> <br />"Can and Will" statute to show water availability from TPR. Finally, the Court held <br />that Arapahoe's claim that it could condemn water rights was moot, as there was <br />insufficient unappropriated water available for the project. <br /> <br />The Court discussed the marketable yield of the Aspinall Unit, stating that <br />Arapahoe could purchase water from the United States from the yield even if there is <br />insufficient unappropriated water available for its project. The Court stated that <br />Judge Brown had made a "factual finding" that Aspinall's marketable pool consisted <br />of 240,000 AFA of water available for consumptive use. However, Judge Brown <br />issued a post-trial order indicating that his "finding" was dicta-unnecessary to his <br />ruling in the case and therefore not a "law of the river" for future litigants. The <br />Colorado Supreme Court itself, made no findings or holdings regarding the mar- <br />ketable yield. <br /> <br />G. Conclusion <br /> <br />The Union Park litigation shows that, notwithstanding that the Gunnison <br />delivers 1.8 million AFA to the Colorado River at Grand Junction, there is virtually no <br />unappropriated water available in the basin. The principal reason is the enormous <br />water rights held by the United States for the Aspinall Unit. <br /> <br />Notably, the holdings of Judge Brown and of the Colorado Supreme Court are <br />binding on any applicant for conditional water rights in the basin because water <br />rights proceedings are in rem proceedings, meaning that they apply to anyone, even <br />those not a party to the litigation. Thus, any other applicant for water rights in the <br />basin is bound by the litigation's establishment of the "law of the river" as described <br />above. <br /> <br />. 52 . <br /> <br />The tand and Water Fund of the Rockies <br />