BOARD01512

• Board Meeting Date: 8/26/1988
• Description: CWCB Meeting
• Board Meetings - Doc Type: Meeting

CARLSON, HAMMOND & PADDOCK

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Mr. Duane Woodard
August 24, 1988
Page 2

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You will recall that in United states v. New Mexico, 438 U.S.
696 (1978), the United states Supreme court, in a five-to-four
decision, held that there is nO reserved instream flow right for
the National Forests under the ~ultiple-Use Sustained-Yield Act of
1960, but at least technically left open the question of instream
flows under the Organic Act. Given the language of the majority
opinion, however, one might well question how wide that door was
left open. Indeed, the dissenting Justices (two of whom are no
longer on the Court) read the majority opinion as threatening to
foreclose ~eserved instream flows under the Organic Act, and railed
against that foreseeable result.

In united States v. Jesse, 744 P.2d 491 (1987), the Colorado
Supreme Court disagreed with th6 position advanced on behalf of the
Colorado interests that the ea~lier decision in United States v.
Citv and county of Denver, 656 P.2d 1 (Colo. 1982), had concluded
that instream flows would be in~onsistent with the National Forest
purposes. The Supreme Court remanded the cases for trial, but it
made clear that the basic issue-on remand is whether, in light of
the legislative history and the factual circumstances, "the purpose
of the orc;fanic Act will be entirely defeated unle6s the United
States is allowed to maintain minimum instream flows over the
forest lanas..."

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In light of New Mexico and the posture of the calSe as a result
of the Jesse decision, the defense against the united States I
claims with any real chance of ultimate success, in my view, will
have to be a two-pronged one. First, and foremost, I believe the
defense should focus on demonlStrating that instream flows for
channel maintenance (or for any other non-consumptive purpose that
might be concocted by the Forest Service) are antithetical (at
best) or even neutral (at worst) to the purposes congress sought
to serve when it provided for creation of National Forests to
"secure favorable conditions of water flows." That defense would
focus in a broad and thematic way on the adverse effects of such
instream flow rights on water appropriators, both present and
future, who were indisputably the intended beneficiaries of the
water flows that the forests are supposed to secure. If this
defense is successful, at any level of the jUdicial process, then
the United States gets nothing. The second prong of the defense
then' would be to demonstrate that if any instream flow right is
recognized, it must be significantly less than the right claimed
by the United States.