BOARD01512

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

"

FAIRFIELD AND WOODS, P. C.

.

Honorable Duane
August 25, 1988
Page 2

Woodard

purposes
defeated.
3015.11

of the reservation will not be entirelv
New Mexico, 438 U.S. at 702-703, 98 S.ct. at

11. On remand, the water court should proceed in
the manner we approved in Denver I and ci ty and
County of Denver v. United states, 656 P.2d 36
(1982) (Denver II). For each federal claim of a
reserved water right, the trier of fact must
examine the documents reserving the land from the
public domain and the Organic Act; determine the
precise federal purooses to be served by such
legislation; determine whether water is essential
for the primary purposes of the reservation; and
finally determine the precise auantitv of water
necessarv to satisfv such purooses.

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(Emphasis added here and in other quotations in this letter.)

The legislative history arguments, which go to the defini-
tion of "favorable conditions of water flows," were not fore-
closed by Jesse. Instead, the Court specifically has required
that the precise federal purposes to be served by the purposes be
fully considered.

.

Thus, I was extremely dismayed August 1 when I asked your
staff and their engineers what assumptions the engineers were
using to define "favorable conditions of water flows." Jesse at
496. The answer was "no assumptions." The critical term had not
been legally defined in terms the State's engineers could apply
to the facts. The engineers have been working exclusively to
critique the united States studies without, it appears, challeng-
ing any of the assumptions made by the united States engineers.

The United States engineers have assumed that "favorable
conditions of water flows" means those amounts of water flow
which will completely transport all sediment, completely prevent
all vegetation encroachment, and completely maintain channels
without any change caused by man. The obvious conclusion from
these assumptions is that all flows are required to prevent any
changes in the stream. There is no such thing as a free lunch.
Any diminution in flow will cause some particle of soil nQt to
move when otherwise it would have moved. The united States' set
of assumptions will ensure that the water users, and State, of
Colorado lose this case, and lose it almost completely.