WSPC04707

• File Number: 7630.125
• Description: Wild and Scenic - Colorado Wilderness Act - 1991
• State: CO
• Basin: Statewide
• Date: 10/28/1990
• Author: Various
• Title: Miscellaneous Newspaper Articles and Position Statements
• Water Supply Pro - Doc Type: Data

0' '882

Walter Jesse'
1500 Bluebell Ave.
Boulder, CO 80302

[phone]

October 7, 1991

MEMORANDUM

TO:
CC:
SUBJECT:

Presidents of Colorado Conservation Groups
Their key staff and committee people
S8 1029, The Colorado Wilderness Act of 1991

Please review my enclosed exchange with Mark Pearson taken from the
October 1991 issue of Peak and Prairie, and Todd Robertson's article in the
Sept. issue of the Environmental Report as well as the Sept. P & P.

Both Todd and Mark invoke their mantra - federal reserved water rights -
which has hypnotized so many of us. It will cost us 640,000 acres of Colorado
Wilderness provided for in S8 1029.

There may still be time for better judgment to prevail. The Colorado
Wilderness Conference in Gunnison on October 19 and 20 provides an opportunity
for new decisions.

What's wrong with the federal reserved water rights mantra? In summary:
D Judge Kane in November 1985 delivered his decision that wilderness
has implied federal reserved water rights.
>> The Tenth District U.S. Appeals Court in August 1990 set aside Judge
Kane's decision, rul ing instead that the issue was "not ripe" for judicial
resolution. No group has appealed that ruling to the Supreme Court,
>> The Appeals Court said: uWhen and if a water development claim that
may threaten wilderness water values is filed, and the Forest Service does not
assert a federal reserved water right based on the Wilderness Act, ... then
the Sierra Club may either intervene in the state water proceeding as
appropriate under state law or may seek judicial review of the Forest
Service1s failure to act in federal court."
>> ~O group has foliowed this course of action to-date. Hence, none of
the existing 27 wilderness areas (1.675 million acres) have adjudicated water
rights. No problem has arisen.
J Comes now SB 1029: It states that no act of congress "shall
constitute ,.. either an express or an implied reservation of water rights
arising from wilderness designated as wilderness by this act". However, it
prohibits the construction of water works in the 20 areas designated
Wilderness by SB 1029.
>> Our lawyers will have to figure out what leeway they have under the
Appeals Court ruling to protect the wilderness values of the 20 new wilderness
areas created by SB 1029, IF one of them is threatened. There is a risk: Our
case, I'm told, would be presented on behalf of the Forest Service in state
Water Court by the U.S. Attorney. He reports to Washington, and John Sununu is
his commander-in-chief. In Water Court, whatever Quantification he may
propose, will be whittled down by the water buffaloes.