|
<br />BLACK CANYON INFO&TION PAl'ER
<br />
<br />.
<br />
<br />Oct, 2000
<br />
<br />Attachment C
<br />Brief Legal History of non~Indian Federal Reserved Rigbts
<br />and Colorado court d,ecisions on Black Canyon
<br />
<br />The following discussion points are taken from United States v, City and County of Denver, 656
<br />p ,2d 1, Colorado Supreme Court, Nov, 29, 1982,
<br />.. . ~ ")'
<br />
<br />The doctrine o/fideral re-re.rved water rights is judiciilly created. The power of the United
<br />States to legislate ,a federai system for the US,! and disposition of unappropriated non~navigahle
<br />waters on federa/lands generally, and on re~erved lands specifically, is den'ved from the
<br />Property Clause of the United States Constitillion, u.s. Const" Art, IV, Sec. 3, Based upon a
<br />recognition of Congress' underlying power, the United States Supreme Court has constructed a
<br />body of law, derived by judicial implic,ation from congressional actions, holding that:
<br />
<br />, 'Congress, in giving the President the power to reserve portions of the federal domain for
<br />specific federal purposes, impliedly 'authorized him to reserVe 'appurtenant water then
<br />unappropriated to the extent neededto accomplish the purposes of the reservation, ' United
<br />States v, New Mexico, 438 U.S, at 699-700,98 s,Ct, at 3013-3014, quoting CaTJTJaert v, United
<br />States, 426 US, at 138, 96S,Ct, at 2069 (I!mphasis in original). The existence of the reserved
<br />rights cWctrine is now well recognized, and tht. United States Supreme Court has confirmed its
<br />existence as a matter of federal law in several cases throughout the past one hundred years.
<br />(656 P,2d at 17). .
<br />
<br />In Cappaert, the Supreme Court unanimous~v held that the reservation of the Devi/'s Hole
<br />National Monument under the American Antiquities Preservation Act of June 8, 1906, 34 Stat,
<br />,225, 16 US,c. & 431 (1976), also reserved sufficient unappropriated water to sustain the
<br />scientific value of the reservation, The reservation required that the water level in Devil 's Hole
<br />be maintained at the minimal level necessary to allow survival of the Devil '0$ Hole pupfish, a
<br />unique species that had been endangered by a drop in the water level. The water level in the
<br />pool had declined due to pumping of groundwater by a nearby irrigator, The Court noted that
<br />in determining whether there is a federally reserved water right implicit in the federal
<br />reservation, the crncial issue is whether the government intended to reserve unappropriated
<br />water, 426 US, 15 139.40, 96 8,Ct, at 2069-70, Intent is inferred if 'previously unappropriated
<br />waters are necessary to accomplish the purpo,ws for which the reservation was created. ' Id.
<br />The amount of water reserved, however, was 'only that amount of water necessary to fulfill the
<br />purpose of the reservation, no more, ' Id. at 141, 96 S,Ct, at 2070 (citations omitted). 656 P,2d
<br />at 18,
<br />
<br />In further discussion of the Cappaert case, the Colorado Supreme Court noted: The Court
<br />expressly approved the action of the lower court in tailoring its decree to satisfy the 'minimal
<br />need' of the government, Id at 141,96 S,Cl, 152070, Thus, the existence ofafederal
<br />reservation does not in and of itself denote a reservation of water, Rather, there must be a
<br />determination of the precise federal purpose to be served, a determination that the purpose
<br />would be frustrated without the water, and a determination of the minimum quantity of water
<br />required to fulfill the purpose, 656 P.2d at 18,
<br />
<br />C-I
<br />
<br />002715
<br />
<br />. .'"
<br />
<br />",",
<br />,: ,
<br />
|