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<br />2674
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<br />officially described as research into the potential effects of the
<br />two upstream dams. The overall objective was ... . . to quan-
<br />tify a minimum streamflow hydrograph . . . that will preserve
<br />and maintain. . . a range of natural conditions and processes
<br />vital to the biological system of the Yampa River. . ."(O'Brien,
<br />1984). The NPS Regional Office was advised that headquarters
<br />did not want its Ft. Collins scientists to appear in court, be.
<br />cause they were not to become associated publicly with water
<br />rights. However, due to the lateness of the season, actual field
<br />work could not begin until March 1982, leaving only one com.
<br />plete field season. The NPS's research results, synthesizing
<br />their own field work, the FWS studies, and the USGS sedimen-
<br />tation effort, would be presented to the government legal team
<br />in early February 1983.
<br />
<br />. "
<br />
<br />ROUND THREE - DECISIONS
<br />
<br />In the fall of 1981, the Interior Department issued a policy
<br />change to thewater lights that could be claimed by its bUleaus.
<br />In a previous opinion (U.S. Department of the Interior, 1979)
<br />Interior had determined the existence of federal "non-
<br />reserved" water rights - rights to unappropriated waters on
<br />federal lands "as may be reasonably required for Federal pur-
<br />poses expressly or impliedly mandated by Act of Congress."
<br />This would have allowed Interior agencies to claim rights for
<br />any authorized purpose, irrespective of State definitions of
<br />"beneficial use." Had this opinion stood, there would have
<br />been no question about the NPS's pursuing in court a claim
<br />for instream flows at Dinosaur for recreational boating. That
<br />the opinion was controversial was demonstrated by the then-
<br />Secretary oflnterior's quickly limiting the Department's imple-
<br />mentation of "non-reserved" claims (Memorandum dated
<br />February 4, 1980, from Secretary of the Interior, "Assertion
<br />of Federal Water Rights"). Then, in a speech at Grand Teton
<br />National Park on September 11, 1981, the new Secretary,
<br />James Watt, released a subsequent opinion by Interior's Soli-
<br />citor revoking the entire concept of a "non-reserved" right
<br />(Memorandum dated September 11, 1980, from Interior
<br />Solicitor to the Secretary, "Non.Reserved Water Rights -
<br />United States Compliance with State Law"). The Attorney
<br />General, in a June 17, 1982, speech in Cheyenne, Wyoming,
<br />issued a general opinion - binding throughout the fede,,1
<br />government - concurring with the new Interior policy, and
<br />decided that federal agencies could acquire those water rights
<br />necessary for the primary purposes of the reservation, ". . . and
<br />only that minimum amount of water without which the pur.
<br />poses of the reservation would be entirely defeated" (T. B.
<br />Olson, U.S. Department of Justice, Memorandum for the
<br />Assistant Attorney General, Land and Natural Resources Divi-
<br />sion, "Federal 'Non.Reserved' Water Rights," June 16, 1982).
<br />On November 29, 1982, the Colorado Supreme Court ruled
<br />that the NPS was entitled only to the water necessary to
<br />achieve the purposes for which the reservation was created
<br />(U.S. v. Denver Water Board, et aI., Colo. 656, P.2d I, 1982).
<br />At Dinosaur, since recreational rafting was not an original
<br />purpose of the reservation. the Court overturned the District
<br />
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<br />Court's decision that the NPS could claim inslream flows (",
<br />raftmg. . Coupled with lhe two federal opinions revoking Ih.
<br />concept of "non-reservc~" rights, the decision effectivdy
<br />closed the door to the NPS's possible appeal (or inSlre'm
<br />flows for recreational purposes. The Court did determine 1h.1
<br />the specific purpo~e of Dinosaur National Monument Was to
<br />hpreselVe outstanding objects of historic and scientific in- .
<br />terest,". the primary purpose for which the NPS is seeking,
<br />waler nght. Remanded to the District Court were the que>-
<br />tions of whether the 1938 expansion proclamation inlended
<br />to include water for preserving fish habitats and, if la, how
<br />much water was minima.lly required to sustain the critical
<br />habitat for the endangered species in the Yampa River.
<br />By mid-January 1983, Interior had decided not to appe;al
<br />the Colorado Supreme Court decision to U.S. Courts. Gngoi,,!
<br />field research by the NPS, FWS and USGS on the sedimenu.
<br />tion and endangered species questions were beginning to pit>
<br />duce results, although a lack of unified planning occasionally
<br />resulted in data conflicts. By early February 1983,lnlerio<
<br />and Justice lawyers had serious reservations aboul the USGS
<br />study's potential usefulness in court because their sampling
<br />stations were all outside the Monument, and there were se~m.
<br />ingly "irreconcilable differences" between the USGS resulu
<br />and those collected by the NPS scientists (B. Israelson, U.S.
<br />Department of the Interior, personal communication, 1983).
<br />Another key technical issue, the fact that the FWS Physical
<br />Habitat Simulation Model (PHABSIM; a component of the
<br />IFIM) assumed a stable bedform, was eased when legal debys
<br />afforded the NPS water research staff a second field season in
<br />the Yampa to reconcile inconsistent channel morphology data.
<br />As time was running out with no definitive evidence to pre.
<br />sent the court. the government obtained delays, first to Janu-
<br />ary and then to April and again to July 1984, citing "good.
<br />faith" progress towards quantification. With these exlen.
<br />tions, the legal team decided to develop "fall-back" positions
<br />in case their "minimum" flows were rejected. They sought
<br />to identify progressive impacts upon the fish~esources resulting
<br />from various flow reductions. This incremental approach re-
<br />quiles supportive evidence which, unfoItunately, the hyd,(}o
<br />logic, sediment and fish data collected by the Park Service
<br />and USGS were not designed to provide. With no funds or
<br />time to attempt new field studies, the scientists were reluctant
<br />to force their interpretations beyond the existing data. -
<br />Thus, with time running out before the court-imposed
<br />quantifIcation deadline (now delayed to the summer of ]985
<br />by the Court's hearing a number of petitions for summary
<br />judgment), the collection of additional field data remains im-
<br />practical due to funding constraints, the breakup of the NPS
<br />and USGS field teams, and the unalterable onset of spring
<br />flows in the Monument.
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<br />CONCLUSIONS
<br />
<br />Water rights quantifications are as much a matter of public
<br />policy and law as science. The National Palk Service, in at-
<br />tempting to protect the federal water rights necessary to
<br />
<br />148
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<br />WATER RESOURCES BULLETIN
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