WSP03499

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 1/1/1987
• Author: Unknown
• Title: 744 Pacific Reporter-2D Series - Excerpt - US Vs Jesse
• Water Supply Pro - Doc Type: Publication

>,

......

rary, conil't!8sias.
Ie economic de.
luld be frus~
ld that the ....,
I the national ~
heir Iong-u~
tream appl'Opris.
.g?vetnment ...
l1D1mum sb-eaQ,
d Private Bppl'l>
les, fanners 8Ild
d on water div"
or-
!It lands high .
Minimum no:
long.held exPrr-
>r approPriatora
the /lational for.
'ref Ore find thaI
not have an in-
reserved water
rests.

.dded and fOOl.
tnote after the
that the Wster
'~ watn righli;
llted Stales be.
any i7lBtream
, for reserved
" Jd. at n. 37
Ided that foot.
e scope of Our
~ion on in-
not address
applitatiollll
t The waler
to mean that
of law that
)1 be reeog.
'emphasis in
liscan.trued
, holding in
the United
under the
'eree detn.
, had not
lerved Wa-
'earn flows
'orest pur.
ditions of
,al). The
d We stat.
t the end
rized our

17C

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v.s. Y. JESSE
ate.. 744 ..2d ... (Colo. 19ITI

Colo. 603

"",lu8ions in upholding and affinning the
nler court's finding that "the federal
,..rrnment has not daimed or proved in.
IIr!8III flow righta necessary tAl satillfy na.
_ forest purposes." Id. at 35. AeeonJ.
mgly, any language ouggesting that mini.
mum instream flow rights are not to be
"",gnized, as a matter of law, ill dictum
IIId not binding on us in the present case.
I!l In Denver I, we discussed the Unit.
ol States Supreme Court's requirement
!hat the otatutAlry purposes of the reserva.
lion in question must be subjected to strict
IO'Utiny to define the scope of appurtenant
....rved water rights. "[T]he application
of the reserved water rights doctrine re-
quires s careful examination of 'both the
....rted water right and the specific pur.
poee for which the land was reserved' and
mllSt rest upon a conclusion that 'without
!he water the purposes of the reservation
would be entirely defeated.'" Denver I,
656 P.2d at 19 (quoting, NtID Mezico, 438
V.S. at 700, 98 S.Ct. at 3014) (emphasis
added). If, after a full consideration of
the legislative hilltory and factual circum.
,tances, the water court detennines that
tho purpose of the Organic Act will be
entirely defeated unless the United States
~ allowed to maintain minimum instream
nows over the forest lands, the United
States should be granted such reserved
water rights under the Organic Act Oth.
erwise, the claims ahould be denied. Be-
rause the reserved rights doctrine is im.
plied, rather than expresaed, and because
of the hiatAl.,. of congresaional intent relat.
ing to federal..tate jurisdirtion of water
allocation, reservations must be strictly
limited to the minimum amount of water
needed to ensure that the purposes of the
reservation will not be entirely defeated.
New Mezico, 438 U.S. at 701-703,98 S.Ct
st 3015."

[7,8) Summary judgment is a drastic
remedy and should only be granted upon a
dear showing that there is no genuine is-

II. On remand, tho water court should proceed
in the manner we approved in Dm-..er J and City
.",J Cows", of Den_.. /Jrri1d SUUes, 656 P.2d
36 (1982) <lliDl..... U). For each federal claim
of a raerved water right, the trier of fact must
elWDitle the doctllll<llU ..........,. the land from

aue of material fact and that the moving
party ill entitled tAl judgment.. a matter of
law. E.g.. Ammcam United for &pora-
tion of Church &: St4te Fund, Inc. v.
St4te, 648 P.2d 1072 (Colo.1982); Ginter v.
Po.lmeo- <f Co., 196 Colo. 203, 585 P.2d 683
{1978); Smith v. Milia, 123 Colo. 11, 225
P.2d 483 (1950). In cases of doubt, summa.
ry judgment should be denied. Abraham.
sen v. Mount4in St4tes Tel. and Tel. Co.,
177 Colo. 422, 494 P.2d 1287 (1972). B~
cauae Denver I does not, as a matter of
law, foreclose a claim such as that ..serted
in the present caae, the United State~
should be granted an opportunity to prove
its factual allegatioD6. Thill eourt has
stresaed that federal reserved water rights
involve complex illsues thst ohould not be
detennined on the basis of a record devoid
of facts. "(T]he very nature of a federal
reserved water right foreclooeo resolution
of the issues relating to the nature and
extent of the claimed federal right in a
factual vacuum." Citll and County of
Denver v. United St4tes, 666 P.2d 86, 39
(1982) (Denver II). Unlike Denver I,
which lacked a factual predicate tAl deter.
mine inatream flows, the United States af.
fidavit of Hilton L. Silvey sets forth facts
that establish genuine illsues of material
fact. Accordingly, the water court erred in
granting partial summary judgment.

V.

COLLATERAL ESTOPPEL

[9,IOJ We also reverse the water
court's detennination that the United
States w.. collaterally eot.opped from relit.
igating the existence of reoerved rights to
maintain instream water flows in the na.
tional forests. Collateral estoppel bars re-
litigation of an illsue detennined at a prior
proceeding if (1) the illsue on which preclu.
sion is aaserted is identic:al to an illsue
actually litigated and necessarily adjudi.
cated in the prior proceeding; (2) the party
against whom estAlppel is sought w.. party

the public domain and the Orpnic Act; deter.
mine the precis< federal purposes to be served
by such legislation; determine whether wafer is
.....,tia/ for the primaty purposes of the reser.
vation; and finally determine the precise quan-
tity of wa.... --.ry to Illtisly ouch purposes.