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1697 ..- . . . -- .. ~ .. .. - '.' ')" .. ~. '" t...;;J., -. 492 Colo. _ . __"~ _, ,~...;..;;.'s.....~ 744 PACIFIC REPORTER, 2d SERIES water flow. in national forests, and (2) if water court determined that purpose of securing favorable conditions of water flows would be entirely defeated unless the United States was allowed to maintain min- imum instream flows over .forestlands, the United States should be granted such re- served water rights under the Organic Act. Revel'!led and remanded. 1. Waten and Water Counes *"2. 7 When United States withdraws lB.nd from puhlic domain and reserves the lB.nd for a federal purpose, appurtenant water then unappropriated is implicitly reserved Ul the extent necessary \0 accomplish the purpose of the reservation; the implied fed. eral right vests on the date of th. reserva. tion and is superior to the rights of future appropriators. 2. Waten and Water Course. *"7 Application of the reserved water rights doctrine requires careful examina- tion of the asserted water rights and the specific purposes for which the lB.nd was reserved, and depends upon the conclusion that the purpose of the reservation would be entirely defeated without the claimed water. 3. Waters and Water Courses *"2, 9 Federal doctrine of reserved water right.<; v.st.<; the United States with a dor- mant and indefinite right that msy not coincide with water uses sanctioned by state law. 4. Walen and Waler Counes *"127 Doctrine of prior appropriation tradi- tionally protects only the right to divert water from natural stream and to put that water to a beneficial use. 6. Courta _2 Any language of Colorado Supreme Court opinion suggesting that minimum in- stream flow rights of United States were not to be recognized as a matter of lB.w was dictum, and not binding in subsequent case, where the statement was made in decision holding that the federal Government had not claimed or proved any instream flow rights. 6. Waten and Water Caune. ~ If water court determined Illal par. poses of securing favorable conditions I" water flows would be entirely defeated Q> less the United States was allowed to_ tain minimum instream flows over Uniloj States forestlands, the United States wOQjj ,be granted those reserved water rights ~ der the Organic Act, but the reservslioo would be strictly limited to the mini!D1Im amount of water needed to ensure that tho purpose of the reservation would not bo entirely defeated. 16 U.S.C.A. ~~ 47iH8l 7. Jud,...enl *,,178, 18H2, 3) Summary judgment is a drastic re.,.. dy and should only be granted upon s cl.... showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, 8. Jud,....nt *,,185.30) Affidavit of hydrologist created genu- ine issue of material fact as to whether reservation by United States of swficient water to maintain minimum instream flows over forestlands was necessary in order to avoid entirely defeating the purpose of ... curing favorable conditions of water flows und.rlying the creation of the nations! for. est. 16 U.S.C.A. ~~ 47&-482, 9. Judgmenl 01=>634 Collateral estoppel ban relitigation of an issue determined at a prior proceeding if the issue on which preclusion is asserted is ' identical to one adjudicated in the prior proceeding, the party against whom estop- pel is sought was party to or was in privity with a party to a prior proceeding, there ,was fmal judgment on the merits in the prior proceeding, and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. 10. Judgment *"735 U oited States was not estopped from litigating existence of reserved rights to maintain instream water flows in nations! forest by prior action in which it did nol attempt to assert or prove instream flow l'I~h'-' j fluw pu F,I1' Dadd ' \\ ashin, .~tl:" J Iant, OU3n !lowe. ( foM1\3f Atty. ( Colo- Way' Casey , RoSS 8; G- Sau Count; Fair: Kevin ver, f. Water Joh, Reser- Law Rober St. c.r West Ke\ Flana vice ( DOl for al vati01 Mit Mitd Cana ASS'I 03 Sayr' c.uria ancy W, Fort POUl Ei T1 judr