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<br />
<br />---.11.Q 0
<br />
<br />,
<br />~ated WitlJout ~
<br />"ZIco, 43B U S
<br />lenver I, 656 Pit:
<br />
<br />
<br />he docbine of P.-
<br />.,vails in most of ,,_
<br />'co""'.- ...,
<br />, . &.....,s only lllr
<br />if.ed amount of ..
<br />~ for a spe_:"
<br />(12 ....,C PlIr.
<br />), -802, -Il()3 15
<br />'p.); Green v. ChaJ
<br />,. 91, 371 P.2d 775
<br />'Ule of rese"'ed
<br />. ...
<br />:U~d Slales wit/, .
<br />nght that may not
<br />ses sanctioned b
<br />,t, United Stal.e8 1
<br />Course of Fe~
<br />; 51 U.Colo.LRev
<br />ler Boles & Elliot>'
<br />~sident and Con~
<br />aler Commissioc
<br />'sties of federal ~
<br />, are incompatibl.
<br />'a~ProPriation: (I)
<br />WIthout diversion
<br />· priority of the
<br />of tlJe land IWith.
<br />ale of appropria.
<br />lost by nonus.'
<br />, right is quani
<br />,f waler reason.
<br />the purposes of
<br />Water Commis.
<br />. FutUre: Final
<br />.d to tlte Con.
<br />oe priority dsle
<br />'s bade to tho
<br />eserved water
<br />"Opriators IWith
<br />tlJout OOlDpen'
<br />Colo.Lllev. at
<br />
<br />'l'S IN THE
<br />,'1'S
<br />,e nineteenth
<br />, lands were
<br />
<br />&.us .. /kJ~
<br />
<br />.-...=.
<br />
<br />~~_.-
<br />
<br />,.;.
<br />
<br />_ ... ..,::..:1': .....<-. ~.....
<br />
<br />. '-'-
<br />
<br />" .....,L
<br />
<br />u.s. Y. JESSE
<br />Cae.. ,... P.2d 491 (Colo. 19B1)
<br />
<br />.......Iy endangered by logging, grazing,
<br />'" fires. New Mezico, 438 U.S. at 705,98
<br />i(). .t 3017. As the lorest cover Wall
<br />I!Illrted, Congres. and the United States
<br />;f!G"!IDent ol the Interior became con-
<br />..".d thst stream flow lor irrigation pur-
<br />.... would be compromised. See S.Exec.
<br />[k< No. 28, 43d Cong., 1st Sess. 2-4
<br />:~4); H.R.Rep. No. 259, 43d Cong., 1st
<br />.... &-7, 2ll-25 (1874). Experience in Eu.
<br />"'" demonstrated that the depletion of
<br />~""t areas surrounding the headwaters of
<br />...,. removed the natural vegetative cov.
<br />e that ordinarily reduced evaporation and
<br /><l>wed snowmelt and water flow in the
<br />lIf'''' during the spring. fd. When these
<br />..tural forces regulating stream flow were
<br />~movrd, rapid snowmelt in the spring
<br />....ed immediate flooding and an inev-
<br />..ble drought in later months when a
<br />l1e8dy supply of water was most needed
<br />for irrigation. See I F. Hough, Report
<br />Upon Forutry 28B (1878).
<br />
<br />In response to the depredations on the
<br />fore,t land, Congress enacted the Creative
<br />Ad of Mareh 3, 1891, ch. 561, i 24,26 Stat.
<br />11195, 1103 (1891),' which authorized the
<br />President to ....t apart and reserve [lands J,
<br />io any state or Territory having public \and
<br />braring loresta, in any part of the public
<br />Itnds wholly or in part oovered with timber
<br />or undergrowth, whether of commereial
<br />YIIue or not, as public reservations...."
<br />
<br />1 The Creative Act W!Ui repealed by The Federal
<br />Land Policy and Management Act of 1976,
<br />Pub.I.. No. 94-579. !i 704(a), 90 Slal. 2743
<br />(1976).
<br />
<br />1. During the floor debate on the bill, Congress-
<br />man Flowen of New York stated:
<br />The mon: you preserve the timber .1 the
<br />bcadwaten of the South Plane, and on lhe
<br />other side of the Rocky Mountains, of the
<br />Humbold. IUld th. Columbia Ri....... the bel-
<br />ter it win be for that whole country. Th~
<br />It.reams some day or other will be diverted
<br />from their beds for .in'ilalion JnUJl'OKS. and
<br />will make f....il. the lands in the Rockies IUld
<br />the Novadas. besides which. it will p.evenl a
<br />...... dcaI ol this 1Uifmn, from overflows.
<br />The more carefu.I the preservation of the
<br />timber at the founlaio _ of the __ the
<br />better it will be for the Well IUld South IUld
<br />for the people who II.. In the valleys throush
<br />which "- _ ri.....l\ow. w. of the East
<br />1Uif... from the IDOIlDef in which the <OWltr)'
<br />bas been de:auded of ilS timber. For want of
<br />fon:m the lands .... drained into the riven
<br />
<br />Colo. 495
<br />
<br />16 V.S.C. i 471 (repealed 1976). Although
<br />the purpose of the Creative Act was not
<br />made explicit, the legislative history of the
<br />1891 Aet makes clear that its purpose was
<br />W preserve natural lorest cover in an ef-
<br />fort to maintain uniform water flows in
<br />streams.'
<br />
<br />The report ol the Secretary ol Agricul-
<br />ture in 1892 reflected the Congressional
<br />concerns:
<br />
<br />There can hardly be any doubt, however,
<br />as to what objeCUl and considerations
<br />should be kept in view in reserving such
<br />lands and withdrawing them from pri-
<br />vate oecupancy. These are first and
<br />foremost of economic importance, not
<br />only for the present but more specially
<br />lor the luture prosperity of the people
<br />residing near 8uch reservations, namely I
<br />first, to a&SUre a continuous forest COt'.
<br />er oj the Boil on mountain slope and
<br />CTe8t.'l Jor tlte purpOBe oj preserving or
<br />tlqualizing water flow in tlte streams
<br />which a.... to serve for pUrpOBes oj irri-
<br />gation, and to prevent Jormation oj
<br />wrrenta and soil washing; second, W
<br />assure a continuous supply of wood ma-
<br />terial from the timbered areas by cutting
<br />judiciously and with a view w reproduc-
<br />tion.
<br />
<br />H.R.Exec.Doc, No.2, 52d Cong., 1st Sess.
<br />pt. 6, at 224 (1892) (emphasis added).'
<br />
<br />'..
<br />
<br />immecHBtely after rains. and in the summer
<br />they are dried up.
<br />22 Cons.Rec. 3616 (189').
<br />
<br />4. After the adoption of the Creative Act, the
<br />preservation of the forest cover surrounding the
<br />headwaters of rivers in an effon to slo,,"' snow-
<br />melt, reduce evaporation, and regulate stream
<br />flows I"CItlained the purpose of the forest reser-
<br />~tions. The Sccrrtary of the lnterior advised
<br />the House of Representatives Comminec on
<br />Public Lands in 1895:
<br />U the depredatiOns upon {forest land) contjn-
<br />~ at the present rate, they will in a few years
<br />be entirely denuded of their timber and win
<br />thus leave the lands lUTl'OUI1dill8 the head
<br />waters of irriptina weams subject to the
<br />clirec::t rays of the 5U.D, ClUJins waste through
<br />floods at aD early season of the year and the
<br />as of beDefi. to the qriculnual Lands wh.n
<br />the water is needed later. If. however, the
<br />timber land.s arc protected and. kept intact. the
<br />meltiDtl of the IDOW will be srsdual. flood,
<br />will be _..ed. IUld /low will be main.
<br />tained until lat. In the spriDll.
<br />
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