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; (<t'87 Reflections on Sixty Years of Water Law Practice Glenn G. Saunders' This is the third in a 3-part series by Glenn Saunders. The first two sections were published in "Resource Law Notes" issues 16 & 17. The entire series is available as an Occasional Paper from the Center (see Publications Iistp.11). At the end of the second installment of "Reflections on Sixty Years of Water Law Practice," Saunders dis- cussed the McCarran Amendment, why it was needed and how it has been interpreted judicially. The McCarran Amendment was in response to a need to define the relationship between federal water rights and state water law. It gave consent to join the United States as a defendant in any suit for the adjudication of rights to the use of water of a river system or other source or for the administration of such rights. Federal Reserved Water Rights In spite of the plain language of McCarran that in the adjudication of water rights the United States, by the terms of this law, could not plead that the state laws are inapplicable, the Colorado Supreme Court, relying on U.S. Supreme Court decisions growing out of protection of Indian rights, dis- counted this law, and other laws of congress, and held that the United States has certain reserved rights. United States v. City and County of Denver, 656 P.2d 1 (Colo. 1982). This case has sometimes been referred to as "Denver I." A similar case which arose in a different water division covering the same issues became known as "Denver II," this latter case being entitled City and County of Denver v. United States, 656 P.2d 36 (Colo. 1982). Denver I is a leading case resolving the relationships between the United States government and the people of the State of Colorado with respect to water. It reflects efforts commenced more than 10 years earlierto define the position of the United States, whose officers and employees had taken the general position that the United States was above and beyond any authority of the individual sovereign states and did not have to comply in any respect with state water law. Jurisdiction over the United States has been obtained in every water division in the state. The question olthe extent of United States water rights was pushed in Water Divisions No. 1 and NO.5. The trial judge in Division NO.1 in the Denver 1/ case, Donald A. Carpenter, had been steeped in water law from the time he had assisted his father, Delph Carpenter, in the making of the Colorado River Compact and was thor- oughly trained in the law of water. Judge Carpenter entered a declaratory judgment, on the basis of the pleadings, that the United States held no reserved rights in Colorado, that Colorado laws are applicable to the United States, as stated in the McCarranAmendment, that by accepting Colorado into . Attorney, Saunders, Snyder, Ross & Dickson, Denver. the union with a constitution providing that all of the waters of the state belonged to the state itseff and that even before that, the United States, by the Desert Land Act of 1877, the Act of July 9, 1870, and of July 26, 1866, the United States had recognized that the water of the reclamation states belonged to the people of those states. It was also noted that the property of the United States can be disposed of only by an act of the Congress and that, with respect to the statutes just mentioned, there had been a disposal by Congress of the waters of the reclamation states. The Colorado Supreme Court refused to uphold Denver 1/. In the decision in Denver I, the Supreme Court acknowl- edged that: ''The doctrine of federal reserved water rights is judicially created." 656 P.2d 1,17 (Colo. 1982). There has never been an act of Congress creating reserved rights. The Supreme Court in Denver I went on to say: Based upon a recognition of Congress' underlying power, the United States Supreme Court has con- structed a body of law, derived by judicial implication from congressional actions, holding that: "Congress, in giving the President the power to reserve portions of the federal domain for specific federal purposes, impliedly authorized him to reserve 'appurtenant water then unappropriated to the extent needed to accomplish the purposes of/he reservation. "'United States v. New Mexico, 438 U.S. at 699-700, 98 S. Ct. at 3013-3014 quoting, Cappaert v. United States, 426 U.S. at 138,96 S. Ct. at 2069 (emphasis in original). Feeling obliged to fol/ow decisions of the United States Supreme Court respecting reserved rights, in spite of the peculiar situation of Colorado with its constitutional provision, accepted by Congress, that all the waters of Colorado belong to the people olthe State of Colorado, the Colorado Supreme Court in Denver I determined that the United States does have reserved rights in those unappropriated waters avail- able at the time of a land reservation without which the purpose of the land reservation would be wholly defeated. Since thattime, in a matter concerning the oil shale claims of the United States, in United States v. Bell, 724 P.2d 631 (Colo. 1986) the Court held thatlhe United States can amend an original application but the amendment takes the priority date of the amendment and not the original application, thus upholding Colorado's antedation law. Regulation of Municipal Water Rates Because of a wide law practice outside the Board of Water Commissioner's business, I have also been involved in the application of the constitutional provision that no special commission created by the legislature may take control of any municipal assets. The Supreme Court of Colorado, itseff a state agency, has not favored this limitation on the powers of state agencies, and it has found ways to limit it, particularly in the electric field. Under the constitutional provision, a munici- pally-owned water system may not have its rates or practices governed by the Colorado Public Utilities Commission, which is a special commission created by the legislature. The provision was fOllowed in a case involving the Denver Water Department entitled City of Englewood v. City and County of Denver, 123 Colo. 290, 229 P.2d 667 (1951). 7