HomeMy WebLinkAbout830967.tiff WATER LEGAL NEWS .4i.
Colorado Water Congress • 1390 Logan St., Rm. 312 • Denver, Colorado 8 • Phone:,!•,+ ) 837 ,0812
Legal News Editor, Greg Hobbs
A SUMMARY OF CURRENT LEGAL DEVELOPMENTS AND
PENDING CASES OF INTEREST TO COLORADO WATER USERS
1. The United States Supreme Court (Justice White) has refused to reopen the 1964
decree in Arizona v. California awarding federal reserved water rights to five lower
basin Indian tribes. The tribes claimed in this round of litigation that they were
entitled to additional amounts of water because the United States, acting for the
Indians in the original case, had failed to claim additional irrigable acreage on the
reservations.
The Court rejected the Indian claim that the United States had inadquately repre-
sented them in the original proceeding. Moreover, said the Court, litigated factual
issues must have finality, even where the Court has retained continuing jurisdiction.
This finality is particularly warranted in view of the water-short nature of the West
and the reliance which junior appropriators place on judicial resolution of water
disputes:
Recalculating the amount of practicably irrigable acreage runs
directly counter to the strong interest in finality in this
case. A major purpose of this litigation, from its inception
to the present day, has been to provide the necessary assurance
to states of the Southwest and to various private interests, of
the amount of water they can anticipate to receive from the
Colorado River System.
On the other hand, the Court said that additional water would be awarded to the
Indians where boundary disputes are determined by judicial resolution (not just by
the Secretary of Interior) and result in the addition of irrigable lands not considered
in prior decrees (Arizona v. California , No. 8 Original , U.S. , 51 U.S.L.W.
4325, decided March 30, 1983).
2. The California Supreme Court (Justice Broussard) has held that the public
trust doctrine of California water law permits the reallocation of appropriative
rights under some circumstances, in order to serve recreation and ecological values.
The California public trust doctrine turns upon the fact that the State of
California , upon its admission to the Union, "acquired title as trustee" to the
"navigable waterways" and the "lands lying beneath them. " The trust is to be exer-
cised for the public benefit and operates with respect to diversions from non-navigable
streams, if those diversions adversely affect the public trust with respect to navigable
water bodies.
The dispute arose out of Los Angeles Water Department diversions from streams which
historically feed Mono Lake, located east of the Sierra Nevada range.
In 1940 the L.A. Water Department obtained permits from the State Water Board
which allow up to 167,000 acre feet of water per year from the Mono Lake tributaries.
To date, the Department has diverted up to 99,580 acre feet per year. As a result,
the lake has dropped 43 feet below the pre-diversion level . The anticipated future
diversions would reduce the lake another 43 feet.
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WATER LEGAL NEWS -2- April 19, 1983
The Court said that the State Water Board was wrong in 1940 when it believed it
did not have the power to consider the effect of diversions upon recreational and
environmental values:
The state as sovereign retains continuing supervisory control over
its navigable waters. This principle, fundamental to the concept
of the public trust, applies to rights in flowing waters as well
as to rights in tidelands and lakeshores; it prevents any party
from acquiring a vested right to appropriate water in a manner
harmful to the interests protected by the public trust.
The Court held that the public trust includes:
the scenic views of the lake and its shore, the purity of the
air, and the use of the lake for nesting and feeding by birds.
However, the Court also held that the diversion of water from streams and lakes
for beneficial use is also a high priority of California Law and necessarily may
infringe upon public trust values:
As a matter of current and historical necessity, the Legislature,
acting directly or through an authorized agency such as the Water
Board, has the power to grant usufructuary licenses that will permit
any appropriator to take water from flowing streams and use that
water in a distant part of the State, even though this taking does
not promote, and may unavoidably harm, the trust uses at the source
stream. The population and economy of this State depend upon the
appropriation of vast quantities of water for uses unrelated to
in-stream trust values.
The Court concludes that the State Water Board and the Courts, which have con-
current jurisdiction over water matters, must consider both the value of beneficial
consumptive uses of water and public trust values in making water allocation decisions
in order to reduce or minimize damage to the public trust values, where feasible.
Past decisions are subject to being reconsidered in light of the public trust doctrine,
.r,r4 members of the public , including environmental organizations, have standing to
seek reallocations. (National Audubon Society v. Superior Court of Alpine County,
189 Cal . Rptr. 346, 658 P. 2d 709 (Calif. Sup. Ct. 1983).
3. The Colorado Supreme Court (Justice Erickson) has ruled that the seller of a
water right is not required by the usual warranties of title to defend against a
federal reserved rights claim. The Court said that any amount of water which the
federal government obtains by virtue of its reserved right will affect all junior
appropriators:
The federal waters were usable by private and other public appropri-
ators only until the United States decided to quantify and utilize its
rights. The federal government' s position is similar to the holder of
a conditional senior water right who can step ahead of junior appro-
priators, causing a diminution of the amount of water available for
diversion.
The Court found that the seller of the water right in question had not guaranteed
that a senior appropriator would not step in and take a proportionally larger amount
of water, nor that the federal government would not assert its dormant claims:
WATER LEGAL NEWS -3- April 19, 1983
We are not unmindful of the severe impact a contrary holding
would have on every Colorado water right not subject to the
statute of limitations. Navajo's position would mean that
every contract which conveyed a water right by a warranty
deed with the usual covenants would be breached when the
federal government filed its claims for reserved rights.
The Court decision concludes with a dissertation on the realities of making any
guarantee about water quantities in this part of the world: "no one can covenant
that the amount of water available under a water right will maintain the same flow
year in and year out and will not be diminished . . . a grantor cannot warrant that
it will snow or rain, or that all senior appropriators will not withdraw their share
of water. " (Navajo Development Cc. v. Sanderson, Colo. , 655 P.2d 1374
(1982).
4. The Colorado Supreme Court (Justice Lee) has held that the proper situs of a
water right is the point of diversion, and the waters available at the decreed place
of diversion, as of the date of the decree, constitute the source of supply. Any
change from the decreed point of diversion must be accomplished without harm to other
appropriators through the change proceeding set forth by statute.
The case involved a 1909 decree. In the intervening years, the location of the
headgate had been moved and a natural bank between two channels had been breached by
the senior. allowing the senior 1909 decree holder to obtain water which would have
flowed otherwise to a junior water rights holder downstream. The Court expressly
condemned this "self-help remedy" and enjoined the senior water user from curtailing
water to which the downstream junior was entitled.
The Court further said that a claim of adverse possession by the senior is not
available in a situation like this. (Harvey v. Davis, Colo. , 655 P.2d 418
( 1982) .
5. The Colorado Supreme Court has reaffirmed its holding in State ex rel
Danielson v. Vickroy that matters involving wells in designated ground water basins
must be first presented to the Ground Water Commission, even where "state waters"
subject to water court jurisdiction may be involved.
[The] Commission is the appropriate :orum for determining whether
disputed ground water is designated ground water located in a
designated ground water basin. The burden of proving that ground
water within a designated basin is not designated ground water rests
with the proponent for exclusion.
The Court observed that the distinction between "designated ground water"
subject to the authority of the Ground Water Commission and "underground water"
subject to water court jurisdiction can be a difficult factual issue, and the
distinction in some cases is only a matter of degree. But the Ground Water Commis-
sion is the proper forum for resolving the matter in the first instance.
At issue was the Pioneer Irrigation Districts ' suit to halt withdrawal from wells
within the Northern High Plains Designated Ground Water Basin. Pioneer claimed that
the wells were adversely interfering with surface rights. (Pioneer Irrigation Districts
of Yuma County v. Danielson, Colo. , 658 P.2d 842 (1983).
WATER LEGAL NEWS -4- April 19, 1983
6. In tandem with the Pioneer case, the Colorado Supreme Court (Justice Erickson)
decided to apply the Vickroy decision prospectively only. The Court observed that
much confusion has existed since 1965 regarding the jurisdiction of the Ground Water
Commission vis-a-vis the water courts regarding wells in designated ground water
basins and their relationship to surface rights.
Thus, when a surface water rights holder had obtained from the water court an
alternate point of diversion, in the form of a well within a designated ground water
basin, the decree of the water court would not be disturbed if it was obtained prior
to the date of the Vickroy decision in 1981. After that date, proceeding first with
the Ground Water Commission is jurisdictional .
The Court said that prospective application of a new rule of law is appropriate
in consideration of "the protection of persons who have relied on the earlier state of
the law" and "the protection of stability in areas where society attaches particular
importance to stability. " (Ground Water Commission v. Shanks, Colo. , 658
P.2d 847 (1983) .
Comments on the legal newsletter and suggestions for inclusion should be addressed
to Greg Hobbs, P.O. Box 185, Denver, Colorado 80201 (phone: 303/892-9400).
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