Daily Press Writer
MONTROSE— The largest water rights case in the history of Colorado started a new chapter Thursday when a federal judge overturned an agreement between the state of Colorado and the federal government.
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The Daily Press published an in-depth article about the case July 15. (See Montrosepress.com for the archived article.)
The ruling creates more questions than answers on the direction of a federal reserve water rights claim by the National Park Service in the Black Canyon.
“The bottom line is (the ruling) is a positive for the Black Canyon of the Gunnison,” said Bart Miller, one of the main lawyers for the environmental groups.
The case started in 2001 in the waning days of the Clinton Administration when a large federal water right claim was filed in District 4 state water court. In the 1970s, a federal judge ruled that the federal government had a federal reserve water right in the Black Canyon and ordered the National Park Service to quantify the right. The 2001 filing was based on a complicated model that tried to mimic the natural hydrograph of the river.
The water right is intended to “‘insure the continued nutrition, growth, conservation, and reproduction of those species of fish which are thereafter introduced’ and to ‘attain and preserve the recreational, scenic, and aesthetic conditions existing on the applicable reservation dates or to preserve those conditions which are thereafter caused to exist,’” according to the 2001 filing.
The problem, however, for many water users in the Gunnison Basin was the date of the water right. A federal water right gets a priority date at the time the land was taken into federal possession. For the Black Canyon, the date is 1933.
Many ranchers in the Upper Gunnison and the dams in the Aspinall Unit have less senior water rights. Some worried that the agreement could have a huge economic impact on the region if large quantities of water were required for the Black Canyon.
When the dust settled, the 2001 water filing became the largest water case in the history of Colorado. Over 300 farmers, ranchers and other water users filed statements of opposition to the filing.
To settle the case, an agreement was reached in 2003 between the state of Colorado and the federal government. The Black Canyon was given a state water right with a 2003 priority and it abandoned the 1933 priority. The environmental groups sued to have the agreement voided, and Federal Judge Clarence Brimmer ruled in their favor Thursday.
“He said this a public resource, and the public has to have input,” Miller said.
Brimmer agreed with the environmental groups’ four claims: the agreement did not follow the National Environmental Policy Act; the federal government delegated management of the Black Canyon to the state of Colorado; it illegally disposed of federal property and it violated its fiduciary duty to protect the park.
In his ruling, Brimmer said the federal government understood the magnitude of the case and moved too quickly to reach an agreement.
“In their zeal to reach a resolution to the competing interests, however, the (parties in the case) ignore the right of the public to be involved in such a major and significant decision. Unlike a decision to place a call on a water right in a given year, relinquishing a water right with a 1933 priority date is permanent,” Brimmer said.
The judge remanded the case back to the Park Service. James Doyle, public affairs specialist with the National Park Service, said he could not comment on the specifics of the case but said the Park Service will protect the resources in the Black Canyon.
“What form that will take is up in the air,” Doyle said.
Marc Catlin, Uncompahgre Water User Association manager, said he is disappointed in the decision. He said the agreement between the state and federal government was an equitable solution.
“It puts a lot of worry in us because we thought we were working towards a solution,” Catlin said but acknowledged that he had not read the ruling in the case.
He said the Black Canyon case, along with federal environmental review of the Gunnison River by the U.S. Bureau of Reclamation, makes it hard for water users to plan for the future.
“With the decision, everything goes up in the air,” Catlin said. “It makes it unclear what the future will be.”
Brimmer said ultimately the state water court will decide the water rights case. Catlin said he believes the parties involved in the case will begin negotiations again soon but he was not optimistic.
“It’s hard to store water when the gate is open,” Catlin said.
Contact James Shea via email at Jamess@montrosepress.com
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