State withdraws objection to water rights stipulations

Robert Allen

Daily Press Writer

MONTROSE — Nearly two weeks after filing objections to an agreement reached between Upper Gunnison Basin water users and the federal government in 2003, the state’s attorney general has filed a motion to withdraw it.

“It was done because a number of parties in the Gunnison River Basin made it very clear they felt the filing of those objections would prevent further negotiation,” said Alexandra Davis, First Assistant Attorney General for the water rights unit.

The agreement in question regards stipulations protecting the water rights of ranchers and other users from the government’s reserved water right for the Black Canyon of the Gunnison.

Davis said the motion was filed to allow the state to withdraw its objection with “leave of the court to file them again later.”

Frank Kugel said he believes there was “a broad base of support” for those who filed the stipulations and they felt the state had not lived up to its original commitment when it filed the objections. The state was closely involved with and provided input to those stipulations when they were filed, he said.

Kugel is general manager for the Upper Gunnison River Water Conservancy District.

“I’m cautiously optimistic that this (the withdrawal) will set aside our differences and allow both the state and Upper Gunnison water users to forge an agreement with the federal government on the Black Canyon case,” he said.

Presently, the water users face no immediate threat of a call being made on the Black Canyon’s water rights, as it has not quantified them.

Of the 106 water users’ filings for the stipulations, 22 have been signed by the water court judge.

“The judge is prepared to sign those other remaining stipulations once all the opposition is withdrawn,” Kugel said.

Meanwhile, several meetings have been scheduled to allow parties to discuss their positions on the issue. A meeting at 7:30 a.m., May 2 with both the state’s house and senate agriculture and natural resources committees is scheduled provide an opportunity for interested parties to review the state’s position on the issue and explain opposition, Kugel said.

Proceedings will be broadcast through the Colorado General Assembly Web site at http://www.leg.state.co.us.

However, Mike King, deputy director of the Department of Natural Resources said after a meeting Friday the clashing sides are making “enough progress that the need for the meeting may no longer be there.”

He said such a decision will be left to the elected officials, but that he feels the process is likely “back on track.”

Kugel said conflicts might not be over.

“We anticipate a battle further down the line to iron out selective subordination,” Kugel said. “At least this (the withdrawal) will allow us to move forward.”

Selective subordination allows the water users to secure their rights to the source, despite the Black Canyon’s seniority.

The Black Canyon’s water rights date back to 1933, whereas most of the water users’ rights were filed about 1941. Colorado water law is based on the prior appropriation doctrine, which emphasizes “first in time, first in right.”

Davis said this factors into the state’s April 16 objection filing.

“The stipulations created selective calls, which we think are contrary to priority administration,” she said. “We also filed these because we were concerned (Department of Wildlife) water rights would be injured by the stipulations.”

In addition, she said the objections were also filed because Upper Gunnison had asked the court to order a deadline for them.

Contact Robert Allen via e-mail at roberta@montrosepress.com