Doctrinal Disputes

Essay by Ed Quillen

Water – December 2002 – Colorado Central Magazine

GIVEN THAT THIS YEAR was both an election year and a drought year, it’s rather surprising that water wasn’t more of an issue during the campaigns. There were the usual shibboleths from candidates of all parties about “keeping Colorado water in Colorado,” which were of course vague on how such a thing might be done, or where it might be done, or how much it would cost, or who would pay.

And, given the nature of the state’s media market (the Denver television stations reach into all congressional districts), we were exposed to attack ads from the Fourth District race, where Republican Marilyn Musgrave attacked Democrat Stan Matsunaka for killing some water-storage legislation in the state senate.

But that’s about the size of it, with one exception that didn’t get much statewide play. That was in the U.S. Senate race, where Democrat Tom Strickland again ran against Republican Wayne Allard, and Strickland lost again. This time around, Strickland had something of a public record, because he had served as U.S. Attorney for Colorado during the latter years of the Clinton Administration.

That service was one reason I really didn’t want to vote for Strickland, since during his tenure at the federal courthouse in Denver, he was an enthusiastic drug warrior, rather than an upholder of our constitutional rights.

Unfortunately, that isn’t why Allard attacked him. As the attorney representing the federal government in Colorado, Strickland had applied for some “federal reserved water rights” in early 2001. Allard said Strickland shouldn’t have done that — even if he was an attorney acting on behalf of his client, which is what attorneys are supposed to do.

What, exactly, were they arguing about? It’s worth looking into, because it’s an issue that won’t fade away after the election.

Around here, and around the West in general, the story starts when the United States acquired new territory by war (with Mexico in 1846-48) or by purchase (Louisiana Purchase of 1803). Existing private land titles were honored, at least to some degree. The rest was left to the Indians, or surveyed and placed into the “unappropriated public domain.”

A generation and more of wars pushed many Indian nations onto specified lands, known as “reservations” because under federal law, the land was “reserved” for a specific use, and was thus no longer part of the public domain. In general, it wasn’t open to homesteading or similar settlement.

But Indians were not the only players when it came to reservations. The federal government also set aside “military reservations” for forts and training and testing and the like. A century ago, President Theodore Roosevelt was busy declaring “forest reserves,” a form of reservation that evolved into our modern National Forests. And in 1933, during the waning days of his administration, President Herbert C. Hoover proclaimed a national monument — another reservation of federal land — at Black Canyon of the Gunnison River.

THE RESERVATION CONCEPT should be pretty clear by now. A reservation comes about when the federal government reserves certain land for a certain purpose on a certain date. So, what about the water rights?

Those are never simple — this is Colorado, after all — but we can start with the Colorado Doctrine of Prior Appropriation, which essentially says “first in time, first in right.” The first person to divert the water of a stream, and put it to beneficial use for irrigation or whatever, has the senior water right. He gets his water first, and whatever is left goes to the person with the next most senior right, and so on through that drainage.

Most western states have similar laws. The doctrine may be named for Colorado, but most likely it originated in the placer-mining country of California after the 1849 Gold Rush. The doctrine even resembles the pioneer process of staking a claim: The first guy got the best rights, but he couldn’t just sit on them. The prospector had to do assessment work on the claim if he wanted to keep it, and the water claimant had to build diversion structures and the like if he wanted to keep his water right.

GETTING BACK to the real topic here, Montana water law was like Colorado’s. In the 1890s, settlers began to farm along the Milk River in Montana, and they diverted water from the river to irrigate their fields. They filed for, and received, water rights from the state.

They were upstream from the Fort Belknap Indian Reservation, created by treaty and approved by Congress in 1888. When the farmers used all the water they had rights to, the Gros Ventre and Assiniboine didn’t have enough water for their homes and farms, and so they sued.

Their argument was that they were entitled to an 1888 water right, one senior to the upstream farmers, because their reservation had been created in 1888, and it had been created for a certain purpose — to give them a home where they might practice irrigated agriculture. Thus, the Indians’ attorneys argued, there was an implied right, one that came with the reservation, to as much water as they needed to serve the purpose of that reservation.

In other words, what good would it do to have the reservation land if they couldn’t irrigate it and get their sustenance?

Their case (known as Winters v. Belknap) wound its way through the courts until the U.S. Supreme Court issued its ruling in 1908. The court’s decision is known as the Winters Doctrine, and it’s fairly clear:

When the federal government sets aside a reservation, there’s also an implied claim to at least the minimum amount of water necessary to fulfill the purpose of that reservation. The date of that claim is the date of the reservation. This federal claim is different from normal claims to water rights. A normal claimant has to “put the water to beneficial use” within a given time, or lose the water right, but the federal reserved claim can lie unused and still remain valid until the federal government gets around to specifying how much water it wants — a process called “quantification.”

That’s all rather theoretical. How might it work on the ground? For an Indian reservation, we know enough about soils and topography and the like to determine what lands could be practically irrigated, and what crops might grow. So it’s usually possible to say that a 100,000-acre reservation created in 1882 has 10,000 acres of irrigable land, and that crops would need three feet of water to thrive. So we can “quantify” this claim at 30,000 acre-feet with an 1882 priority date — even if they didn’t get around to diverting and delivering the water (thereby putting it to beneficial use) until 2002.

IN ESSENCE, that’s at the heart of the Southern Ute Nation water claim that provides some legal cover for the controversial Animas-La Plata project near Durango. A-LP is a lot more complicated than that, but this isn’t the place to address those complications.

The important thing to remember here is that the Winters Doctrine sets a priority date and a purpose for water claimed by the federal government. The exact amount of water can be specified at a later date when the federal government goes to state water court to quantify its right.

With an Indian reservation, dating from the days when the idea was to get Indians to take up farming, it’s generally possible to quantify the rights.

But it gets tricky with other federal reservations, as with the Black Canyon of the Gunnison National Monument which was proclaimed in 1933, and upgraded to a national park a couple of years ago.

National parks and monuments are reserved for a variety of purposes, such as preserving a historic battlefield or a scenic spot. One of Black Canyon’s purposes was to preserve the natural environment of the canyon.

That sounds pretty simple — just don’t dam it, or build roads or power lines in it. But there’s more to it. In its natural state, the canyon got cleaned out almost every May and June by the spring run-off that roared down from the Sawatch and Elk ranges. Any vegetation along the banks got swept away, that sort of thing.

But those annual floods haven’t happened for many years, ever since the Bureau of Reclamation built the Aspinall Unit in the 1960s as part of the Colorado River Storage Project. The Unit is an upstream series of three dams and reservoirs (Blue Mesa, Morrow Point, Crystal) which store water and generate electricity.

How much water they store, and how much electricity they generate, have a direct bearing on the flow of water through Black Canyon. In general, the reservoirs have tended to even out the flow through the year, and thus sandbars form in the canyon, and vegetation starts to grow on the sandbars, and the canyon departs from the “natural” state the Park Service is supposed to preserve.

So the Park Service wants to get the water rights to do its preservation job (basically, a seasonal flow regime), and the U.S. attorney goes to court, on behalf of the federal government, to secure those rights. The Black Canyon process started in 1972, when the federal government filed in state court for recognition of its 1933 reserved water right. A state court granted that right in 1978, and after years of discussion among federal agencies (the Bureau of Reclamation wants to generate electricity; the Fish & Wildlife Service wants to protect endangered fish species; the Park Service wants to protect the Park, etc.) the federal government finally qualified its claim on water rights in Black Canyon.

THE FEDS want a minimum flow of 300 cfs in the winter, and high spring surge flows determined by how much water is available. They’re willing to get a 1957 priority date for the Park’s flows, the same date as the Aspinall Unit’s water rights, so that the two rights are of equal priority. This claim went to state water court in early 2001, when Tom Strickland was U.S. attorney for Colorado.

Some people characterize this as a “federal water grab,” but that seems to be stretching things. It isn’t as though the feds are seizing the water; they’re going through water court, seeking a state water right, just like other Colorado water users.

As for the merits of the Park Service claim — that a seasonal flow regime is necessary to preserve the nature of the Black Canyon — I have a hard time caring whether there are sand bars and scrub trees along the floor of the canyon. I don’t think it makes the slightest bit of difference in the view from the rim, which is as far as I usually venture. But I’m not an ecologist, and maybe it is important in ways I don’t comprehend.

And whether it really matters to most of us or not, the Park Service does have a legal obligation at Black Canyon to “conserve and maintain in an unimpaired condition the scenic, aesthetic, natural, and historic objects of the monument, as well as the wildlife therein, in order that the monument might provide a source of recreation and enjoyment for all generations of citizens of the United States.”

That’s the legal purpose of Black Canyon National Monument, now National Park, and the federal government applied in state court for water rights under the Winters Doctrine to fulfill those purposes. That hardly seems like an attack on our state water law.

The Winters Doctrine is a court case, though, not a federal law. The doctrine says that the appropriate water rights are implied when the reservation is created, even if there’s nothing explicitly said about water in the relevant legislation or presidential proclamation.

Last year, Idaho’s two Republican senators introduced the “State Water Sovereignty Act,” which included the provision that “The withdrawal, designation, or other reservation of land by the United States for any purpose does not give rise by implication to a Federal reserved right to water relating to that purpose.”

IN OTHER WORDS, they wanted to repeal the Winters Doctrine. And somebody should have asked Wayne Allard whether he agreed with them and would support their bill, instead of just providing unsubstantiated claims that this “federal reserve water right … would rob the Western Slope of its life.”

But Tom Strickland didn’t ask Allard about his opinion of the Idaho legislation, or even ask Allard to provide some details about how the Western Slope would die if there were a more natural flow regime in the Black Canyon.

Instead, Strickland just hemmed and hawed and said that his name was on the water litigation because he just happened to be the U.S. Attorney for Colorado, and it was going to a Colorado court, and that’s the way things work in the Department of Justice. So we don’t really know how he felt about the Winters Doctrine either.

Little wonder that he lost the election. If he’d addressed the issue squarely, and if he’d pushed Allard into taking a position, then we could have enjoyed a lively debate about some things that matter in Colorado, like water and the role of the federal government. That’s what elections should be about.