by Larry MacDonnell
While the Colorado Supreme Court did not issue any water-related decisions since our last newsletter, the Utah Supreme Court weighed in on the contentious issue of stream access in the case of Contaser v. Johnson. At issue was whether the public easement providing access to state waters in Utah included the right to “touch” the privately owned bed of the Weber River. Readers may recall that the Colorado Supreme Court has ruled that the public does not have such a right in this state (People v. Emmert). The Utah Supreme Court, however, ruled the easement includes full public rights to recreational uses of state waters that include incidental contact with the stream bed. Surprisingly, the decision does not consider the Colorado decision.
Endangered Species Act
The District of Columbia Court of Appeals found that the U.S. Fish and Wildlife Service had acted reasonably in deciding against the listing of the westslope cutthroat trout under the Endangered Species Act. (American Wildlands v. Kempthorne). Plaintiffs had petitioned the FWS to list this species because of evidence that introduced species of trout were hybridizing with the natives, threatening the continued existence of the westslope cutthroat. While agreeing that hybridization presented a threat to the species, FWS concluded the level of threat had not yet reached the point of requiring listing.
In The Lands Council v. McNair, the 9th Circuit Court of Appeals considered whether the Forest Service had failed to comply with the National Forest Management Act. In particular, plaintiffs challenged the methodology utilized by the Forest Service in Idaho to evaluate the effects of a proposed forest management project on the flammulated owl and other species. The court upheld the Forest Service, in the process overruling a previous decision holding that the Forest Service must demonstrate the reliability of its scientific methodology when proposing actions affecting important environmental values. The court returned to its more traditional rule of deference to the expertise of the agency.
The ongoing saga of the roadless rule, put in place in the waning moments of the Clinton administration, took another twist. Federal District Court Judge Brimmer once again issued a permanent injunction against implementation of the rule (State of Wyoming v. U.S. Department of Agriculture). A federal magistrate in California had upheld the validity of the rule in 2006. Judge Brimmer’s decision is founded primarily on stated deficiencies in agency compliance with the National Environmental Policy Act.
In an even longer running controversy, this one between Nevada rancher, Wayne Hage, and the U.S. Forest Service, the Federal Court of Claims ruled that the U.S. had unconstitutionally taken Hage’s water rights and range improvements when it cancelled and suspended grazing uses of adjacent federal forest lands. The Forest Service sought to enhance the creek and its riparian area as it passes through the national forest. It constructed fences to keep cattle from moving into the creek, allowed beaver to reinhabit the area and create dammed up areas, and promoted redevelopment of vegetation along the creek banks. Federal Claims Court Judge Loren Smith determined the compensation owed the estate of the now deceased Mr. Hage to be a total of approximately $4.2 million.
The Colorado Supreme Court issued three water-related decisions since my last report. In a case that has been in the courts for 15 years, the Supreme ruled that plaintiffs/applicants had failed to provide a legally acceptable plan for augmentation necessary to replace depletions that would be associated with pumping from wells as the water supply for proposed residential developments in the Bear Creek and Turkey Creek drainages. Concerning the Application for Water Rights in the South Platte River or its Tributaries in Jefferson, Douglas, Arapahoe and Park Counties and the City and County of Denver. This decision followed a previous one in which the Court had determined that exempt groundwater pumpers are protected from such proposed new depletions of the aquifer.
The second decision tested the power of Summit County to use its land use regulatory authority to ban the use of toxic or acidic chemicals such as cyanide. Colorado Mining Association v. Board of County Commissioners of Summit County. The Court struck down the regulations, finding the General Assembly had given the exclusive authority to regulate this form of mining to the Mined Land Reclamation Board.
The third decision considered whether a party can obtain a right to use water through adverse possession. Archuleta v. Gomez. Previous cases had precluded this basis for establishing an original appropriation of water but had permitted it as a basis for obtaining a right as against another user of water from the same ditch. This decision made clear that even within a single ditch, the party claiming adverse possession bears the burden of demonstrating actual beneficial use of water adverse to the other party’s right and the amount of that water.