Jump to Navigation
Jump to Content

United States v. Jesse

ELR Citation: 18 ELR 20275
Nos. No. 85SA347, 744 P.2d 491/(Colo., 10/13/1987, 11/02/1987)

The court holds that the United States is not barred by either prior Colorado case law or the doctrine of collateral estoppel from asserting reserved water right claims under the Forest Service Organic Act for minimum instream flows in national forests. In a prior decision, United States v. City and County of Denver, 656 P.2d 1 (Colo. 1982), the court rejected the United States' claim to instream flow rights to protect recreational, scenic, and wildlife values in the national forests. The federal government did not claim in Denver any instream flow rights to conserve water flows or to furnish a continous supply of timber, the purposes for which the national forest system was established. The court first holds that Denver does not bar the United States from asserting that the Organic Act implicitly reserved the amount of water necessary to maintain instream water flows for those purposes, since the holding pertained only to the secondary purposes for which the government sought water rights. The court then holds that the United States should be granted instream flow rights if the water court, on remand, determines that the purposes of the Organic Act will otherwise be entirely defeated. The court notes that the reserved rights doctrine is strictly construed and that any reservation must be limited to the minimum amount of water necessary to ensure that the purposes of the reservation will not be entirely defeated. The court also holds that the United States is not collaterally estopped from relitigating the existence of reserved rights to maintain instream flows in the national forests. Since the government did not assert instream flow rights in Denver for timber production or water flow maintenance pursuant to the Organic Act, the issue was not actually litigated in Denver.

[Briefs from this litigation are digested at ELR PEND. LIT. 65903.]

Counsel for Appellant
David C. Shilton, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Counsel for Appellee
Charles B. Howe, Chief Deputy Attorney General
Department of Law
1525 Sherman St., 3d Floor, Denver CO 80203
(303) 866-3611