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Records of the Colorado Office of the Attorney General

 Collection
Identifier: WCAG

Scope and Contents

The Records of the Colorado Office of the Attorney General (CAG) consists of documents dated 1842 to 1999, with the bulk falling from 1976 to 1993. The collection contains most of CAG's Division 1 National Forest Instream Flow Claims files ( United States v. Colorado (W-8439-76)), specifically the Pleadings, Stipulations, Discovery and Investigation Files, and Exhibits. Originally, the CAG's files for this case contained additional file sets, including Orders, Discovery Papers, Legislative History Files, Case Law Notebook, Objectors Files, Contractor Files, Internal Memoranda, and Correspondence, but these file sets were not donated. Discovery Papers were incorporated into Discovery and Investigation Files before donation. The trial included many experts in the fields of forestry, hydrology, watershed science, geology, civil engineering, and the history of the U.S. Forest Service, so these topics are heavily covered in the collection. All compiled data was collected from the South Platte River watershed, including many small tributaries. Materials include legal documents, correspondence, publications, notes, data, maps, photographs and negatives, slides, floppy disks, and videotapes.

Dates

  • 1842-1999
  • Majority of material found within 1976-1993

Creator

Restrictions on Access

There are no access restrictions on this collection. However, it is stored off-site, so advance notice is required. All "confidential" markings on correspondence or other materials have been determined to be for administrative purposes, not national security information; therefore, these materials are open for access.

Restrictions on Use

Not all of the material in the collection is in the public domain. Researchers are responsible for addressing copyright issues.

History

The Colorado Office of the Attorney General (CAG) heads the state's Department of Law; CAG's Natural Resources and Environment Division (NRE) tries many cases related to federal, state, and private control of water and other natural resources. CAG provides legal opinions to Colorado's executive branch, enforces state law, prosecutes and defends civil and criminal cases in which Colorado has an interest, and acts as the state's primary litigator to the Supreme Court. While it has many responsibilities, one of the NRE Water Resources Unit's primary duties is representing Colorado and the State Engineer in the state's seven Water Court divisions.

Colorado's Office of the Attorney General was established in 1876, when Colorado became the 38th U.S. state. A continuation of the Office of the Attorney General of the Colorado Territory (1861-1876), the new office was created by the original state constitution created the Office of Attorney General as an elected position. After the state's first election in 1876, Archibald Sampson, a lawyer from Denver, became Colorado's first Attorney General. Legislators laid out CAG's duties in the 1877 Colorado Code.

Thirty-seven men and women have served as Attorney General for Colorado. Attorneys General during the time period covered by the court case in this collection (1976-1993) were J.D. MacFarlane (1975-1982), Duane Woodward (1983-1991), and Gale A. Norton (1991-1999).

In United States v. Colorado (general adjudication case number W-8439-76), Colorado's Attorney General and other organizations opposed the U.S. Forest Service (USFS) in a case over instream river flows in national forests in Colorado. On December 30, 1976, the U.S. Attorney General filed a federal reserved water right application in Colorado's District Court, Water Division 1 (South Platte River Watershed), on behalf of the USFS for instream flows, basing its claim on the 1897 Organic Act's reference to favorable conditions of water flows. The United States, in a series of amended applications, claimed rights to as much as 50 percent of water flowing through streams in national forests for 1) firefighting, 2) administrative sites, and 3) instream flows for channel maintenance. In December 1977, the U.S. filed more specific amended applications for four national forests in Colorado: Arapaho (W-9065-77), San Isabel (W-9064-77), Roosevelt (W9052-77), and Pike (W8977-77). Nearly 90 parties filed statements of opposition to the U.S. application, including the State of Colorado. The Colorado Attorney General's Water Resources Unit of the Natural Resources and Environment Section prosecuted the case for the state. The opposition contended that the U.S. had other means of channel maintenance at its disposal and its claims would inhibit future economic development and injure water users' rights.

The trial, argued in front of Judge Robert A. Berhman, started on January 8, 1990, and ended on December 13 of the same year. In November 1990, the U.S. motioned to file amended applications, but the Court denied the new quantifications the U.S. proposed in the applications. Parties filed briefs on technical and historical issues between April and September of 1991, and each side gave closing arguments in March 1992.

The trial involved many individuals and organizations. Attorneys Andrew E. Walch, Lynn Johnson, John Lange, and Daria Zane argued for the U.S., and State of Colorado Attorneys Duane Woodward, Wendy C. Weiss, Marie Sansone, and Carol Angel argued for the opposition along with lawyers from other objecting parties. Other objectors were City and County of Denver, Northern Colorado Water Conservancy District, Public Service Company of Colorado, St. Vrain and Left Hand Water Conservancy District, Upper South Platte Water Conservancy District, Water Supply and Storage Company, Cache la Poudre Water Users Association, Big Thompson Ditch and Manufacturing Company, and Red Feather Storage and Irrigation Company. Nearly 50 witnesses testified, and parties submitted approximately 1,500 exhibits.

During the case, the U.S. and the parties in opposition used the testimony of well-known experts in forestry, hydrology, watershed science, geology, civil engineering, and American history to bolster their claims. Notable experts for the U.S. included Luna Leopold (fluvial geomorphology), Roderick Nash and Harold Steen (history), and Hilton Silvey, Dave Rosgen, David Dawdy, and Charles Troendle (hydrology). Prominent opposition witnesses included Jeris Danielson (Colorado State Engineer), Edwin Mogren (forestry), Stanley Schumm (fluvial geomorphology), and Alan Berryman, Robert Mussetter, Jon Altenhofen, Daryl Simons, and Everett Richardson (hydrology/engineering).

On February 12, 1993, the Court issued its decision: it granted the U.S. reserved water rights for firefighting and administrative use and denied those for channel maintenance flows. Judge Behrman determined that the U.S. had not demonstrated the need for its claimed reserved water rights, nor had it established a minimum necessary quantity of water for forest health.

Extent

129.5 linear feet (79 record cartons, 20 photo boxes, 9 flat boxes)

Language of Materials

English

Abstract

Since its creation in 1876, the Colorado Office of the Attorney General (CAG) has tried many cases related to water and other natural resources. This collection concerns the precedent-setting case United States v. Colorado (general adjudication case number W-8439-76), in which CAG argued against the United States' filing of an application for rights to instream river flows on federal land on behalf of the U.S. Forest Service (USFS). The United States filed their application in Colorado's District Court, Water Division 1 in 1976. The trial began in 1990 and ended with the judge's decision against the U.S. in 1993. The collection consists of CAG's records of the case, specifically the pleadings, stipulations, discoveries, and exhibits. Materials include legal documents, correspondence, publications, notes, data, maps, photographs and negatives, slides, floppy disks, and videotapes, and cover topics such as the South Platte River and its tributaries, forestry, hydrology, watershed science, geology, civil engineering, and the history of the USFS.

Arrangement

The original order of the collection was maintained.

The collection consists of 1 series in 108 boxes.

Series 1: United States v. Colorado, 1842-1999

Subseries 1.1: Pleadings, 1976-1996

Subseries 1.2: Stipulations, 1989-1990

Subseries 1.3: Discovery and investigation files, 1842-1999

Subseries 1.4: Exhibits, 1842-1990

Acquisition

The Water Resources Archive acquired the Records of the Colorado Office of the Attorney General in January 2013 from the Natural Resources and Environment Section, Colorado Office of the Attorney General.

Online Materials

Some documents, data, and images have been scanned and are available through the Colorado State University Libraries website. Note that not all links are to the exact documents in this collection, but scans from the donor. In the electronic version of this document, direct links appear in context.

Related Collections

The Water Resources Archive holds the collection of the Water Supply and Storage Company, members of the opposition, along with the State of Colorado in United States v. Colorado (W-8439-76). The collection contains little material related to the case. The Archive also possesses the papers of expert witnesses for Colorado, Edwin W. Mogren (forest ecology) and Daryl B. Simons (hydraulic engineering and river mechanics), as well as the papers of Everett V. Richardson (hydraulics and river mechanics), expert witness for the Cache la Poudre Water Users Association and Northern Colorado Water Conservancy District. Mogren, Richardson, and Simons' collections include documents related to their individual roles in the case.

Processing

Processing was completed September 2013. Two Disclosures boxes (69 and 70) listed in the Colorado Office of the Attorney General (CAG)'s records index were not received. CAG never housed records in Box 69, and Box 70 contained duplicate material according to CAG's index. Before donation, CAG removed all privileged documents. Materials were re-housed in acid-free folders and boxes, and duplicate copies were weeded. Paper clips and rubber bands were removed. Photographs were moved to acid-free photo sleeves and boxes. Scrapbooks and oversized reports were re-housed in flat storage boxes. Some paper documents (mostly oversize folded maps) were removed from transparent, plastic sleeves. Folder names were transcribed, and original numerical order was maintained generally.

Title
Guide to the Records of the Colorado Office of the Attorney General
Status
Edited Full Draft
Author
Prepared by Clarissa J. Trapp
Date
Copyright 2013
Language of description
English
Script of description
Latin
Language of description note
Finding aid written in English.

Repository Details

Part of the CSU Libraries Archives & Special Collections Repository

Contact:
Fort Collins Colorado 80523-1019 USA
970-491-1844