Records of the Colorado Office of the Attorney General

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.