Ecological integrity, new Western myth: a critique of the Long's Peak report.

The myth-makers of the American West have produced another one. One hundred and thirty years ago, Bierstadt painted The Rocky Mountains-Lander's Peak (1863) and A Storm in the Rockies-Mt. Rosalie (1866), immense canvases that fired the Eastern imagination with water shining at the base of savage peaks.(1) hi that tradition, the 1992 Long's Peak Report conjures up another imaginary western landscape promising "A New Era of Sustainability" for America's waters based on "social equity, economic efficiency, ecological integrity, and continued commitment to federal trust responsibilities to tribes:" a national water policy to "fulfill[] Aldo Leopold's ~Land Etydc'."(2)

But the Long's Peak Report is no Bierstadt. Its loftiness quickly fades into a one-dimensional argument for the exercise of federal agency power over state and local planning. Composed mainly of representatives of the major national environmental groups and their ideological allies, the invitation list foreordained the outcome, a panoply of recommendations intended to nationalize water policy and effectuate a reallocation of existing water supplies.(3) Recommendation 30, for example, asserts that "[r]eallocation of existing supplies should be preferred as an alternative to new storage."(4) Representatives of the Colorado General Assembly, state agencies, water organizations, farmers, and cities who hold rights to those water supplies were not asked to participate, although the forum was hosted by the Natural Resources Law Center of the University of Colorado School of Law.(5) As a result, the report is biased by its anti-storage, anti-use, anti-local-government agenda. The group's timely message about the need for water use efficiency, environmental protection, market mechanisms for water transfers, and community participation in water decision-making is lost in the strident din of preservationism.

Hitching state water law and the Bureau of Reclamation to the whipping post has been a favorite sport of writers like Fradkin(6) and Reisner(7) and professors like Wilkinson and his colleagues at the Natural Resources Law Center who helped to write the Long's Peak Report. At Northwestern School of Law of Lewis and Clark College in February of 1991, Wilkinson eulogized the death of a mythological figure he called Prior Appropriation.(8) In subsequent writings, he broadly smears western water use as "prodigal waste" perpetrated by the "lords of yesterday" demonstrating an "essential pattern" that he describes as:

the single-minded pressure to develop water for extractive uses;

the competition among states over interstate rivers; extensive federal

subsidies for private users; far-reaching environmental impacts;

the subversion of established Indian rights; the raids by cities on

rural areas; the blunting of normal market incentives; and the inexorable

drive toward bigger and grander projects.(9) The Long Peak's Report echoes the politically aimed hyperbole:

the endangered Columbia River salmon, the over-taxed San Francisco 

Bay Delta, the poisoned Kesterson National Wildlife Refuge, the

salt-choked Colorado River, the vanishing Ogalalla Aquifer,

Louisiana's eroding Delta, New York's precarious Delaware River 

water supply, and the dying Florida Everglades. The environmental

costs of current water policy are extraordinary, both to this and

future generations.(10)

Here is painted the modem despoliation myth: rapacious water diverters have desecrated virgin America for filthy gain. In comparison, the Nineteenth century boomer agricultural irrigation myth was that "rain follows the plow."(11) Neither myth accurately portrays the West of the past, present, or future.

Wilkinson's so-called lords of yesterday were and are farmers, businesspeople, and community officials. "Water follows the shovel and the city council" would more accurately characterize the history of western water policy. Water projects are the product of state and local long-range planning in response to the natural hydrologic cycle and citizen need. The Colorado-Big Thompson Project (C-BT), for example, was sponsored by farmers and cities who had experienced the Great Depression and devastating Dust Bowl drought of the Thirties.(12) In those days, the national government invested in the livelihood of citizens and the infrastructure of the nation, instead of obstructing both. Local sponsorship and the execution of multi-year repayment contracts ensured continuing community involvement and responsibility.

On the ground, the C-BT project does not look like despoliation. A National Recreation Area surrounds the West Slope features, consisting of Grand Lake and Shadow Mountain, Granby, and Willow Creek Reservoirs. A gold medal trout fishery exists below these reservoirs on the Colorado River. A tunnel through the Continental Divide underneath Rocky Mountain National Park delivers water to 650,000 acres of irrigated farmland and twenty six northeastern Colorado communities, including Boulder, Longmont, Loveland, Fort Collins, and Greeley: highly liveable cities surrounded by a sustainable rural irrigated greenbelt. The river below Fort Morgan now flows perennially because of irrigation and municipal return flows from transmountain deliveries into the South Platte River Basin. Historically, the river ran dry after the late spring snowmelt.

The C-BT Project is not unique. Water diversion and storage have made the West an attractive and productive region for Americans. The Long's Peak Report fails as sustainable water policy for this region, and the nation, because it ignores four enduring western factors: 1) water scarcity, 2) state and local citizen initiative; 3) the essential role of water storage; and 4) the necessity for a stable, secure and flexible water allocation law. If implemented, the Report would intensify competition for already scarce water supplies in order to serve "the ecological community," "ethnic communities," "ecosystems," "in-stream flow protection," "pollution prevention," "ecological integrity and restoration," "water quality," "biological diversity," "the viability of ecosystems," "community and economic sustainability," and "watershed restoration."(13)

Presumably, a national water policy would address how much water is needed for these uses, by what means that amount will be quantified and administered in relation to other uses, and how such uses can be served without new storage and without causing injury to state and local economies and established water rights. However, without any study of the feasibility, costs, or Impacts of Implementing such a policy and without inviting the participation of those with opposing viewpoints and established rights, the authors of the Long's Peak Report called for immediate imposition of this supposedly national policy by Executive Order in derogation of state and federal legislative process:

The President should issue an Executive Order establishing a policy

of watershed-level aquatic ecosystem protection and restoration.

The order should direct the EPA and the Departments of the Interior,

Agriculture, Defense, and Commerce (with oversight from the

Council on Environmental Quality) to: review, revise and coordinate

their activities and operations to use all authorities under existing

law to manage federal lands; to operate federally-owned or licensed

projects and facilities to protect and restore fish, wildlife, and their

habitats on an equal basis with other primary project Purposes

where such protection is not provided under the Endangered Species 

Act).

The Departments of the Interior and Agriculture should assert

rights to instream flows for federal lands and encourage states to

adopt and strengthen insteam flow program by using authority to

grant or withhold federal funds and federal permit approvals.(14)

What the authors of this agenda really seek is a national riparian water law implemented by federal agencies outside of state water law forums. But the eastern riparian doctrine of natural or continuous flow and de minimis use was rejected long ago by Congrees(15) and the United States Supreme Court(16) as sustainable national water law, primarily because of western reality. As Powell observed, beyond the Hundredth Meridian "[a] day's flow at flood time is greater than a month's flow at low water time."(17) Sensibly, he urged building reservoirs high up in the watersheds to serve citizen needs into the future. Powell, Pinchot, and the other progressive conservationists ushered in a "new era of sustainability" which Congress secured by passing the 1897 National Forest Organic Act(18) and the 1902 Reclamation Act.(19) Through the 1866 Mining Act(20) and subsequent legislation, Congress legally severed the waters from the land so that water could be physically removed from the public lands under state law.(21) National forests were created and federal financial aid was provided to local projects in order to ensure a stable and secure water supply through construction of diversion, carriage, and storage facilities and off federal lands.(22) Pinchot's multi-use management approach prevailed over the anti-use preservationist advocacy of those like John Muir and the anti-reservation insurgency of westerners like Colorado's Henry A. Teller.(23)

Reclamation law made sustainable water supplies for settlement of the West a matter of national importance. In those days, Congress heard the truth about water storage. During the reclamation hearings, Wyoming engineer Elwood Mead testified before Congress in 1901 about the necessity of water management. "Only a small fraction of the water supply of many western rivers can be put to profitable use unless the flow can be regulated and the water held back until needed."(24)

Sustainability in the West has always meant altering the natural conditions of streams. Contrary to the myth that all irrigation societies are imperialistic, recent historical research demonstrates that Native Americans, like the subsequent settlers of the region, practiced water management as a shared democratic custom.(25)

Because of scarcity, need, and many competing demands, water in the West is allocated, administered, and surrounded by legal rights, remedies, and restrictions in order to provide stability, security, and flexibility in use of this critical resource. Beneficial use without waste is the operative principle of prior appropriation, a doctrine of sustainability which evolved from local custom. A water right cannot be obtained except in the amount reasonably necessary for beneficial use through a reasonably efficient means of capture, possession, and control.(26) Speculative claims are prohibited.(27) Water rights can be bought, sold, and changed to other uses, so long as injury is not caused to other water rights.(28)

Prior appropriation law has been remarkably adaptable in recognizing new uses while protecting existing uses. For example, Colorado's in-stream flow law(29) provides for the appropriation of water in priority by the Colorado Water Conservation Board, resulting in protection of approximately 8,000 stream miles to date. Under a 1986 amendment, the Board can acquire senior water rights by purchase or donation for change to in-stream flow. The Colorado Supreme Court has held that a boat chute located in the channel of a stream, as well as a nature center diversion into an old stream channel, can result in a valid water appropriation.(30) Storage water can be appropriated, released, and administered in priority to enhance recreational and aquatic life flows.(31) Fish culture, wildlife habitat, mined land reclamation, and human environments are recognized beneficial uses.(32) Alteration of the natural environment cannot become a means for establishing a water right, for example, by drying up wetlands, cutting trees, or urbanizing lands with impermeable surfaces.(33)

These Colorado examples are repeated throughout the West, yet the Long's Peak Report calls for less state authority and more federal regulation. Why? Because the operative agenda did not include local water supply planning and protection of existing water rights as essential components of national policy. The authors urge "equity" for Native Americans, yet fail to support construction of the Animas--La Plata Project which the Ute tribes have sought for decades.

By ignoring state and local water law, custom, and forums, and encouraging federal agencies to reallocate water supplies through regulatory controls, the Long's Peak Report subverts sustainable water policy, rather than offering a viable alternative. If implemented, this agenda will lead to unprecedented conflict, litigation, and intrusion on established rights. Under the Supreme Court's Lucas(34) rationale, state-created water rights are property rights which are protected against regulatory takings. Water rights entitle owners to remove water from natural streams and lakes.(35) The exercise of a water right necessarily involves alteration of the natural ecology. In Colorado, for example, a water right is the right to (1) use a particular quantity of water to the exclusion of other uses, (2) for an identified beneficial use or uses, (3) diverted or stored at a specified location, (4) with an administrable priority vis-a-vis other uses of the available water source, (5) resulting in a quantifiable yield.(36) Reallocation of such a right by agency action in order to maintain or restore ecological integrity can result in a compensable partial or total regulatory taking.(37)

The Long's Peak Report states that "equities of people with existing uses" should be "respected" where "a transition from old values to new values demands reallocation of water from existing uses."(38) This phraseology implies that courts or administrative agencies may balance interests between an existing use of water and the perceived social and political importance of "new values" in determining whether to pre-empt some or all of the owner's interests in a water right. But water rights are created by law, and a remedy at law -- damages -- is Owed for their taking by government. The authors' choice of "equities" instead of "rights" when describing present water uses clearly demonstrates the fundamentally erroneous underpinning of the Long's Peak Report -- that a changing federal definition of relative equities among competing uses of water can supersede property interests which have vested under state law.

Fortunately, the Constitution of the United States is not so fragile. Property rights of Americans are protected. Failure to respect them inevitably leads to treating other fundamental rights as transitory vestiges of yesterday which can be replaced by simply articulating "new" values.

Shifting administrative policies cannot be allowed to destroy pre-existing water rights. If the government has a need for water to serve purposes it deems important, it may obtain it in a variety of ways: 1) under state law; 2) by the creation of a federal reserved water right; 3) by purchase or acquisition under authority of a federal statute, such as Section 5 of the Endangered Species Act,(39) which authorizes payment for land or water necessary to conserve endangered species, or, 4) by a regulatory taking for which just compensation is paid. Reliance on federal agencies to create and administer a rational water policy based on shifting equities is not an acceptable substitute for respecting legal rights.

Regulatory agencies are insulated from the demands and consequences of local decision-making and are incapable of devising or administering a fair and adequate water planning and allocation system. Moreover, Congress has directed these agencies to avoid conflicts with state water law and local water resource management.(40) In Lucas, the Supreme Court observed that there are a number of non-economic interests in property "whose impairment will invite exceedingly close scrutiny under the Takings Clause."(41) Surely the security, stability, and flexibility afforded to water rights by state water law ranks among those interests whose importance cannot simply be measured by an award of damages. The health and welfare of a large portion of the United States depends on the establishment and protection of state-created water rights.

The Long's Peak Report calls for a reallocation of water to other uses, without proposing or explaining the details. Before long-established water law is overthrown, however, the nation must candidly debate the nature and details of any substitute allocation system.

The authors of the Long's Peak Report failed to address key questions which must be answered in any formulation of water policy, including the following: 1) Does state law determine whether a water right is a property

right? 2) Does state law determine the scope and nature of a water

right? 3) If an existing water right is defined as a property right under

state law, should federal environmental laws be used to

redefine the nature and scope of the water right? 4) Should federal environmental laws be used to reallocate all

or a portion of a water right previously allocated by a state? 5) If federal environmental laws should be used to reallocate

previously allocated water, what basis will be used to determine

the amount which will be reallocated to other uses?

What method will be used to identify the reallocated water

and ensure that it is used for the intended purposes? 6) Do the Clean Water Act and Endangered Species Act provide

a legal basis for restricting the otherwise legal exercise of

existing, historically used water rights? If so, must the United

States adjudicate its claims to this water pursuant to the

McCarran Amendment? If not, how and by whom will water

be administered (i.e., identified and delivered to the intended

use without interference by other potential water users)? 7) If a water right is defined as both a property right and a

beneficial, non-nuisance use of water, does the restriction of

that right by the federal government under environmental

regulations constitute a taking of property which requires

compensation under the United States Constitution? 8) Should federal environmental laws be used to reallocate

waters allocated by interstate compacts or equitable apportionment 

decrees?(42)

Straightforward answers to these questions would advance a rational debate on whether a "national" policy, instead of the existing policy of federalism in water matters, is either workable or desirable. The recurring penchant of national water reformers to treat the West as their colony, their lack of respect for the wide diversity of western interests, and their desire to rearrange and regulate away established rights, encourage hostility and resistance.(43)

The public interest in environmental protection which the Long's Peak Report seeks to vindicate cannot be assured by rhetoric. Federal regulation is a transitory means for protecting the use of water for environmental or any other purposes. There is no substitute for integrating new water uses into a proven, reliable system. The western states have the job well under way. This is the genius of Mr. Prior. Contrary to popular rumor, he's not dead yet. Not by such a Long's shot. (1.) See William H. & William N. Goetzmann, The West of the Imagination 145-157 (1986). (2.) America's Waters: A New Era of Sustainability, Report of the Long's Peak Working Group on National Water Policy (Natural Resources Law Center, University of Colorado School of Law ed., 1992) 3, reprinted in this volume of Environmental Law, 24 Envtl. L. 125, 127-28 [hereinafter Long's Peak Report]. (3.) National environmental groups invited include: the Environmental Defense Fund, American Rivers, National Wildlife Federation, Natural Resources Defense Council, The Nature Conservancy, and The National Audubon Society. Those attending but not necessarily committed to the objectives of these groups apparently failed to articulate or gain inclusion of different points of view. (4.) Long's Peak Report, supra note 2, at 140. (5.) This article discusses Colorado law and policy as an example of Western water principles which the Natural Resources Law Center ignored in hosting the forum and producing the Long's Peak Report. (6.) See Philip L. Fradkin, A River No More, The Colorado River and the West. (1981). (7.) See Marc Reisner, Cadillac Desert, The American West and Its Disappearing Water (1986). (8.) Charles Wilkinson, Prior Appropriation 1848-1991, 21 Envtl L. v (19-91). For a rejoinder, Anne W. Squier, Water Quality, Water Quantity. The Reluctant Marriage, 21 Envtl. L. 1081 (1991); Gregory J. Hobbs Jr., The Reluctant Marriage: The Next Generation (A Response to Charles Wilkinson), 21 Envtl. L. 1087 (1991). (9.) Charles F. Wilkinson, Crossing the Next Meridian, Land and the Future of the West. 230 (1992) (emphasis added). (10.) Long's Peak Report, supra note 2, at 127 (emphasis added). (11.) Colorado Governor William Gilpin, quoted in Wallace Stegner, Beyond the Hundredth Meridian, John Wesley Powell and the Second Opening of the West. 3 (1954). (12.) See Daniel Tyler, The Last Water Hole in the West, The Colorado-Big Thompson Project and the Northern Colorado Water Conservancy District (1992). (13.) Long's Peak Report, supra note 2, at 127-28. "Ecological integrity" and "ecosystem management" are preservationist political concepts undefined by federal acts or judicial precedent, and are presently incapable of being integrated into water allocation decisions equitably or with legal certainty. (14.) Id., Recommendation (11) at 135, and Recommendation (36) at 141. (15.) Desert Land Act of 1877, ch. 107, 19 Stat. 377. See also California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 164 (1935). (16.) See United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702-03 (1899); United States v. Gerlach Livestock Co., 339 U.S. 725, 745 (1950). (17.) John Wesley Powell, Report on the Lands of the Arid Region of the United States 13 (1879). (18.) 30 Stat. 34. (19). ch. 1093, 32 Stat. 388. (20.) ch. 262, 14 Stat. 251. (21.) Summarized in Gregory J. Hobbs & Bennet W. Raley, Water Quality Versus Water Quantity, A Delicate Balance, 34 Rocky Mtn. Min. L. Inst. [sections] 24-2[1] (1988) and Water Rights Protection In Water Quality Law, 60 U. Colo. L. Rev. 841, 857-859 (1989). (22.) United States v. New Mexico, 438 U.S. 696, 712 (1978). A recent decision of Judge Robert A. Behman, Colorado Water Division 1, Greeley, rejected the Organic Act claims of the United States for allegedly reserved channel maintenance flows in the Arapaho, Pike, Roosevelt, and San Isabel National Forests, Consolidated Case No. W-8438-76 (Feb. 12, 1993). The United States has filed an appeal with the Colorado Supreme Court. In his opinion Judge Behman said:

Applicant contends that Congress in creating the national forests was

not concerned with the development of the west and the necessities of

western domestic and irrigation use of the waters from the forests. If

this is true, this section of this memorandum is totally irrelevant. But

this court believes such development was a primary aim of the forest

legislation, and the Supreme Court of the United States has determined

that domestic and irregation use was the principal purpose of Congress

in securing favorable water flows. If this court's interpretation is correct,

these considerations are highly significant in determining what, if any,

water rights Congress intended to reserve in creating the national forests. (23.) G. Michael McCarthy, Hour of Trial, The Conservation Conflict in Colorado and the West, 1891-1907, at 240-241 (1977):

The insurgents, for example, might have had valid reasons for opposing

the preservationist ideas of men like John Muir and Hamlin Garland.

Moralistic and self-righteous, the preservationists unreservedly condemned

pioneers who found "God's trees" "rejoicing in wildness" and destroyed

them. Indiscriminately labeling such men and groups as "vandals" and

"destroying angels," Muir and his followers sought nothing less than the

total reservation of the western public domian. At no time, however, did

the wilderness cult fully understand the nature of pioneer life. It did not

or would not understand the importance of settlement to frontiersmen,

and, unfamiliar with the exigencies of pioneer life, it did not realize the

fact that access to local resources was the key to survival. If land devastation

was wrong, total land reservation was no less so. Even Pinchot

conservationists agreed to that.

By the same token, insurgents had sound reasons for denouncing

"Pinchotism." As several historians have pointed out, the men who masterminded

the conservation movement -- Pinchot and his coterie of resource

planners -- were "men of science, not economists," who did not

reflect the dominant economic faith of the early 1900's and who never

fully understood the aspirations of landless pioneer entrepreneurs. Alluding

to the problem in a 1906 Senate speech, Henry Teller complained

that ~areas as great as many of the states' had been withdrawn "without

any application from anybody in the state of Colorado." (24.) Arid Public Lands of the West: Hearings Before the Committee on the Public Lands of the House of Representatives Relating to the Reclamation and Disposal of the Arid Public Lands of the West, 19th Cong., 1st Sess. 125 (1901). (25.) Norris Hundley, JR., The Great Thirst, Californians and Water, 1770's-1990's, at 20-21 (1992).

In his fascinating study of despotism and the rise of civilization, Karl

Wittfogel has argued that large-scale irrigation was possible only in a

tightly ordered and hierarchical society whose members surrendered

control of their labor, and much of their political and personal freedom,

to a centralized authority. Wittfogel's theory does not seem to find

support in the experiences of California's aboriginal irrigationists. The

Owens Valley Paiute practiced irrigation on an extensive scale, requiring

vast amounts of labor. The men were primarily responsible for

constructing dams and canals and the women for gathering the harvest.

Their efforts, however, were communal, and freely given, both in recognition

of the need for a stable food supply and in anticipation that all

participants would share in the harvest. Such communal efforts were not

limited to irrigation, but were characteristic of hunts for game, when an

entire village or groups of villages joined to drive antelope or rabbits. A

village or district headman supervised such efforts, but he was chosen

by the people, not self-appointed and certainly not a despot. In the case

of agriculture, the head irrigator was elected in the spring by a popular

assembly that also approved the date for irrigation to begin. This

challenge to Wittfogel joins those of others whose findings indicate that

political centralization in irrigation societies varies with the circumstances.

Studies of irrigation societies with vastly different social and

economic structures indicate that they are as apt to be decentralized as

centralized. (26.) See Weibert v. Rothe Brothers, 618 P.2d 1367, 1371-72 (Colo. 1980); Alamosa-La Jara Water Users Protection Ass'n v. Gould, 674 P.2d 914, 935 (Colo. 1983). (27.) Colorado River Water Conservation District v. Vidler Tunnel Co., 594 P.2d 566 (Colo. 1979). (28.) See Rominecki v. McIntyre Livestock Corp., 633 P.2d 1064, 1068 (Colo. 1981); Strickler v. Colorado Springs, 26 P.313, 316 (Colo. 1891). (29.) Colo. Rev. STAT. [sections] 37-92-102(3); See Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd., 594 P.2d 570 (Colo. 1979). (30.) City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). (31.) Board of County Comm'rs of the County of Arapahoe v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840 (Colo. 1992). (32.) See Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, 758 P.2d 164, 173 (Colo. 1988); Zigan Sand and Gravel, Inc. v. Cache La Poudre Water Users Assn, 758 P.2d 175, 182 (Colo. 1988); In Re May, 7560 P.2d 362, 371 (Colo. 1988); Southeastern Colorado Water Conservancy Dist. v. Fort Lyon Canal Co., 720 P.2d 133, 142 (Colo. 1986). (33.) See State Engineer v. Castle Pines Metro. Dist., No. 92 SA 164 (Colo. 1993); R.J.A. Inc. v. Water Users Ass'n of Dist. No. 6, 690 P.2d 823, 828 (Colo. 1984); Giffen v. State of Colorado, 690 P.2d 1244, 1247 (Colo. 1984); Southeastern Colorado Water Conservancy Dist. v. Shelton Farms, Inc., 529 P.2d 1321, 1327 (Colo. 1974). (34.) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899-2901 (1992). (35.) Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882). See also A & B Cattle Co. v. United States, 589 P.2d 57, 61 (Colo. 1978). (36.) See Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377, 1380 (Colo. 1982); Broyles v. Fort Lyon Canal Co., 638 P.2d 244, 249-50 (Colo. 1981); Pueblo West Metropolitan Dist. v. Southeastern Colorado Water Conservancy Dist, 717 P.2d 955, 959-60 (Colo. 1986). (37.) For a thoughtful analysis of water rights takings issues under Lucas, in light of reallocation proposals like those of the Long's Peak Report, see Allbright and Root, Government Taking of Private Water Rights, 39 Rocky Mtn. Min. L. Inst. [sections] 20 (1993). (38.) Long's Peak Report, supra note 2, at 132. (39.) 16 U.S.C. [sections] 1534 (1988). (40.) Clean Water Act [sections] 101(g), 33 U.S.C. [sections] 1251(g) (1988); Endangered Species Act [sections] 2, 16 U.S.C. [sections] 1531(c)(2) (1988); Federal Land Policy and Management Act, 43 U.S.C. [sections] 1701-1784 (1988). (41.) Lucas, 112 S. Ct at 2895 n.8. (42.) The author's colleague, Bennett Raley, assisted in the preparation of these questions. (43.) See Richard D. Lamm & Michael McCarthy, The Angry West, A Vulnerable Land and Its Future 160-207 (1982). Gregory J. Horbes. Jr., The author practices water and environmental law with the Denver firm of Hobbs, Trout & Raley, P.C.; Adjunct faculty member, University of Denver's Master's Degree Program in Environmental Policy and Management J.D. University of California, Berkeley; A.B. University of Notre Dame. A former EPA enforcement attorney and Colorado First Assistant Attorney General for Natural Resources, he has served as counsel to the Northern Colorado Water Conservancy District since 1979. The author's colleague, Bennet Raley, assisted in the preparation of this article.