West Elk Ranch v. United States
Issued December 2, 2002.
West Elk Ranch had sought a conditional water right for a spring located adjacent to National Forest and. After filing this application, the Forest Service had denied West Elk Ranch the special use permit needed to allow West Elk Ranch to capture the water on National Forest land and divert it onto West Elk's property. Based on this denial, the Water Court for Water Division 4 denied West Elk's application for a conditional water right, holding that West Elk could not meet the "can and will" requirement for the issuance of a conditional water right pursuant to C.R.S. 37-92-305(9)(b). The Supreme Court upheld the water court's determination that the "can and will" requirement had not been met and rejected West Elk's position that it "can and will" eventually obtain the necessary special use permit.
