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Law Offices of Ronald W. Rutz
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June 12, 2000: Elian Gonzalez Matter; Colorado Water Obsession

Q: Now that the Elian Gonzalez matter is apparently headed to the Supreme Court, any predictions?

A: I am a bit jaded after my years in the international arena both business and legal. And please remember that the Supreme Court can only look to see if the correct legal rules were used. It is not supposed to judge the facts.

But three legal areas seem to hold the keys in resolving this matter. First is the question of jurisdiction and what law to apply. Since Elian is in the United States and there is no treaty with Cuba, our courts will apply American jurisprudence, not Cuban law nor general international legal concepts. If that is the case and if the Supreme Court does not surprise us by saying all parties are Cuban and, I believe, the sinking and deaths occurred in international waters and therefore it will look elsewhere for legal guidance, then the remaining two areas are governed by general American legal concepts.

Next, what weight should be given to the minor's wishes? Since Elian is not yet around the age of 14, the Courts normally will not give his expressed opinions much weight. And finally, as a general rule, there is a heavy, heavy presumption that a natural parent has a right to custody of his or her child, as long as those parental rights were not terminated by a prior judicial order.

Now the Courts can entertain factual evidence to overcome the presumption, but those things are normally left to the lower Courts.

And just for fun, I called eight attorneys in both Larimer and Weld Counties (the Supreme Court has nine judges) and in an unscientific poll came up with a 9 to 0 vote that from a purely legal perspective Elian would go with his father.

Q: I admit that I just moved here but I am amused by your locals' fixation on water. Help me "feel your pain."

A: Maybe four words will do that and I will expand legally on several steppe, shortage, storage, and drought.

You are now living in a borderline high desert area. There is still plenty of water physically available, but 90% (at least that is the figure I used when I taught this stuff) roars down from the mountains in about a 45 day period and is gone for the remaining 320 days. And now with legal commitments to some sister states to provide in some river drainage systems a minimum year round flow, the physical and legal shortages of available water becomes even more critical.

So between 75 to 125 years ago, much of the current system of reservoirs was put in place to catch the water while it was available for use at a later time. It is better to capture the water as high up in the system as possible because it makes it easier as water flows down hill to divert that water to other reservoirs or even stream systems where it might be needed.

But building additional "high reservoirs" appears unrealistic because of environmental and legal issues, such as the conditional prohibitions against diverting water from west of the continental divide where more than half of the water in Colorado is located to us here on the east side.

"Lower reservoirs" have been so badly silted that much of the legal storage capacity is just on paper. Cost, legal inhibitors, and environmental issues prevent owners from going back in and scooping them out. So especially during wet years, much water which flows past us that could legally be diverted, keeps rushing toward the horizon.

That brings us to the fourth word drought. I have lived through three major ones here and have seen the stored water get us through with comparatively little inconvenience or hardship. But if we experience anything like the "dust bowl," we may longingly look back at all of that water that "passed under our bridges."

And given several international treaties, Canada and Mexico may not let us off the hook if those bodies of water used for resting and protection and the thousands of square miles of harvested crop land used for gleaning are not available for migratory birds.

So it will be interesting to see how everything sorts out during and after the next major drought.

As an aside to the readers of this column, if you are tiring of reading about water issues, please ask questions in other areas.

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