Bridge Over Troubled Water
Water law attorney Anne Castle deals with the lifeblood of Colorado
Published in 2006 Colorado Super Lawyers magazine
By Larry Rosen on March 9, 2006
In Berkeley, Calif., they hold a parade and festival called “How Berkeley Can You Be?” It is a celebration of Berkeley clichés: Birkenstocks, left-wing politics, organic vegetarianism and a commitment to pretending that all meaningful popular culture ended in 1970.
If there were a “How Colorado Can You Be?” festival, attorney Anne Castle could act as grand marshal. Though not a native — her family moved to the state when she was 7 — Castle is a CU grad twice over (B.S. 1973, J.D. 1981). She has been at Denver firm Holland & Hart for 24 years. She skis regularly and plans to learn to kayak, and her husband is a geologist.
More to the point, Castle is one of the state’s leading water lawyers, and was selected best of the bar in water rights by the Denver Business Journal in 2004. That puts her on the front lines of some of Colorado’s most pressing issues: growth, water and the value of the recreation industry to the state. Sure, plenty of Coloradans ski, but how many are in a position to determine how much snow will be on the hill? Castle negotiates agreements between thirsty cities — walking the line between money-making expansion and the natural appeal of the state’s waterways, developing upstream without reducing downstream to a trickle.
Water, water everywhere and not a drop to drink. Or ski on. Or kayak through. Or pipe to new developments. Between the rivers and the Rockies, Colorado is ruled by water and water issues, even more so during the drought of the past five years. At the heart of the issue is the continuing debate between development and recreation. Should water be moved from rivers and streams to fuel development, or left in place to be used for recreational purposes? The latter idea represents a fairly recent change of heart.
“Historically, the only means of getting a water right was by taking the water, moving it from the stream and using it to put on your crops, for farming, or to water your cattle, or to supply houses and businesses,” says Castle. “That was the only way — you had to divert the water.” As one of Colorado’s approximately 70 full-time water rights lawyers, Castle is at the issue’s front lines. Though she does not describe herself as an “environmentalist,” she does profess an emotional connection to this issue. “I feel very strongly that recreational water rights and instream flow water rights should be established and recognized in Colorado,” she says. “It’s part of the value that our state has, and the reason people want to come here and live here.”
Which, of course, creates a catch-22 for Colorado and its water. People come to the state for its recreation options, fueling a demand for more water to support development. Castle recently found herself in the middle of such a clash when the cities of Aurora and Colorado Springs faced off with Pueblo over the water in the Arkansas River.
The Arkansas River runs through downtown Pueblo, though decades of channeling and diverting have left it, like many rivers, barely recognizable. “Towns and cities were originally located next to rivers and streams, but as they grew, they turned their backs on the rivers,” Castle says, explaining Pueblo’s position. “Now towns and cities are realizing again that the river is an amenity and are devoting effort and money to cleaning up the area.” In an effort to reclaim its riverfront, Pueblo and the U.S. Army Corps of Engineers developed its Legacy Project, which included, among other things, a white-water rafting course and riverfront park. Then Aurora and Colorado Springs showed up at the spigot with their cups empty.
Aurora came first. The city had water rights downstream from Pueblo and the water had been used mostly for agriculture. Now it came asking to switch its rights to upstream, a more convenient location for storage and transport, but it would leave Pueblo’s downtown plans high and dry. Colorado Springs came next, armed with growth projections and a request to build a 43-mile pipeline that would take water out of the Pueblo Reservoir and deliver it to fast-growing Colorado Springs.
Understandably, Pueblo and the federal government had planned to invest millions in its project and the city was hoping to retain some of the water. The river was to be at the center of a downtown revitalization project, the hope being that, by reclaiming the riverfront, it would improve quality of life in the city by drawing residents and tourists to the waterfront for bike rides, a picnic or kayaking.
Enter Castle, and the Colorado Legislature, which in 2001 passed a law allowing cities to claim water rights for recreational use. Pueblo, working with Castle, made that claim. She argued at a hearing for a recreational in-channel diversion (RICD) in July 2002, establishing Pueblo’s right to a guaranteed minimum flow of river water. An agreement was reached with Colorado Springs and Aurora, removing their objections to Pueblo’s recreational water right and paving the way for a management program assuring minimum flows in the Arkansas River. The two cities agreed to time their diversions so the river wouldn’t dry up as it ran through Pueblo, whose downtown kayak park opened May 2005.
Her ability to bring these adversaries together was not a fluke. Castle has a reputation for civility, which she sees as a necessity, not a luxury, for her cohort. “Water practice is less uncivilized than most litigation,” she says. “You deal with the same lawyers over and over again, you know them, they know you, you’re going to have to deal with them tomorrow.” Still, she takes care to frame arguments and deal with opposition in a civil manner. “I find it very unpleasant when the person on the other side of the table makes it personal.”
Even with Castle’s genteel philosophy, water rights cases in Colorado can get intense, much as the Los Angeles battles that inspired Chinatown. Castle hasn’t been accosted by toughs for her work, but she did represent the tiny town of Minturn in its David and Goliath battle with Vail for the water of the Eagle River in the late 1990s. “I think being a water lawyer puts you right in the middle of a lot of these classic Western conflicts: the resort against the small town, for example,” she says.
In this instance, the people of Minturn (population 1,068) had water rights that exceeded the present needs of their town. Enter Goliath, in the form of the Vail Consortium, which figured it could grab some of that extra water for its expanding needs. Not so, said the people of Minturn. The town anticipated some growth of its own eventually, and wanted to make sure it would have the necessary water when the need arose.
The citizens of Minturn did their best to publicize their case. “It was front-page news in the local papers practically every day for a year,” says Castle. But ultimately, they could not afford to take their fight to court. Minturn settled with Vail, agreeing to restrict its rights during certain parts of the year. “It was a significant emotional step for the town and its council,” says Castle. “It was a difficult necessity.”
Goliath won this round, but not before Castle negotiated some significant concessions. Minturn has retained the right to have rights restrictions removed in the case of town growth, for example, something that could come in handy very soon. The town has been approached by a developer, who hopes to add some 1,700 residential units to the town. “That would quadruple the population of the town,” says Castle.
Unlike Southern California, Colorado normally has enough water to go around. However, the drought has ratcheted things up a notch. “There’s more litigation [during drought years], and people are fighting over scarce resources,” says Castle. “People are more likely to plan for the future [in a normal year] when they don’t have to worry about how they’re going to get through the next 12 months.”
Anne Castle has also had a turn at running a law firm. In 2001, she was elected to chair Holland & Hart’s management committee. She became the first woman in the firm’s 54-year history to hold the position. The feat was noteworthy enough to rate a mention in the Rocky Mountain News, but Castle doesn’t necessarily see it as a Helen Reddy moment. “It was somewhere between a big deal and a matter of course,” she says. “About 150 partners vote on that sort of election, and I don’t think they thought it was that big of a deal.” They elected the person they felt could best do the job, she reasons, regardless of gender.
Unfortunately, her stint as chairperson ended prematurely when she learned, in the fall of 2003, that she had breast cancer. At Holland & Hart, committee members continue their practices while serving their terms. Though Castle felt that her illness was something she would overcome, she would not be able to juggle her practice, run the firm, care for her family, and undergo chemo and radiation treatments. She was forced to give up the chair position. “It was a big impact,” she admits. “I felt kind of screwed, and still do, because it wasn’t a decision I wanted to make, but I think it was the right one.”
Castle tackled her illness by staying positive. “I [saw] it as a temporary setback that I needed to deal with,” she says. She organized her life according to greatest priorities, which, for her, meant family first. “One of the reasons that I’ve been content with [this] decision is because I have kids at home. I wanted to make sure I could spend as much time as possible with them.”
Recently, Castle has branched out from her primary practice in a controversial way. She has joined a movement to file writs of habeas corpus for detainees at Guantanamo Bay.
“It’s been one of the most interesting and challenging things I’ve done,” she says. “It involves cutting-edge constitutional work.” Castle got involved when a partner heard the former New York Times columnist Anthony Lewis speak on human rights. Among other topics, Lewis mentioned the detainees. “It’d been about six months since the Supreme Court had ruled that [they] had rights to file habeas corpus petitions,” says Castle. Representing detainees, said Lewis, was exactly the kind of world-changing work that high-powered trial lawyers should be involved in.
The pro bono work was being coordinated by the New York-based Center for Constitutional Rights. The Center compiled information about the detainees and then assigned specific detainees to interested lawyers. Castle, joined by others at her firm, contacted the Center and asked for some clients. “We were assigned five Algerian detainees,” she says. “What we do know is that they have rights. They have the right to be either charged with a crime and tried or let go. We’re trying to assist them in getting the rights the Supreme Court said they had.”
Of course, not everyone sees the justice in defending detainees. “[Some] people feel strongly that the folks in Guantanamo are terrorists and that trying to help them is just wrong.” In response, Castle points to the case of an Algerian doctor who was working in Pakistan when he was sent to Guantanamo. “The military and Department of Justice admit that he’s innocent, but he’s been there for three and a half years. He’s still there.”
While many trial lawyers feel that it’s pragmatic to maintain a cool distance from the issues of each case, Castle takes another route. She believes in the Guantanamo cases as more than an interesting constitutional exercise, primarily because she recognizes the rights to due process of the detainees. “I do feel emotionally attached to the cause,” she says.
Whether that cause is freeing a wrongly imprisoned Algerian doctor or keeping a community from literally drying up, Castle gets emotionally invested in a just outcome, while keeping things neighborly between both sides. You can’t get more Colorado than that.
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