BOARD00119 ‎(2)‎

• Board Meeting Date: 1/24/2007
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 2

4, Conseios de Desarrollo Economico de Mexicali v, Norton

.

C.D.E.M., a Mexican economic development group, and two U.S. environmental groups
filed an action against the United States of America, Bureau of Reclamation challenging the
proposed lining of the All-American Canal, which conveys Colorado River water to
California's Imperial Valley. The canal-lining project is intended to salvage seepage water
from the canal, reducing California's need for Colorado River water. Plaintiffs object to the
lining project, claiming that the project will make less seepage water available to Mexican
resources and for use by Mexican business interests. The district court dismissed the
Plaintiffs' complaint, fmding that the Plaintiffs had no right to the seepage water. Plaintiffs
appealed to the Ninth Circuit, and were granted a stay with respect to the District Court's
order of dismissal.

Concerned about how a stay on the project would affect the Seven States Agreement, the
CWCB Board authorized the Attorney General to file an Amicus Brief on behalf of the
United States. Colorado's brief was filed on October 30, and was joined by New Mexico,
Wyoming, Arizona, and Utah, and supported by Nevada. (California filed a separate brief
supporting the United States.) Colorado's intent in preparing this brief was to demonstrate
the importance of the canal lining project to all ofthe basin states, notwithstanding the states'
differing opinions with respect to other Colorado River issues.

Colorado's brief may have proven successful, albeit in a somewhat unexpected fashion. The .
9th Circuit has not yet ruled on the Appeal. However, on or about December 13,2006, the
109th Congress passed legislation that should effectively resolve the All-American Canal
litigation. This legislation provides that, notwithstanding any other provision of law, the
Bureau of Reclamation is authorized to proceed with the canal lining project. The legislation
was approved based on Congress' recognition of the importance of the lining project to the
Colorado River region. Colorado's brief, joined by six of the seven basin states, likely
assisted in demonstrating the importance of the project. .

5. Division 3 Confined Aquifer New Use Rules

On December 29,2006, the District Court granted, in part, the Proponents' Motion to
Modify the District Court's comprehensive Order dismissing the Objectors' complaints and
decreeing the Rules as promulgated. The December 29 Order corrected some minor factual
or citation mistakes, but did not make any substantive changes. The appeal deadline is in
early February.

WATER RIGHTS MATTER

6. Black Canyon of the Gunnison. case number 03-WY-1712 CB (OES)

On December 27,2006, the U.S. withdrew its notice of appeal from Judge Brimmer's decision in ...
the U.S. District Court.