BOARD0321

• Board Meeting Date: 11/19/2003
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

The Special Master submitted his Fourth Report to the U.S. Supreme Court on November
11. There are no major substantive changes from the draft report, simply some additional
explanatory material. It increases Colorado's reporting obligations in some respects. The
Special Master accepted Colorado's position on virtually all the important issues:
· The amount of damages owed for the 1950-94 period was $29 million, rather than the $53
million claimed by Kansas. The amount will be adjusted for pre-judgment interest from
1985 to the present. (Colorado and Kansas reached a compromise on the amount of
damages owed for 1995-96: $236,664 in 2002 dollars.)
· The State Engineer's administrative rules for wells brought Colorado into compliance for
the years 1997 through 1999, so no damages are owed for that period.
· The methods Colorado proposed for calculating and measuring water usage for
administration in the future were approved, with the exception of the method for
calculating crop water use, where the Special Master recommended the Penman-Monteith
method Kansas favored. This will result in the calculation of more depletions from well
pumpmg,
· He rejected Kansas' request for appointment of a federal "river master" to supervise future
administration, Instead, he suggested that the Court retain jurisdiction "for a limited
period of time" to referee future disputes, if any.
The states will now have an opportunity to file exceptions to the Fourth Report, and the Court
will most likely hear oral argument early in 2004.

4. Rio Grande Silvery Minnow v. Keys. No. 99 CV 1320. US District Court. District of
New Mexico.

Litigation: Colorado joined an Idaho amicus motion urging rehearing en bane of the 10th
Circuit decision, which had ruled that the Bureau of Reclamation has discretion to reduce
contract deliveries, including deliveries brought into the basin by the San Juan-Chama project, as
well as discretion to restrict diversions to meet its duties under the Endangered Species Act. In
response to Senator Domenici's pending legislation (see below), the 10th Circuit asked all parties
to the minnow case to submit supplemental briefs addressing "whether this case is moot and
should be vacated." Simultaneous briefs were filed October 21th. New Mexico argued that (1)
the appeal is not moot, but if it is (2) the Court should vacate both its previous opinion and the
District Court's opinion, Because we are amici, we did not have the opportunity to file a brief,
but were able to review and comment on New Mexico's brief.
Legislation: Senator Domenici of New Mexico attached a rider to an appropriations bill
that would effectively overrule the 10th Circuit decision and specifically exempt San Juan-
Chama water from being used for endangered species recovery. It passed the Senate floor
September 11 and is in conference committee.
Negotiations: New Mexico Governor Richardson instituted negotiations and announced
a "settlement agreement" with the environmental plaintiffs in September. The negotiations did
not include the federal government, however, and Reclamation Commissioner Keys responded
with a non-committal statement praising Richardson for laying the foundation for future
discussions. Richardson then announced a "temporary postponement" of further discussions.
Recently, Richardson appeared to signal a desire to resume discussions when he and Senators
Bingaman and Domenici sent a letter to Secretary Norton requesting that Interior develop its
position on a number of minnow-related issues

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