BOARD0321

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

quantification application in water court. Ultimately it is unlikely that any federal court will .
decide that it can tell the Department of Justice how to conduct litigation; however, it may take
months or years to get that result in federal court. The United States' response in the federal
action is due November 11. It will probably file a motion to dismiss. The Board members may
wish.to discuss the pending case with counsel in executive session.

9. Trout Unlimited v. Department of Al!riculture/Okanol!an County v. National Marine
Fisheries Service.
The Okanogan County case is a case out of Washington State involving the Forest Service's
authority to impose bypass flows on special use permit holders in order to benefit endangered
fish. The Board may remember that Colorado filed an amicus brief arguing that the Forest
Service didn't have the authority to impose bypass flows. Unfortunately, the Ninth Circuit
affirmed the Washington District Court's ruling that the Forest Service has that authority under
FLPMA, and that the controversy was not over water rights, but over rights of way over public
land. In other words, it accepted the Forest Service position wholesale, and gave no credence to
the water users' arguments. The water users filed a petition for rehearing, which was denied at
the end of October. We have not heard whether they will seek certiorari from the U.S. Supreme
Court. Predictably, Trout Unlimited filed a citation of supplemental authority in our local case
(where we're still waiting for a decision from the court - the argument on the motions took place
in April of2002!). We filed a short response together with Greeley and Water Supply & Storage
Co., pointing out the gaps in the Ninth Circuit analysis.

10. Green Mountain Reservoir/Heeney landslide case.
On August 7, 2003, the Colorado River Water Conservation District and several other .
west-slope entities filed a petition against the Bureau of Reclamation in U.S. District Court for
Colorado to enforce the provisions of the Blue River Decree. Denver, Northern Colorado Water
Conservancy District, Colorado Springs, and Englewood are also parties by virtue of being
parties to the Blue River Decree. The Blue River decree involves the Colorado Big Thompson
(C-BT) project, Green Mountain Reservoir, the use of the Blue River and the interrelationship of
Green Mountain Reservoir with Dillon Reservoir. This round oflitigation challenges the Bureau
of Reclamation's recent administration of Green Mountain Reservoir. Since 2002, the Bureau
has limited releases from Green Mountain in order to prevent further slippage of a large area of
unstable land running through Heeney, the small town on the southwestern shore of Green
Mountain Reservoir. This changes the timing of late irrigation season releases, which may result
in less water being released to compensatory pool (west slope) beneficiaries. To date Bureau of
Reclamation has charged the reduced yield solely to the compensatory pool, meaning the action
has had no effect on the transmountain diversion yield of the C-BT project. The compensatory
pool beneficiaries object to this result. The west slope petitioners are seeking changes of Bureau
of Reclamation policy concerning the interrelationships of the replacement pool, compensatory
pool and the historic users' pool in Green Mountain Reservoir.
We filed a motion to intervene on behalf of the Division of Water Resources, "by and
through the Department of Natural Resources," We asked the court to insure that all Green
Mountain water users share proportionally in any reduction of usable capacity or benefits due to
the landslide, which is the position taken by the River District. The River District and the other
Petitioners supported intervention by the state, while the United States, Northern, Denver,

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