BOARD0205

• Board Meeting Date: 5/20/2002
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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7. Golden Boat Chute case, appeal to Colorado Supreme Court.

The Answer Brief on behalf of the CWCB and State Engineer as appellants and the answer
briefs of amici curiae supporting appellants' position are due June 6, 2002.

8. Sportsman's Ranch ("SPCUP") South Park Conjunctive Use Project, 96CW14,
Division 1.

In its ruling on the post-trial motions, the Water Court denied the Applicant's requests to
reopen the record, and also determined that substantial portions of the Applicant's case were
frivolous and/or groundless, thus entitling the objectors to reimbursement of their attorneys' fees.
An appeal ofthe Water Court's dismissal has been filed with the Colorado Supreme Court. On
October 16-18, 2002, the Water Court will hold a three-day hearing on the costs based upon the
protest of the Applicant as to the reasonableness of the requested costs and attorney fees.

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

In late April, the US District Court issued its Memorandum Opinion and Order on Plaintiffs'
challenge to the silvelY minnow Biological Opinion (BO). Although the Court upheld the BO,
the Court also ruled that the Bureau of Rec1amation (BuRec) possesses a large degree of
discretion in running its Rio Grande operations. The Court based this ruling on two provisions in
the applicable contracts: the "shortage" provisions, and the provision allowing BuRec to limit the
quantity of water it delivers to MRGCD to avoid waste. The Court also ruled that the BuRec
possesses the discretion to dedicate San Juan-Chama water to benefit endangered species, again
under "shortage" provisions in the contracts. The Court further held that these actions would not
violate either of the Colorado River compacts or the Rio Grande Compact. However, the Court
did rule the Corps of Engineers does not have discretion under its flood control authority to
. change operations to benefit endangered species.

The New Mexico Interstate Stream Commission informed our office that they filed a motion to
stay the decision with the US District Court. They expect the District Court to deny the motion.
New Mexico will then appeal the decision to the 10th Circuit Court of Appeals. New Mexico
will likely request an amicus brief from Colorado on the issue (we requested permission to file
such a brief with the District Court, but the Court denied the motion). We will likely also ask
private water users to file amici briefs as well.

Finally, drought conditions in the Middle Rio Grande will cause a reconsultation regarding the
silvery minnow.

10. Middle Rio Grande Conservancy District v. Norton, CIV. 99-870,99-872,99-
1445M/RLP (Consolidated), NM Federal District Court. ELEPHANT BUTTE

On May 7, the 10th Circuit entered an opinion in this quiet title action. This was an appeal
from the US District Court's order dismissing the United States' suit to quiet title to water rights
in a portion of the Rio Grande River, involving Elephant Butte reservoir. The 10th Circuit ruled
that the District Court did not abuse its discretion when it refused to exercise jurisdiction over the
federal action when there was a state court action already pending that would address the same