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Western States Water Council Legal Committee Washington, DC March 27, 2006 . Phil Ward: Yes. Matt McKeown: I guess I was intrigued by looking at the dates. I see what your saying, but I'm also not sure what kind of claims. Phil Ward: You mean, what other claims there would be besides federal claims pre-1909? Matt McKeown: Right. I mean, the fact that there was 400 claims in that period. Does that mean we shouldn't do an adjudication? Phil Ward: No, there are a lot of private land owner claims forwater in that area, pre-1909. Matt McKeown: So are those 400 claims always used? Phil Ward: Largely yes. Most of these are asserted federal reserved water rights, tribes, and any other federal entities. David Tenney: The issue to us is that if the federal government has claims that dominate should the federal government help pay the costs. Phil Ward: I agree with that fully. Matt McKeown: A former client actually litigated this issue all the way up to the Supreme Court and went against my current client and so I do understand. At this point, in the state of law the Supreme Court has ruled that the McCarran Amendment and has not waived the US sovereignty immunity regarding payment of fees. . Matt McKeown: It seemed like as a matter of policy, as a matter oflaw, there's not a lot of reason for the U.S. to settle on that particular issue. So, another good way to save your resources is to try to accomplish the same objectives by pursing water rights under state law rather then as an initial matter of seeking federal reserved claims. The Department of Interior looked hard at every single proposed federal reserved water right claim that came along. That's not to say that we're not still trying to protect those federal resources because we are, but both Interior and Agriculture have discovered there are cooperative ways to accomplish the same thing. I believe there is more than one way to protect a federal resource. If you think about what the McCarran means, what it says, you should be able to use state law to protect a federal resource just as well as you use the federal law. The best way forward is for the federal government and states to work cooperatively using resources that we have. We have a lot of resources that could result in an outcome that is mutually satisfactory to the state, the federal government, the water right holder, an other interested parties. That was a much better approach than when the Forest Service took regulatory action. When you make a decision like that it reverberates and people start paying attention. Not long after that decision was rendered the State of Colorado and the Forest Service entered into a memorandum of agreement (MOA) for how they were going to manage water resources in the state of Colorado. The parties that were just recently hired for that in litigation, were now . executing a MOA that essentially cemented this notion that it's better to resolve these issues together, trying to harmonize our statutory frameworks rather than to see unilateral action. I'm happy to report that all 8