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27 memorandum require statewide cons ideration and are well beyond the scope of the <br />executive order. <br />b) Even if the Task Force takes this issue on, it is charged to define the problem. What is it that is <br />not “streamlined” about the water court process? If th e Task Force pursues this proposal, it <br />should consult with attorneys and engineers who regularly ap pear and participate in water <br />court proceedings before recommending any changes to the current system. <br />c) The fact is that the vast numbe r of water cases settle while the case remains before the water <br />referee. Referee proceedings present a forum to obtain a decree in a very informal, efficient <br />and highly economical process. Very few wate r court cases reach trial. According to <br />testimony by Mike Shimmin before the Task Force on July 16, 2007, approximately 96% of <br />cases settle while they are before the referee, 4% are re-referred, and only 1% of cases filed in <br />water court are actually tried to the water j udge. Those that do go to trial generally involve <br />novel legal issues that cannot be resolved by the referee and the judge is more able to properly <br />identify the legal issues if he or she knows the facts. <br />d) In Water Division 1, since the Empire Lodge and Bijou decisions, many highly complicated <br />well augmentation plans have been efficiently brought to a decr ee without trials. Only one <br />case, Central WAS (03CW99 and 03CW77), require d a trial. In that case, the applicants <br />acknowledged during the course of the pro ceedings that they did not have sufficient <br />augmentation supplies in hand to re place all ongoing and future depletions, which made this <br />case unsusceptible to settlement. The wate r court process has not stood in the way of <br />completing augmentation decrees in Water Divisi on 1. In fact, the water court process has <br />encouraged settlement by setting deadlines for th e submission of information critical to the <br />resolution of the augmentation plan cases, such as factual and engi neering disclosure and <br />proposed decrees, and by providing a state-sponso red judicial forum to come to agreement on <br />complex proposed decrees. <br />e) The water referee already has the power to he ar water right applica tions in an informal <br />proceeding. What additional authority should water referees be given that would “streamline” <br />water court proceedings? In fact, giving the referee additional authorit y would carry with it <br />the risk that referee hearings would become more like the proceedings which currently occur <br />before the water judge - more complex, le ss informal and more costly for litigants. <br />f) Under the present law, cases before the referee can be rereferred from the referee to the water <br />judge for proceedings. Elim inating mandatory rereferral will slow down rather than <br />streamline the water court pro cess. Without mandatory rerefe rral, neither an applicant nor an <br />objector can move a case forward because there are no enforceable deadlines for proceedings <br />before the referee. Once a case is rereferred to the water judge, the case must be set for trial <br />and pre-trial deadlines, in cluding circulation of engineeri ng reports and proposed decrees, go <br />into effect. The exchange of this information is typically the ba sis for negotiations leading to <br />settlement of the vast majority of water cour t cases. For example, in the Central GMS case <br />(02CW335), when the objectors tried to expedite the case by rereferral, Central aggressively <br />resisted a trial setting. On the basis of the facts before him, the Judge went ahead and set a <br />trial. Once a trial was set, the parties were able to negotiate a settle ment without a trial. <br />g) Water rights are real property rights which should be treated w ith the same dignity as other <br />real property rights. This means they should be subject to determina tion by a judge and not <br />4 <br />