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27 memorandum -require statewide consideration and are well beyond the scope o.f'the <br />executive order. <br />b) Even if the Task Force takes this issue on, it is charged to def ne the problem. What is it that is <br />not "streamlined " about the water court process? If the Task Force pursues this proposal, it <br />should consult with attorneys and engineers who regularly appear and participate in water <br />court proceedings before recommending any changes to the current system. <br />c) The fact is that the vast number 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 water court cases reach trial. According to <br />testimony by Mike Shimmin before the Task Force on July 16, 2007, approzimately 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 judge. 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 decree without trials. Only one <br />case, Central WAS (03CW99 and 03CW77); required a trial. In that case, the applfcants <br />acknowledged during the course of the proceedings that they did not have sufficient <br />augmentation supplies in hand to replace all ongoing and future depletions, which made this <br />case unsusceptible to settlement. The water court process has not stood in the way of <br />completing augmentation decrees in Water Division 1. In fact, the water court process has <br />encouraged settlement by setting deadlines for the submission of information critical to the <br />resolution of the augmentation plan cases, such as.f'actual and engineering disclosure and <br />proposed decrees, and by providing a state-sponsored judicial forum to come to agreement on <br />complex proposed decrees. <br />e) The water referee already has the power to hear water right applications 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 authority 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, less informal and more costly for litigants. <br />fl Under the present law, cases before the referee can be rereferred from the referee to the water <br />judge for proceedings. Eliminating mandatory rereferral will slow down rather than <br />streamline the water court process. Without mandatory rereferral, neither an applicant nor an <br />objector can move a case forward because fhere 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, including circulation of engineering reports and proposed decrees, go <br />into eff'ect. The exchange of this information is rypically the basis for negotiations leading to <br />settlement of the vast majority of water court 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 settlement without a trial. <br />g) Water rights are real properry rights which should be treated with the same dignity as other <br />real property rights. This means they should be subject to determination by a judge and not • <br />4