Response to Applicant's Position Concerning Scope and Timing of Remand Proceedings

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First., the Supreme Court already told the CWCB what legal issues it s:hould consider substantively and this Court should not alter that decision. The Supre;me Court specifically stated that it remanded the case "to the water court with instructions to remand to the CWCB far factual findings on whether the appli.cation ... comports with the five stat,;ctory factors." Gunnison, at 603 (emphasis added'). Thus, the WaLter Court was directe(i to remand this case to the CWCB with instructions that the CW(:B was to consider five statutory factors, not two. Further, the Supreme Court remanded this case to the Water Court with directions to remand it to the CWCB precisely because the CWCB's earlier review was in error and exceeded its review authority by analyzing the five statutoiy factors using lower flow amounts than those claimed by applicant. The CWCB's Findings and Recommendations on all five factors were based upon erroneous assumptions. Second, if the Water Court were to mandate procedures far the CWCF3 to follow during its statutory hearing, the Water Court would be violating Article III of the Colorado Cc)nstitution, requiring a separation of powers. "The separation of powers doctrine im:Doses upon the judiciary a proscription against interfering with the executive or legislative branches." Board of Countv Com'rs of Weld County v. Nineteenth, 895 P.2d 545, 5,48 (Colo.1995). "A court's inherent authority is generally limited to matters that are rea:;onably necessary for the proper functioning of the judiciary." Id. "The inherent power of the court must be exercised with as much concern for its potential to usurp the powers of another branch as for the usurpation it is intended to correct." Id. In Envirotest Svstems Corp. v. Colorado Dept. of Revenue, 109 P.3d 142 (Colo. 2005), the a.gency refused to allow a party to issue subpoenas for a hearing and the district cow-t provided the party interlocutory injunctive relief. The Colorado Supreme Court held i:hat district court lacked such authority under the doctrine of separ•ation of powers because such review would encroach on the executive function. Courts cannot interfere with agency proceedings until they are finalized. Id. For a district court to intervene, the agency proceeding or action must clearly exceed the constitutianal or statutory ju::-isdiction or authority of the agency and the party seeking to enjoi:n the proceedings must show that the agency action will cause irreparable injury. 1,d. Further, a review of briefs with cites to the existing record would be unfair to the six new board members who were unable to consider that evidence and ask the necessary questions of the experts or their attorneys to fulfill their statutory function to inake findings anii recommendations to this Court. Fin<<lly, the CWCB should not be required to make findings and recon:unendations on July 18, 2005 because another RICD hearing is being held that date and there is insufficient time. The Board's September meeting will be occupied by two nilemakings and conside:ration of yet another RICD application. Thus, the CWCB would be willing to hold a new evidentiary hearing on this matter (or consider briefs, if in its disciretion it deems that acceptable) and consider the application during its November Board meeting (the earliest meeting possible for such consideration). 2