Answer Brief of the Colorado River Water Conservancy District

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 1/1/3000
• Author: Peter C. Fleming, Kristin M. Gillespie
• Title: Answer Brief of the Colorado River Water Conservancy District
• Water Supply Pro - Doc Type: Court Documents

Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38)
Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District
Answer Brief ofthe Colorado River Water Conservation District
not specify the burden of proof necessary to overcome the presumption of abandonment but this
Court has confirmed that the correct burden is a"preponderance of the evidence." See East Twin
Lakes Ditches and Water Works, Inc. v. BOCC ofLake County, 76 P.3d 918, 921 (Colo. 2003);
Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo. 2000).
The cases cited by the State in support of its argument that a"clear error" standard applies
concern administrative agencies operating in an adjudicatory or quasi-adjudicatory role. A strict
burden of proof cannot be applied in this case because the CWCB's hearing did not meet any of the
normal criteria for an adjudicatory or quasi-adjudicatory proceeding. No witnesses were sworn-in,
no evidentiary rules were applied, and no cross-examination was permitted. (R. v. III at 1133-34.)
Sufficient evidence was presented at trial to overcome any presumption of
validity on the matters delegated to the CWCB.
The evidence at trial was sufficient to overcome even the strictest burden of proof applied
to the CWCB's findings. As discussed above, no presumption of validity applies to matters not set
forth in the balancing factors. Only two of the SB 216 balancing factors were seriously disputed at
trial. (R., v. III at 1108-1109.)
Contrary to the assertion of the State, there was no evidence that the claimed RICD would
impair Colorado's compact entitlement.' The testimony at trial relied on by the State indicates only
'The State inappropriately cites to State's Ex. 8 as evidence of the potential impact of the
RICD. See State's Opening Brief, p. 2. State's Ex. 8 is a transcript of the CWCB's informal
hearing on the claimed RICD. That exhibit was admitted for the limited purposes of demonstrating
the deliberations of the CWCB based on the evidence that was submitted to the CWCB. (R., v.
III, p. 187, line 12 to p. 190, line 6; v. IV, p. 144, line 1 to p. 149, line 25.) The exhibit was not
offered or admitted to prove the truth of the evidence submitted to the CWCB.
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