Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 9/29/2004
• Author: Barbara Green, Anne Castle, John M. Ely, David Baumgarten
• Title: Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County
• Water Supply Pro - Doc Type: Court Documents

however, are inapplicable to the findings made by the CWCB during an RICD case. There is no
quasi judicial forum in which evidence is presented and tested through cross-examination, and
fmdings made thereon by the CWCB. Rather an RICD applicant is only required to submit its
application to the CWCB. No hearing is required. In the Upper Gunnison District case, a
hearing was held, but the rules of evidence were not applied and cross-examination was not
allowed. The CWCB even acknowledged that this was not an adjudicatory proceeding, as the
end result is merely a recommendation to the water court. The CWCB is not the final azbiter of
an RICD application. The CWCB fmdings of fact and recommendation are submitted to the
water court, wluch in turn, has the final say over an RICD. By statute, the water court must treat
only the CWCB findings of fact as presumptively valid, subject to rebuttal. C.R.S. § 37-92-305
(13).
Whether the evidence presented to rebut the CWCB findings is sufficient to overcome the
presumption is up to the water court. It is the prerogative of the water court in the exercise of its
fact-finding function to weigh the evidence before it and to resolve whether that evidence was
sufficient to overcome the presumption. See Southeastern Colo. Water Conservancv Dist., .
770 P.2d at 1243. T'he water court acknowledged tha.t "[t]o place any greater burden on
Applicant, would move toward the quasi judicial role for CWCB with an arbitrary and capricious
standards of review, which the legislature considered and rejected. The Couxt concludes, based
on the totality of the evidence presented, that Applicant has met its burden of proof to overcome
the rebuttable presumption." Concerning the Apnlication for Water Ri ts of Upper Gunnison
River Water Conservancy District in Gunnison Countv, Findings of Fact, Conclusions of Law
and Order, p. 14 (December 26, 2003). The water court's detemunation that the CWCB findings
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