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In addition, Justice Hobbs' extrajudicial statements, made after the SB 216 amendments were <br />enacted, create the appearance that he is inclined to favor the CWCB's arguments for a narrow <br />interpretation of botli Fort Collins and the SB 216 amendments, as well as the CWCB's argument <br />advocating use of Colorado's minimum stream flow program as a guide to interpreting the SB 216 <br />amendments. <br />To all outward appearances, Justice Hobbs has consistently adhered to the position that <br />recreational in-channel water rights are just like instream flow water rights under Colorado's <br />minimum stream flow program. He views them as creatures of statute, to which traditional notions <br />of Colorado water law are not futly applicable. This position is at odds with the water court's <br />findings in Upper Gunnison's case. Due to this appearance of a positional bias, Upper Guruiison <br />fears that Justice Hobbs will not be able to impartially review what the water court has done. <br />Justice Hobbs himself freely acknowledged that he wouldhave to determine whether recusal <br />is appropriate in the next Supreme C.ourt appeal concerning recreational in-channel diversions. As <br />this motion demonstrates, Upper Gunnison believes that the answer to Justice Hobbs' own question <br />is affirmative. Upper Gunnison should not have to be concerned about the appearance that Justice <br />Hobbs has a"bent of mind" that results in a predisposition to rule in accordance with the CWCB's <br />"requests. While Upper Gunnison in no way intends to impugn Justice Hobbs' excellent reputation, <br />disqualificatiori is appropriate here in order to avoid any appearance of partiality or bias. <br />Respectfully submitted thi.s 23rd day. of August,. 2004. <br />J"I <br />Cyn 'a F. Covell, # 10169 <br />Gilbert Y. Marchand, Jr. #19870- <br />14