12 ‎(10)‎

• Board Meeting Date: 7/21/2009
• Description: Attorney General's Report, Legal Briefing and Executive Session
• Board Meetings - Doc Type: Memo

F'age 3
nc~tices of appeal with the Cc~lc~rada Supreme Court and the Water Court on June 24, 2009. The
~°~ issues on appeal are. { I} whether the wat~r cc~urt ~rred in dismissing the State's retained
~ r~'~~`
~~~' ~urisdictic~n petition sua spc~nte after previously d~nying the or~ly motion to dismiss filed ir~ the
case because genuine issues c~f material fact existed, {2) wh~ther the water court err~d in
dismissing the State's petition based on the Iega1 conclusion that a plan for aug~rzentation must
cause actual injury befc~re a plan's retain~d jurisdiction provisit~n can be invc~ked to "preclude„
injury ass provided in the retained jurisdiction statute, § 37-92-30~{6), C.R:S.; and {3) whether the
water court erred by dismissing the State's request for an extension of the retained jurisdictic~n
period sa that the nc~noccurrence af injury can be conclusively established as intended by the
retained jurisdictic~n statute, § 37-92-304{6), C.R.S. The Water Court has not y~t ruled on the
State's motion for reconsideration regarding the dismissal of the State's retained jurisdiction
petitic~n in Case Na. 03CW78. In that case, the co~zrt held that the plan for augznentation did not
need to operate to the injury of vested water right~ for the eourt to exereise its retained
jurisdictiony but that the specific retained jurisdiction language of the decree prohibited the
court's exercise of its retained jurisdiction until 75% of the exchanges invalving Wolford and
Ruedi Reservoirs first operated. The court's interp~etation of this language is contrary to both the
intent and understanding of the State and the Autharity, and may allc~w the Authority ta eseape
any scrutiny under the eourt's retained jurisdietion if they never aperate at 75% of the exchange
rate. The State's other claims for deciaratory and injunctive relief in Case Nos. 03CW78,
98CW205 and 98CW274 are moving forward. On May 28, 2049, Jennifer Gimbel and Dick
Wolfe met with the Boards of Directors of the Llpper Eag1e Regional Water Authority, the Eagle
River Water and Sanitatian District, and the Eagle Park Reservair Campany in Vail. Although
the talks were heipful, pre~gress taward a settlement of the Authority's eases may not be possibl~
~~ prior to key Water Court determinations. Discussions with both the Authority and the District
~~ ~~ regarding Iitigation and other issues will continue with a follow-up meeting scheduled for
~,. ~~
~ August 11, 2409.
5. WolfeICWCB v. Up~er Ea~ie Re~ional Water Authority Division 5 48CW145