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MAY-19-04 14:19 FROM-WEISS AND VAN SCOYK 970 879 6058 T-286 P.003 F-562 <br />2. Lack of access is further demonstrated by the fact t'hat the lease relied on by the <br />City gives them only the right to access the property to improve and maintain <br />Steamboat Spring, not to construct a play wave for kayalcing purposes. Unian <br />Pacific could rightfully determine that the construction of the C Hole constitutes a <br />breacli of die contract and terminate said contract. Union Pacific wauld then liave <br />the right to remove the Siructure or order ihe City to remove the Structure. The <br />removal of one side of the CI-Tole will significantly impact the ability of the C <br />Hole to divert, capture and control the Yampa River in the requested amounts to <br />provided a recreational experience for the applied for recreational uses. Proof of <br />ownership is an essential element in securing a conditional water right. C.R.S. <br />Section 37-92-305 (9)(b), 2003, FWS Land and Cattle Co, v. Scace Diu of <br />Wildlife, 795 P.2d 837 (Colo. 1990). Therefore, access is not apprvpriate and it is <br />questionaUle whet]ier access "can and will" be acquired by the City. <br />Respectfully subinitted chis 19`h day of May, 2004. <br />By: <br />1;iARGAijT O'DONNFLL, #21145 <br />Attorney for Momson Creek <br />Metropolitan Water and <br />Sanitation District <br />-2-