Response to Applicants' Joint Motion for Costs and Fees

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provides that a conditional water right may not be recognized unless it is shown that water can and will be "controlled" and "beneficially used." The State could not stipulate that the Applicants had satisfied the "can and will" doctrine, because it was the State's position that water would not be controlled and beneficially used at certain flows claimed. Notwithstanding the legal conclusions contained within the proposed stipulated facts, the State agreed to a majority of the facts, and proposed several additional stipulated facts. The State did request that several of Eagle District's proposed stipulated facts be modified for clarity to protect the State's legal positions and ensure that the proposed stipulated facts could not be interpreted as legal conclusions. The changes that I proposed to Mr. Holleman's proposed stipulated facts are attached hereto as Exhibit F and H. With the addition of this clarifying language, the State agreed to the proposed appropriation date, to the location of the structures, to the qualifications of the Applicants experts, that water is available for appropriation, that the water rights are capable and administration, and that the water rights will not injure existing water rights. After forwarding my proposed changes to the Applicants' proposed stipulated facts, I received a telephone call from counsel the Applicants, Steve Bushong, in which Mr. Bushong indicated that the Applicants would not accept the majority of my proposed clarifications. The Applicants refused to agree even to the qualifications of the State's expert witnesses. Accordingly, the Applicants would agree only to a reduced number of seven stipulated facts. On or about April 16, 2002, I notified Mr. Bushong that I would agree to all seven stipulated facts with one minor change to paragraph 5. The Applicants then filed those stipulated facts with the Court with consent from all parties.