Reply to Response to Motion for Summary Judgment

Home Browse Search

"cripple" recreational uses and the tourist economy. (State's Exhibit A to Motion for Summary Judgment, page 31, statement of Colorado River Outfitters Association). The recreational users also argued that the CWCB should not have the "exclusive authority to appropriate instream flow water rights" which are "critical for river outfitters" because "[fJor river runners, beneficial use represents instream flows." (Id., p. 31) As the boaters noted, SB 212 "singles out river outfitters as being prohibited to secure water rights to maintain their occupation and employment." (Id., p. 32). Senator McCormick, a co- sponsor of the original instream flow legislation and a sponsor of SB 212 responded to the recreational users opposing the bill that he would not allow boaters to appropriate water that flows in the river unless it was adjudicated through the CWCB. (Id., pp. 34 -35). Representative Paulson argued that only the CWCB could appropriate water in the stream because otherwise anyone "could allege that they were making an appropriation for an instream purpose maybe for a particular species of fish, maybe to float on that body of water" and obtain a water right without diversion or capture of the water. (State's Exhibit B to Motion for Summary Judgment, pages 4- 5, emphasis added). The Applicants oppose review of the legislative history of SB 212 precisely because it clearly shows that General Assembly was trying to prevent claims for recreation water rights in the stream — exactly the type of water right that Golden received. The State will remain "selective" and limit its citations, but notes that the .entire record of the General Assembly's proceedings is replete with such examples. The State was being selective, but not misrepresentative of the proceedings and the intent of the Legislature. D. SB 212 applies to bar recreation uses in the stream unless there is impoundment. The Applicants argue that the only evidence of legislative "are statements made by the sponsors and supporters of the bill during committee discussions." (Response, p. 5). The statements of the sponsors of the bill is the only evidence necessary and the Applicants are unable to provide this Court with any statement in the record that contradicts the statements of the sponsors explicitly attempting to prevent this type of appropriation. The Applicants argue that, despite the fact that the Legislature specifically amended the statute to prevent "bank -to -bank appropriations that might arise after the Fort Collins filing," (Exhibit A, pp. 34 -35), the law was never changed. If the Legislature had intended the law to remain the same, it would not have had to amend the statute. This argument has no merit. The Applicants also argue that because the "controlling water within the stream" language of section 37 -92- 103(7) was not modified, the Legislature did not