Motion for Continuance of Trial and Stay of Discovery Deadlines

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Objectors Colorado Water Conservation Board, State and Division Engineers, the City of Colorado Springs, Northern Colorado Water Conservancy District, and Municipal Subdistrict, Northern Colorado Water Conservancy District (collectively the "Objectors "), through their undersigned counsel, and pursuant to C.R.C.P. 120 § 1 -11 and the Uniform Local Rules for All State Water Court Divisions, hereby submit this Motion for Continuance of Trial and Stay of Discovery Deadlines. Pursuant to C.R.C.P. 120 § 1 -15, counsel for the Objectors hereby certify that they have conferred with counsel for the Applicants regarding the continuance sought by this motion. Although discussions are ongoing, the Applicants have not presently agreed to such continuance. Accordingly, the Objectors are filing this motion in order to ensure that the motion will be before the court prior to the November 15, 2001 status conference. However, the Objectors would also agree to a reasonable enlargement of time for Applicants to respond to this motion if the Applicants believe, and the Court agrees, that such an enlargement would prove useful in resolving the issues raised by this motion. In support of this Motion, the Objectors state as follows. I. INTRODUCTION In Case Nos. OOCW259 and OOCW281, Applicants Eagle River Water & Sanitation District and the Town of Breckenridge have applied for approval of decrees granting Applicants recreational water rights for whitewater courses. These applications seek rights in amounts up to 524 cfs in Case No. OOCW281, and 400 cfs in Case No. OOCW259. The cases are set for consecutive trial's beginning May 6, 2002. The Objectors have filed statements of opposition to these applications. The Objectors contend that the rights requested are instream flow rights prohibited pursuant to the provisions of C.R.S. § 37- 92- 102(3). The objectors further contend that granting the Applicants' requested water rights would be an unwarranted expansion of the Colorado Supreme Court's holding in Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). The Objectors maintain that the Supreme Court's ruling in City offort Collins only recognizes in- channel recreational water rights for boat passage, where such passage is secured by a traditional diversion structure. The Objectors' contention that C.R.S. § 37 -92- 102(3) and City offort Collins do not authorize the type of recreational instream flow rights sought by applicant has been addressed in one prior water rights application. In Application of the City of Golden, Case No. 98CW448, Water Division 1 ( "Golden "), the City of Golden filed an application for a decree approving a recreational instream flow right very similar to those rights requested in these applications. The Colorado Water Conservation Board (the "CWCB ")