Case No. 03CW86 Joint Motion for Determination of Decree Terms May 2005

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permission to other junior appropriators." Crystal Creek, 14 P.3d at 340, n.18. The Supreme Court stated, "Courts generally disfavor selective subordi nations. However, by contract, a person can make his or her priority inferior to another, and courts can give legal effect to the senior user's intention to make his priority inferior in this respect." Id. at 341 (emphasis added). In accordance with this principle, the Supreme Court affirmed the water court's judgment that transbasin water users were not entitled to the benefits of this subordination. Id. This holding is consistent with an earlier Colorado Supreme Court holding that a 1994 stipulation was enforceable against the City of Englewood as a selective subordination. USI Properties East, Inc. v. Sunpson, 938 P.2d 168, 177 (Colo. 1997). As a result, the Colorado Supreme Court has determined several times that one water user may make his or her priority inferior to another while, at the same time, denying such permission to other junior appropriators. 9, Colorado law also provides for temporary loans of water, even to the - CWCB,___- -•--- which allow junior appropriators to divert water at times when a more senior water user would be prevented from doing so. See, e.g., C.R.S. § 37- 80.5 -101 et seq. (creating a pilot water bank that allows loans, exchanges, interruptible supply agreements using senior irrigation rights to benefit more junior water rights); C.R.S. § 37 -92 -309 (allowing interruptible water supply agreements that could have the effect of allowing diversions of a junior water right at times when a more senior water right would be curtailed); C.R.S. § 37 -83 -105 (allowing temporary loans of senior water rights to a junior irrigation water right, even an instreant flow water right, which would have the effect of allowing junior water users to divert while more senior rights are curtailed, or subordinated). 10 Even if the Court determines that the provisions of paragraphs 6.c, 6.d, and 7.b of the Decree amount to a selective subordination such provisions are nevertheless enforceable as written inasmuch as they are like the subordination by the United States of 60,000 acre feet of future in -basin uses above the Aspinall Unit on the Gunnison River a roved in the CL stal Creek case described above - Here . thr, beneficiaries of such part ra hs are future in-basin junior water users above the Lower Stagecoach Gage, the Oak Creek Gage, and the Morrison Creek Gage, in the total amounts of the water produced in the Upper Yampa and Oak Creek drainages and the aquifer of Morrison Creek and not currently appropriated future water users above the Boating Park RICD and below these upper drainages cannot be inured since oily call must be reduced b the flows then gaggd or in the case ofthe Morrison Creels a uifer as decreed at the ownstream terminus of the upper excluded source areas which has the legal affect of applying ALL of the then flows front the Excluded Sources to the shortage or cal] by the Boating Park RICD This is more protection than would naturally occur without an such Excluded Source provisions, since the Boating Park RICD would not be benelitin by stream flow losses in such reduction between the Excluded Sources gages and the Boating Park RICD Below the Boating Park there can be no injury since there is no consumptive use by the Boating Park RTCI] Hence the onl ossible injury which could ever be asserted by the claim of selective subordination would be future junior out -of- basin diversions The Supreme Court in the Crystal Creels affirmed the validity of the 60,000 subordination on the Gunnison River for only in -basin users and hence the same affirmation should be applicable here. 4 0071 Deleted: 9. Pnrmatwd: Bullets and Numbering