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(Colo. 1992). Affidavit, ¶ 6 and brief by Justice Hobbs attached thereto ( "Justice Hobbs' brief'). <br />The Ft. Collins case is directly at issue in this appeal and the very arguments that Justice Hobbs <br />unsuccessfully made as a private attorney in that case are now being made to him by the <br />Appellants and amici. <br />1. The meaning and continuing effect of Ft. Collins is at issue in this <br />appeal. Golden questions whether Justice Hobbs, who worked as an <br />attorney in that matter, should have a vote to repudiate or limit that <br />case. <br />The State and amici supporting the State position are asking the Court to repudiate or <br />limit Ft. Collins. The State's Notice of Appeal explains, "on appeal, among other arguments, the <br />State will argue that this court should repudiate portions of its prior decision in" the Ft. Collins <br />case. At 2; see also ¶ II.D. True to its word, the State begins its argument concerning the Ft. <br />Collins case with the assertion that the holding therein was effectively negated by Senate Bill <br />212, 1987 Colo. Sess. Laws, ch. 269 at 1305 -06, legislation which the State argues gave the <br />CWCB "exclusive authority" to hold instream flows. State's Opening Brief at 11 -14. <br />The State offers an extended discussion of the facts in Ft. Collins, characterizing the <br />structures at issue and referencing photographs of those structures that it offered into the record <br />at trial in this case. State's Opening Brief at 10. The State then asserts that if Ft Collins is still <br />good law, it must be applied to limit any water right for a recreational in- channel diversion to <br />situations where the appropriator creates a notch in a previously existing dam. Opening Brief at <br />14 -17. The State further asserts that this Court should read Ft. Collins to limit the quantity of <br />water decreed to any such notch structure to only the minimum required for mere safe passage of <br />water craft through the notch. Id. The various amici, including Northern, make similar <br />Ph0438 7 <br />