Case No. 02SA224 Reply Brief March 2003

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"rl recreational instream flows before SB 216. Because it did not, the water court erred in granting such rights. ARGUMENT I. Until the Legislature specifically authorized recreational instream flow water rights in SB 216, such uses should not have been decreed. The Appellee asserts, without any support, that SB 216 "reconfirmed" the Appellee's right to obtain a recreational instream flow water right. (AB, p. 7). The legislative history shows that the opposite is true. The Legislature decided against retroactive application of SB 216 to this and the Golden and Breckenridge applications4 not to reconfirm the law, but rather, as "part of a compromise." (Transcript of hearing on SB 216 on May 8, 2001, attached hereto as Exhibit 1, p. 2, Representative Witwer). Legislators recognized that they were "creating new water rights" and "a change in water law," based upon applications for these "big huge water rights" that the courts had not yet decreed. 5 (Exhibit 1, pp. 1 -3, Representatives Plant, Young, Jamison, Spradley). However, the Legislature was acting-to prevent "a run on the courthouse" for claims of "an entire river" if this Court eventually approved such recreational instream 4Case No. 0l SA252, State v. Golden ( "Golden ") and Case No. 02SA224, State v. Breckenridge (`Breckenridge"). 5 "I think this bill in general is premature, we don't know if [it's] even a problem, yes [these] big huge water rights have been requested, they haven't been granted yet. I don't think they should be either, but I don't know we need this law to do the court's job" [in limiting such rights]. (Exhibit 1, p. 2, Representative Madden). "This issue isn't even settled right now, it's being adjudicated in Golden and we don't know what the decision is going to be ... This [ "new right "] may not be even necessary — we don't know until the judgment comes down from the case in Golden. (Exhibit 1, p. 1, Representative Plant). 3