Case No. 02SA224 Response to State's Motion to Strike Portions of Answer Brief February 2003

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MAR -03 -2003 16:00 FROM -DOL NATURAL RESOURCES 3038663558 T-823 P.002/008 F -720 name the three cases — this case (the Vail Case), the Breckenridge Case, and the Golden Case — and provides them with a collective name: the "Whitewater Cases." Id. The State then refers to The trilogy of cases repeatedly throughout its brief. See Id. at 5 (referring to cases "such as Golden, Vai , and Breckemidga "); Id. at f (referring to the "Whitewater Cases'); id. at 7 (referring to the "Whitewater Cases "); Id. at 22 -23 (raising comparative issues regarding the Golden Case and Breckenridge Case as a basis to overtum the Vail Case). In view of the foregoing, the State inserted issues from the Breckenridge and Golden Cases into this appeal. 2. In Footnote 1 on page 2 of the State's Opening _Brie f, the State asserts: In an effort to streamline this Brief, the State has not again briefed at length all the issues raised in the Golden brief, but by limiting this Brief's length does not waive those issues. The issues raised in the Opening Brief in the Breckenridge case are lso substantially the same, but with still fewer issues discussed at length than in this bri I 1 This footnote can only be interpreted as an attempt to impliedly incorporate by reference the issues raised by the State in the Golden Case, as well as those in its brief submitted in the Breckenridge Case. 3. The footnote the State seeks to strike in the District's Answer Brief reads as follows: This fall, this Court received briefing and heard oral arguments in a similar case ( "Golden case "). See State Eng'r v. City of Golden, Case No. 01 SA252. This Court will also review similar issues in this case's companion case ( "Breckenridge case "). See State Eng'r v. Town of Breckenridge, Case No. 02SA226. The District does not waive any arguments asserted in either the Breckenridge or Golden cases, including arguments raised by amicus parties on Golden's behalf in the Golden case, that are not extensively briefed herein; however, to avoid repetition, the District has not rebriefed some issues extensively briefed in the other cases. These issues are incorporated by reference to the answer brief in the Breckenridge case (`Breckenridge Brief d. The footnote the State seeks to strike is a proper response to the footnote from the State's Opening Brief quoted in Paragraph 2 above, which contains an incorporation by reference virtually identical to that of which the State now complains. 5. The State also seeks to strike all references in the District's Brief to the Breckenridge Brief. The Breckenridge and Vail cases were tried together with a consolidated closing argument as a matter of trial efficiency. Under this arrangement, the witnesses in the later Vail case referred back to evidence in the Breckenridge case. This procedure was conducted by agreement of the parties and the trial court. This was possible because the cases were very similar and the opposition was limited primarily to policy arguments. The District Brief utilizes the same mechanism for purposes of economy, both judicial and to the parties involved. 6. There is no reason why this Court cannot enjoy some of the same efficiencies as the trial court to avoid repetition. In addition to the similarities between the Breckenridge and Vail Cases, the AB0073 -2-