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PRIVILEGED AND CONFIDENTIAL <br />COVERED BY MOVING PARTIES' 2004 COMMON INTEREST AGREEMENT IN 02CWSS <br />CONCLUSION AND NEXT STEPS <br />Indian water rights settlements are a delicate balancing of at least three sovereigns' interests. <br />Each entity needs to be able to demonstrate that it is playing its proper role in maintaining that <br />balance. As noted above, non - injury and the ability to administer the water on a real time basis <br />are my office's primary interests. The Tribes agreed (in the 1986 Settlement Agreement and in <br />the consent decrees) that any change case would be held to the no- injury standard. When the <br />State agreed there would not be injury from these four cases (both during the Division <br />Engineer's testimony and again during the hearing on the motion for reconsideration asking the <br />court to remove the surprise diversion limits in paras 3b and 3c of the 2006 Decree), the State <br />did so based on the recommendation that the court should retain jurisdiction until the tribal <br />uses can be observed. Since there have been no uses to observe it seems extending retained <br />jurisdiction to accomplish that would be appropriate. This motion is routine and is identical to <br />the State's prior position. Extending retained jurisdiction is an important way to demonstrate to <br />all, including but not limited to the non - Indian water users in the basin, that the State is playing <br />its proper role during implementation of this Settlement. Extending the retained jurisdiction <br />also benefits all parties by providing flexibility; it provides a valuable option for how parties can <br />deal jointly with the uncertainties of the future. <br />Given the incipient deadline we think it would be difficult for the parties to come to an <br />alternative resolution that would resolve the parties and State's concerns. Filing of an <br />unopposed motion would allow the parties and the State to continue discussions and perhaps <br />resolve the issues. Therefore we suggest a joint path of continued discussion while filing an <br />unopposed motion to gain sufficient time for resolution. We suggest the following schedule: <br />October 1: Next meeting <br />October 12: Tribes, U.S., and SWCD to circulate any language they propose for <br />inclusion in the motion, which would allow them to join or not <br />oppose the motion <br />October 15 -26: Further meetings of Moving Parties, if requested <br />October 31: State to circulate final draft motion to all parties to these four <br />cases. <br />November 12: State to file a motion on this date, hopefully joint or unopposed. <br />7 <br />