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Animas La Plata Project
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PRIVILEGED AND CONFIDENTIAL <br />COVERED BY MOVING PARTIES' 2004 COMMON INTEREST AGREEMENT IN 02CW85 <br />The September 4 discussion led to the insightful observation by the Ute Mountain Ute attorney <br />that 6 of these 7 above - listed concerns relate solely to the potential for tribal diversions directly <br />out of the Animas River. None relate directly to the operations of storing water in Ridges Basin <br />Reservoir or delivering it from that storage. In the interest of the Tribes' request, the Engineers <br />are open to discussing whether it may be possible to address all their needs while excluding <br />storage - related operations from the court's retained jurisdiction. <br />As stated in item 7 above, there is no "next step" after resume notice of a future change to the <br />bypass flow requirement. The injury analysis was based on the bypass flows. The decree <br />should retain perpetual jurisdiction (limited) to address any change to the bypass flow <br />requirements. This would resemble several decrees in Division 2 which contain "perpetual <br />retained jurisdiction" to consider any future changes in Arkansas River Compact compliance <br />methodology. This type of retained jurisdiction could still only be invoked by any party to the <br />case who makes a prima facie case for injury, and would be further limited to use only if and <br />when the bypass requirements are proposed for change. <br />The State desires an agreement approved by the court and enforceable as a court order, so <br />intends to file a motion before December 31. It has been suggested that we attempt to limit <br />the exercise of retained jurisdiction to only certain of the parties to these four cases. Since any <br />motion would have to be circulated to all parties, C.R.C.P. 121 § 1 -15 (8) (any movant must <br />confer with all parties before filing any motion), we would expect opposition from remaining <br />parties, thus frustrating the intent of a 'limiting' motion. <br />On a related point, on September 4 there was uncertainty whether anyone with a water right <br />can invoke retained jurisdiction, or just the parties to a case. We will add language to the <br />motion and proposed order stating that "only those parties who were in this case as of the date <br />of the final decree issued on November 9, 2006 may invoke retained jurisdiction. Also, any <br />party who seeks to invoke retained jurisdiction must plead sufficient facts which, if proved, <br />meet its burden of going forward to show that injury has occurred or is likely to occur from the <br />change decreed in these four cases. " <br />As discussed on Aug 20 and Sept 4, the State recognizes and respects the Tribes' concern that <br />retained jurisdiction will cause extra scrutiny to their water rights or limit their flexibility as <br />compared to that of other Project participants. We also heard the Federal attorney's related <br />concern that this motion is an attempt by the State to get a better deal in this Settlement than <br />it has. This motion implies no intention of reducing or altering the Tribes' water rights. I assure <br />you that the State does not have authority or desire to reduce the tribal allocations as defined <br />in the 2000 Amendments and in these decrees, or to change any terms of the 1986 Settlement <br />Agreement. We offered on September 4 to insert something in the motion confirming that, <br />and solicit your drafting assistance. The State's desire is to resolve operations concerns that <br />can affect the administration of water rights in the Animas basin or generate water right injury <br />claims. <br />11 <br />
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