BOARD00137

• Board Meeting Date: 7/28/2003
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

,

HOLLAND & HART LLP
ATTORNEYS AT LAW

Colorado Water Conservation Board
July 25, 2003
Page 2

about the continued extensive use of public funds for RICD litigation. The
CWCB litigation funds were established by the Colorado General Assembly for
the protection of Colorado water users from inappropriate federal reserved
water rights claims and to defend and protect Colorado's rights and allocations
under interstate compacts. RICD litigation by the CWCB is not an authorized
use. In every case involving recreational water rights that has come before
Colorado's water courts, the courts have expressly determined that due to the
non-consumptive nature of the water right and the fact that the water diverted
will be re-used many times before reaching the state line, these water rights
have no adverse impact on Colorado's interstate como act entitlements. In light
of these judicial findings, it is inappropriate and over-zealous for the Attorney
General's Office to seek approval to spend public funds in litigation opposing
claims for non-consumptive, junior RICD water rights by asserting that such is
necessary "to protect Colorado's compact entitlements. " Use of money from
the CWCB' s litigation funds to attack the non-consumptive use of water for
recreational in-stream purposes will also diminish the availability of the funds
and the CWCB' s ability to protect Colorado water users from unauthorized
federal reserved rights and to defend actual compact claims.

c.R.S. & 31-60-121.1

We are at a complete loss as to why the Attorney General's Office
apparently believes that money from the reserved rights litigation fund can be
expended in prosecution of the CWCB's opposition to the Upper Gunnison
District's claim for an RICD water right as suggested in the published Agenda
for the CWCB's July 28-29,2003 meeting. The limited statutory purpose for
the establishment and use of the reserved rights litigation fund is the protection
of Colorado water rights owners from "the claims of various agencies and
organizations of the federal government to waters of the state of Colorado."
C.R.S. ~ 31-60-121.1 (1). No such federal claims have been asserted in the
Upper Gunnison case, and no federal agency is involved as a party.

C.R.S. & 31-60-121 (2.5)(a)

Even if the Attorney General's Office were to seek approval to use the
litigation fund established under C.R.S. ~ 31-60-121 (2.5)(a), instead of the
reserved rights fund as described in the Agenda, to "protect Colorado's compact
entitlements" from the Upper Gunnison District's recreational in-stream water
right, the request is not authorized by statute. Section 31-60-121 (2.5), as
recently amended during this past session of the Colorado General Assembly,
authorizes the CWCB to expend money from its litigation fund only in
conjunction with lawsuits that meet at least one of certain criteria specified in