BOARD00351

• Board Meeting Date: 7/23/2002
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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The court also granted the Applicants' request for extension of time to file a motion for
costs and attorney's fees. This motion, if filed, is unlikely to succeed. Directive 85-21 of the
Colorado Supreme Court provides that "courts shall not enter judgments for costs or assess costs
as part of any judgment against the state [or] state agencies." Because awards of costs against
the State are payable out of public funds, they require close scrutiny and specific statutory
authority. .

7. Rio Grande Silvery Minnow v. Kevs, No, 99 CV 1320, US District Court, District of
New Mexico,

In late April, the US District Court issued its Memorandum Opinion and Order on Plaintiffs'
challenge to the silvery minnow Biological Opinion (BO). Although the Court upheld the BO,
the Court also ruled that the Bureau of Reclamation (BuRec) possesses a large degree of
discretion in running its Rio Grande operations. The Court based this ruling on two provisions in
the applicable contracts: the "shortage" provisions, and the provision allowing BuRec to limit the
quantity of water it delivers to MRGCD to avoid waste. The Court also ruled that the BuRec
possesses the discretion to dedicate San Juan-Chama water to benefit endangered species, again
under "shortage" provisions in the contracts. The Court further held that these actions would not
violate either of the Colorado River compacts or the Rio Grande Compact. However, the Court
did rule the Corps of Engineers does not have discretion under its flood control authority to
change operations to benefit endangered species.

Four notices of appeal have been filed, itiduding one from the State of New Mexico.
Plaintiffs have filed a Motion to Dismiss, claiming that the Order is not fmal and cannot be
appealed. Such a motion apparently must be filed within 15 days of the Notice of Appeal. The
Motion to Dismiss was too late for the first Notice of Appeal filed, on time for a second, and was
filed prior to the other two. For this reason, Defendants do not plan on consolidating the appeal
at this time. New Mexico will likely request M amicus brief from Colorado on the issue (we
requested permission to file such a brief with the District Court, but the Court denied the
motion). We will likely also ask private water users to file amici briefs as well.

Finally, drought conditions in the Middle Rio Grande may cause a reconsultation regarding
the silvery minnow.

8. Three Forks Ranch v. City ofChevenne, Wvominl!: State Enlrlneer, and Wvominl!: Water
Development Commission, Civil Action No. 02-D-0398 (MJW) (D.C. Colo.)

Three Forks Ranch, which straddles the Colorado-Wyoming state line, filed an action against
the City of Cheyenne, the Wyoming State Engineer, and the Wyoming Water Development
Commission in the Federal District Court for Colorado. Three Forks alleges that Cheyenne's
project that exports water from the Little Snake River basin to the North Platte River basin
violates the Upper Colorado River Compact and Wyoming state law. The Wyoming officials
and the City have moved to dismiss the case on various grounds. Meanwhile, the Colorado State
Engineer, CWCB, and our office are investigating Three Forks' compact allegations. We met
with Wyoming officials and have scheduled another meeting with Wyoming Md Cheyenne.

The Upper Colorado River Commission filed an amicus brief to argue that an individual
water user in one state (Three Forks Ranch located in Colorado) lacks standing to assert a private