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<br />.. <br />~ <br /> <br />I <br /> <br />.... <br /> <br />e <br /> <br />. <br /> <br />e <br /> <br />Page 7 <br /> <br />is on of the overlying land owners, as is the DOW. Several of the objectors have made motions <br />for summary judgment on the basis that the Applicant cannot impound, possess or control the <br />water placed in the aquifer (first motion), and on the grounds that some of the claimed water is <br />not "stored by other than natural means" (second motion). The State filed a Response that did <br />not concur with the movants' arguments on the first motion, but agreed with the movants' <br />arguments on the second motion. <br /> <br />The water court has now ruled on those motions. The ruling seems to reject objector's main <br />argument that the surface owner must approve any water that was stored and then migrated under <br />the surface owner's property. The court instead focused the whole consent issue on the right to <br />use the recharge site and ducked the migration of water issue. This logic may make underground <br />storage more possible. Pretrial discovery, including depositions of state personnel, is <br />ongoing. <br /> <br />12. United States v. Elephant Butte Irrigation District, et al. <br /> <br />Issue: Should the complaint be dismissed by the federal district court on grounds of lack <br />of jurisdiction, res judicata, or abstention? <br /> <br />Decision; <br /> <br />Pending <br /> <br />Discussion; In 1997, the United States filed a quiet title action in New Mexico federal district <br />court to water rights for the Rio Grande Project arId its storage facilities, including Elephant <br />Butte Reservoir. The Rio Grande Project is an irrigation project with lands in New Mexico and <br />Texas. Elephant Butte Reservoir is the lynchpin to Colorado's obligations and entitlements <br />under the Rio Grande Compact. In any year that Elephant Butte spills usable water, Colorado <br />does not have to make deliveries of water to the state line, which means that water rights need <br />not be curtailed in that year for Compact deliveries. Any legal determinations and negotiated <br />discussions regarding the ownership, operation and management of the reservoir and its water <br />rights are critical to Colorado. Texas also filed a motion to intervene. <br /> <br />All motions to dismiss and intervene were stayed to allow a mediation process to <br />proceed. After two years, negotiations have been unsuccessful and litigation will proceed. The <br />court will decide motions to intervene after the motions to dismiss are briefed. The motions to <br />dismiss argue that there is a state court adjudication that the United States is participating in and <br />that this case is an end run around the state court. Colorado filed a brief opposing the motions <br />arguing that the court has jurisdiction and should tetain the action because it affects an <br />international treaty, an interstate compact among three states, and water users in two states and <br />Mexico. Not surprisingly, the New Mexico parties countered our arguments in their reply <br />and also argued that Colorado could not argue on the jurisdiction motions since it had not <br />yet been granted intervenor status. We expect the court to determine the motions to <br />dismiss and the intervention motions soon. <br />