BOARD00511

• Board Meeting Date: 1/25/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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13. Dismissal of Application to Chanl!e Ft. Lyon Canal Company Water Ril!hts (Case
Nos. 02CW183, 03CW28 and 03CW68 (Application for Chanl!e of Water Ril!hts of Wollert
Enterprises, Inc. 136th & Colorado. L.L.c., Hil!:h Plains A&M. L.L.C., Mal!ro, L.L.C., and
ISG. L.L.C.. et a!. [NEWn

In response to two Motions for Determinations of Questions of Law filed by the Applicants,
the Division 2 Water Court dismissed the subject applications to change water rights represented
by shares in the Fort Lyon Canal Company. In doing so, the Court applied the anti-speculation
doctrine to a change of water rights application for the first time, agreeing with the objectors'
arguments that the doctrine's application should be extended to changes of water rights. The
Court noted that the Applicants are seeking "the change for virtually any use where water may be
necessary without identifying the specific use and/or end user. Applicants' plan is so expansive
and nebulous that it is impossible for other holders of water rights to determine whether they win
be injured. Further, there is no discernible method to determine whether the water will be put to
beneficial use." The Court noted that the Applicants' proposed uses deviate so much from the
original right that they "take on the characteristics of a new water right," and that all water users
who might be injuriously affected have a right to be notified of the specific use of the changed
rights. Without such notice and participation, the Court would not be able to measure injury and
impose terms and conditions on the change. The Court also held that there was no reason to
distinguish between appropriated and unappropriated water in the applying the anti-speculation
doctrine, as the distinction would render meaningless the procedures for initial water rights
applications, particularly the notice requirements. The Court said: "An applicant could easily
circumvent the anti-speculation doctrine in the initial application by securing a water right ...[and
subsequently apply for a change for uses not included in the original resume.] To permit the
anti-speculation doctrine to be so easily manipulated ... would play havoc with the adjudication
processes that have served the State well." The CWCB objected to these applications to protect
all of its instream flow water rights in Div. 2, given the broad nature of the proposals. The
decision was appealed by the Applicants on August 16, 2004. Both the CWCB and the State
Engineer's Office have filed entries of appearance.
The Appellant's Opening Briefs are due Friday, January 14th, 2005. The Appellants sought
to consolidate the three cases; their motion was denied without explanation. Thus, they will be
filing 3 briefs and we will have to file three responsive briefs.

14. Moltz application. Chaffee County. 02CW73
At the September Board meeting the Board approved a request to inundate the Board's Trout
Creek instream water right, with mitigation. Since that time Moltz has filed a new application,
and the trial scheduled for October, 2004 was vacated because the new application is so closely
related to the pending case. A new trial date will be set after the passing of the deadline for
Statements of Opposition to the new filing. Weare also waiting for a proposed decree from
Moltz's attorney.

15. Ground Water Ril!ht for Great Sand Dunes National Park. 2004 CW 35 [Newl

On December 30, 2004, the United States filed a claim for ground water in both the confined
. and unconfined aquifers underlying the new Great Sand Dunes National Park (GSDNP).

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