BOARD00974

• Board Meeting Date: 11/15/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

issues, he would decide two as legal or policy issues, and two would go to technical
arbitration. The Special Master said he would decide the legal issue of whether there could
be any change to the past diversion records in order to calibrate the H-I model in the future.
He has since ruled in Colorado's favor that diversion records may be changed to make them
more accurate. The states are to see if they can agree on such changes. The Special Master
will also rule on whether there should be any limit on the accumulation of delivery credits.
Briefs have been filed, but no decision yet.

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. The two issues headed for arbitration are I) the representation of the Graham water right, and
2) the calibration acres and adjustments to sole source and supplemental pumping. The
States agreed on former Nebraska DNR Director Roger Patterson and his former lawyer Don
Blankenau as arbitrators. The arbitration is scheduled for November 15 through 22 in
Omaha.

Finally, the Special Master set a schedule for simultaneous filings on the issue of costs on
November 30, although he encouraged the States to try to reach agreement on costs. He
tentatively set another status conference for December 21.

3. Southern Ute and Ute Mountain Ute Tribes' Settlement. Case Nos. 7-W-1603-76F &
76J. 02-CW-85. & 02-CW-86.

These five cases are two applications to modify the 1991 consent decrees to match the
final configuration of the Animas-La Plata Project (A-LP), two change applications for the _
newly-configured tribal water rights, and one diligence application for the full original A-LP .,
conditional water right. Citizens' Progressive Alliance (CPA) is the opponent in all five
cases, all of which are in pre-trial discovery.

CPA and its attorney Alison "Sunny" Maynard continue to oppose the Animas-La Plata
Project (A-LP). Trial is set for April, 2006, on the diligence application for the A-LP water
right. Discovery is in full swing on the other four cases, i.e., the changes to the Ute
Mountain Ute Tribe's Project water right. The State and other parties to the Settlement have
deposed the two named opposers, Mr. Doe and Mr. Scott, and will depose their expert
witness on November l4. We filed extensive discovery responses on November 1. We are
currently addressing Ms. Maynard's late cross-motion for summary judgment (which argues
that the change applications are barred by the recent High Plains decision), and responding to
Ms. Maynard's most recent motion for sanctions (concerning our request for an out-of-state
subpoena of her expert witness).

4. Black Canyon of the Gunnison National Park Reserved Ril!hts Case. No. W-437,
Water Division 4.

The state water court case remains stayed, awaiting resolution of the environmental
objectors' federal action before quantification can proceed. In the federal action, all parties
completed briefing on August 3l, 2005. There has been nothing new since then.

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