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<br />7. Trout Unlimited v. Department of Al!riculture/Okanol!an County v. National Marine
<br />Fisheries Service.
<br />The Okanogan County case is a case out of Washington State involving the Forest Service's
<br />authority to impose bypass flows on special use permit holders in order to benefit endangered
<br />fish, The Board may remember that Colorado filed an amicus brief in support ofthe water users,
<br />arguing that the Forest Service didn't have the authority to impose bypass flows, Unfortunately,
<br />the Ninth Circuit affirmed the Washington District Court's ruling that the Forest Service has that
<br />authority under FLPMA, and that the controversy was not over water rights, but over rights of
<br />way over public land. The water users plan to file a petition for certiorari with the U,S. Supreme
<br />Court on January 29.
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<br />8. Green Mountain Reservoir/Heenev landslide case.
<br />On August 7, 2003, the Colorado River Water Conservation District and several other west,
<br />slope entities filed a petition against the Bureau of Reclamation in U.S. District Court for
<br />Colorado to enforce the provisions of the Blue River Decree, The west slope petitioners are
<br />seeking changes of Bureau of Reclamation policy concerning the interrelationships of the
<br />replacement pool, compensatory pool and the historic users' pool in Green Mountain Reservoir.
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<br />This office filed a motion to intervene on behalf of the Division of Water Resources, and
<br />asked the court to insure that all Green Mountain water users share proportionally in any
<br />reduction of usable capacity or benefits due to the landslide, which is the position taken by the
<br />River District. The River District and the other Petitioners supported intervention by the state,
<br />while the United States, Northern, Denver, Colorado Springs, and Englewood opposed
<br />intervention, primarily on the grounds of lack of jurisdiction and lack of injury or interest for the
<br />state,
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<br />The U.S, and Northern moved to dismiss the Petition based on lack of jurisdiction and failure
<br />to state a claim. The main arguments are lack of injury to the River District et aI., lack of finality
<br />to the Bureau's operating plans, and lack of ripeness, As for the storage capacity of Green
<br />Mountain Reservoir, the V,S, and Northern both urged that decrees dating from 1955 bar any
<br />new claims for different storage requirements, Denver, Colorado Springs, and Englewood all sat
<br />out briefmg on this subject, The briefing schedule was extended through January, and the
<br />motions to dismiss may distract the Court from our intervention motion,
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<br />9. Application of Citv of Central (Case No. 92CW168)
<br />The CWCB has a decreed instream flow water right on North Clear Creek in Gilpin County,
<br />The City of Central ("Central City") filed this application for approval ofa plan for augmentation
<br />to make out-of,priority diversions from North Clear Creek. Central City's plan, however, fails to
<br />provide replacement water to North Clear Creek, and thus reduces the amount of water that
<br />otherwise would be available to satisfy the CWCB's North Clear Creek instream flow right. The
<br />CWCB requested Central City to include in its plan for augmentation terms and conditions
<br />prohibiting out-of,priority diversions by Central City at times when the CWCB's instream flow
<br />right is not met, and we argued at trial that such conditions are required by law, On January 9,
<br />2004, the Water Court for Water Division No, I (Water Judge Roger Klein) ruled that Central
<br />City need not include such terms and conditions, holding that that plans for augmentation need
<br />not protect from injury those water users junior to the original out,of-priority right being
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