BOARD01129

• Board Meeting Date: 7/20/2004
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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

After the 10th Circuit mooted the appeal, the parties are now back before the District Court on
various motions to dismiss the case and motions to vacate the District Court's opinion. The
District Court has extended the briefing schedule on this issue until July 29, 2004.

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

These cases involve conforming the Tribes' water rights, settled through consent decrees in
1991, to the final configuration of the Animas-La Plata Project. The state has filed pleadings in
support of the applications. Citizens' Progressive Alliance is the only active objector. The water
judge has now ruled on all but one of the pending legal motions, striking or denying many of
CPA's legal contentions. The disclosure and discovery phase has begun. A status conference is
set for August 27,

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

The state water court case remains stayed. The Colorado Supreme Court heard oral
argument on May 24 concerning our petition for review of the water court's stay order. It has
not issued any opinion to date. In the environmental objectors' federal action, the federal district
court judge denied the United States' motion to dismiss, which we had joined. The United States
just filed for an extension until July 26 to produce the administrative record.

6. CWCB {SF Application on Gunnison River throul!h the Black Canvon (Case No.
03CW265).

Nothing new to report.

7. Trout Unlimited v. Department of Al!riculture/Okanol!an County v. National Marine
Fisheries Service.

About two years after oral argument, the federal district court for Colorado ruled against the
Forest Service, Colorado, Greeley and Water Supply & Storage Co. in this case. The case arose
from Trout Unlimited's challenge to the FS decision not to impose bypass flows on Long Draw
Reservoir, located at the headwaters of the Cache la Poudre River. On cross motions for
summary judgment, the judge ruled against TU on most of its challenges, but nevertheless found
that the FS decision to allow 1.2 miles of stream to be dewatered was arbitrary and capricious
and a violation of the Federal Land Policy and Management Act (FLPMA). We had joined with
the water users in arguing that the FS could not impose bypass flows under FLPMA, because of
the potential for disruption of hundreds of water diversion and storage structures located on
national forest lands. On June 24, the U.S. District Court for Colorado entered an order granting
Water Supply and S10rage Company's motion to amend the findings in its previous Apri130
order. This latest order does not affect the judgment. Under the Federal Rules of Appellate
Procedure, a notice of appeal is due to be filed on or before August 23, 2004. This office is
working with Greeley and Water Supply and Storage Company on appeal strategy. The Board
may wish to discuss this matter in executive session.

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