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<br />J~L-l~-~~ 1~,12 FROM: COLa RIVER DISTRICT <br /> <br />. <br /> <br />e <br /> <br />e <br /> <br />e <br /> <br />ID, 9709458798 <br /> <br />PAGE <br /> <br />. .'#l"ffr~.1'\~;'.,,- <br /> <br />COLORADO RIVER WATER <br />CONSERVATION DISTRICT <br />f~~"':JI~ c~'iJlw>", <br /> <br />~j"I'~'IIf!II//I . <br /> <br />July 15, 1999 <br /> <br />Alexandra Davis <br />Linda Bassi <br />Assistant Attorneys General <br />Colorado Attorney General's Office <br />Natural Resources Section <br />1525 Sherman Street, 5'" Floor <br />Denver, CO 80203 <br /> <br />RE: CWCB INSTlIEAM FLOW RULES REVlSJQtii. <br /> <br />Dear Alex and Linda: <br /> <br />I support Mark Wagner's comments tl) yOll about the importance and valli" of cross- <br />examination in relation to the instream flow appropriation process. It is politically popular even <br />among lawyers to lament the excesses of other lawyer.;, particularly those with "arcane" specialities <br />such as water lawyers, tort lawyers, employment lawyers, etc. Such criticisms unfortunate! y contain <br />:1 kemel of truth. but they do not justify allowing the creation of a r"cord, eith"r tor or against H <br />particular instream flow. comprised ofWlchallenged assertions of fact and opinion. A competent <br />judge (i.e., hellli.ng officer) intervenes and preVtnts excessive and abusive cross-examination. The <br />fact that an adversarial process may take more time to manage than the presentation of uncontested <br />views cannot be a governing criterion on this important decision. <br /> <br />Moreover, we should not expect more adversary proceedings in CWCB hearings than under <br />the historical system. CWCB's claims historically have not been litigated seriously in the Water <br />Courts. I doubt that moving the opportunity fQr cross-examination from th" Water Court into an <br />administrative hearing forum will result in more contested cases. Indeed, there should be even fewer <br />controverted matters because opponents of CWCB's claims will know that their efforts, even <br />including cross-examination, can be minimized by CWCB because of its protection under the <br />deferential AP A review standard. <br /> <br />SUITE '204' 201 CE;NTENNIAL STREET <br />P.O. BOX 1120/GLENWOOD SPRINGS, COLORADO 81602 <br />(U70) 945-6522' FAX (970) 945-6799 <br />