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<br />':_", <br /> <br />(j <br /> <br />Alexandra Davis, Esq. <br />July 14, 1999 <br />Page 2 <br /> <br />e <br /> <br />Having said that, it is probable that cross-examination would not be used in many, ifnot <br />most, hearings involving instream flow appropriations. In fact, as Steve Sims pointed out, only <br />three cases involving instream flow appropriations have ever been litigated in the last twenty-five <br />years. This pattem will probably continue. However, there are sure to be future instream flow <br />claims that will be controversial; and in those cases the procedural rules must allow all parties due <br />process in an open, full, and fair hearing. And an important component of due process in such <br />hearings is the opportunity of the parties to cross-examine adverse witnesses. <br /> <br />The importance of cross-examination in administrative proceedings is recognized by <br />virtually every other agency of the State before which hearings are conducted. For example, the <br />procedural regulations of the Colorado Water Quality Control Commission and the Public <br />Utilities Commission expressly allow parties to cross-examine all witnesses who present oral or <br />written testimony for inclusion in the administrative record. See 5 CCR 1002-1, ~~2.1.3.K.(2) & <br />2.1.4.1.(3); 4 CCR 723-80 & 81(a)(2). The right to cross-examine witnesses is also mandated by <br />the Colorado Administrative Procedure Act. See CRS. ~24-4-105(4)('' . . . All parties to the <br />proceeding shall also have the right to cross-examine witnesses who testifY at the <br />proceeding. . . .")(emphasis added). Given the importance of cross-examination, the regulatory <br />precedent, and the statutory and even constitutional mandates, it would be folly for the CWCB to a <br />prohibit cross-examination in hearings on instream flow rights, and would almost certainly result _ <br />in legal/constitutional challenges to the rules. <br /> <br />Accordingly, I am urging you to include a provision in the draft rules allowing cross- <br />examination of witnesses. In that regard, I suggest the following for your consideration, which <br />I've adapted from the Colorado Water Quality Control Commission's procedural rules: <br /> <br />Any witness whose oral and/or written testimony a party wishes <br />to have as part of the record shall be available for cross- <br />examination at the hearing by, or on behalf of, persons who have <br />obtained party status to the proceedings and by, or on behalf of, <br />the Board and its staff Where lengthy cross-examination would <br />use undue time, the Hearing Coordinator may have each party <br />estimate the amount of time necessary for cross-examination and <br />limit each party's time for cross-examination, taking such <br />estimates into account. <br /> <br />If, after reading this, you have any questions or wish to discuss this further, please give me <br />a call. Thank you for your consideration of my concems. <br /> <br /> <br />e <br />