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<br />. <br /> <br />. <br /> <br />. <br /> <br />Page 7 <br /> <br />store water ~demeath land not owned 1)1" controlled by Applicant, and. suggesting that the <br />Applicant cannot possess or control the water underground and that the proposed storage <br />would not be by "other than ftlltural means." However, the water judge found ft6neof <br />these objections to be fully dispositive. <br /> <br />11. United States v. EleDhant Butte Irri2ation District, et al. <br /> <br />Issue: Should the complaint be dismissed by the fe<k;ral district court on grounds oflack <br />of jurisdiction, res judicata, or abstention? <br /> <br />Decision: <br /> <br />Pending <br /> <br />Discussion: In 1'997, the United States filed a quiet title action in New Mexico federal district <br />court to water rights for the Rio Grande Project and its storage facilities, including Elephant <br />Butte Reseryoir. The Rio Grande Project is an irrigation project with lands in New Mexico and <br />Texas. Elephant Butte Reservoir is the Iynchpin to Colorado's obligations and entit1ements <br />under the Rip Grande Compact In any year that Elephant Butte 'Spills usable water, Colorado <br />doesnot haveto make deliveries of water to the state line, which means that water rights need <br />not be curtailed in that year forCOOlpact deliveries. Any legal-detenninations and flegotiated <br />discussions regarding the ownership, operation and management of the reservoir and its water <br />rights are critical to Colorado. Texas also filed a motion to intervene. <br /> <br />All motions to dismiss and intervene were stayed to allow a mediation process to <br />proceed, After two years, negotiations have been unsuccessful and litigation will proceed. The <br />court will decide motions to intervene after the motions to dismiss are briefed. The motions to <br />dismiss argue that there is a state court adjudication that the United States is participating in and <br />that this case is an end run around the state court, Colorado filed a brief opposing the motions <br />arguing that the court has jurisdiction and should retain the action because it affect'S an <br />international treaty, an interstate compact among three states, and water users in two states and <br />Mexico. Not surprisingly, the New Mexico parties countered our arguments in their reply and <br />aIsoarguedihat Colorado could not argue on the jurisdiction motions since it had not yet been <br />granted intervenor 'Status, We are lltill awaitingtbe eourt's determinations on the motions to <br />dismiss and the intervention motions. <br /> <br />12. Rio Grande/ Silverv Minnow lawsuits. <br /> <br />Issue: Win water users on the upper and middle Rio Grande be forced to by-pass <br />flows to keep the river bed wet and protect fish under the Endangered Species Act? <br /> <br />Decision: Pending. <br /> <br />Discussion: The basic problem in the Middle Rio Grande is that the river is over- <br />appropriated but there is no adjudication to determine which rights have priority. The <br />Middle Rio Grande Water Conservancy District takes literaRy all of the water out of the <br />river during dry periods. Since the silvery minnow was listed as an endangered species in <br />1994, New Mexico, the federal agencies, and the water users have looked for more water to <br />