BOARD01456

• Board Meeting Date: 7/23/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 4

development on or above the national forests is not anticipated. Future uses continue to be an
issue in negotiations in Divisions 2 and 7. .

5. Forest Service Reserved Rights Cases, Case Nos. W-1146-73 et al., Water Division 7.

Issue: Is the U.S. Forest Service entitled to reserved rights for instream flows for
channel maintenance purposes?

Decision: Technical representatives ofthe Forest Service, the State, and the Southwestern
Water Conservation District continue to work on assessing streams in the forests to determine
both Forest Service and water user needs and to see if the two can be reconciled. The parties'
negotiation team met on February 22, June 5, and September 6 to assess progress so far. The
technical committee is close to completing its initial review of the forest streams, but then plans
to revisit areas where it was unable to reach a consensus. We put off the negotiating meeting
scheduled for the end of November to allow the techn\cal committee more time to complete its
recommendation. We have begun drafting language tp describe some of the settlement concepts
discussed by the technical committee. After the technical committee completes its work,
however, the main negotiating committee will have to review each recommendation, and
probably meet with all individual water users, before a complete settlement proposal can be put
together. Trout Unlimited has been allowed to intervene, and now has requested participation in
the settlement discussions. Its interest in settlement - as opposed to litigating to make the Forest
Service demand more water - is not clear, and the objectors have refuse;d to include TU in the
negotiations. The technical committee still has work.to complete and negotiations are still on
hold.

.

Discussion: See discussion for Division 2 case for;general background. It is still too early in
the process to assess whether settlement is likely in this division;
. .' '

6. Kansas v. Colorado, United States Supreme Oourt, No. 105, Original.

Issue: What is the proper remedy for Color~do's past violation of the Arkansas River
Compact?

Decision: The Supreme Court issued its decision on quantification of damages on June
11,2001. Although the Court ruled in Colorado's favor on only one argument, it was a big
one: the Court ruled that prejudgment interest should begin to accrue in 1985, not 1969.
This has the effect of reducing the damages throngh 1994 to about $20 million.

Discussion: This case has been in litigation since! Kansas sued Colorado in the U.s. Supreme
Court in 1985, alleging that Colorado had violated the Arkansas River Compact. Special Master
Arthur Littleworth dismissed two of Kansas' three dlaims - involving Trinidad Reservoir and the
Pueblo Reservoir winter storage program - but found that post-compact well pumping had
violated the Compact, and the Court accepted the Master's findings. The remedy phase of the
trial was completed on January 28, 2000. The Special Master issued a report ruling for Kansas on
some, but not all, of the disputed issues. On the critical issue of prejudgment interest, he
recommended that prejudgment interest not be aW!\l'ded for the period from 1950-1968, because .
of the general lack of knowledge about the effects pfwell pumping in both states, but that