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<br />. <br /> <br />J. William McDonald <br />Page 2 <br /> <br />First, the Board has assumed that the issue of the existence of <br />these reserved water rights may be litigated simply and <br />inexpensively. While my staff has appeared at two Board meetings <br />to apprise the Board of the nature and status of these claims, it <br />is my understanding that the factual or technical issues have not <br />been discussed with the Board, except in a very general sense. <br />The technical issues are very important in weighing the relative <br />advantages of a negotiated settlement against litigation, as the <br />decision in united States v. Jesse, 744 P.2d 491 (Colo. 1987), <br />makes it clear that trial will be heavily factual. In Jesse, the <br />Court stressed that: <br /> <br />[F]edera1 reserved water rights invc1ve <br />complex issues that should not be deter- <br />mined on the basis of a record devoid of <br />facts. "[T]he very nature of a federal <br />reserved water right forecloses resolution <br />of the issues relating to the nature and <br />the extent of the claimed federal rlght in <br />a factual vacuum." <br /> <br />. <br /> <br />744 P.2d at 503. <br />carefully examine <br />before taking any <br /> <br />It i~ very important, therefnr~, that <br />the factual issues presented by these <br />position. <br /> <br />the Board <br />claims <br /> <br />Even if the issues can somehow be narrowed, trial of the national <br />forest reserved rights claims in Water Division 1 will require at <br />least two months. The theories of fluvial geomorphology and <br />hydraulic engineering upon which the Forest Service bases its <br />claims are very complex, and the quantification analysis, which <br />requires the exercise of professional judgment based on consider- <br />able field experience, is beyond the expertise of the average <br />engineer. We will need to present the testimony of experts in <br />fluvial geomorphology, geology, hydraulic engineering, vegetation <br />encroachment, and perhaps even watershed management. This office <br />will not be able to present an adequate factual defense against <br />these claims if restricted to one or two test case streams, even <br />assuming that the Forest Service or the judge would permit such a <br />restriction. At present the Justice Department is stating that <br />it would vigorously protest such a restriction. <br /> <br />Further, the length of the trial is dependent not only on the <br />number of quantification points involved (270 in Division 1), but <br />also the number of objectors, some of whom will undoubtedly wish <br /> <br />. <br />