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<br />. <br /> <br />J. William McDonald <br />Page 4 <br /> <br />months to complete their field data collection and analysis. <br />There simply has not been enough time to complete our technical <br />studies and simultaneously prepare for depositions. Second, the <br />State's consultants' advise that adequate preparation of our <br />attorneys for the depositions of the Forest Service's leading <br />experts, Luna Leopold and David Rosgen, will require a month in <br />and of itself. The attorneys handling this case have already <br />spent over 200 hours with the experts thus far. The Board should <br />nut underestimate the degree of complexity and the sophistication <br />of the Forest Service quantification methodology, particularly <br />with respect to sediment transport capacity. <br /> <br />In addition to the factual issues, a trial will involve issues of <br />implied congressional intent to reserve water for the primary <br />purposes of the forest. While the decision of the Colorado <br />Supreme Court in Jesse does not conclusively resolve the issue of <br />whether an instream flow for channel maintenance purposes is <br />essential to fulfill the primary purposes of securing favorable <br />conditions of water flow, the court did engage in an extensive <br />review and discussion of the legislative history of the Organic <br />Act, and concluded, . <br /> <br />Although ..i1e reCOl..l of the proceedings on <br />the Organic Act does not disclose an <br />explicit Congressional intent to reserve <br />sufficient water to preserve instream water <br />flows in the national forests, we are not <br />convinced that the federal government, by <br />implication, did not intend to recognize <br />such a right so long as it furthers a pri- <br />mary purpose of the Organic Act. <br /> <br />744 P.2d at 502. <br /> <br />Considering the emphasis the Jesse opinion placed on the factual <br />nature of the claim, the court's decision ought to be taken as an <br />admonition that we carefully consider any remaining legislative <br />history arguments in light of all the factual circumstances of <br />these claims before we engage in what is certain to be a very <br />complex, lengthy, and difficult trial. <br /> <br />Moreover, trial on a test case basis of one to two streams in <br />Division I will consume virtually all of the reserved rights <br />litigation fund. There will be no funds left to defend the <br />interests of the State and the water users in quantification pro- <br /> <br />. <br />