BOARD01512

• Board Meeting Date: 8/26/1988
• Description: CWCB Meeting
• Board Meetings - Doc Type: Meeting

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J. William McDonald
Page 5

ceedings in the four affected divisions, nor in any other
reserved rights proceeding.

While the foreging alludes to the costs and problems of a trial,
I believe, in addition, that the Board should weigh carefully the
possible outcomes of such a trial.

Obviously, there is no need to discuss the consequences of a
decision favorable to the State. However, as I understand that
you estimate the likelihood of success as at best 50/50, we need
to discuss the downside of an adverse decision.

First of all, in my opinion, if you don't think you will like the
answer, it is better not to ask the question. An adverse deci-
sion in Water Division 1 will also bind Divisions 2, 3, and 7.
With a victory under its belt, the Forest Service will be much
less willing to subordinate its rights or otherwise accommodate
the unique circumstances of individual water users, as it will
have no incentive to do so. please bear in mind that the Forest
Service has not yet quantified its claims in Divisions 2 and 7,
and is legally entitled to locate its quantification points at
the forest boundary. In addition, there will be no accommodation
of future dev~lopment needs in an adjudic~tion. T~is is of par-
ticular concern in those drainages where there is significant
potential for development due to substantial private inholdings,
or where the ~~nd use patterns are such that the fo:est is below
or Surrounds land in private ownership.

Even if we prevail at trial on a test case, proceedings on appeal
will require at least 2 to 4 additional years. A loss on appeal
will mean that water users in all four affected divisions will be
faoing quantification proceedings to determine the amount of
water reasonably necessary for channel maintenance purposes at
the quantification points selected by the Forest Service. While
the Division 1 case is winding its way through the courts, the
Forest Service will have ample time to refine its methodology 'and
strengthen its technical case, placing itself in a decidedly
stronger position in subsequent quantification proceedings.

The change in administration tbis coming January is another
factor to be weighed, as both candidates have called for stronger
environmental protections. A settlement is best explored now,
while the Justice Department and Forest Service have been
instructed by the Reagan Administration to cooperate as much as
possible with state government.