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. .,. ," . CARLSON, HAMMOND & PADDOCK ATTORN EYS AT t..AW .,JOIoo4N UNOEM CARLSON MARY MEAD MAMMONO WILLIAM A. PADDOCK 1700 LINCOLN STREET, SUITE 2750 DENVER, COLORADO 80203 TELEPHONE (303) 861-g000 PAULA C. PHILLIPS MONTGOMERY WRAY WITTEN TOO ,J. SMITI'-I August 24, 1988 The Honorable Duane Woodard Attorney General 1525 Sherman Street, 2nd Floor Denver, Colorado 80203 RE: National Forest Instream Flow Claims Dear Duane: . I am writing to you to express a different view from that advanced by your staff on the assessment of this litigation and the strategy with which may be appropriate for Colorado interests in the litigation of the National Forest instream flow claims. On August 9, 1988, I met with Lois Witte, Wendy Weiss, Carol Angel, and Marie Sansone of your staff to express to them my reservations about the apparent course being pursued by the State in these cases. While I appreciated the opportunity to meet; I regret to say that'the"meeting', far from diminiShing my concern, merely deepened my conviction that the State's strategy. in these cases will have adverse consequences for future water development in Colorado, and unfortunate consequences for present users diverting on the national forests. . As you know, federal reserved water rights are a judicial creation based upon the judicially implied intention of Congress to reserve the minimum amount of water necessary to accomplish the purposes for which the land was reserved. National Forests were reserved, in part, for the purpose of establishing "favorable conditions of water flows." The fundamental issue to be decided in the National Forest litigation is the meaning of the words "favorable conditions of water flows" as that language was used by Congress in the National Forest Organic Administration Act of 1897. Specifically, in the context of the present litigation, the question is whether Congress, in creating the National Forests in order to "secure favorable conditions of water flows," intended to encompass within that purpose federal reserved water rights for minimum instream flows on National Forest lands.. The strategy with which your staff is preparing for trial, however, in my view concedes this point before the trial even begins. My view is that the intended beneficiaries of this purpose are appropriators under state law, and that the federal claim must be factually and legally tested by its consequences on these true intended beneficiaries.