BOARD01512

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

.

.

.

CARLSON, HAMMOND & PADDOCK

Mr. Duane Woodard
August 24, 1988
Page 3

The state I s strategy appears to me to have focused only on the
second of these defenses. The state appears to be dedicated to
fighting a holding action designed merely to minimize the quantity
of the right awarded, rather than defending against the very
concept upon which any such award must be based, i. e., the
contention that Congress in 1897 intended to preserve stream
channels rather than to provide water for appropriation and
beneficial use. This strategy is an exercise in damage control
that threatens to concede victory to the United states before the
first shot is fired.

This litigation provides the state of Colorado the opportunity
to close the last remaining loophole in the New Mexico decision and
secure for current and future on-forest diverters the benefits of
National Forest waters as congress originally intended. The
probability of success before the United states Supreme Court on
the fundamental legal issue has only improved since New Mexico; and
substantially so - given - the change- in the Court's makeup. The
State's strategy i however i rather than - focusing--on this ultimate
goal, seems to be built on the assumption that success in the trial
court is extremely unlikely, and given the factual-nature of the
defense against the quantities claimed by the United states,
reversal by the Colorado Supreme Court is also unlikely. This
short term view of the litigation threatens to undermine severely
the possibility of United States Supreme Court review.

I strongly urge you to review the strategy that the State is
currently pursuing in preparation for trial. I suggest to you that
the most beneficial role that the state can perform on behalf of
the water users of Colorado in this litigation is to help facil-
itate private parties' efforts to reach whatever individual
settlements they can with the united States, but force the courts
to decide the fundamental legal issues involved here, and to
posture its presentation of those legal and factual issues with a
view toward ultimate decision by the United States Supreme Court.
Since this is a judicially created doctrine, I believe it is far
preferable that the Courts shoulder the responsibility for
concluding that Congress intended to reserve minimum stream flows
in the forests, rather than having the state concede that issue at
the outset and reduce the case to a numbers game of how much is
enough. To this end it seems to me appropriate to review whether
all the right kinds of experts have been retained, whether
sufficient attention has been paid to the assembling of facts and

o