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<br />.. <br /> <br />FAIRFIELD AND WOODS. P. C. <br /> <br />. <br /> <br />Honorable Duane Woodard <br />August 25, 1988 <br />Page 5 <br /> <br />the forest could divert the water which cutting of timber would <br />hasten through the forest. <br /> <br />Colorado may reassert with more force in this case, 16 <br />U.S.C. ~ 481, cited at 502: <br /> <br />All waters within the... national forests may <br />be used for domestic. mininq. millinq. or <br />irriqation oUnJoses, under the laws of the <br />state. . . . <br /> <br />. <br /> <br />All these matters allow the development of strictly limited <br />assumptions as to the meaning of favorable conditions of water <br />flow. When this central legal strategy has been developed, the <br />engineers will be able to apply it to accomplish two things. <br />First, many types of water use under many conditions will be <br />shown not to entirely defeat the purpose of favorable conditions <br />of flow. In other instances, it will be possible to show that <br />means, types, and times of water use can be done with such a <br />minimal effect on 'favorable~ conditions of water- flow that-the <br />purpose is not defeated. The daily and yearly flows requested-by - <br />the United states should never be allowable. Maintaining a steep <br />mountain channel may be done mostly by the hundred-year flood, <br />and we may be able to convince the judge that only the peak flow <br />of the hundred-year flood should be preserved inviolate from <br />water use by the water users in Colorado. <br /> <br />The state's duty under our adversary system is to make all <br />reasonable arguments to minimize the amount of water awarded the <br />United States. The Southeastern District is not satisfied that <br />this function is being performed, despite the State's expenditure <br />of over one million dollars. <br /> <br />We also agree with the Colorado Water Conservation Board <br />that a minimum number of streams should be the subject of trial. <br />If the State employs a very different definition of "favorable <br />condi tions of water flow, " the trial court, and the Colorado <br />_Supreme Court or United States Supreme Court, will have to choose <br />which legal definition and approach is correct. Because the <br />trial court may well be wrong in its initial decision, it makes <br />sense to minimize the number of factual circumstances which would <br />need to be retried after reversal on appeal. <br /> <br />. <br /> <br />We know your office has worked hard and long on these cases. <br />