BOARD01773

• Board Meeting Date: 11/16/2004
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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4. Southern Ute and Ute Mountain Ute Tribes' Settlement. Case Nos, 7-W-1603-76F & _
76J, 02-CW-85, & 02-CW-86. _

These cases involve conforming the Tribes' water rights, settled through consent decrees in
1991, to the final configuration of the Animas-La Plata Project. The state has filed pleadings in
support of the applications, Citizens' Progressive Alliance is the only active objector. The water
judge has now ruled on a number oflegal motions, striking or denying many of CPA's legal
contentions, We filed motions for summary judgment in September, which we hope will dispose
of CPA's objections, CPA also filed a motion for swnmary judgment, relying on its theory that
the Ute Tribes do not have any reserved water rights because of an old Supreme Court decision,

5. Black Canvon of the Gunnison National Park Reserved Ril!hts Case, No, W-437. Water
Division 4.

The state water court case remains stayed, The Colorado Supreme Court issued its opinion
on our petition for review of the water court's stay order on November 8, refusing to lift the
water court's stay, That means we will have to await resolution of the environmental objectors'
federal action before quantification can proceed in state water court, In the federal action, the
federal district court judge denied the United States' motion to dismiss, which we had joined,
The United States has produced the administrative record, which is 14,000 pages long. The
environmental plaintiffs in the federal case are nevertheless seeking disclosure of additional
documents to "supplement" the record, and have asked the court for permission to make
document production requests from the state as well, We have opposed the request, and a
hearing on the motions is set for December 3,

6. CWCB ISF Application on Gunnison River throul!h the Black Canvon (Case No.
03CW265).

Nothing new to report,

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7, Trout Unlimited v. Department of Al!riculture/Okanol!an County v. National Marine
Fisheries Service.

Last spring, the federal district court for Colorado ruled against the Forest Service, Colorado,
Greeley and Water Supply & Storage Co, in this case, The case arose from Trout Unlimited's
challenge to the FS decision not to impose bypass flows on Long Draw Reservoir, located at the
headwaters of the Cache la Poudre River. On cross motions for summary judgment, the judge
ruled against TU on most of its challenges, but nevertheless found that the FS decision to allow
1.2 miles of stream to be dewatered was arbitrary and capricious and a violation of the Federal
Land Policy and Management Act (FLPMA). We had joined with the water users in arguing that
the FS could not impose bypass flows under FLPMA, because of the potential for disruption of
hundreds of water diversion and storage structures located on national forest lands, in
conjunction with Greeley and Water Supply and Storage Company, we filed a notice of appeal
on August 18th. Shortly afterward, the Forest Service and then Trout Unlimited also filed
appeals, which have been consolidated for briefing, Our opening brief is due November 22. The
lOth Circuit required the parties to participate in a mediation conference on October 13. The
Board may wish to discuss this further in executive session.

8. Green Mountain ReservoirlHeenev landslide case.

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