BOARD01917

• Board Meeting Date: 3/16/2004
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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this term; the earliest oral argument date will be after the U.S. Supreme Court's next term begins
in October 2004.

3. Rio Grande Silverv Minnow v. Kevs, No. 99 CV 1320, US District Conrt. District of
New Mexico.

Sen. Domenici's minnow rider to the Department of the Interior appropriations bill was
enacted. The rider prohibits the Bureau from taking water for the minnow, other than from
willing sellers; prohibits spending funds on importing San Juan-Chama water for the minnow's
benefit; and legislatively finds the current Biological Opinion to be legally sufficient. This
legislatively overruled the 10th Circuit, which had ruled that the Bureau has discretion to reduce
contract deliveries, including deliveries brought into the basin by the San Juan-Chama project, as
well as discretion to restrict diversions to meet its duties under the Endangered Species Act. As
a result, the 10th Circuit determined that the Silvery Minnow appeal was moot, vacated its
previous opinion, and dismissed the appeal - but did not vacate the District Court's order that
formed the basis for the appeal. District Judge Parker held a status conference February 23,2004
to figure out how to proceed. After a long hiatus, the various parties to the litigation have begun
another round of negotiations.

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. Argument
on pending motions was held March S, and the judge said he would try to rule in April.

5. Black Canvon of the Gunnison National Park Reserved Ri2hts Case, No. W-437, Water
Division 4.
The state water court case remains stayed. In our petition to the Colorado Supreme Court for
review of the water court's stay order, the U.S. and the environmental opposers asked for and
received extensions for their response briefs. Our reply will be filed March I I. In the
environmental objectors' federal action, our motions to intervene, as well as the Colorado River
Energy Distributors' Association (CREDA)'s and the Colorado Farm Bureau's, have been
granted. The United States' motion to dismiss, which we joined, has been fully briefed and is set
for telephone oral argument March 17. The Board members may wish to discuss these pending
cases with counsel in executive session.

6. CWCB ISF Application on Gunnison River thron2h the Black Canyon (Case No.
03CW265).
On December 23,2003, the CWCB filed an application in the Division 4 Water Court for an
instream flow water right on the Gunnison River through the Black Canyon of the Gunnison
National Park. February 27, 2004 was the deadline for filing statements of opposition ("SOPs")
to this application. Parties to the CWCB's administrative proceedings on the appropriation of
this water right that filed SOPs are: the Upper Gunnison Water Conservancy District; the
Colorado River Energy Distributors Association; joint opposers Environmental Defense, High .
Country Citizens' Alliance, The Wilderness Society, Western Colorado Congress, and Western

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