BOARD02037

• Board Meeting Date: 9/22/2003
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 4

The Environmental Opposers are asking for unprecedented relief in their federal court case: an .
order directing the United States to secure sufficient v;.ater to protect the Black Canyon, and an
order "holding unlawful and setting aside" the United!States' motion to amend in water court.
Ultimately it is unlikely that any federal court will de4ide that it can tell the Department of
Justice how to conduct litigation; however, it may tak~ months or years to get that result in
federal court. The Board members may wish to discu$s the pending case with counsel in
executive session. .

9. Trout Unlimited v. Department of Agriculture/Okanogan County v. National Marine
Fisheries Service. [NEW] .
The Okanogan County case is a case out of Washington State involving the Forest Service's
authority to impose bypass flows on special use permit holders in order to benefit endangered
fish. The Board may remember that Colorado filed an; amicus brief arguing that the Forest
Service didn't have the authority to impose bypass flows. Unfortunately, the Ninth Circuit
affirmed the Washington District Court's ruling that ~e Forest Service has that authority under
FLPMA, and that the controversy was not over water rights, but over rights of way over public
land. In other words, it accepted the Forest Service position wholesale, and gave no credence to
the water users' arguments. We have not yet heard frbm the County whether they intend to file a
petition for rehearing. Predictably, Trout Unlimited filed a citation of supplemental authority in
our local case (where we're still waiting for a decisio* from the court - the argument on the
motions took place in April of 2002 I). We filed a shqrt response together with Greeley and
Water Supply & Storage Co., pointing out the gaps in the Ninth Circuit analysis.

10, Greeu Mountain ReservoirlHeeney landslide case. [NEW]
On August 7,2003, the Colorado River Water Conservation District and several other west-
slope entities filed a petition against the Bureau ofR~clamation in U.S. District Court for
Colorado to enforce the provisions ofthe Blue River pecree. Denver, Northern Colorado Water
Conservancy District, Colorado Springs, and Englewood are also parties by virtue of being
parties to the Blue River Decree. Responses to the ptitition are due October 13, 2003. Our office
is working on defining the appropriate role for the state in this litigation.

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The Blue River decree involves the Colorado Big!Thompson (C-BT) project, Green
Mountain Reservoir, the use of the Blue River and the interrelationship of Green Mountain
Reservoir with Dillon Reservoir. This round oflitigapon challenges the Bureau of
Reclamation's recent administration of Green MountMn Reservoir. Since 2002, the Bureau has
limited releases from Green Mountain in order to pretent further slippage of a large area of
unstable land running through Heeney, the small to~ on the southwestern shore of Green
Mountain Reservoir. This changes the timing oflate irrigation season releases, which may result
in less water being released to compensatory pool (west slope) beneficiaries.

To date Bureau of Reclamation has charged the r~duced yield solely to the compensatory
pool, meaning the action has had no effect on the tr~smountain diversion yield of the C-BT
project. The compensatory pool beneficiaries object to this result. The west slope petitioners are
seeking changes of Bureau of Reclamation policy co~cerning the interrelationships of the
replacement pool, compensatory pool and the historid users' pool in Green Mountain Reservoir. .
Understandably, Northern and the western slope interests have widely divergent views on these