BOARD02058

• Board Meeting Date: 7/18/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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statutory factors; (2) no new evidentiary hearing be held but rather briefs with cites to the old
hearing record be submitted; and (3) the Findings and Recommendations be issued on July 18,
2005 (the date another RICD hearing is being held), The State argued against this request orally
and will submit written argument by May 31, 2005. The State's position is that the Supreme
Court specifically stated that it remanded the case "to the water court with instructions to remand
to the CWCB for factual findings on whether the application.., comports with the five statutory
factors," Id" at 603, Thus, the Water Court was told to remand the case to the CWCB with
instructions that the CWCB was to consider five statutory factors, not two, Further, ifthe Water
Court were to mandate procedures for the CWCB to follow during its statutory hearing, the
Water Court would be violating Article III of the Colorado Constitution, requiring a separation
of powers.

4. Hi2h Plains Appeal. re2ardinl!: the anti-speculation doctrine and three applications to
Chanl!:e Fort Lvon Canal water ril!:hts to over 50 uses in 28 counties. (Case Nos.
02CW183. 03CW28 aud 03CW68):

The CWCB and State and Division Engineers filed their Answer Brief in this case on March
4,2005 asking the Colorado Supreme Court to uphold the Division 2 water court's order that the
three High Plains change applications are barred by the anti-speculation doctrine, '

The Answer Brief first explains that the anti-speculation doctrine is an essential part of the
doctrine of beneficial use that must be enforced across the board. If water users are able to get
around the rule simply by filing a change application, the anti-speculation doctrine will faiL The
brief then summarizes the undisputed evidence that the High Plains applications are speculative:
the applicants do not plan to use the water themselves, do not have a contract with an end user,
and do not have a plan for a changed use. They simply want to increase the marketability of their
water rights. Next, the brief explains that speculation is a threshold issue that required dismissal
of the applications prior to reaching the question of injury, Finally, the brief addresses the
applicants' policy arguments, explaining that maximum utilization is served by upholding the
rule that speculation is not a beneficial use.

Along with attorneys for Southeastern and other objectors, Alex Davis on behalf of the
CWCB and the State Engineer's Office argued the anti-speculation issue before the Colorado
Supreme Court on June 14,2005. Although the questions are not necessarily indicative of the
way the Court is leaning, many of the questions seemed favorable to our position. The Case is
now awaiting decision by the Court.

5. Moltz application. Chaffee County. 02CW73

At the September Board meeting the Board approved a request to inundate the Board's Trout
Creek instream water right, with mitigation. Since that time Moltz has filed a new application,
and the trial scheduled for October, 2004 was vacated because the new application is so closely
related to the pending case, CWCB Staff reached an agreement in principle with Moltz, But
Moltz has apparently decided that he does not like the deal he struck and has failed to provide
any proposed decree or stipulation, At his request, his state legislator has approached the State
Engineer and the Attorney General claiming that 1) "futile call" should apply to his reservoir

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