BOARD02335

• Board Meeting Date: 3/24/2003
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 3

several grounds, including that the claims against the state defendants were barred by 11th
Amendment sovereign immunity, that the Upper Colorado River Compact doesn't create a
private right of action, and that the signatory states to the compact (especially Colorado and
Wyoming) are indispensable parties that can't be joined.

Ken Salazar and Greg Walcher asked Wendy Weiss, Randy Seaholm, and Bob Plaska to
conduct an investigation into the allegations by Three Forks Ranch concerning violations by
Cheyenne and Wyoming of the Upper Colorado River Compact. The Colorado investigators
prepared a report, which Ken and Greg sent to Wyoming on January 29th. The
accompanying letter thanked Wyoming for cooperating in our investigation and asked it to
respond to our concerns within 60 days. We 're waiting for Wyoming's response~

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

US DOJ filed the necessary motions to amend and applications for change of water rights in
September 2002. A change of water right application was needed because the Ute Mountain Ute.
Tribe's M&I use increased when the irrigation use was dropped from the modified Animas-La
Plata Project. The state has filed pleadings in support of the applications. Citizens Progressive
Alliance is the only real objector. A water court status conference was held January 24th. The
court set a briefing schedule on various motions that have been filed (CPA has asked the court
to vacate the existing decrees) and the parties are submitting briefs. Another status
conference is set for June 6th.

9. South Platte Rules and ReJ::ulations.

Oral argument on the legal authority of the State Engineer to approve replacement plans
under the Amended RuIes took place December 10: Water Judge Hays ruled on December 20
that the rules were invalid because the State Engineer lacked authority to promulgate them. The
State Engineer's notice of appeal was filed December 31, and our motion to expedite the appeal
was granted. The case was argued to the Supreme Court on February 19th (Ken and David
Robbins defended the rules) and we're waiting for the Court's decision.

The Water Congress drafting committee is still working on compromise legislation.
Outstanding issues include how many years well owners will have to apply for court approval,
what percentage depletion factors will apply, and hearing and fee provisions.

10. Kansas v. Nebraska and Colorado, United States Supreme Conrt, No. 126, OriJ::inal.

All three States and the United States signed off on the settlement agreement. The Special
Master held a hearing on the agreement January 6 in Denver. At the hearing, the Special Master
said he would recommend to the U.S. Supreme Court that they accept the agreement. The
Special Master supplied a draft Master's Report to the States on January 17 for their review and
comment. The final report is now at the printer.

11. Black Canyon of the Gunnison National Park Reserved RlJ::hts Case, No. W-437, Water
Division 4.