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<br />. <br /> <br />Colorado Water Conservation Board <br />1313 Shennan Street, Room 721 <br />Denver, Colorado 80203 <br /> <br />Concerning Instream Flow Rights On <br />Horsefly Creek, Water Division No, 4 <br /> <br />Andrew Peternell <br />Trout Unlimited <br />1320 Pearl Street, Suite 320 <br />Boulder, Colorado 80302 <br />Phone: (303) 440-2937 <br />Fax: (303) 440-7933 <br />Email: dpeternell@tu,org <br /> <br />Administrative Proceeding <br />Case Number: 02/04/B-030 <br /> <br />Trout Unlimited's Response to Motion to Intervene <br />Horsefly Creek, Water Division No.4 <br /> <br />. <br /> <br />Trout Unlimited ("TU"), through its undersigned counsel, hereby submits this Response <br />to the Motion to Intervene ofPacificlDesert Partners, LLC ("PacificlDesert"), For the reasons <br />specified below, TU urges the Colorado Water Conservation Board ("CWCB" or "Board") to <br />deny the motion and to take final action on the instream flow appropriation for Horsefly Creek at <br />the November 2005 Board meeting, <br /> <br />I. The ISF Rules Do Not Allow Intervention of a Contestant <br /> <br />Pursuant to Rule 5k of the Rules Concerning the Colorado Instream Flow and Natural <br />Lake Level Program ("ISF RuIes"), the deadline for filing a notice to contest the Horsefly Creek <br />instream flow appropriation was March 31, 2005. Over seven months after the filing deadline, <br />and less than two weeks before the Board will be asked to take final action on the appropriation, <br />PacificlDesert filed its Motion to Intervene along with a proposed Notice to Contest and Notice <br />of Party Status, <br /> <br />The ISF Rules provide for three separate levels of involvement in CWCB administrative <br />proceedings regarding instream flow appropriations - contestant status, party status and <br />participant status - and the methods of obtaining each level of involvement differ, See ISF Rules <br />5k, 51 and 5m, PacificlDesert seeks intervention pursuant to ISF RuIe 51, which allows the <br />CWCB to grant party status, but not contestant status, to persons who fail to file the requisite <br />notice by the filing deadline, Neither ISF Rule 51nor any other provision of the ISF Rules <br />allows intervention of parties seeking to contest an instream flow appropriation, and ISF RuIe 5k <br />states unequivocally and without exception that, "[tJo contest an ISF appropriation, a person <br />must comply with the provisions of this section, The Board must receive a Notice to Contest the <br />ISF appropriation by March 31 't, or the first business day thereafter," Though PacificlDesert has <br /> <br />. <br />