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<br />Response to Motion to Intervene
<br />Page 2
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<br />styled its notice as a Notice to Contest and Notice of Party Status, it is clear that it seeks to
<br />intervene in this proceeding not as a party but as a contestant. See Motion to Intervene at ~ 2 and
<br />Notice to Contest and Notice of Party Status at p, 1-2. Because there is no mechanism for tI1e
<br />Board to allow such intervention, the Motion to Intervene must be denied,
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<br />II; Allowing Intervention Will Result in Prejudice
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<br />Pacific/Desert asserts that granting the Motion to Intervene will not cause prejudice, but
<br />for two reasons this assertion is unfounded, First, granting the Motion to Intervene will require
<br />repetition of much of the administrative process involved with this instream flow appropriation,
<br />TU, CWCB staff, the Attorney General's Office, the Bureau of Land Management ("BLM") and
<br />the Eldred Family Colorado Limited Partnership ("Eldred") have already submitted pre-hearing
<br />statements, participated in a pre-hearing conference and engaged in e,aended settlement
<br />negotiations, All the parties have agreed to terms and conditions that resolve Eldred's concerns,
<br />and the appropriation is now set for final Board action, Should the CWCB grant the motion to
<br />intervene, however, another round of pre-hearing and rebuttal statements, another pre.hearing
<br />conference, additional settlement negotiations and possibly a hearing before the Board would be
<br />required, all of which would add to the time an.d expense of this proceeding, Imposing this
<br />burden on the existing parties, which include governmental agencies and a non-profit
<br />organization, would be prejudicial,
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<br />Additionally, and perhaps more importantly, the Motion to Intervene would cause
<br />prejudice to the CWCB in tennsofthepriority of the water right. If the Board grants the motion
<br />and allows for additional administrative proceedings, the filing of the water court application for
<br />the Horsefly Creek instream flow right will be delayed until at least 2006, As Board members
<br />are aware, the priority of a water right as compared to other water rights depends on the year in
<br />which the water court application is filed, and delaying the water court application for the
<br />Horsefly Creek instream flow right until 2006 would result in the loss of one year of priority,
<br />rendering the Boards' right junior to rights to whi.ch it would not otherwise be junior, It is even
<br />possible that Pacific/Desert could assert new water rights claims before the end of2005 in order
<br />to take advantage of the loss in priority of the Board's right that would accompany the
<br />intervention, As the most important component of a water right, Empire Lodge Homeowners'
<br />Ass 'n v, Moyer, 39 P.3d 1139, 1148 (Colo. 2001), any loss of priority must be considered
<br />prejudicial.
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<br />III. Refusing Intervention Will Not Result in Prejudice
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<br />Pacific/Desert's primary concern with the Horsefly Creek inslream flow appropriation
<br />appears to be the desire to protect its upstream adjudicated and unadjudicated water rights, See
<br />Motion to Intervene at ~ I; Notice to Contest and Notice of Party Status at ~ I. Under standard
<br />operation of Colorado's priority system and C,R,S, ~ 37-92-]02(3)(c), however, the Horsefly
<br />Creek inslream flow right will be subject to Pacific/Desert's adjudicated and unadjudicated water
<br />rights; the instream flow right would have no impact on Pacific/Desert's present uses or
<br />development of its conditional rights, ]f Pacific/Desert proposes to change its rights in the
<br />future, it would be required to protect the instream flow right from injury, but because the
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