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1.L \',;if:':?:.\i',[.:i:i"',, V\'iUITl<" -t issuel .'18T1CLE. L:!'i)ATE 133 I ~l~.ll. As a matter oj lact, the quantification Cor the second iili of Taylol Park Rcscr:oir was aHlnl\cd here. That quantification was 10, ':)U:) acre-feet. That is fO\lnd at WIH P .:?ll at page 84G where the finding is discussed and affirmed at S'lS. If YOIl add those two average figures wgcthcr, members of the Supreme Court, it's approximately 42,000 acre-feet, in a basin which produces apprnxlIllately 145,000 on an~rag(', at the T:lylor Park Dam. The evidence is clear as is the decree, that \,,rhcn the opposers modelcll the lirst and second fill of Tav!or P3rk they were not constrained to using the first fill water for irrigation purp~ses only. \Ve won half of the case that was up ,here. on appeal in Upper Gunnison-the Upper GUllnison case, that I ve Cited to vou callier, decided in 1992. The half we won was that half o[ that dc~:ree, the irrigation decree, the district being the Upper Gunnison dist.rict, was not able to add additional uscs to the irrigation fill. If you look at this decree at sect.ion 37d, you will see that Mr. Helton was not constrained t.o !nodding historic use of the first irrigation filL If you look at 38d, you'll see that Mr. Book was not const.rained ?y the historic irrigation use of the first fill. And if you read 38d, YO~l Wlll find that Mr. Book testified that the difference between rcservOIr releases averagiug 70,157 acre-feet and the diversions of 20,594 acr~~fc.et, ~he figure used by Mr. Book, through the Gunnison tunn.cl for Irngauon equals 49,550 acre.feet, which at the end of the year IS transferred to f ,.. . I I T' ,.. 0 ^^^ the Aspinall Unit or use as part 01 Its (tecrccu purposes. - nar S :l J,VU\J acre-feet a year that they ran down the river and did not use for irrigation purposes. That 50,000 acre~feet then could be second fill up at Taylor Park, meaning that on average we lost 100,000 acre-fe~t p:r veal' of the Taylor River drainage that was not used for hlstonc purposes. Over a 15 year study perio~, which we used here, that.'s a million and a half acre-feet that vamshes out of the Taylor River without ever having to be used for a decreed purpose. historic use for decreed purposes. most rcccnLly, ill the Santa Fe Ranches case, which was decided only a month or 1\":0 ago. In a c< I 'I "'f I ' ase ~v, Icrc yon rc (. ctcrmllllllg I (lere s unappropriated water in a basin, It s cven marc Important that when we look at historic: use in the basin w~len .we're t'ling to encourage development, that we look at actuai IllS tone use. If you look at the decree [or those two cites, that show that the 37d and 38d, that neither of the opposers model was constrained to historic use in modeling the first till, you can see how they took that water away from us. QUESTION: Counsel, may I ask YOll a question please? MR. HENDERSON: Indeed, QUESTION: I'm looking at the trial court's position on that topic. I thil~k it's f~.ulld at pag~ 22, where he says that basiGJ.Hy the argument you re maklllg to us nght now has a lot of logical sense, but in his opinion it flies in the face of the Supreme Court's decision in Gunnison District 202203. vVhat do you have to say about that, please? MR, HENDERSON: That is absolutely correct, Justice Hobbs, MR. ~-iENDERSON: Justice Rice, what I have to say is this, and that is that III 202203, when we argued Upper Gunnison here, seven vears ago, approxi~ately, we had a pretty good idea of what they might do to us on a retnal of our case, they hadn't done it yet. We lost only half of t~at c~se, b~lt t~is cour~ did quantify the second fill during almost the Identical ~Istoncal pe:lOd a~ 19,900 acre-feet. They're now coming back. ~nd telling us t~ey ve relllterpreted the accounting provisions and It ~ now 106,000 m most years, which is the full capacity of the :es.erv:Hr. ~our Honor, they can't do that withollt taking that first fill Irngatlon nght and running it down the stream. We won the part of ~h~t c~e, Your Honor, where we restricted the right of the first fill to IrngatiOn use only. The district was not permitted to add additional uses, including recreation, to that first fill irrigation use. So it doesn't fly in the face of the holding in Upper Gunnison. QUESTION: Let me ask you this, there's an accounting sheet that is attached to the court's refill decree. Am I not correct on that? QUESTION: Ok, now, did that accounting sheet vary in any way, or the assumptions for the modeling vary in any way between the first time that case was tried on the refill right and the modeling [or the trial that we're now reviewing? QUESTION: As a matter of law. You're saying that the facts haven't changed, but as a matter of law it doesn't "fly in the face," it's not inapposite, is that correct? MR, HENDERSON: Indeed Justice Hobbs, as a matter of fact, at section 36a of the decree in this case, you'll find that the district modeled the accounting in a different way than it did in the Upper Gunnison case. The court must also remember that the accounting sheet is simply a sheet that's attached to a decree. And the decree is subject to the rules of interpretation in this court. This court. has t:e:n emphatic over the decades, that the measure of a water nght IS Its MR. HENDERSON: It does not fly in the face of either of those holdings of this c~urt. Your Honor, if I may summarize, reserving the rest of our five mmutes for rebuttal. We've been up in this court for more tha~ ten }:ears, twelve to b.e precise, trying to prove that there's water available m one of the wettest basins in the state. 'When we started this case, I ~idn't even have kids. They're now approaching the fifth grade. ThiS court has held that municipal entities and appropriators in this state are not to be held to enonnous or unusual burdens in trying to prove that there's water available for , .. - -;:'"" ~..... -......... " ~:",".~'<~""'_'~~.~.::" ..'~"-.l"!.~~~~,~'1.<.."l~~"-"'4J"'>t.~..."P'~."".1.~"'IF.'--"i.~n'~....:;,on~":'~'::".~,..,'~~..~,-:-::r...'r.--;:~~A=-~ , ~.'- ..-,. ".' .. ,'. .. -, -.. .- ..'....'... \ """-