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<br />;lllov.:anct' alld the ~.!.'W,OO() lIlal kelJ.blc yield, 300,000 acre-feet. What's
<br />the <;\;IIC',<; posilit)ll with lTganl to hydropower rights effect UlI that
<br />300,000 acre-reet?
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<br />deClsiolls, and his ndilH; .~ho\lid bl..' ,lffinncd. filank YOtl.
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<br />:v[R. SH\'IS: \Vcll, the priorily dates orall the rights are the same, so you
<br />couldn't say that a hydro right would call out any of the marketable
<br />:'jeltl rights hccalls(' it's one deuce \,...ith one priority with lllt.lltipl.e
<br />uses. A direct 110\\1 right with the exact same date as a st.orage ngtH lS
<br />!lot deemed 10 ha\'e ~ better right. I mean, for quite a few years \....c
<br />have dispelled that notion. So there really is no connie! bClwcel: the
<br />two, it's just merely the way YOII operale all these b~lIldle~ of n.ghts
<br />together. So tlw hydro couldn't afft':ct the 240,000, If that s ~ ~Jlr,e.CI
<br />answer to YOllr question, that's our position. Just to sum lip a.llttle D!.t,
<br />there's one other subordination issue that came up beSides tillS
<br />crc!1i?f:11 CRSP must subordinate to any state development, and I think
<br />~'e'\'c talked abollt that and I've dealt with that in our brief, bul Lherc's
<br />also the argument that since the Bureau of Rcdamati~n subordinated
<br />the 60,000 acre-feet of in-basin upstream depictions, that that
<br />somehow created a selective wbordination. And the basis for this
<br />arcrument was a memo done by Dr. Danielson, the fonner state
<br />-c1~ineer, where in that memo he said I'm going to UCCIil the Aspinall
<br />u~ir the most junior rights in the basin beG1.us(~ they have se!.ectivcly
<br />subordinated to these upstream uses. And Ijust wanted to renllnd you
<br />hO\.... the trial conrt. dealt with this, and what the trial court said is, first
<br />of all, we're not sure that this was evcr a real policy of the state
<br />engineer. There was a lot or conflicting facts on this and, after they
<br />balanced all of {hose facts, they said Dr. Danielson was not really
<br />creating this policy where he made these water right'; ~he most junior
<br />in the basin. What he did was he was bluffing and trymg to force the
<br />Bureau of Reclamation to come out and formally recognize their
<br />60,000 acre-foot subordination, which had never been done in writing,
<br />and tried 1.0 force them into water court to get this decree. But it
<br />wasn't an errort to actually make them the most junior in the basin.
<br />And the court went on to say, even if that was his intent, which it
<br />wasn't, but even if it was the state engineer's intent, the state engineer
<br />didn't have any power to do that. He didn't have any pow:r to m~ke
<br />the Aspinall rights the most junior in the basin. And it's interesting
<br />that he also found, and the division engineer testified at trial, they
<br />never changed the tabulation as a result of that memo either; So t~at
<br />last subordination is kind of a non~issue. In summary, and I m gomg
<br />to turn the rest of my time over to Mr. Meshorer, but in summary,
<br />Arapahoe seeks to disregard the priority system. They want to let their
<br />junior Union Park right divert before the Aspinall Unit rights. And
<br />they've come up with a myriad of excuses as to why that should occur,
<br />but really, the priority system works in Colorado. The Compact d~es
<br />not change that. 620f does not change that.. Vve have to rccogmze
<br />these senior water right';. Judge Brown, in a very thorough, complete,
<br />scholarly opinion-he's beel! dealing with this case for fourteen
<br />;.:cars-rcally did his work. He did a good job. He made the correct
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<br />MR. ~,lESl IORER: i\1ay it please thc court? Mv name is Hank
<br />Meshorer, special litigator for the U.S. Department o'fJustice. Manvof
<br />the issues 1 \....a.s going to talk about were handled well by !VIr. Sims' so
<br />I'm going to go to some points that maybe weren't addressed. I W~nt
<br />to mention threc things that were undisputed facts at the initial trial
<br />First, that the tria] coun found that all of the senior state decrees of
<br />the Aspinall Unit have been continua!!'\-', vvitho1.lt internmt;^,""
<br />uniformly used to their fullest extent. Scco,~d, that as pan -Of -CRSPA'
<br />.\...'ipinall has been used in a multi-use integrated fashion, Third, tha~
<br />Aspinall has been operated at all times to assist both the Upper and
<br />Lower Basins to achieve their full <lllucations of water in accordance
<br />with the various compacts. I could stop right here. Arapahoe savs
<br />these facts are disputed. I counted the number of paragraphs that tl;e
<br />water cOUrt supports this as m;ltters of f~ct, and f don't want to list
<br />them because I haven't got that much time, but there are twenty
<br />pa.ragraphs as to t~e first proposition (and they't.c all stated in my
<br />bnef) that the senlOr state water right decrees of the Aspinall Unit
<br />have been continuously, without interrupt jon, used to their fullest
<br />extent. Seventeen paragraphs in the court's first order support the
<br />second proposition that Aspinall is operated in a multi-use integrated
<br />fashion. And sixteen paragraphs in the court's opinion ali [oun-d as a
<br />matter of fact, indicate that the Aspinall Unit, without a doubt, has
<br />been operated to assist both the Upper and Lower Basins. I find it
<br />rather ironic that Arapahoe makes the argument that the federal
<br />government will control the water. I fino it insulting, and I would
<br />think it's more insulting to the court than it is to me because it's a
<br />pandering. It comes from weakness. It's ironic that Arapahoe is the
<br />only party in this litigation that seeks federal preemption. They're the
<br />only party that says that the state water decrees need to be preempted
<br />by federal law in three or four instances-hydropower, fish, recreation,
<br />and wildlife. No one else makes that assertion. The question was
<br />asked about the 240,000 acre-foot marketable yield and Mr. Sims
<br />handled that, I think, to the satisfaction of the court. I would add this:
<br />if that water was to be used for other uses, as indicated in my brief, the
<br />Bureau would have to make elections and change the way the uses are
<br />allocated after the NEPA process and all other environmental laws
<br />were complied with. And would most likely, Justice Hobbs, lead to,
<br />and I say most likely because I do not know, that the hydropower
<br />waters would be lessened. The marketable yield is a pool sitting there
<br />for use by anybody in Colorado. Transbasin diversion, they have to pay
<br />for it The project was built by the Bureau to make water available and
<br />they have to pay for it. The 60,000 subordination was for the western
<br />slope and, as Judge Brown stated exhaustively, was meant to be
<br />restricted to in~basin use, juniors only, and with a contract, and be as
<br />compensatory for the local impact of that huge project The 240,000
<br />acre-feet of water is not a separate water right It is not physically
<br />separate. It cannot be carved out and used by Arapahoe at its
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