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<br />VIliume4
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<br />'I . T lr lw all\"OTlC': else. If the w~ter's to \w used, the Bureau
<br />l. lOOSing, (. " . \ 1 'S t1 at these uses
<br />\\'ollld l~a\'(' 10 change iLS operatIons, "r~lpa lOe sa)', \. atlo\',:c(f
<br />tint tile\' challcnge are incidental, and IllCldental u~cs arc not. 1
<br />' I r C-~RSPi\ Fir"t of all this begs the question lf the lIlultlp c \Js,c
<br />lIlH C . ,.' f [ 't . n t valid Let s
<br />. . s found bv the court as a matter 0 ac, IS 0 . .
<br />I ~glll1(., a, f nent Even If you
<br />"'~-U1llC thal \0 be true for p\lrposcS 0 ar~UI -.' . ,
<br />,. . t these uses out tlwv'vc all been used \11 their totality. r\:-; t~le
<br />scgrega (' -.' , r ;~__, .,~,,'" ",r lIwm ~re used solely, just lor
<br />("ourt found a.<; a Inaller ()l ldLl, '''J''__ ...,. H':'_ .! 't olelv
<br />\ I I <, 'ts !)rimarv-\Ilcldent.."1 argnmen s .
<br />one pwpose. i r7tpa lOe )a~c, I J. r the wa'CI
<br />on the jir.arilla case. Back up a second. None of the use~ 0 1 tl)C
<br />1)\' 11w Asninall Unit are incidental. They're all :ancuo.ned \'Yt ...;
<br />- I " . 0('6" C I '0 Riv--r Bnqn Protcct f c,
<br />CRSPA statute, by tllc 1:J 0 Alorac, . c. rt~. . ~ I All that
<br />rimarv. Let's assume that one or two of them \.....as lOC1d.ent~ . f
<br />ft1e Jic~rilla case says [is] that an incid~ntal use cannotjusUbfy a usci~s
<br />. , _ _l:_._.~. ,,-.., nrlln:>.I'V nllrnose. lust ecausc
<br />\..:ater if that use IS COIl U aUlI...lV' ) c"; <-L ::"::-;~,- J/r h. ~e" f water. Now,
<br />an incidental use does not mean It CdB L .J'.S.I.y t. c t~ ~l hant Blltte
<br />'t1so in the licarilla. case, the water that was used at t e ep . d
<br />' ' I I '{ not a recogllll.e use
<br />Rese!\-'oir ~as for recreation on y, all( I was . n't
<br />under stale law, and it was being used solely for that p~lIpOSC. .I~ w~
<br />r("(o nized in New Mexico because the water ",,:as be,mg st:)[(.{ , t lcre
<br />- . g, __ _...1 .~,,~ ril" of Alhuaucrque said we re gomg to hang
<br />\,:cn: no Duyel:-', <lll\' <<n. '~"l - - - ,1 '.. ., __ .__ 'l'h.,t_ un<:
<br />onto this water and use it for recrcaU~:Hl untiL we gee a OU)'Cl. ~ "'~, .._~
<br />not a recognized use under New MeXICO law.
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<br />QUESTION: Did the 19G8 Act change ~hc 1956 ^~t's effect wdith \~l~;e~
<br />I f the Aspinall Unit rcgardmg recreation, fish an WI .
<br />to t 1e uses 0 '
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<br />MR MESHORER: The fish and wildlife was a purpose under CRSPhA,
<br />1 ' , I' , I t d to be a purpose In t e
<br />Justice Hobbs, .but it was agam exp lot y sta e '
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<br />1968 Act, as pnmary.
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<br />QUESTION: As a primary purpose?
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<br />MR, MESHORER: Yes sir.
<br />QUESTION: The absolute decrees were obtained in 1980?
<br />MR, MESHORER: Yes sir.-l am not following your question.
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<br />QUESTION: I'm just wondering if there's any argu.ment left .on it
<br />heing an incidental use, if in fact the project is authonzed f~r pnma~
<br />purposes and include these other kinds of purposes and t cy matc
<br />with the slate decrees that were made absolute.
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<br />, [ 't making the argument
<br />i'vIR rvlFSHORER: I agree Your honor, W<LSJtlS , ,
<br />. - ,. ~ ~_ lo..--.C which Wf> don t, but to show
<br />for l)llrpOSCS of cOl1ceolllg Lo t\1<1pal1V -, ,....' 'f I
<br />I I' I I dity That even I t 1cse uses
<br />that their argulTlent rcae les a oglca a )~ur . :f I
<br />' I primarv Hut even I t lese
<br />were incidental, and they arc not, t ley are "
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<br />ARTiCLE r.JPDA7E
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<br />143
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<br />lIses \',:cre incidental, I think it would only be (ish and wildlife. There is
<br />no way you eouid call compacl purposes incidental, or fiood control,
<br />but Jet's say it is fish and v,-ildlifc and recreation. Even if they '..'ere
<br />incidental, which we say they are not, the statute specifically lists them
<br />as primal)', They are consistent with the other primary uses, and
<br />therefore the Jicarilla case would not apply. Because jicarilla said only
<br />if a use is incidental and is inconsistent with the other primary
<br />purposes, then it can't be used. Also in Jicmilla, I would add, that case
<br />did nol uecide the issue, and did not turn on a CRSPl, rc::;crv.oir, but
<br />on a reservoir built under a different aCT.
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<br />QUESTION: ''''ould you concede that the legislative history and the
<br />project history of the Aspinall Unit docs envision that the 240,000 acre+
<br />feet in whole or in part might be used on the eastern slope of
<br />Colorado?
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<br />MR MESHORER: Most certainly sir. I see my time is expired. Thank
<br />you.
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<br />QUESTION: Rebuttal.
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<br />!ViR. ZILIS: Thank YOll. 1 nc United Sta1.e:-; and the State essentially
<br />argue that the Colorado River Storage Project Act docs not control
<br />operations at the Aspinall Unit. They have now postured this case to
<br />say that you only look at state decrees under state law, and that any
<br />restrictions in the Colorado River Storage Project Act have no impact
<br />whatsoever on how that project is operated. The Colorado River
<br />Storage Project does explicitly state that hydropower generation is
<br />incidental to the primary uses. That's right in the very first section of
<br />CRSPA, section 620f. Section 620f, which Mr. Sims referred to,
<br />specifically states that subject to the provisions of the Colorado River
<br />Compact, neither the impounding nor the use of water for the
<br />generation of power and energy at the Colorado River Storage Project
<br />units shall preclude or impair appropriations for domestic and
<br />agricultural uses under state law. That now means nothing, as far as
<br />appropriations in the state of Colorado.
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<br />QUESTION: I have a little problem with tbat. In California v, US., the
<br />court is very plain that absent a specific provision of federal law there is
<br />no preemption and it refers back to state law. Now, are you saying that
<br />that language you just mentioned is so clear that there is a federal
<br />preemption of state water decrees obtained under section 8 of the
<br />Reclamation Act?
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<br />MR. ZILIS: Yes I am. r think that that language is absolutely clear that
<br />the federal government cannot preclude instate consumptive uses so
<br />that it can generate power, I think that CRSPA was enacted, in fact
<br />CRSPA wa<; clearly enacted, to allow the Upper Basin states to develop
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