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Water battle heats up in court

Posted: Tuesday, Oct 2nd, 2012




Courier editor

ALAMOSA — With allegations of lying and collusion, the topic of water boiled hot in Chief District Judge Pattie Swift’s courtroom on Monday.

The judge must decide whether or not to continue with a weeklong trial scheduled for the end of this month over the contested first water management sub-district’s plan covering hundreds of San Luis Valley irrigators. After hearing intense arguments on Monday she scheduled another status conference for 1:15 p.m. Thursday to announce her decision.

The objectors to the water management plan whose legal actions resulted in the trial are now asking the judge to vacate it, and the sub-district proponents who had hoped to make it through the sub-district’s first year of operation without a trial are now telling the judge they would like the chance to prove their case.

Objectors are suggesting that the state entity charged with administering water law colluded with the group it was supposed to be administering, and proponents are calling the objectors liars.

“From my perspective the objectors have lied twice to not only this court but to the public,” Assistant Attorney General Mari Deminski told the judge during Monday’s status hearing. She said the objectors had lied about the state engineer, whom the attorney general’s office represents, refusing to share information regarding the development and his decision to approve the sub-district’s annual replacement plan. She said thousands of emails were reviewed, with 5,000 made available to objectors if they wanted to see them.

The second lie was more serious, she said, with objectors alleging the state engineer’s office colluded with the sub-district and its sponsoring district, the Rio Grande Water Conservation District, in making sure the 2012 annual replacement plan was approved. The annual plan delineates how the sub-district will replace its share of depletions in a given year.

Deminski and Rio Grande Water Conservation District Attorney David Robbins said the state and district had no common interest agreement in place during the time the annual replacement plan was being developed and approved because there was no active litigation against them for which they would need such a strategic document.

“The suggestions that there was somehow collusion, that things were not properly available, that all of this technical data was somehow not available, is just flat wrong,” Robbins said. “It is an insult to Mr. Wolfe, to the Attorney General and to the supporters to suggest that there was somehow collusive behavior.”

Objectors, who have asked for appointment of an independent special master in this case, alleged that the state and water district have had a common interest agreement in place for a long time and it was never severed.

Objectors have several pending motions before the court including the one to appoint a special master. They have also asked for rulings about specific portions of the annual replacement plan, such as the use of Closed Basin Project water to help the sub-district pay its water obligation for the year and issues about augmenting wells. In addition, objectors are asking the court to strike proponents’ expert witnesses on the basis the reports they would present and testify to at this point were not available to the state engineer when he was making his decision to approve the annual plan.

Proponents asserted that the expert witness testimony was crucial to the district’s case, and objectors have not listed witnesses of their own but would have to rely on cross examination and attempts to discredit the witnesses called by the proponents. Attorney Steve Atencio, representing objecting parties, said the objectors did not need to have expert witnesses of their own. He said in previous challenges the objectors had few or no expert witnesses yet were successful in proving the management plan was not adequate to prevent injuries.

“It was only after the judge imposed conditions that it was approved,” he said.

Attorney Tim Buchanan, who also represents objectors in the case, said the motions still pending before the court could be heard and ruled on without a trial. He and Atencio said a trial is not necessary at this point. Buchanan said another option would be to continue the trial.

“This is unlike any other plan that has ever existed,” Buchanan said. “This is the first year of operation of this plan. Essentially what we are all trying to do with this year is feel our way through the process and determine what are the terms and conditions that are in compliance with the law.”

He added, “This year’s plan has operated. Whether it’s worked or not we won’t know until after there’s been an opportunity to review the assessment and operation of the plan.”

Robbins said it is not appropriate on “effectively the eve of trial” to permit a dismissal without prejudice, which is what the opponents of the annual replacement plan requested. He said if any of their claims were to be dismissed it should be with prejudice or subject to terms and conditions such as repayment of the costs and fees incurred by the supporters of the plan in preparing for the trial.

Robbins told Judge Swift to vacate the trial now would deny the supporters of the plan the opportunity to present the factual basis for approving it, to show why State Engineer Dick Wolfe approved it and “robs you of the opportunity to make a fair and just decision.”

Buchanan and Atencio said the proponents would not have had that opportunity in the first place if the objectors had not invoked the court’s retained jurisdiction.

“That’s a bit disingenuous to be saying the sub-district is denied the opportunity to present evidence they feel they need to present,” he said.

Buchanan said because of the common interest agreement between the state and district there are documents the objectors do not have access to and believe they would need in order to pursue this case. Given that, the objectors did not think it was appropriate to go forward with the trial.

Atencio added that the issues in the pending motions will have impacts on future challenges, so those are more important to be resolved than going to trial at this point.

“We are a bit shocked and dismayed that the position of the district and its supporters is basically force the opposers to go to trial or punish them for not going to trial,” Atencio said.

Robbins said the objectors were the ones who set this course towards trial by challenging the annual replacement plan. As in any other form of litigation, if the issues are not resolved, the parties expect to go to trial to resolve them, Robbins said. Many people have already spent a great deal of time preparing for this trial, he added, so at this point for the objectors to ask for the trial to be vacated should not be without consequence to them.

“To my view this is all just gamesmanship that’s going on here,” Robbins said.

He said the district did not want to go to trial and had hoped everyone would give the sub-district a year to see if its plan would work, but not only did that not happen, but every part of the plan was challenged. The only way to understand why the state engineer approved this plan and understand what went into the making of it would be for the state engineer and the experts to testify in court, Robbins said.

Judge Swift said she understood the issues in front of the court involve whether the state engineer’s approval of the 2012 annual replacement plan was appropriate and whether this plan prevents material injury to senior water rights, which is one of the mandates of the sub-district.

Robbins said that is what this year’s plan was intended to do.

The judge said the 2013 plan and the annual plans after that could all be challenged because each one would be a little different. Robbins said that could be the case, but some of the basic issues would be the same, and if the judge decided them now, those issues would not have to be argued every year.

“It is compelling that we should go ahead and have a trial,” he said.
















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