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Water trial still scheduled

Posted: Friday, Oct 5th, 2012

Courier editor

ALAMOSA — A water trial set for the end of the month is still on, but it may be shorter than originally scheduled.

Chief District Judge Pattie Swift on Thursday decided some of the pending motions in the water cases involving the San Luis Valley’s first water management sub-district operating plan and the state’s approval of it. She scheduled another hearing for October 24 to deal with more of the pending motions and is still planning to go forward with the scheduled October 29th trial to hear evidence and testimony.

This is the first year of operation for the Rio Grande Water Conservation District sponsored sub-district that involves hundreds of irrigators in the Valley’s closed basin area north of the Rio Grande. The sub-district was designed to repair injuries to senior surface water rights and replenish the Valley’s aquifers, and to that end the sub-district board developed an annual replacement plan for this year.

Objectors asked the court to invoke retained jurisdiction over the sub-district and deal with concerns they have over its first annual replacement plan. Judge Swift earlier this summer denied a motion from objectors that would have shut down wells in the sub-district until concerns over the operating plan were resolved.

Given that decision by the court, the objectors recently filed a motion to amend their invocation to retain jurisdiction and asked the judge to vacate the trial. Sub-district supporters and the state engineer’s office asked the judge to make an immediate decision on these motions and argued in favor of going forward with the trial.

Since the trial is scheduled for the end of this month, Judge Swift agreed to make a quick decision.

“The objectors seek to amend their claims, to remove them from consideration of the court and vacate the trial because they believe the primary issues remaining to be determined are contained within the amended motion before the court,” Judge Swift summed up the situation Thursday afternoon in court.

She said there are two motions for summary judgment: 1) concerning augmentation plan wells; and 2) concerning the Closed Basin Project.

Two other motions are also outstanding: 1) to strike expert witness designations and reports; and 2) to appoint a special master.

Objectors have also asked the court to compel disclosure.

Objectors have asked to vacate the trial because they believe the outstanding motions can be addressed without evidence presented at trial, Swift recapped.

She said the sub-district supporters have paid expert witnesses and have paid their attorneys to prepare for the trial and are prepared to go forward, “and they would like to see some of these matters decided with some finality.”

If the objectors are allowed to withdraw their claims without prejudice, they could file them again next year and the supporters and the state would again have to spend money on preparing for trial, Swift said.

Swift said that since the supporters and state had incurred expenses in preparing for this trial, which was scheduled in response to objectors seeking invocation of retained jurisdiction, it would only be fair to allow the objectors to withdraw their claims if: 1) the claims not specific to the 2012 operating plan the court would allow to be dismissed with prejudice or in the alternative the objectors would pay reasonable attorney fees and costs the state and supporters incurred in preparing to defend the 2012 plan at trial; and 2) claims specific to the 2012 plan, such as concerns over calculations used to develop this year’s plan, may be withdrawn without the payment of attorney fees for the other side because they cannot be raised again.

“Objectors need to decide which motions they want to withdraw and under what terms,” Judge Swift said. She gave objectors until the end of October 9 to submit that to her.

She added she would set a hearing regarding attorney fees and costs to be reimbursed, if necessary.

Also on Thursday, Judge Swift ruled on the objectors’ motion opposing the use of Closed Basin Project water for replacement water for the sub-district. She denied the objectors’ motion, “as I find there are disputed issues of material fact that must be determined to decide whether the Closed Basin Project water is adequate and suitable to prevent injuries to senior water rights under the district plan.”

The judge outlined objectors’ concerns with Closed Basin Project water being used to replace injurious depletions to senior water rights, with the objectors arguing that the 1963 Closed Basin Project itself represented a junior water right that in the priority system of water administration was causing injury to senior water rights so could not be used to replace injurious depletions in the sub-district.

Swift said the objectors are arguing, “it’s a shell game,” “robbing Peter to pay Paul.”

Swift also summarized the supporters’ argument that the Closed Basin Project, designed as a salvage water project, provided “found water” that never would have reached the Rio Grande or its tributaries so was available for appropriation in 1963.

“I agree with the state and the supporters on this argument. That is why I am denying the motion for summary judgment,” Swift said.

However, she said if the Closed Basin Project is not having the effect of replacing injurious depletions it might not be a suitable water source for those depletions. She said she could only decide that after hearing evidence.

The judge added that given she denied the motion for summary judgment on the Closed Basin Project, there is a need for a trial on October 29, though it may not be as involved as it was when it was originally scheduled.

Regarding the motion for summary judgment on augmentation wells, Judge Swift said she is still working on her decision and would rule on that motion before trial.

Judge Swift said she would delay acting on the special master motion until after the trial but would decide the expert witness and discovery motions beforehand and set a full day aside, if necessary, on October 24 to hear arguments. She said she would decide at that time or shortly afterwards.

Also on Thursday the judge asked attorneys from both sides to give her some guidance by Friday, Oct. 19 on how they believed the retained jurisdiction process should work. She said she saw the court’s primary functions in its retained jurisdiction over the sub-district as reviewing: 1) whether the plan of water management is operated in conformance with the terms of the court’s decree; and 2) whether injury is prevented in conformity with the court’s decree.

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