Or, instead of "ethics violation" you could make it broader by saying "incredibly stupid."

What on earth is blacked out after her name? Is there some personal information included with the attorney's signature on court documents that I'm unaware of, in my boring old transactional practice?

I like that she's getting counseling for not finishing her work on time. How about counseling for being a loon?

You know she had the ridiculous grin from picture on her face when she appeared on this.

In addition to being a moron she is a horrible writer.

I can't believe she is pulling this in the same case. Can you say "disbarred"?

2:49: A Bar number, I'm sure.

At least her conscience will be clear as they take her license away from her.

Motion denied for lack of emoticon

Why is she telling us that she cleaned her breast?

And what is that quote about schools and fools supposed to mean?

This lady is a laugh riot. Keep it coming, Lat.

Wow...just...wow.

she's clearly a few fries short of a happy meal

Thanks, 2:57. Like I said, clueless deal-lawyer.

Isn't backdating postage using a postage meter a federal violation?

She didn't backdate, as in with a postage meter that a business would have. They have those APC machines at the post office - you can get the sticker to put on your mail, but if you don't actually put it on right away, I don't know if it's a violation or not.

Is that really her photo? It looks like it was taken from The Onion.

The honesty is laudable, but being honest about prior dishonesty is only half a loaf

The "fool" quote is from Ben Franklin. And it's wrong. Apparently, it should read:

"Experience keeps a dear school, but fools will learn in no other."

She should sue her client for giving her a bogus quote. It's his fault.

No, the "fool" quote is from her client....

That is the greatest thing ever! What a crazy lady. Kudos to her for being bizarrely honest.

Not a surprise that her client is the Progressive Alliance. Libs just don't have their shit together; at least not until they can make it into "counseling."

3:06 wins.

Those of you in practice now.......how common is this kind of insanity? I would think this should be exceedingly rare, but I'm just a lowly law student.

FOR LIFE!

Drunk and lazy is no way to go through life, let alone go about practicing law.

I'll have you all know the Snell partner knew nothing of the late submissions. That's his story and he's sticking to it.

"Drunk and lazy is no way to go through life, let alone go about practicing law. "

But it's a great way to go through law school...

3:06 definitely takes the cake. I hate it when I laugh so with the door open.

4:15- its the ONLY way to go through law school...

3:50 - totally unheard of. Unless, apparently, your practice consists of tiny state-court cases that aren't worth anything. Or you work for/oppose Snell.

Agreed. 3:06 definitely wins. : |o

So if Snell Wilmer represents one party and Maynard represents the other, will there ever be a hearing or will the world stop spinning?

This could break the space time continuum.

seriously, who is 3:06, i want to buy you a beer, i started to cry when i saw that.

3:06 here, thanks for all the rave reviews!

no the best comment has to be 3:24, so so true....

This person brings "does not get it" to a new level.

Expressly admits to misleading the court, and also accuses a sitting judge of "altering" documents!

Amazing. (But funny.)

she's had a bad week...

"In addition, the record adequately supports the water court’s finding that the Individual Homeowners and their attorney [Maynard] were “stubbornly litigious” because they continued to relitigate a settled issue contrary to the water court’s explicit admonition. Therefore, the water court did not abuse its discretion in awarding a reasonable amount of attorney fees to the Association under section 13-17-102(4).

http://www.courts.state.co.us/supct/opinions/2005/05SA326.pdf

That's it, I'm starting my own solo practice. Colorado here I come!

implicating the client in this fraud is NUTS. this lady is a complete psychopath.

maybe she'll hire l2l

It should now be the "Lawyer of the Day Allison "Sunny" Maynard" award.

This is not out of the ordinary for your typical plaintiffs lawyer. Commerical litigiation is significantly better than employment litigation for just that reason. You're dealing with other professionals at big firms, not random morons.

Yikes.

Is it me, or did she reveal privileged communications with her client? That should add one more charge to the bar complaint.

Wait, let me get this right, she wants to go to rehab for her laziness?

L2L: I hate to quibble, but can you start a solo practice other than your own?

Good god, she couldn't just say she was ill?

Sunny, we miss you!

I think she's a genius. In fact, I think I'm thinking of hiring her permanently and signing over my soul to her as well. Did I mention that I'm being incredibly sarcastic?

Poor, poor, inept person...

OK, you really want to know who's committing a fraud: I'll post my opening brief! I'm very proud of it. I did a heck of a job. It talks about the $500,000,000-- soon to be BILLIONS, what fun!--that TAXPAYERS have paid and will pay, in order to funnel money into opposing counsel's pockets!

Animas-La Plata is nothing but a fee-generating machine for a bunch of crooked law firms. They created these overlapping "water conservancy districts" which have TAXING POWER, but no works, no treatment plants, no pumps, no customers. They don't supply water to anybody: they just exist to tax and speculate in water rights! People there are taxed two and three times to provide these law firms a fat living! And this is why the locals could never get rid of this boondoggle: they have been fighting their own tax money for 50 years.

And here is the Bureau of Reclamation digging a big hole to put water in, the so-called Ridges Basin Reservoir, but there is no delivery system! No use for the water! It's just a $500,000,000 hole! So that's what they're all trying to divert attention from, when they post stuff about ME on this website. They don't want the world to know what THEY'RE up to, as detailed in my brief to the Supreme Court, the huge frauds which this lot have been committing for the past 50 years.

That reptile David Robbins telling the court, for instance, that his client never gave up use of the water for irrigation, despite a mound of SWORN statements to the CONGRESS that they WERE giving up irrigation--that's what they HAD to do in order to get approval of their project and $500,000,000 of taxpayer funds for their boondoggle. Robbins and his co-counsel have repeatedly also just added new uses, new refill rights for their reservoirs, and the like, every time there was a diligence proceeding--just stated in their sworn filings to the court that these things were in the prior decree when they weren't!

In the reserved rights cases, they just created a new water right for Ridges Basin Reservoir. Just wrote it in like it had always been there! Those dummies actually let the water right for Ridges Basin expire when they forgot to file for diligence in 2001!!! HA, HA, HA! I've been laughing about that one ever since I discovered it.

Anyway, I'll post my brief in a minute. I am going to be starting my own website, and writing a book called "Corrupt Colorado". Tune in and you'll see who the real stars are in this state! I mean, the true stars of the criminal racket which runs Colorado. And, let me tell ya, motions for extension of time are not going to look like very much in comparison. There are minor offenses, like that, and then there are MAJOR offenses, like the frauds and conflicts of interest burdening every single person connected with ALP.

I'll post my opening brief next, so those thinking people among you can see what's going on here.

Alison Maynard

Certification of Word Count: 9,483
SUPREME COURT, COLORADO
2 E. 14th Ave., 4th floor
Denver, CO 80203

Appeal from the District Court for Water Division 7
1060 2nd Ave.
Durango, CO 81301

▲ COURT USE ONLY▲
CITIZENS’ PROGRESSIVE ALLIANCE,

Appellant/Opposer,

v.

SOUTHWESTERN WATER CONSERVATION DISTRICT,

Appellee/Applicant, and

BRUCE WHITEHEAD, Division Engineer for Water Division 7,

Appellee pursuant to Rule 1(e), C.A.R., and

UNITED STATES OF AMERICA; STATE OF COLORADO; SOUTHERN UTE INDIAN TRIBE; and UTE MOUNTAIN UTE INDIAN TRIBE,

Appellees/Intervenors-Opposers.
ATTORNEY FOR APPELLANT:
Alison Maynard, #16561
P.O. Box 22135
Denver, CO 80222
Case No.: 06 SA 388

Appeal from the District Court for Water Division 7,
Case No. 01 CW 54

OPENING BRIEF

Appellant Citizens’ Progressive Alliance hereby submits its opening brief.
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES iv

I. ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Nature of the Case, Course of Proceedings, and
Disposition in the Court Below 2

B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. ARGUMENT 12

A. There is no competent evidence to support the award
of diligence. 12

1. Standard of Review. 12

2. Because there are no plans for a delivery system,
there is no intent to put water to beneficial use. 12

3. There is no need for the water. 16

4. Not all the putative co-owners were joined as applicants,
mandating dismissal of the application. 18

5. The “project” is economically infeasible. 20

B. The original decree and diligence rulings by Judge Eakes are
void, and CPA did not waive his conflict. 21

1. Standard of Review. 21
2. CPA did not waive Judge Eakes’s conflict. 21
3. Judge Eakes’s conflict was not waivable, and his
rulings are void. 21

4. The original decree for the ALP water rights contains numerous
indicia of fraud such that it is void for this reason. 26

C. Diligence was erroneously awarded as to uses which
were either not continued in prior diligence decrees, or
not decreed originally. 32

1. Standard of Review . 32
2. Municipal use was abandoned by 1970 32
3. The SWCD has no authority to appropriate for municipal
and industrial uses. 35

4. The use for irrigation has been abandoned, by express intent. 38

5. Other uses having been put into the decree
irregularly, they must be stricken. 40

V. CONCLUSION 40

TABLE OF AUTHORITIES

Cases Page

Aaberg v. District Court, 319 P.2d 491 (Colo. 1957) 22

Application for Water Rights of the City of Aurora,
731 P.2d 665 (Colo. 1987) 14

Aurora v. Bogue, 176 Colo. 198, 489 P.2d 1295 (1971) 37

Bernheimer v. City of Leadville, 14 Colo. 518, 24 P. 332 (1890) 37

Blaisdell v. City of Rochester, 609 A. 2d 388 (N.H. 1992) 24

Bunger v. Uncompahgre Valley Water Users Ass’n,
192 Colo. 159, 557 P.2d 389 (1976) 20

City and County of Denver v. Northern Water Cons. Dist.,
276 P.2d 992 (Colo. 1955) 15

Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist.,
734 P.2d 627 (Colo. 1987) 40

Common Sense Alliance v. Davidson, 995 P.2d 748 (Colo. 2000) 36

Cuyahoga Bd. of Mental Retardation v. Ass’n of Cuyahoga County
Teachers of the Trainable Retarded, 351 N.E.2d 777 (Oh. 1975) 25

Dallas Creek Water Co. v. Huey, 933 P.2d 27 (Colo. 1997) 16, 18, 20

Elk-Rifle Water Co. v. Templeton,
173 Colo. 438, 484 P.2d 1211 (1971) 28

Evans v. Young, 10 Colo. 316, 15 P. 424 (1887) 32

E-470 Pub. Hwy Auth. v. 455 Co., 3 P.3d 18 (Colo. 2000) 21, 32

Ft. Lyon Canal Co. v. Amity Mutual Irrig. Co.,
688 P.2d 1110 (Colo. 1984) 13, 20

Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980) 23

Gibson v. People, 44 Colo. 600, 99 P. 333 (1909) 35

Gratiot County State Bank v. Johnson, 249 U.S. 246 (1919) 23

Grohn v. Sisters of Charity Health Services, Colorado,
960 P.2d 722 (Colo. App. 1998) 35

High Plains A & M, LLC v. Southeastern Co. Water Cons. Dist.,
120 P.3d 710 (Colo. 2005) 18

ISG, LLC. v. Arkansas Valley Ditch Ass’n,
120 P.3d 724 (Colo. 2005) 18

Kennedy v. People, 9 Colo. App. 490, 49 P. 373 (1897) 37

Municipal Subdistrict, Northern Colo. Water Cons. Dist.
v. Oxy USA, Inc., 990 P.2d 701 (Colo. 1999) 14, 15, 16

New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 P. 989 (1895) 28

O’Connell v. Gavett, 7 Colo. 40, 1 P. 902 (1883) 24

Orr v. Arapahoe Water & Sanitation District,
753 P.2d 1217 (Colo. 1988) 37

People ex rel. Brown v. District Court, 26 Colo. 226, 56 P. 1115 (1899) 24

People v. Julien, 47 P.3d 1194 (Colo. 2002) 25

Public Service Co. of Colo. v. Blue River Irrig. Co.,
753 P.2d 737 (Colo. 1988) 14

Public Service Co. of Colorado v. Bd. of Water Work of Pueblo, Colorado,
831 P.2d 470 (Colo. 1992) 16

Quirico v. Hickory Jackson Ditch Co.,
126 Colo. 464, 251 P.2d 937 (1952) 25, 28, 40

Stonewall Estates v. C.F. & I. Steel Corp., 592 P.2d 1318 (Colo. 1979 23, 25

Town of DeBeque v. Enewold, 199 Colo. 110, 606 P.2d 48 (1980) 33

Trans-County Water, Inc. v. Central Colorado Water Cons. Dist.,
727 P.2d 60 (Colo. 1986) 12

Vail Valley Consol. Water Dist. v. City of Aurora,
731 P.2d 665, 668 (Colo. 1987) 14

Water Supply & Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987) 34

West End Irrig. Co. v. Garvey, 117 Colo. 109, 184 P.2d 476 (1947) 22

Wilson v. People, 44 Colo. 608, 99 P. 335 (1909) 22

Zoline v. Telluride Lodge Ass’n, 732 P.2d 635 (Colo. 1987) 22

Statutes and Rules

Canon 3(C), Colorado Code of Judicial Conduct 25
Rule 97, C.R.C.P. 25
§13-1-122, C.R.S. 23
§ 37-47-101, C.R.S. (2001) 35, 36
§37-92-103, C.R.S. (2001) 3
§37-92-305(9)(b) 15
§37-92-502(2)(1) 34
P.L. 106-554 (Dec. 21, 2000) (2000 Ute Settlement Act Amendments) 7, 38
28 U.S.C. §144 24
28 U.S.C. §455(e) 24
33 U.S.C. 1251 et seq. (Federal Water Pollution Control Act) 38

Treatises

C. Wright, A. Miller, E. Cooper, 18A Fed. Prac. & Proc. §4431 (2002) 22
C. Wright, A. Miller, E. Cooper, 17A Fed. Prac. & Proc. §3552 (1984
& Supp. 2003) 24

I. ISSUES PRESENTED FOR REVIEW

A. There is no intent to put the water to beneficial use, and no competent evidence to support the award of diligence. There is no delivery system planned; no need for the water; and development of the rights is economically infeasible.
B. The conflict of Judge Eakes, who granted the applications for ALP he filed as attorney, was not waived by CPA, nor was it waivable. All his rulings are void.
C. It was error to award diligence as to municipal use, since this use (and others) were not continued in prior diligence decrees. The SWCD also has no authority to appropriate for municipal and industrial uses.
D. Diligence was erroneously awarded for irrigation, since that use was abandoned; and structures, uses, refill rights, and other changes added in later diligence applications are void.

II. STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below.
Conditional water rights for the Animas-La Plata Project, an extensive federal irrigation project, were decreed to the Southwestern Water Conservation District (“SWCD”) on March 21, 1966, in cases 1751-B (on the Animas River, in Water District 30) and 807-C (on the La Plata River, in Water District 33). When the Water Rights Adjudication and Administration Act of 1969 was adopted, placing water districts 30 and 33 into Water Division 7, cases 1751-B and 807-C were merged.
The original plan was to divert water far upstream on the Animas River, at the Teft Diversion Dam, into the Animas Diversion Canal, a 48-mile-long canal which was to pass westward through the mountains, through tunnels and siphons, to the La Plata drainage. From there it would supply canals and storage vessels positioned so irrigation could occur by gravity flow. Testimony of SWCD president Fred Kroeger, T-I at 197, lines 6-16; 198, lines 18-21; and see the colored map of the project as envisioned in 1961, Vol. V at 27. The transbasin diversion was desired by La Plata irrigators: that area is known as the “Dry Side” because it is historically water-short. See T-I at 202, lines 10-14; T-I at 190, line 12, through 191, line 3. The direct-flow rights which comprise the project total 3,040 cfs; the reservoirs have a combined capacity of 370,850 AF (including refills).
The Bureau of Reclamation had already concluded, by 1966, that the project was economically infeasible, the benefit-to-cost ratio being less than unity. Testimony of Bureau engineer Robert Tyner. CPA Exhibit 21 at 10. It was already looking for other uses for the water besides irrigation–such as for a coal-fired power plant in New Mexico–to make the project feasible. Id. In that 1966 proceeding, Three Buttes Reservoir was simply added to the decree, and changes were made to the length and points of diversion of other canals, for this new purpose. CPA Exhibit 21, at 10 et seq. These structures are in New Mexico.
In 1979, the Bureau prepared a “Definite Plan Report” which again dramatically changed the project. The point of diversion was moved down the Animas River 22 miles. Instead of gravity flow to the Dry Side--no longer possible at the lower elevation--the water was now to be pumped from the Animas within Durango city limits, up 500 feet and two miles away to a proposed reservoir called Ridges Basin. From the reservoir water would be pumped up another 400 feet and westward 25 miles or more to reach the Dry Side.

In 1984, to conform with the changed plan, a change of water rights was decreed in case 80 CW 237. CPA Exhibit 34. Ridges Basin Reservoir was to replace Howardsville, Animas Mountain, and Hay Gulch Reservoirs. CPA Exhibit 56 (transcript of hearing March 18, 1982) at 10, lines 17-24; 11, line 24, through 12, line 2. Meadows Reservoir was to be replaced by “Southern Ute Reservoir”–a new name for Three Buttes Reservoir, but larger. Id. at 12, lines 3-8. The decree in 80 CW 237 states, “The revised plan eliminates the McDermott Canal and the Meadows Diversion Canal, both in New Mexico, and substitutes Ridges Basin Reservoir for Howardsville Reservoir.” CPA Exhibit 34, at 2 (1st par.) (emphasis added).
This revised plan was still economically infeasible. In 1986, however, the ALP water rights were offered up in settlement of entirely different applications for Indian reserved rights which had been made in 1976 by the United States of America, Bureau of Indian Affairs, for the benefit of the Ute Mountain Ute and Southern Ute Indian Tribes. The Indian reserved rights filings had been made on all streams in the 150-mile span from the San Juan River on the east to McElmo Creek at the Utah border.
New life was thus breathed into what had been a moribund project. The “Animas-La Plata Project”–a federal reclamation project–had now become an “Indian project,” its purpose being “to settle the claims for the Ute tribes’ reserved rights.” Frank E. “Sam” Maynes, the primary architect of the settlement (who died in 2004), was the attorney not only for the SWCD, but for the Southern Ute Tribe, La Plata Water Conservancy District, and Animas-La Plata Water Conservancy District. T-1 at 192, lines 5-19 (testimony of Fred Kroeger). Maynes was also the attorney for the Pittsburg & Midway Coal Company, which owned the storage right
for Ridges Basin Reservoir; and the Durango regional office of the Bureau of Reclamation is housed in a building owned by Maynes. T-1, at 224, lines 3-10.
The Proponents obtained approval of their settlement from Congress in 1988, but were unable to obtain approval from the Environmental Protection Agency, because irrigation causes severe water quality problems. T-IV at 856-857. In order to obtain EPA approval (and funding), the proponents agreed to eliminate irrigation. T-IV, at 855, line 15, through 857, line 23. Thus, Congress passed the “2000 Ute Settlement Act Amendments,” P.L. 106-554 (“2000 Amendments,” Applicants’ Ex. 107), which provided funding for a new version of ALP--“ALP Ultralite”–which contemplates that municipal and industrial use will be made of the water, instead.
As a result, all of the original project features have been abandoned. Fred Kroeger, on the SWCD board for 50 years, was asked, “How long has it been since the board of the Southwestern Water Conservation District has discussed any of these structures?” He said:
A They were abandoned when it was determined that it would be most economical to pump the water from the Animas River just below Durango, or just at Durango, and put it into the Ridges Basin Reservoir.
...

Q [T]here is no present intention to build any of those things, correct, Howardsville–

...

A Not to my knowledge.

Vol. I at 199-210. Nevertheless, the SWCD continues to file for diligence on the water rights for these obsolete structures, and to receive it.
The case below, 01 CW 54, is its latest application, covering the period Sept. 1, 1996 through August 31, 2001. Vol. I at 1-17. Citizens’ Progressive Alliance (CPA) timely filed a statement of opposition. Vol. I at 28 et seq. In June 2002, the application was set for a one-day trial on May 12, 2003. Vol. I at 57.
On Jan. 22, 2003, several of the proponents of the 1986 settlement–the Southern Ute Indian Tribe, Ute Mountain Ute Indian Tribe, United States of America, and State of Colorado–who were not parties in 01 CW 54--filed a motion to consolidate it with four applications they had pending to “amend” the decrees and change water rights in two of their reserved rights cases, to conform with the 2000 Amendments. Vol. I at 60-73; and 105-117. They moved to intervene and filed “statements of opposition.” The court vacated the trial at their request and signed a series of scheduling orders they drafted, which resulted in long delays.
This case was finally severed from the other four for trial. Trial took place April 17-20, 2006. The court awarded diligence and signed the SWCD’s proposed decree. Vol. IV at 1206 et seq.
B. Statement of Facts.
ALP has always been economically infeasible. That is the main reason it was not built for 60 years.
It is the Bureau of Reclamation itself which has concluded the project was infeasible, time and time again. CPA’s Exhibit 41 is the Bureau’s “Economic and Financial Analyses Update: Animas-La Plata Project.” This is dated June 1995, and so directly applicable to the diligence period (9/1/95 through 8/31/01). It found a benefit-to-cost ratio of 0.36 to 1.0. CPA Ex. 41 at ES-1; T-IV at 792, lines 20-22; 795, lines 4-17; 843, lines 20-21. Crops grown with project water would bring in only one-third what the water would cost. Thus, the project could not be authorized under federal law.
The farm size required to make the project work was a minimum 1,031 acres. CPA Exhibit 41, p. 61, table 24. Yet in the La Plata drainage only two farms are over 1,000 acres: the standard size is 40 acres. T-IV at 734, line 24, through 738, line 3. Considerable public moneys were expended for forty years (prior to 2000) developing this enormous water project to irrigate hobby farms, therefore.
Despite the unjustifiable economics, certain individuals have, for 40 years, pushed ALP down the throats of the locals and the American public generally. These persons control three overlapping taxing entities–the SWCD, Animas-La Plata Water Conservancy District, and La Plata Water Conservancy District–which exist for no other reason than to tax and speculate in water rights. These districts have funneled millions of dollars of public money to lawyers and lobbyists to “promote” ALP. These persons have also sat on state and federal boards where they have voted repeatedly to authorize and fund ALP.
Possibly the most conflicted individual of all was the judge who entered the decree for ALP in 1966, William S. Eakes. Eakes had been the very attorney for the SWCD who filed the statements of claim for ALP and appeared before the referee in 1964. As discussed below, for the next 41 years after the decree entered, Judge Eakes and Sam Maynes--and their successors as SWCD counsel, Janice Sheftel and David Robbins--have continued to expand the water rights over the 1966 decree by stating, in diligence applications, that the project was decreed for uses, refills, points of diversion, and more, when it was not. Thus has fiction been transformed into fact.
When ALP was converted into an “Indian project,” and the 2000 Amendments were passed, Congress exempted the Tribes from paying the costs, passing them on to the taxpayers. But this does not militate a conclusion that ALP is economically feasible; quite the opposite. Enormous sums remain to be paid before this will ever be a functional water project.
III. SUMMARY OF ARGUMENT
There is no beneficial use for the water to be stored in Ridges Basin Reservoir, so a water right cannot be maintained.
Applicant failed to show that water “can and will” be diverted, stored, or otherwise captured, possessed and controlled. Its “project” is economically infeasible.
The conflict of Judge Eakes means all his rulings are void. CPA did not waive his conflict. The 1966 decree did not comply with legal prerequisites, and there are numerous indicia of fraud, requiring cancellation of the ALP decree.
Diligence on municipal use could not be granted, since, although that use was decreed in 1966, it was omitted from later diligence decrees (and not applied for). The SWCD improperly revived it. The SWCD also, shortly before trial, revived the use for irrigation, and has been awarded diligence on it, even though it obtained funding and environmental authorization on its sworn testimony to Congress that use for irrigation had been given up.

The SWCD has never had legal authority to appropriate for municipal use. The decree for ALP is void to that extent, and the SWCD’s lobbying activities to change the nature of the project from irrigation to municipal cannot constitute diligence.
IV. ARGUMENT
A. There is no competent evidence to support the award of diligence.

1. Standard of Review. Whether an appropriation has been developed with reasonable diligence is a factual determination by the trial court, and its findings are binding on appeal if there is competent evidence to support them. Trans-County Water, Inc. v. Central Colorado Water Cons. Dist., 727 P.2d 60 (Colo. 1986).
2. Because there are no plans for a delivery system, there is no intent to put water to beneficial use.
The diligence decree refers to “the project” several times without ever describing what “the project” consists of. All the structures of ALP were abandoned long ago.
In recent years the SWCD has focused exclusively on constructing Ridges Basin Reservoir. Ironically, there is no water right for Ridges Basin Reservoir: it was forfeited for the failure of the owner–the Pittsburg & Midway Coal Company--to file for diligence in 2001, see CPA’s Exhibits 46 and 47. Ridges Basin is being excavated by the Bureau of Reclamation, and a pumping station may have been built by now to pump water up into the reservoir.
Regardless, a reservoir by itself does not “a project” make, nor does it even constitute a project component in this case, because there are no plans to deliver water anywhere. The original delivery system was completely scrapped and there is nothing to take its place. The SWCD owns no works, pipelines, or treatment plants itself, nor does it have any customers. T-I at 221, lines 11-13; 222, line 205.
It is not sufficient to have intent merely to store. Storage is not a beneficial use: water cannot be placed into a reservoir simply to sit there and evaporate. Ft.
Lyon Canal Co. v. Amity Mutual Irrig. Co., 688 P.2d 1110 (Colo. 1984)(the intent to put the water to specific beneficial use must accompany a right for storage).
We have said repeatedly that in order “to prove reasonable diligence in the development of a conditional water right the applicant must show an intention to use the water coupled with concrete action amounting to diligent efforts to finalize the intended appropriation.”

Public Service Co. v. Blue River, 753 P.2d at 742 (emphasis added), quoting Vail Valley Consol. Water Dist. v. City of Aurora, 731 P.2d 665, 668 (Colo. 1987). “The steps required to be diligently pursued [must] result in putting the water to beneficial use.” Id. Because there are no plans for any type of delivery system, water cannot be put to beneficial use from Ridges Basin. Compare Application for Water Rights of the City of Aurora, 731 P.2d 665 (Colo. 1987) (assuming that a delivery system is part of a “project,” at 669, n. 7, along with storage systems and diversion facilities, at 671 and 672).
Applicant was required to satisfy the anti-speculation doctrine as part of its burden, which also means having “a specific plan to possess and control water for a specific beneficial use”. Municipal Subdistrict, Northern Colo. Water Cons. Dist. v. Oxy USA, Inc., 990 P.2d 701, 709 (Colo. 1999). “[A] record which shows only a hope someday to use the water ... will not support the claim.” Public Service Co. of Colo. v. Blue River Irrig. Co., 753 P.2d 737 (Colo. 1988). A specific plan would obviously require a place of use to be identified, and include pumps and pipelines, acquisition of rights of way, geological and environmental analyses, and funding strategies. But there is no plan: the Bureau is only digging a hole.
In City and County of Denver v. Northern Colo. Water Conservancy District, 276 P.2d 992, 1001 (Colo. 1955), in affirming denial of diligence, this Court said:
Plainly, at the time of the survey and of the filing of the plat of said first plan in 1923, there was no fixed and definite purpose to take it up and carry it through; there was no diligence in its construction, but an entire abandonment. The priority of a water right may not be dated back to the date of survey or filing of plat of a diversion proposal which has been abandoned in favor of another and very different plan.

(Emphasis added.) Here, the first plan–irrigation of the Dry Side--has been abandoned; but no new plan has even been substituted for it. Applicant’s “project” is thus speculative. Even if “a water right initially clears the anti-speculation hurdle, [if it] later becomes speculative, then the project is not moving toward completion and beneficial use.” Id. at 709.
Finally, Applicant was required to meet the “can and will” requirements of Sec. 37-92-305(9)(b) as part of its burden in diligence, and fell far short. Municipal
Subdistrict, Northern Colo. Water Cons. Dist. v. Oxy USA, Inc., 990 .2d 701, 707 (Colo. 1999). This statute says:
No claim for a conditional water right may be recognized or a decree therefor
granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used, and that the project can and will be completed with diligence and within a reasonable time.

“The ‘can and will’ test requires an applicant to establish ‘a substantial probability that this intended appropriation can and will reach fruition ...” Oxy USA, Inc., supra, at 709. Accord Public Service Co. of Colorado v. Board of Water Works of Pueblo, Colorado, 831 P.2d 470 (Colo. 1992) (applicant’s lack of present intent to build the Southeast Plant Reservoir meant a proposed exchange plan could never be implemented, so applicant failed to satisfy “can and will”).
Steps taken to put water in a hole do not satisfy “can and will.” It was error to continue these conditional water rights.
3. There is no need for the water.
The court incorrectly held that the Applicant was not required to show need for the water–that need was irrelevant. T. IV, at 806, lines 4-5. To the contrary, need for the water (also known as “demand”) is one of the factors required to be
shown to maintain a conditional water right. Dallas Creek Water Co. v. Huey, 933 P.2d 27 (Colo. 1997).
The Applicant put on no evidence that there is any need for the huge amount of water represented by these conditional water rights–certainly not by its members, who are non-Indian irrigators who now cannot use it; and not by the Tribes, who it now claims will use the water, for municipal and industrial purposes. There was no evidence, however, that there is any municipality or industry on the reservations.
Proponents’ Final Supplemental Environmental Impact Statement from July 2000 (Applicants’ Exhibit 91) is their admission, at pages I-6 and I-7 (copy attached as Exhibit A), that the Tribes have no need for the water from ALP: both are already abundantly supplied with water from other federal projects. Phil Doe, the chair of CPA, calculated, based on Exhibit A (converting cfs to acre feet), that the Tribes already have 150,000 AF of water, without ALP. T-IV at 809, line 15, through 812, line 13. Using the guideline of 1 AF to serve the needs of 10 people for a year, this amount would serve 1.5 million people. Yet the enrolled population of the two Ute Tribes in 1997 was only 3,273. Aps’ Exhibit 91, at Vol. I, pages 3-206 to-207.
Moreover, during the EIS comment process, the Colorado Water Conservation Board estimated that 45,000 AF of water could be saved by simply going to a more efficient irrigation system for Pine River project water. The cost
would have been $254,000 (compared with billions for ALP, as discussed below). Conservation would provide abundant water, without building another water project.
Finally, the EIS itself establishes that the Indian tribes have no need for the water. It contains a list of “nonbinding scenarios,” Aps.’ Exhibit 91, p. 2-9 (copy attached as Exhibit B). These are supported by no plans, financial evaluations, governmental approvals, engineering, or data of any type, and bear general names such as “Florida Mesa Housing,” “La Plata Basin Dude Ranch,” and “Coal Mine.” There is no difference between these “nonbinding scenarios” and the laundry list of “possible uses in all 64 Colorado counties” this Court found too indefinite to survive summary judgment for speculation in the High Plains cases. High Plains A & M, LLC v. Southeastern Co. Water Cons. Dist., 120 P.3d 710 (Colo. 2005); ISG, LLC. v. Arkansas Valley Ditch Ass’n, 120 P.3d 724 (Colo. 2005). And, again, these are possible asserted uses by the Indian Tribes, who are not even the applicant in this case.
There being no need for this water, and no ability of the Tribes to use it, it was error to award diligence.
4. Not all the putative co-owners were joined as applicants, mandating dismissal of the application.

In Dallas Creek Water Co. v. Huey, 933 P.2d 27 (Colo. 1997), this Court made clear that there is a “real party in interest” requirement in diligence filings. All co-owners of a conditional water right must join in the application. If they do not, it must be dismissed.
Here, all the intervenors claim to have an interest in the water rights, yet they filed statements of opposition 3-1/2 years after the application was filed, Vol. III at 688-700, after moving to intervene. See, e.g., Vol. I at 127, 128, par. 5; Vol. II at 539, par. 8 (“Intervention is necessary to protect the interests of the United States in the ALP settlement water rights.) Because the Tribes and Bureau of Indian Affairs did not file as co-applicants, and neither has any agency relationship or contract with the SWCD, the SWCD’s efforts to obtain water on the Tribes’ behalf cannot constitute diligence. While the SWCD may have included reservation lands within its boundaries, the Tribes do not pay taxes to it. CPA Exhibit 5, at 23 (Request for Admission 38). The SWCD had no authority to make its appropriations for these sovereign nations, as members of the district, therefore.
In addition, the Animas-La Plata Water Conservancy District asserts an interest, see T-II at 326, lines 19-22, but neither it, nor the Bureau of Reclamation itself, is even a party to the case.
The SWCD has never proffered any legal authority or explanation why it, rather than the Bureau, made the application for these water rights–and that is fatal. The lack of privity or agency relationship between the Bureau and the claimant for the water right warranted dismissal of applications for conditional water rights in Ft. Lyon Canal Co. v. Amity Mutual Irrig. Co., 688 P.2d 1110 (Colo. 1984) and Bunger v. Uncompahgre Valley Water Users Ass’n, 192 Colo. 159, 557 P.2d 389 (1976). No privity has been shown here, and the same result should obtain.
5. The “project” is economically infeasible.
Dallas Creek Water Company and a host of water cases which precede it require the applicant for a conditional water right to prove that its project is economically feasible. Not only did the SWCD not present any evidence to meet
its burden, CPA, as set forth in the statement of facts, put in uncontroverted evidence, discussed above, that the project is economically infeasible.
That the Tribes have been exempted from paying the construction costs of the reservoir and pumping plant does not militate a conclusion that the project is economically feasible. The cost estimate for these structures (which the Ute Tribes themselves generated, another conflict of interest) was $320 million. Mr. Doe (a retired Bureau of Reclamation official, involved in the EIS for ALP in 1978-79), testified that this $500 million is “minor ... compared to the interest cost, and the public is [presumably] going to have to pick all of this up.” Interest will be “in the billions and billions of dollars.” T-IV, at 844, lines 13-15, 20-23.
When Congress funded the reservoir and pumping plant, nothing was said about operating costs or any of the engineering which will be required to make the water useful (i.e., pipelines and pumps). There is no evidence SWCD will be able to pay for these costs, which must be paid in order to have a functional water project. Its failure to show how they will be paid means it did not meet its burden to show economic feasibility, and was not entitled to diligence.
B. The original decree and diligence rulings by Judge Eakes are void, and CPA did not waive his conflict.

1. Standard of Review. Whether CPA waived Judge Eakes’s conflict depends on a conclusion of law, which is reviewed de novo. E-470 Pub. Hwy. Auth. v. 455 Co., 3 P.3d 18 (Colo. 2000).
2. CPA did not waive Judge Eakes’s conflict.
CPA moved for summary judgment based on the conflict of Judge Eakes, providing authority to show that all his rulings were void, because he entered decrees for ALP water rights, as the judge, on the very applications he had filed as SWCD’s attorney. Vol. I at 163 et seq. The court held CPA had “waived” the conflict, since its “predecessors in interest” did not move to recuse, and 37 years had passed. Vol. II at 595 et seq.
Waiver occurs only when the grounds for disqualification “are known at the time suit is filed and a party desires to proceed thereon,” in which case “a motion to disqualify should be filed prior to taking any other steps in the case.” Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 638 (Colo. 1987); Aaberg v. District Court, 319 P.2d 491, 494 (Colo. 1957). There is no indication that any objector in 1966 knew of Judge Eakes’s role as the attorney who filed the ALP applications at the time he ruled on those applications in 1966, or at any other time. There is nothing in the record showing that he ever disclosed his dual role.
As to CPA’s being bound by its “predecessor”: a water rights adjudication is in rem. West End Irrig. Co. v. Garvey, 117 Colo. 109, 184 P.2d 476 (1947). “An in rem judgment does not give rise to issue preclusion as to any issues that were not actually litigated and decided.” C. Wright, A. Miller, E. Cooper, 18A Federal Practice & Procedure §4431 (2002), at 47, citing Gratiot Cty. State Bank v. Johnson, 249 U.S. 246, 39 S.Ct. 263, 63 L.Ed. 587 (1919), and other sources. The issue of Judge Eakes’s conflict was never “actually litigated and decided”; thus, even if CPA had a predecessor in interest in 1966 (and it didn’t; it was formed in 1996), that is immaterial. Once in a water case, a party may raise any issue it likes within the scope of issues raised by the application, including attacking the validity of prior decrees. See Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980) (statement of opposition may assert abandonment as an affirmative defense to an application to change water rights); and Stonewall Estates v. C.F. & I. Steel Corp., 592 P.2d 1318 (Colo. 1979). CPA’s motion should have been granted.
3. Judge Eakes’s conflict was not waivable, and his rulings are void.
When statutory grounds for disqualification exist, the mere failure to file a motion to disqualify does not constitute waiver: the statute requires a party’s affirmative consent to the judge’s participation. Sec. 13-1-122, C.R.S., on the books since 1887, states:
13-1-122. When judge shall not act unless by consent. A judge shall not act as such in any of the following cases: In an action or proceeding to which he is a party, or in which he is interested; when he is related to either party by consanguinity or affinity in the third degree; or when he has been attorney or

counsel for either party in the action or proceeding, unless by consent of all parties to the action.

In O’Connell v. Gavett, 7 Colo. 40, 1 P. 902 (1883), when the trial court continued to sit on the trial and render judgment on the case over the defendants’ objection, when he had previously been their counsel, this Court held the judgment was void and reversed. Accord People ex rel. Brown v. District Court, 26 Colo. 226, 56 P. 1115 (1899). In Blaisdell v. City of Rochester, 609 A. 2d 388 (N.H. 1992), the New Hampshire Supreme Court not only ordered that orders the conflicted judge had personally issued in three related cases were void, and vacated them, but held that orders entered by different judges later in the same cases must be vacated, as well, “due to the pervasive appearance of partiality in the original case, combined with the impact Justice Nadeau’s rulings had on the two subsequent cases[.]” Id. It also held that the litigant has no responsibility to investigate the judge’s impartiality, which is the opposite of what the water court held.
The court’s conclusion that CPA was barred from raising the issue because the decree entered 37 years ago is incorrect. “To the extent a decree is beyond the authority of the court, it cannot be made valid by any rule of res judicata or any statutes of limitation.” Stonewall Estates v. C.F.& I. Steel Corp., 592 P.2d 1318, 1320 (Colo. 1979); Quirico v. Hickory Jackson Ditch Co., 251 P.2d 937 (Colo. 1952)
Judge Eakes’s acting as judge on any matter involving his former client was prohibited also by Rule 97, C.R.C.P., which provides in pertinent part as follows:
A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein. A judge may disqualify himself on his own motion for any of said reasons, or any party may move for such disqualification ...

(Emphasis added.) The use of the word “shall” means disqualification is mandatory when the judge has been counsel for a party in the case. Judge Eakes’s recusal as to a matter on which he had been the attorney was further mandated by Canon 3C(1)(a) and (b) of the Code of Judicial Conduct, the word “should” (instead of “shall”) in Canon 3C being no less mandatory. See Cuyahoga Bd. of Mental Retardation v. Ass’n of Cuyahoga County Teachers, 351 N.E.2d 777, 782 (Oh. 1975) (construing Canon 3(C) of the Ohio Code of Judicial Conduct, which is the same as Colorado’s.) Accord People v. Julien, 47 P.3d 1194 (Colo. 2002).
Because Judge Eakes did not recuse, and did not disclose his conflict, his rulings are void.
4. The original decree for the ALP water rights contains numerous indicia of fraud such that it is void for this reason.
William Eakes signed the 1966 decree granting the very applications for ALP he had filed as attorney, and signed off as both referee and judge on the first three diligence decrees, in 1970; 1972; and 1976. Vol. II, 339-81.
Respecting the March 21, 1966, decree: a ruling was issued by referee Ralph Ellithorpe on January 27, 1966 (although the year has been altered), Vol. VII at 370 et seq.; and it is clear the decree was signed by Judge Eakes the same day, although the date is again written over there to make it say March 21, 1966. Vol. VII at 376. What happened on March 21, 1966 was a court proceeding, Vol. VII at 356, and 300 et seq. While a noticed hearing may have taken place, of interest is a hearing held on the motion of Sam Maynes, either after the noticed hearing was concluded, or during it. Vol. VII at 359 et seq. Judge Eakes authorized changes to the decree to add Three Buttes Reservoir, a 38,400 AF reservoir; extend Meadows Canal; move Meadows Diversion Dam and McDermott Canal; and add another new diversion, Longhollow Diversion Dam. Vol. VII at 300 et seq. Compare the decree as it exists in the court file (Vol. V, 49-63, noting especially pages 56-57, in a different typeface) with both the statement of claim Eakes, as attorney, filed July 1, 1964, Vol. V at 13-26, and amended statement of claim he filed during the referee hearing on July 1, 1964, Vol. VII at 277-283 and between 355-A-1 and 356, neither of which includes Three Buttes Reservoir or Longhollow Diversion Dam. Vol. VII at 376-83; CPA Exhibit 21, at 7, 10, 12; Vol. VII at 300, 303-04. Maynes referred to these as “minor changes or revisions.” Id.
By law, evidence could not be received on a claim for water rights if no verified statement of claim had previously been filed, and none was here. Sec. 148-9-8, CRS 63; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 P. 989 (1895); Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971). Also, the transcript recites that notice of the March 21, 1966, hearing was made “by mail.” Notice by mail of a supplemental adjudication was insufficient under the General Adjudication Act of 1943: it was required also to be published for four successive weeks. Sec. 148-9-7 and -5(1)(b), CRS 63. The entry of a supplemental decree for water rights without notice is open to attack, without any res judicata bar, by those not parties who do not participate in the benefits or have knowledge of the rendition of the decree. Quirico v. Hickory Jackson Ditch Co., 126 Colo. 464, 251 P.2d 937 (1952). CPA is making that attack now.
The 1938 priority ALP took via this adjudication is also highly suspect. The court file reveals that a supplemental adjudication was commenced on the La Plata River, case 807-C, in 1947, Vol. VII at 393, 404; and on the Animas River, case 1751-B, in 1952. Vol. V at 28-33. The taking of evidence by the referee, E.D. Peters, closed in 1950 in 807-C, Vol. VII at 384, 395, 400, -402, and there are several transcripts of that evidence. Vols. VI, VIII, IX. The referee in 1966, Ralph Ellithorpe, recites that E.D. Peters filed his completed transcript of all evidence on May 5, 1957. Vol. VII at 371.
In 1751-B, there are no transcripts of evidence, at all, from that period, although the published notice indicates hearings would be held April 7, 1952, in that case, as well. See Vol. V at 28-32. Ellithorpe, in his ruling of Jan. 27, 1966 in 1751-B, states that E.D. Peters commenced the taking of evidence on May 12, 1949, and that “all of said evidence, statements of claim, and maps presented to the undersigned Referee, study, and inspection remain on file in the records of this Court and cause”, Vol. IV at 1087--but that statement is incorrect: the evidence and maps and statements of claim are not there.
Despite the closing of evidence in 1950 and 1952, respectively, and the filing of the transcripts in 807-C in 1957, there is no ruling or decree in the file for either 807-C or 1751-B resulting from those hearings, and no explanation for its absence. The important thing is that, in this period, no statement of claim for ALP had been filed.
On August 5, 1963–13 years after the evidence, by court order, had closed-- Eakes filed a motion for extension, saying that the SWCD was “unavoidably unable to prepare and file the Statements of Claims and to present evidence thereof for the Animas-La Plata project” earlier. Vol. VII at 324, 396. That motion was granted, as were two others, extending the time to August 1, 1964. Vol. VII at 325, 337, 338. A letter from Eakes to referee Ellithorpe dated March 2, 1964, reveals that the Feb. 27 date on Eakes’s motion for second extension (Vol. VII at 337), and Feb. 28 date on Ellithorpe’s order granting it (Vol. VII at 338), were both backdated, Vol. VII at 397, to bring them within the period allotted by the prior extension order, Vol. VII at 325.
Several very different statements of claim are in the file for Animas-La Plata filed by Eakes. Compare Vol. V at 339-345 and 346-354; and Vol. VII at 339. Several amended statements of claim bear no court stamp, nor are they signed and verified; see Vol. VII at 290 et seq. This project was changing almost daily, and court records were being altered to accommodate the changes. The transcript of the July 1, 1964, hearing ends abruptly, for example, with no certificate of the court reporter; and the next transcript starts all over with the same witness (Tyner) on July 20, 1964, but bears a court stamp of March 18, 1965. Vol. VII at 286.
The reason the SWCD and its attorneys would have wished to open the record is so ALP could get an earlier priority. If a decree had entered on the supplemental adjudication in 1952, the ALP water rights would be junior to it, since there was no statement of claim for ALP at that time. Because there is no decree from 1952, and the most recent supplemental adjudication was June 20, 1923, see Vol. VII at 404 (second par.), ALP was able to obtain a priority of 1938. It is known that Sam Maynes told people in the area that the priority of ALP was 1966–but it is not. Because there is no decree between 1923 and 1966, ALP’s priority is effectively 1938, and it is senior to all water rights adjudicated in 1751-B and 807-C which came on the stream between 1938 and 1966.
In sum, the numerous alterations of the decree and other court records; the backdating of a document to make the SWCD’s statement of claim appear timely; the failure to publish; decree changes unsupported by any verified statement of claim; and the absence of any ruling or decree on the supplemental adjudications in 1947 and 1952, and missing evidence, mean that the presumption of regularity of the March 21, 1966, decree to the extent it confirms a water right for Animas La Plata has been overcome. C.f., Evans v. Young, 10 Colo. 316, 15 P. 424 (1887) (when the record does not show that a default was not properly entered, the presumption arises that the required notice was given). The Court is asked to cancel the decree for ALP for fraud.
C. Diligence was erroneously awarded as to uses which were either not continued in prior diligence decrees, or not decreed originally..

1. Standard of Review. Conclusions of law are reviewed de novo. E-470 Pub. Hwy Auth. v. 455 Co., 3 P.3d 18 (Co lo. 2000).
2. Municipal use was abandoned by 1970.
Municipal and industrial use, although originally decreed in 1966 (Vol. II at 323 et seq.), was forfeited, because those uses (as well as flood control, fish and wildlife, and “other”) were omitted from diligence applications and decrees in 1970, 1972, and 1976. See case W-190, Vol. II at 338 et seq.; W-577, Vol. II at 347-361; and W-577-76, Vol. II at 347-61 and 367-81. The applications omitted any description of uses altogether. Vol. II at 362-66; 382-85, 346. The decrees state “irrigation, domestic, industrial, stock & other.” But some time after 1976, the dropped uses were revived.
The court held that the failure to recite the uses verbatim did not constitute abandonment, since the applications referred to the March 21, 1966, decree which did contain those uses, and put the public on inquiry notice; that it was not possible to abandon uses–one could only abandon water rights; and that “abandonment as it pertains to water rights requires specific procedure to effectuate[.]” Vol. II at 639. The court’s holding is in error: the dropping of these uses as of the decree in case W-190 caused a permanent forfeiture of the right to use the water for municipal use. Town of DeBeque v. Enewold, 199 Colo. 110, 606 P.2d 48 (1980) (power plant rights omitted from diligence application deemed abandoned, and attempted revival of the rights via a later diligence filing ineffective), where this Court said:
To characterize as ‘clerical error’ the omission from a decree of a finding of reasonable diligence with respect to a conditional water right never mentioned in the application and never considered by the court would be to expand the definition of clerical error beyond the bounds of precedent and of reason.

606 P.2d at 54.

There must be evidence of what was done to perfect each use claimed, to continue a conditional right. It is a typical practice to file applications which ask to continue diligence as to some conditional uses, and make others absolute. This is how the priority is maintained for all the uses decreed. There is no such thing as an implied finding of diligence as to uses not mentioned in the decree.
The reason for specificity as to uses is that decrees are used to administer water rights. Diversion for any nondecreed use will be out of priority and may not be made under the priority established for the decreed uses. A nondecreed use will be enjoined if the water is necessary to satisfy senior water rights, and the division engineer makes his decision on the basis of “court decrees adjudicating and confirming water rights.” §37-92-502(2)(a), C.R.S. If a diligence decree does not mention certain uses, the applicant must file a new application in order to apply water to that use, in which case diversion for that use will be made under a more junior priority. Water Supply & Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987). Whether or not the applications gave notice is that the use was applied for is not the issue. The decrees in these diligence cases did not contain the uses.
Finally, the words “and other” at the end of the list in W-190 do not serve to authorize municipal use. The canon of statutory construction known as ejusdem generis prohibits those words from being interpreted to swamp the specific terms which precede them. They may be interpreted to mean only what may be reasonably implied from the directly preceding specific uses. Wilson v. People, 44 Colo. 608, 99 P. 335 (1909); Gibson v. People, 44 Colo. 600, 99 P. 333 (1909); Grohn v. Sisters of Charity Health Services, Colorado, 960 P.2d 722, 726 (Colo. App. 1998). All decrees for the ALP water rights from 1980 to the present, awarding diligence on the uses of municipal, recreation, fish and wildlife, and flood control, are void as to those uses, due to the failure to obtain diligence on them in W-190 (as well as W-577 and W-577-76).
3. The SWCD has no authority to appropriate for municipal or industrial use. The SWCD has never had legal authority to appropriate for municipal, industrial, recreation, fish and wildlife, or flood control, so its applications seeking these uses in the first instance–as well as the decrees awarding them--were void ab initio. Further, its efforts to lobby Congress to change this to a project for municipal

and industrial use do not constitute diligence, as a matter of law. The SWCD’s purposes are stated in the preamble of its organic statute as follows:
37-47-101. Legislative declaration - rivers named. In the opinion of the general assembly of the state of Colorado, the conservation of the water of the San Juan and Dolores rivers and their tributaries for storage, irrigation, mining, and manufacturing purposes and the construction of reservoirs, ditches, and works for the purpose of irrigation and reclamation of additional lands not yet irrigated, as well as to furnish a supplemental supply of water for lands now under irrigation,

(Emphasis added.) “One of the best guides to legislative purpose is an act’s declaration of policy [the preamble].” Common Sense Alliance v. Davidson, 995 P.2d 748 (Colo. 2000). The uses “irrigation, mining, manufacturing” are repeated specifically in the section dealing with its powers, Sec. 37-47-107(1)(c), C.R.S.; “municipal and industrial” are not listed there.
The SWCD is not a municipality and its power to appropriate for municipal use may not be implied. As to “industrial” use, that is limited to mining and manufacturing. As to“storage,” that is not a beneficial use, as discussed above.
The water court held, Vol. II at 639 et seq., that the express list in its organic statute did not limit the SWCD’s ability to appropriate for the unexpressed uses, given its broad charge “to provide for the conservation of the water resources of the state of Colorado, and for the greatest beneficial use of water within the state ...” §37-45-102, C.R.S. Its ruling is incorrect. The Southwestern Water Conservation District is entirely a creature of statute and can exercise only such powers as are expressly conferred upon it or exist by necessary implication. Statutes granting such powers are strictly construed. E.g., Bernheimer v. City of Leadville, 14 Colo. 518, 24 P. 332 (1890); Kennedy v. People, 9 Colo. App. 490, 49 P. 373 (1897); Aurora v. Bogue, 176 Colo .198, 489 P.2d 1295 (1971). While these cases deal with statutory cities, if statutory cities, which have legislative power, are limited to the express powers conferred in their organic statutes, the SWCD, which has no legislative power, most certainly is.
The decrees awarded to the SWCD, to the extent of the prohibited uses, are thus void. E.g., Orr v. Arapahoe Water & Sanitation District, 753 P.2d 1217 (Colo. 1988) (limitations, resulting by operation of law, are read into every decree by implication, such as that diversions are limited to an amount sufficient for the purpose for which the appropriation was made). It follows that its efforts lobbying Congress to change the nature of this project from irrigation to M & I as a matter of law do not constitute diligence.

4. The use for irrigation has been abandoned by express intent.
The application in 01 CW 54 did not set forth any facts establishing development of the use for irrigation. That is because the SWCD expressly abandoned irrigation as a use. There are numerous statements, in the pleadings as well as the evidence, by the SWCD and other Proponents to that effect. For example, in Proponents’ “Memorandum in Support of Motion to Consolidate,” Vol. I at 65, they state:
The 2000 Amendments authorize the settlement of the tribal claims by the provision of smaller amounts of water from ALP to the Tribes through more limited facilities than were required under the 1991 Consent Decrees. In addition, the water may be used only for municipal and industrial uses and not for irrigation.

(Emphasis added.) In testimony he gave to the U.S. House of Representatives Committee on Resources on July 28, 1998, Fred Kroeger said:
The non-Indian farmers and ranchers have agreed to relinquish all of the irrigation water and facilities which for so many years were a central feature of the Animas-La Plata Project.

Applicants’ Exhibit 43. See also Applicants’ Exhibit 45; there are many more examples. The 2000 Amendments themselves say, “The provision of irrigation water can not presently be satisfied under the current implementation of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) and the Endangered Species Act of 1973” and that the “substitute benefits” the legislation provides to the Tribes “will ensure that the satisfaction of the Tribal water rights is accomplished in environmentally responsible fashion.” Applicants’ Ex. 107. Secretary of Interior Bruce Babbitt said that the project he was presenting to the Indians excluded irrigation, T-IV, at 854, lines 7-19, 855, lines 5-7, and EPA withdrew its objection to ALP based on the exclusion. Id. at 856, line 2, through 857, line 22.
The SWCD obtained a huge benefit in return: its project was approved and funded by the taxpayers. Not long before trial, however, SWCD decided it was, after all, seeking diligence as to irrigation. David Robbins argued that neither the use nor the irrigation features had been “specifically deauthorized,” so could still be pursued. T-IV at 878 et seq.
Whether or not Congress deauthorized it, the SWCD’s president expressed his district’s intention to abandon that use, in sworn statements; no facts were set forth in its application describing any acts taken to perfect that use during the diligence period; and it put on zero evidence at trial establishing that it had done anything to perfect the use. The use has been abandoned because of this expressed intent, and because nothing was done to develop the use within the diligence period. Diligence must be denied as to the use for irrigation.
5. Other uses having been put into the decree irregularly, they must be stricken. The use for stock was added irregularly sometime after the March 21, 1966, decree, without notice or statement of claim, so is void. Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist., 734 P.2d 627 (Colo. 1987); Quirico v. Hickory Jackson Ditch Co., 126 Colo. 464, 251 P.2d 937 (1952). The same is true of the structures already mentioned: Three Buttes Reservoir, Southern Ute Reservoir, and Longhollow Diversion Dam and Canal. The extensions to, and change in point of diversion, in the Meadows and McDermott structures must be deleted. Refill rights which have found their way into the decree for the reservoirs, none of which were ever decreed, must also be deleted.
V. CONCLUSION
CPA made comments during the EIS process establishing that the highest value of this water results when it is left in the stream. That value is $7.6 million annually, for the benefits of hydropower, which it generates through the federal dam system; salinity control; avoided operation, maintenance, and administrative costs; and endangered species protection. T-IV, at 829-830. Since then, CPA has proposed that the water be leased to downstream states. While a compact change would probably be necessary, at a lowballed value of $500 per acre-foot leasing could bring in $500 million a year to our cash-strapped state, and would maintain Colorado’s ownership interest in the water.
Whether or not that is what is done, the present situation should not be tolerated. Colorado’s remaining allocation of Colorado River water has, almost in its entirety, been given away to other sovereigns: the Ute Indian Tribes. All the Proponents admitted this; see the State’s response to Request for Admission No. 1, CPA Exhibit 10, at 5-6. This Court has not only a legal obligation to reverse the trial court’s award of diligence, since none of the standards of diligence were met; but a moral obligation, since this water represents the future of our state, and all its inhabitants, including the Indian tribes.
Dated this 19th day of June, 2007.
_____________________________
Alison Maynard, #16561

CERTIFICATE OF SERVICE

I hereby certify, by my signature below that I have served the foregoing “OPENING BRIEF” on the following persons by depositing true copies in the United States mail, postage prepaid, this 19th day of June, 2007, addressed as follows:

Janice Sheftel, Esq. Susan Schneider, Esq.
Maynes, Bradford, Shipps & Sheftel U.S. Dept. of Justice
835 E. 2nd Ave., Suite 123 Env. and Nat. Rsces Div.
Durango, CO 81301 Indian Resources Section
1961 Stout St., 8th floor
Jennifer Hunt, Esq. Denver, CO 80202
David Robbins, Esq.
Hill & Robbins, P.C Eve McDonald, Esq.
1441 18th St., Suite 100 Colo. Attorney General’s Office
Denver, CO 80202 Natural Resources Section
1525 Sherman St., 5th floor
Daniel H. Israel, Esq. Denver, CO 80203
1315 Bear Mountain Drive, Suite A
Boulder, CO 80305 Scott McElroy, Esq.
Greene, Meyer & McElroy, P.C.
Kathryn Kovacs, Esq. 1007 Pearl St., Suite 220
U.S. Dept. of Justice Boulder, CO 80302
Environment & N.R. Div. App. Sec.
P.O. Box 23795, L’Enfant Plaza Stn.
Washington, D.C. 20026

James Dubois, Esq.
U.S. Dept. of Justice
Environment & Nat. Res. Div.
1961 Stout St., 8th floor
Denver, CO 80294 _____________________________
Alison Maynard

That was awesome! Even though I am only quasi professional as I am affiliated with a medium sized firm, not a "professional" with a "big firm", I was able to appreciate the humor in this. As dumb, or stoned, as she may be, her client must be a doozy.

Now, I haven't seen the complaint, but I hear that one of the Supreme Court Justices filed a complaint (based on this issue) with the Presiding Disciplinary Judge, Case No. 07PDJ067.

And, judging from her continuing motions for extension of time, I don't think she's gotten that counseling for her inability to get her work done on time, as she pledged in her motion.

Whoever called her bat-shit crazy is right!

Now, I haven't seen the complaint, but I hear that one of the Supreme Court Justices filed a complaint (based on this issue) with the Presiding Disciplinary Judge, Case No. 07PDJ067.

And, judging from her continuing motions for extension of time, I don't think she's gotten that counseling for her inability to get her work done on time, as she pledged in her motion.

Whoever called her bat-shit crazy is right!