Response to Applicants' Joint Motion for Costs and Fees

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D. The State Made Good Faith Decisions to Oppose The Applications And To Proceed To Trial As the Applicants' Joint Motion and this Response make clear, these matters have been quite contentious. Applicants and the Objectors have disagreed over whether whitewater boating structures "control" and "divert" water in- channel under Colorado law. Applicants and the Objectors have disagreed with respect to what times and in what amounts water is beneficially used for whitewater boating. Contrary to the Applicants' unsubstantiated allegations, however, the State's positions with respect to these issues was never vexatious. The issues raised by the applications are matters of great controversy. Numerous water law attorneys, citizens, policy makers, and water users hold different, non- frivolous, non - vexatious opinions over the proper application of Thornton v. City of Fort Collins to the challenging situation presented by appropriations for whitewater courses. As noted, nineteen entities filed briefs in support of the State's position in Case No. 01SA252, an appeal involving a similar whitewater course. Other entities disagree with the State's position. Such differences in opinion can only be expected, especially during times when water is scarce, and claims to appropriate the entire flow of a river are especially controversial. Moreover, such differences in opinion are a necessary part of the legal system, and of water law as practiced in the State of Colorado. The Engineers and the CWCB did not make the decision to oppose the applications lightly, frivolously, groundlessly, or vexatiously. Rather, the Engineers and the CWCB believed their decision consistent with their obligations to properly administer water rights and promote the maximum utilization of water. The Engineers and the CWCB believed themselves obligated to ensure that questions concerning such large and controversial appropriations -be resolved not unilaterally by the Engineers or the CWCB, but rather through judicial evaluation of the evidence and interpretation of the law. The State would have preferred allowing the State Supreme Court to first resolve many of the legal issues relevant to these matters, thus greatly reducing the issues contested. Such an approach was not acceptable to Applicants. It is disingenuous, however, for the Applicants to insist on having their day in court, and then, when that day is granted, groundlessly accuse the State of acting "vexatiously ". E. The Applicants Are Not Entitled To Costs Based Upon A Proposed Non - Monetary Settlement Including Objectionable Conditions In addition to seeking an award of attorney fees, the Applicants move for an award of costs. The Applicants recognize that under well- established Colorado law the Applicants generally would not be entitled to recover their costs against the State. The Applicants argue that they nonetheless should be entitled to recover their costs pursuant 12