Response to Applicants' Joint Motion for Costs and Fees

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First, the Applicants cannot, and do not, demonstrate any claim by the State to be frivolous, groundless, or vexatious. Absent such a showing, the Applicants are not entitled to an award of fees. Second, the Applicants cannot, and do not, provide any evidence attributing fees to their defense of a frivolous claim. The Applicants rather rely upon vague allegations of "vexatious" conduct to request a blanket recovery of all fees and costs incurred since February 7, 2002. The Applicants' vague allegations are insufficient to justify an award of the fees and costs requested. Third, the Applicants' allegations misrepresent the State's testimony and the parties' pre -trial conduct. Fourth, the Applicants mischaracterize the State's motives in opposing the applications in these matters. Contrary to the Applicants' representations, the State had no vexatious intent. The State made good faith efforts to continue, settle, or resolve these matters by motion. The State proceeded to trial only reluctantly, believing that, in the absence of a continuance that would allow resolution of the underlying legal issues, the water court must make the final determination regarding these appropriations. The Applicants' costs and fees are not attributable to any frivolous or vexatious behavior on the part of the State. Rather, they are the understandable result of an application for a large, previously unrecognized type of appropriation. Moreover, they are the necessary product of the Applicants' own tactical decisions regarding the efficacy of proceeding to trial, weighed against the benefits of allowing the issues to be narrowed by the Colorado Supreme Court. Accordingly, these costs and fees appropriately should be, and legally must be, borne by the Applicants. II. LEGAL STANDARDS Section 13 -17- 102(2), C.R.S. (2001) provides: "Subject to the limitations set forth elsewhere in this article, in any civil action of any nature commenced or appealed in any court of record in this state, the court shall award, by way of judgment or separate order, reasonable attorney fees against any attorney or party who has brought or defended a civil action, either in whole or in part, that the court determines lacked substantial justification." The Colorado Court of Appeals has held that these provisions justify an award of attorney fees only where there is a finding that a claim, defense, or part thereof was substantially frivolous, groundless, or vexatious. Shaw v. Baesemann, 773 P.2d 609, 610 -11 (Colo. App. 1988). A claim is frivolous only if the proponent can present no rational argument based on the evidence or law in support of that claim. Hart & Trinen v. Surplus Electronics Corp., 712 P.2d 491, 492 -93 (Colo. App.. 1985.) A claim is not frivolous merely because 7