Response to Applicants' Joint Motion for Costs and Fees

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it proves unsuccessful at trial. Id., see also Swanson v. Precision Sales and Service, Inc. 832`P.2d 1109, 1112 (Colo. App. 1992). A claim also is not frivolous where the law is unsettled, Swanson v. Precision Sales and Service, Inc. 832 P.2d at 1112, or.where a claim makes a good -faith attempt to extend, modify, or reverse existing law, Western United Realty, Inc. v. Issacs, 679 P.2d 1063, 1069 (Colo. 1984). III. ARGUMENT A. The Applicants Are Not Entitled to Attorne Fees Because The States' Arguments Were Not Frivolous, Groundless, or Vexatious. The State argued at trial, first, that the whitewater parks do not "control" the flow of a stream in a manner recognized under Colorado law. Second, the State argued that the amount of water claimed for the whitewater courses should be limited to those times and amounts necessary and appropriate for whitewater kayaking. The Applicants would be entitled to an award of attorney fees only if they demonstrate these arguments to be frivolous. This the Applicants cannot, and do not, do. 1. The State's argument that the Vail and Breckenridge whitewater courses do not "control" water is not frivolous. At trial, the State argued, first, that the whitewater parks do not "control" the flow of a stream in a manner recognized under Colorado law, and that the whitewater courses therefore are not in- channel diversions. In their motion, the Applicants never directly characterize as frivolous the State's argument that the Vail and Breckenridge whitewater courses do not control water. The Applicants do contend, however, that the State should not have advanced this argument because the question whether a whitewater course controls water is a "settled" issue of law, and the State's argument is one "for a change in the existing law." Such an argument, however, is on its face without merit. Even if the State were in fact arguing for a change in the existing law, such an argument would be legally insufficient for an award of attorney fees. See Western United Realty, Inc. v. Issacs, 679 P.2d 1063, 1069 (Colo. 1984). Additionally, the question whether a whitewater boating course controls water sufficiently to constitute a "diversion" under Colorado law is undeniably not a "settled" issue. The Colorado Supreme Court has never issued a decision concerning an application for a water right for a whitewater boating course. The only existing Supreme Court Decision directly relevant to these applications is Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). The Applicants' own witness, whitewater course designer Gary Lacy, testified that there were significant factual differences between the Vail and Breckenridge whitewater courses and the power dam, boat chute and fish ladder at issue in Thornton v. City of Fort Collins, the most obvious of these differences being the fact 3