Response to Applicants' Joint Motion for Costs and Fees

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that the power dam impounds water. In addition, in Case No. 01 SA252, the State is currently arguing before the Colorado Supreme Court that a whitewater boating course does not "control" water, as that term has been historically defined by the Courts and the Colorado legislature. Over nineteen other entities have filed amicus briefs supporting the State's position. The Applicants next contend that the State should not have argued that the Vail and Breckenridge whitewater courses do not "control" or "divert" water, for the asserted reason that the State did not offer evidence to support their argument. Specifically, the Applicants assert that Division Engineer Alan Martellaro "had no facts to dispute that the structures completely divert and control the quantity of water claimed," and that, therefore, "the basis of the State's expert opinion on the central issue in these cases was Mr. Martellaro's disagreement with, and refusal to recognize, the statutory definition of diversion." This argument is without merit. The statutory definition of diversion does not define "control," or specify what constitutes an in- channel diversion of water. Thus, this Court was faced with making the determination whether the whitewater structures "control" water in- channel in a manner consistent with the Supreme Court's Ruling. in Thornton v. City of Fort Collins. At trial the State presented evidence relevant to this determination, including photographs of the course; blueprints and designs for the construction of the course; statements by Town of Vail officials regarding the course; statements in Town of Vail documents; photographs of the Thornton v. City of Fort Collins power dam; fish ladder, and boat chute; the testimony of Gary Lacy, the testimony of Mr. Martellaro, and the testimony of Assistant State Engineer Ken Knox. This evidence showed that the whitewater boating courses did not impound water, that the structures were "at grade" with the stream bed, that the structures did not change stream geometry and resulted in very little change in channel width, that the structures were not dams but most closely resembled "drop structures" used to reduce stream velocity, and that such "drop structures" had never before been considered by the Division Engineer to effectuate a diversion of water. Based on this evidence, the State argued that the whitewater courses therefore differed markedly from the power dam in Thornton v. City of fort Collins, and that holding that the courses "control" and "divert" water would amount to an expansion of Colorado Law. In its ruling, this Court disagreed with the State's position. However, as noted, the fact that a claim does not prevail does not mean the claim is frivolous. Hart & Trinen v. Surplus Electronics Corp., 712 P.2d at 492 -93. Here, the State had a good faith legal i The applicants also appear to argue that the law regarding applications for whitewater courses is settled because in passing Senate Bill 216 the State General Assembly recognized that such water rights existed. This argument again misstates the law. The legislative statement for Senate Bill 216 explicitly reserves judgment on whether water rights may be granted for whitewater courses by stating, at ¶3, that "nothing in S.B. 216 is intended to create a water right which did not previously exist by virtue of state Supreme Court interpretation of Colorado statute or to affec any pending challenges'to applications for rights of this nature to the extent such challenges are found to be meritorious under existing law (Emphasis added.) M