Response to Applicants' Joint Motion for Costs and Fees

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argument, supported by factual testimony, that the Vail and Breckenridge whitewater courses do not exercise sufficient control to be considered in- channel diversions under Colorado Law. Moreover, this argument is an area of unsettled law. Accordingly, this argument cannot be the basis for an award of attorney fees. 2. The State advanced a non - frivolous argument, which argument the Court agreed with in part, that the water claimed by the Applicants should be limited to times and amounts appropriate for whitewater boating. The State also argued at trial 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 State supported this argument with cross - examinations of the Applicants' witnesses demonstrating that the purpose of the course was to create whitewater features, that these features only occurred above certain flows, and that below these flows boaters did not use the courses. The State also presented expert testimony by Mr. Martellaro and Mr. Knox regarding the application of the concepts of waste and beneficial use. In their motion, it is again unclear whether the Applicants are attempting to characterize this argument as frivolous. Any such argument would seemingly itself be frivolous, because the Court agreed in part with the State's arguments, concluding that use of water by the Town of Breckenridge in amounts below 100 cfs, and by the Eagle District in amounts below 30 cfs, would be waste. Notwithstanding this finding by the court, however, the Applicants nonetheless cite deposition testimony by the State's expert witnesses as somehow indicating that the State's acted inappropriately in making this argument. The testimony cited, however, fails to support the Applicants' accusations of frivolousness. For example, the Applicants note that Mr. Knox stated at his deposition that he "would accept the minimum amount of water necessary to provide the maximum recreation experience." The Applicants fail to explain how such a statement demonstrates the State's position as frivolous. Similarly, the Applicants argue that the State agreed that the Applicants had the intent to appropriate water. The State, however, never contested the Applicants' general intent to appropriate water, only that water was not needed at all the times and in all the amounts claimed, As is discussed more fully below, the Applicants also misrepresent the content of the State's testimony. For example, counsel for Applicants states that the Objectors "conceded they had no information to dispute the fact that the claimed amounts were reasonable. ". No such concession was ever made. Rather, relying upon Mr. Lacy's own testimony regarding the flows at which whitewater features appear, and the testimony of the Applicants' own witnesses indicating that the whitewater courses were not used when whitewater features did not appear, the State argued that the amount of water claimed by the Applicants should be limited to times and amounts that actually would be beneficially used. 5