Response to Applicants' Joint Motion for Costs and Fees

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The State advanced a non - frivolous argument, supported by evidence, regarding the Applicants' beneficial use of water. The Court agreed with this argument in part. Accordingly, this argument is not frivolous, and cannot be the basis for an award of attorney fees. 3. . The State appropriately held the Applicants to "strict proof" of the elements of their appropriation. In arguing that the State acted improperly by requiring the Applicants' to prove they would control and put to beneificial use the water claimed, the Applicants also ignore Colorado law governing the adjudication of conditional water rights. The State, like any other objector, is entitled to hold the Applicants to "strict proof' that the Applicants have established the elements of their conditional water rights applications. The Applicants have the burden of proving at trial the elements of a conditional water rights appropriation. See Public Service Company v. Board of Water Works of Pueblo, 831 P.2d 470, 481 (Colo. 1992) (holding that, because the applicant for a conditional water right has access to the evidence regarding the right, the burden of proof is on the applicant to establish the elements of an appropriation). The Applicants in this case were seeking a water right for a new type of appropriation that has never previously been recognized by the Colorado Supreme Court. Moreover, the Applicants claimed water in unusually large amounts -- amounts. equal to essentially the entire flows of the Blue River and Gore Creek. Faced with such an unusual and controversial application, the decision regarding whether the Applicants claim is most appropriately made not by the State Engineers Office and the CWCB, but by this Court, by requiring the Applicants to meet its legal burden of proving each element of the claimed water right. It would undermine the holding in the Public Service case to award attorney fees against the State for requiring the Applicants to meet their obligation under Colorado Law. B. The Applicants Are Not Entitled To An Award of Fees Based Upon Vague Allegations of Misconduct As is argued above, the Applicants never establish that any of the State's claims were frivolous, groundless, or vexatious. Rather, the Applicants produce a shotgun's blast of allegations that the Applicants' claim demonstrates the State and Northern acted in a "vexatious" manner. Based upon these vague and unsubstantiated allegations, Applicants argue that they are entitled to all of their fees and costs from February 7, 2002 onward. As is discussed more fully below, this argument is factually unsubstantiated. This argument is also legally without merit. Colorado law does not authorize an award of attorney fees based upon a general accusation that an opposing party generally acted "vexatiously." Rather, a claimant must M