Response to Applicants' Joint Motion for Costs and Fees

Home Browse Search

This argument is based upon a mischaracterization of the parties' pre -trial conduct. First, the Applicants misrepresent the testimony of the State's witnesses: The Applicants state that Mr. Martellaro's deposition testimony establishes that "Mr. Martellaro had no facts to dispute that the structures completely divert and control the quantity of water claimed." Contrary to the Applicants' assertions, nothing within the deposition transcripts cited by the Applicants indicates that Mr. Martellaro "had no facts" to dispute that the structures control water. The pages cited by counsel for the Applicants indicate that Mr. Martellaro in fact visited and examined both courses, and that these visits were the bases for his opinions. See Deposition of Mr. Martellaro, Exhibit B to Applicants Joint Motion, at pp. 20 -21, 34, and 130. The Applicants state that the Objectors "conceded they had no information to dispute the fact that the claimed amounts were reasonable." The Objectors made no such concession. Rather, the Objectors stated at deposition that the Applicants had not yet provided sufficient information to justify their claimed appropriations. See, e.g., Deposition of Mr. Martellaro, Exhibit B to Applicants Joint Motion, at p. 94, line 22 ( "I don't have enough information "), p. 123 lines 7 -9 ( "I do not, I will offer an opinion when information's presented that demonstrates what is reasonable and appropriate "), p. 123, lines 11 -14 ( "[w]ell, I don't have anything in front of me to determine whether the requisite engineering and demonstration of need has been put forth. I need more information "), and p. 152, lines 15 -16 ( "I don't thin_ k we have enough information to know. ") The Applicants claim that "[t]he CWCB likewise had no facts to dispute that the structures completely divert and control the quantity of water claimed." This claim is unsupported by the deposition testimony cited. The CWCB never made any such statement. Mr. Kowalski stated that he is not an expert, but believes that the structures do not divert water. See Deposition of Mr. Kowalski, Exhibit C to Applicants Joint Motion, at p. 10, lines 10 -25, Second, with respect to .those instances of deposition testimony that the Applicants cite accurately, the cited testimony is either irrelevant, or fails to demonstrate the State refused to stipulate to an uncontested issue. The Applicants note that Mr. Knox admitted in his deposition that he would accept "the minimum amount of water necessary to provide the maximum recreation experience." The State stands by this admission as an accurate statement of the law. It is unclear, moreover, how this "admission" makes any claim by the State frivolous, or indicates that the State acted vexatiously. • The Applicants note that "Mr. Martellaro conceded in his deposition that his opinion that the structures don't control or divert water is based on his understanding of the law." This statement is not a concession. One would hope and expect that Mr. Martellaro based his opinion on the law. • The Applicants note that Ken Knox stated in deposition testimony that "recreation is a beneficial use." The State did not argue that recreation is not a