Response to Applicants' Joint Motion for Costs and Fees

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beneficial use of water, but rather made the legal argument that water must be impounded for recreational purposes. Third, the Applicants' unsubstantiated representation that the State vexatiously refused to stipulate to certain issues is inconsistent with the parties' actual pre -trial discussions. Applicants proposed only a limited of stipulated facts, which "facts" included many legal conclusions. When the State attempted to clarify such legal conclusions to protect the State's legal position, the Applicants eliminated many of the originally proposed stipulated facts. The Applicants refused even to stipulate to the qualifications of Mr. Martellaro and Mr. Knox. Based on this behavior, it is the opinion of the undersigned that the Applicants made no concerted effort to reduce the number of contested.issues at trial. See Affidavit of John J. Cyran, attached hereto as Exhibit A. Fourth, the State agreed to stipulate to facts to which the Applicants now claim the State refused to stipulate. The State agreed to the proposed appropriation date, to the location of the structures, to the qualifications of the Applicants experts, that water is available for appropriation, that the water rights are capable and administration, and that the water rights will not injure existing water rights. See Affidavit of John J. Cyran, attached hereto as Exhibit A. Fifth, the Applicants themselves refused to stipulate to facts in the interest of presenting that evidence by testimony, even though the Objectors had proposed a stipulation and indicate they would not contest issues. For example, the Applicants contend that "[n]o evidence existed to dispute the economic analysis or economic value of the courses," and complain that the Applicants unreasonably refused to stipulate to the economic benefit of the course. This complaint is unjustified, disingenuous, and misrepresents the parties' discussions.. In fact, prior to trial, and again at trial, the State offered to stipulate that the courses provide an economic benefit to the Towns of Vail and Breckenridge. The Applicants, however, refused that offer. See Affidavit of John J. Cyran, attached hereto as Exhibit A. Remarkably, the Applicants now request attorney fees incurred in presenting evidence that they alone believed it necessary to present.. 2. The State filed appropriate motions for summary judgment. The Applicants argue that the State filed motions that "unnecessarily expanded the proceedings." The State filed these motions for the specific purpose of narrowing the issues to be tried and thus reducing trial expenses. The State and Northern filed Rule 56 and summary judgment rulings in the interest of clarifying those instances constituting an in- channel diversion. The Applicants did not argue in response to these motions that they were frivolous, or that the Applicants should be entitled to attorney fees for their expenses in responding to the State's motions. Rather, the Applicants argued in part that issues concerning control and beneficial use were not appropriate for summary judgment because there were disputed issues of fact. This Court, moreover, denied the State's and Northern's motions on the basis that "there are several issues of material fact." 6