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Reply to Response to 56(h) Motion for Determination of Question of Law
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Reply to Response to 56(h) Motion for Determination of Question of Law
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7/15/2010 1:24:37 PM
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Water Supply Protection
Description
Case No. 00CW259 Vail RICD and Case No. 00CW281 Breckenridge RICD
State
CO
Basin
Colorado Mainstem
Water Division
5
Date
4/8/2002
Author
Ken Salazar, Susan Schneider, John Cyran
Title
Reply to Response to 56(h) Motion for Determination of Question of Law
Water Supply Pro - Doc Type
Court Documents
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agency can change its position and that it is not bound by the doctrine of stare decisis. <br />B & M Service, Inc. v. Public Utilities Commission 429 P.2d 293, 296 (Colo. 1967). <br />A stipulation with a different applicant (Littleton) obviously cannot be used to <br />bind this Court in the determination of whether control is exerted here. In fact, in CCi <br />of Thornton v. City of Fort Collins 830 P.2d 915, 931 (Colo. 1992), the Supreme Court <br />held that a stipulation made between parties to the litigation was not binding upon the <br />trial court or the appellate court. The Court rejected the water court's finding that the <br />water was not controlled although that finding was based upon the negotiated settlement <br />and stipulations made between Fort Collins and the CWCB. If stipulations between <br />parties in the case at issue are not binding or controlling authority for the Court, then <br />clearly, stipulations that involve another case entirely and another party entirely are <br />neither binding nor relevant. As in Fort Collins a stipulation with a different applicant <br />cannot be used as the measure of control or to determine any other issue in this trial. <br />Further, the mere fact that the instant decision may be inconsistent with at least one <br />prior decision does not render it arbitrary, unlawful, unreasonable or capricious. <br />Bennetts, Inc. v. Carpenter 137 P.2d 780, 781 -82 (1943). "To hold otherwise would <br />preclude agencies from correcting mistakes and would perpetuate a thwarting of the <br />legislature's will." Colo. Dept. of Rev. v. Woodmen, 919 P.2d 806, 819 (Colo. 1996). <br />Finally, the cases cited by the Applicants concerning beneficial use (Response, <br />p. 6) directly support the State's argument that water for recreation must be <br />impounded. All of the cases cited concern impoundment and diversion — not water <br />running freely in the stream. The Applicants cite State v. Southwestern Colo. Water <br />Cons. Dist., 671 P.2d 1294 (Colo. 1983). In that case, the Court deemed land <br />reclamation and dust control beneficial uses based upon other statutes that <br />"recognized the beneficial nature of both" — unlike here where the uses is specifically <br />limited by the word "impoundment." Id. at 1323. Further, the requested decrees were <br />for underground water storage rights that required impoundment and diversion. The <br />Applicants also cite Pueblo West Metropolitan Dist. v. Southeastern Colorado Water <br />Conservancy Dist. 689 P.2d 594 (Colo. 1984), which concerned water stored, <br />diverted and impounded; and Zigan Sand and Gravel, Inc. v. Cache La Poudre Water <br />Users Ass'n 758 P.2d 175 (Colo. 1988), which concerned wells, impoundment and <br />that required diversion. - - - - <br />The Applicants also cite Matter of Gunnison County, 838 P.2d 840 (Colo. <br />1992) for the proposition that beneficial use includes "headgate management, <br />fisheries, recreation boating flows, reservoir spills" (Response, p. 6). However, <br />contrary to the Applicants' assertion, this case directly supports the State's position. <br />The Applicants fail to note that the Supreme Court held that the applicant in that case <br />had no authority to add the beneficial uses of fishery and other recreational uses to the <br />earlier decree because the decree was limited to irrigation and hydroelectric uses. <br />Further, the Applicants also fail to note that the Supreme Court refused to consider the <br />issue of whether the storage water (later diverted for traditional beneficial uses) could <br />be used for fishery and recreational uses only because this issue was not presented to <br />5 <br />
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