Opposition to Motion to Intervene

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that conclusory allegations alone are insufficient. Tyler v. Adams County Dept of Social Services, 697 P.2d 29, 32 (Colo. 1985); Guyan v. State Farm Mutual Auto Ins. Co., 725 P.2d 1162, 1163 (Colo. App.1986); Biella v. State Dept of Highways, 652 P.2d 1100, 1003 (Colo. App. 1982); Craig v. Rider, 628 P.2d 623, 625 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982). 4. The CWCB fails to make the requisite showing of mistake and excusable neglect and offers no affidavit in that regard. Instead, the CWCB claims that mistake and excusable neglect occurred because its resume review process is only "designed to ensure participation in any cases affecting [its] instream flows." Motion at 13. However, this is not a justifiable reason for overlooking Golden's application. If anything, it demonstrates that the CWCB does not believe Golden's water rights have any effect on its instream flows. In fact, the CWCB has no instream flow right on the subject reach of Clear Creek and, in any event, Golden's recreational water right is nonconsumptive. Thus, this assertion does not provide a basis for the CWCB's claimed intervention. 5. The CWCB also asserts intervention is justified because Golden failed to respond adequately to the Division Engineer's Summary of Consultation. While incorrect as a matter of fact, this argument does not establish mistake or excusable neglect. If anything, this argument suggests that the CWCB was monitoring this case. CWCB's related assertion that it has now identified specific concerns with the application is likewise not a basis for intervention. Indeed, CWCB's proposed statement of opposition only proposes to hold Golden to strict proof and does not identify any specific concerns regarding CWCB interests. The Division Engineer and the Cities of Westminster and Northglenn, all of which filed timely Statements of Opposition, are quite capable of holding Golden to a standard of strict proof. 6. CWCB's conclusory allegation that excusable neglect exists is especially inadequate in this instance given its involvement in the earlier litigation. The CWCB opposed Golden's original adjudication of these recreational water rights in Case No. 98CW448. Due to the CWCB's opposition, that case went through a full Water Court trial. The State Water Court's decision was then appealed by the CWCB to the Supreme Court in State Engineer v. City of Golden, 69 P.3d 1027 (Colo. 2003), where Golden's absolute and conditional water rights were affirmed by operation of law. Given that history, it is difficult to imagine how the CWCB overlooked this diligence proceeding for 8 months before deciding to intervene. 7. The CWCB asserts that its intervention will not cause delay or prejudice Golden, as required by C.R.S. § 37- 92- 304(3). See also C.R.C.P. Rule 24(b) ( "[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties "). The CWCB's Motion also fails to satisfy this requirement as set forth below. 8. The CWCB already had the opportunity to fully and fairly litigate Golden's underlying recreational water rights in Case No. 98CW448 and on appeal in State Engineer v. City of Golden. In the final decree approved by the Supreme Court, the Water Court established the standard for Golden to make its conditional water rights absolute. Specifically, the Court ruled that "Golden is entitled to an absolute decree for those flow rates that have been put to beneficial use, i.e., actually used to date by boaters." Case No. 98CW448 at 4. The CWCB already had its day in court, and under the principle of res judicata the Water Court established 18643 2