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CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE TWON OF BRECKENRIDGE, 08CW73 <br /> IN SUMMIT COUNTY,COLORADO <br /> genuine issue of material fact necessary for the determination of the question of law,the court <br /> may enter an order deciding the question. <br /> The doctrine of res judicata provides that any judgment is conclusive upon the parties and <br /> is an absolute bar to the prosecution of a second action on the same claim or demand. See e.g. <br /> Pomeroy v. Waitkus, 517 P.2d 396, 399 (Colo. 1973). The three elements of res judicata are (a) <br /> an earlier decision on the identical issue; (b) a final judgment on the merits; (c) the involvement <br /> of the same parties or parties in privity with the original parties. Black's Law Dictionary Eighth <br /> Edition (2007). <br /> III. ANALYSIS <br /> A. RES JUDICATA <br /> The court finds that the doctrine of res judicata does not apply. Respondent's Motion for <br /> Clarifying Language in the Decree that became an order of the water court states that"It is <br /> possible that, at times, flows will not exceed 100 cfs because of upstream diversions junior to the <br /> whitewater park. Although this situation was not addressed in the Decree, Breckenridge <br /> believes the only reasonable interpretation is that it should be entitled to place a call against <br /> junior diverters if that will provide 100 cfs or more water at the whitewater structures." <br /> Clarifying Order paragraph 2 (emphasis added). If this issue had been addressed at trial, <br /> Respondent would not have filed the motion seeking clarifying language in the decree in which it <br /> confessed the issue had not been addressed. Clarifying Motion paragraph 2. No amended decree <br /> was issued and no subsequent hearing before the water judge was held to provide Movant an <br /> opportunity to litigate the question set forth herein. <br /> Respondent further argues that the question is res judicata because Movant made the <br /> same argument on appeal that it presents here but that Movant's position was rejected by the <br /> Supreme Court. As evidence of this, Respondent references the fact that the Supreme Court <br /> affirmed the ruling of the Water Court in Case No. 00CW281 by operation of law without a <br /> written decision. Response page 4 paragraph 6. Movant on the other hand, asserts that on appeal <br /> the Supreme Court upheld the rulings and findings that limited the water right to flows that <br /> exceed 100 cfs. Reply page 3 paragraph I. The court finds that the Supreme Court issued no <br /> opinion as to this question and therefore res judicata does not preclude Movant from seeking the <br /> requested relief. <br /> Page 2 of 4 <br />