Supreme Court, State of Colorado Denver, Colorado 80203...Supreme Court, State of Colorado Two East...

Supreme Court, State of Colorado Two East 14th Ave. Denver, Colorado 80203 (720) 625-5150

COURT USE ONLY Case No. 16SA243

Appeal from Adams County District Court Honorable Patrick T. Murphy, Lost Creek Designated Basin Ground Water Judge appointed pursuant to C.R.S. § 37-90-115(1)(b)(V) Case No. 15CV30493

FRONT RANGE RESOURCES, LLC, Plaintiff-Appellant/Cross-Appellee v.

COLORADO GROUND WATER COMMISSION; HENRYLYN IRRIGATION DISTRICT; MORGAN COUNTY QUALITY WATER DISTRICT; WELDON VALLEY DITCH COMPANY; NORTHERN COLORADO WATER CONSERVANCY DISTRICT; AND IRRIGATIONISTS’ ASSOCIATION, WATER DISTRICT 1, Defendants-Appellees and LOST CREEK LAND & CATTLE COMPANY, LLC; EQUUS FARMS, INC.; AND LOST CREEK GROUND WATER MANAGEMENT DISTRICT, Defendants-Appellees/Cross-Appellants.

DATE FILED: September 16, 2016 3:55 PM

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Attorneys for Lost Creek Land & Cattle Company, LLC Alan E. Curtis, #34571 David C. Taussig, #16606 Courtney J. Krause, #45520 Tacy K. Hass, #45247 WHITE & JANKOWSKI, LLP 511 Sixteenth Street, #500 Denver, Colorado 80202 Telephone: (303) 595-9441 Fax: (303) 825-5632 Email: [email protected]; [email protected]; [email protected]; [email protected]

Attorney for Equus Farms, Inc. Michael F. Browning, #8217 PORZAK BROWNING & BUSHONG LLP 2120 13th Street Boulder, Colorado 80302 Telephone: (303) 443-6800 Fax: (303) 443-6864 Email: [email protected]

Attorneys for Lost Creek Ground Water Management District P. Andrew Jones, #29076 Curran A. Trick, #44914 LAWRENCE JONES CUSTER GRASMICK LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, Colorado 80534 Telephone: (970) 622-8181 Fax: (970) 660-4412 Email: [email protected]; [email protected]

NOTICE OF CERTAIN APPELLEES’ CROSS-APPEAL

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Defendants-Appellees/Cross-Appellants Lost Creek Land & Cattle

Company, LLC, Equus Farms, Inc. and the Lost Creek Ground Water Management

District (collectively, “Cross-Appellants”) by and through their respective

undersigned attorneys, and pursuant to C.A.R. 3(h), respectfully submit the

following Notice of Cross-Appeal.

I. Description of the Nature of the Case. A. General statement of the nature of the controversy.

This case involves an application by Plaintiff-Appellant/Cross-Appellee

Front Range Resources, LLC (“FRR”) for a replacement plan including new

appropriations and changes of water rights (the “Replacement Plan”) filed with the

Colorado Ground Water Commission (“Commission”) in Case No. 13GW07

(“Commission Proceedings”).

In the Commission Proceedings, FRR and the other parties stipulated the

Commission would not hold a hearing and the Replacement Plan was dismissed

with prejudice. The stipulation was approved by the Commission, in part, because

of a recent ruling by the Division 1 Water Court that C.R.S. § 37-90-115(1)(b)(III)

(the “De Novo Statute”) allows a new trial and new evidence on appeal even when

the Commission conducts a hearing.

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On appeal to the district court, the Replacement Plan was again dismissed.

Following dismissal, FRR filed a motion seeking a new trial to present new

evidence supporting new claims (“New Trial Motion”). Cross-Appellants

requested a determination that the De Novo Statute did not allow FRR to present

new claims on appeal as this would render the Commission Proceedings

meaningless. See briefing on New Trial Motion attached as APPENDIX A. The

district court did not issue a ruling regarding the De Novo Statute. The district

court awarded Cross-Appellants their costs but denied their request for attorneys’

fees.

B. Judgment, order, or parts being cross-appealed and the basis for appellate jurisdiction.

The ORDER re New Trial and to Amend entered on July 21, 2016 by the

district court (“New Trial Order”) did not resolve the issue regarding whether the

De Novo Statute allows a new trial on appeal with new claims and new evidence.

See APPENDIX B.

This issue is capable of repetition but evading review and is also of great

public importance. Therefore it should be reviewed by this Court under recognized

legal exceptions to the mootness doctrine. See Simpson v. Bijou Irrigation Co., 69

P.3d 50, 55−56 (Colo. 2003); Well Augmentation Subdistrict of Cent. Colo. Water

Conservancy Dist. v. City of Aurora, 221 P.3d 399, 416−17 (Colo. 2009).

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Cross-Appellants also appeal that portion of the district court’s ORDER

dated July 25, 2016 denying attorneys’ fees to Cross-Appellants (the “Attorneys’

Fees Order”). See APPENDIX C.

This Court has jurisdiction over this cross-appeal pursuant to C.R.S. § 13-4-

102(1)(d) and C.A.R. 1(a)(1).

C. Whether the judgment or order resolved all issues pending before the trial court including attorneys’ fees and costs.

The New Trial Order and the district court’s May 26, 2016 ORDER re

Speculation fully resolved all issues pending before the district court, except a

motion for costs and attorneys’ fees filed by Cross-Appellants. The Attorneys’

Fees Order granted Cross-Appellants’ costs but denied attorneys’ fees.

D. Whether the judgment was made final for purposes of cross-appeal pursuant to C.R.C.P. 54(b).

Neither the New Trial Order nor the Attorneys’ Fees Order were made final

pursuant to C.R.C.P. 54(b).

E. The date judgment or order was entered and the date of mailing to counsel.

The New Trial Order was entered by the district court and served on all

parties by ICCES on July 21, 2016. The Attorneys’ Fees Order was entered by the

district court and served on all parties by ICCES on July 25, 2016.

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F. Extensions to file motions for post-trial relief.

No extensions to file motions for post-trial relief were sought or granted. G. Date any motion for post-trial relief was filed.

The New Trial Motion was filed by FRR on June 9, 2016. H. Date any motion for post-trial relief was denied or deemed denied under

C.R.C.P. 59(j).

The New Trial Motion was denied on July 21, 2016 by the New Trial Order.

I. Whether there were extensions granted to file notices of appeal.

No extensions to file notices of appeal were sought or granted.

II. Advisory Listing of Issues to be Raised on Cross-Appeal. A. Whether the De Novo Statute allows a new trial on appeal with new

claims and new evidence.

B. Whether the district court erred in not awarding the Cross-Appellants

their reasonable attorneys’ fees incurred in this matter.

III. Whether the Transcript of any Evidence Taken Before the Trial Court or any Administrative Agency Is Necessary to Resolve the Issues Raised on Cross-Appeal. The transcripts of evidence taken before both the Commission and the

district court, and the papers, maps, plats, field notes, orders, decisions, and other

available data affecting the matter transmitted to the district court by the

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Commission pursuant to C.R.S. § 37-90-115(1)(b)(IV), are both necessary to

resolve the issues raised on cross-appeal.

IV. Whether the Order on Review Was Issued by a Magistrate Where Consent Was Necessary. The Order on review was not issued by a magistrate where consent was

necessary.

V. Names of Counsel for the Parties.

A. Attorneys for Front Range Resources, LLC. Timothy R. Buchanan, Esq. #12185 Paul F. Holleman, Esq. #21888 John D. Buchanan, Esq. #45191 Buchanan Sperling & Holleman PC 7703 Ralston Road Arvada, CO 80002 [email protected] [email protected] [email protected] (303) 431-9141

B. Attorneys for the Colorado Ground Water Commission, an Administrative Agency of the State of Colorado. Cynthia H. Coffman Attorney General Patrick E. Kowaleski, Esq. #9598 Jennifer L. Mele, Esq. #30720 Counsel of Record, Colorado Attorney General’s Office Natural Resources and Environment Section 1300 Broadway, 7th Floor Denver, CO 80203 [email protected] [email protected] (720) 508-6297

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C. Attorneys for Lost Creek Ground Water Management District. P. Andrew Jones, Esq. #29076 Curran A. Trick, Esq. #44914 Lawrence Jones Custer Grasmick LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, CO 80534 [email protected] [email protected] (970) 622-8181

D. Attorney for Equus Farms, Inc. Michael F. Browning, Esq. #8217 Porzak Browning & Bushong, LLP 2120 13th Street Boulder, CO 80302-5108 [email protected] (303) 443-6800

E. Attorneys for Henrylyn Irrigation District. Alyson M. Gould, Esq. #42672 Kent H. Holsinger, Esq. #33907 Holsinger Law, LLC 1800 Glenarm Place, Suite 500 Denver, CO 80202 [email protected] [email protected] (303) 722-2828

F. Attorneys for Irrigationists’ Association, Water District 1. Karl D. Ohlsen, Esq. #32497 Mason H. Brown, Esq. #44831 Carlson, Hammond & Paddock, LLC 1900 Grant Street, Suite 1200 Denver, CO 80203 [email protected] [email protected] (303) 861-9000

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G. Attorneys for Lost Creek Land and Cattle Company, LLC. Alan E. Curtis, Esq. #34571 David C. Taussig, Esq #16606 Courtney J. Krause, Esq. #45520 Tacy K. Hass, Esq. #45247 White & Jankowski, LLP 511 16th Street, Suite 500 Denver, CO 80202 [email protected] [email protected] [email protected] [email protected] (303) 595-9441

H. Attorneys for Morgan County Quality Water District and Weldon Valley Ditch Company. Jeffrey J. Kahn, Esq. #6894 Matthew Machado, Esq. #31233 Lyons Gaddis Kahn Hall Jeffers Dworak and Grant PC 515 Kimbark Street, 2nd Floor P.O. Box 978 Longmont, CO 80502-0978 [email protected] [email protected] (303) 776-9900

I. Attorney for Northern Colorado Water Conservancy District. Douglas M. Sinor, Esq. #31148 Trout Raley Montano Witwer Freeman, P.C. 1120 Lincoln Street, Suite 1600 Denver, CO 80203 [email protected] (303) 339-5831

Digitally signed by Curran A. Trick Date: 2016.09.16 15:04:56 -06'00'

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of September 2016, a true and correct

copy of NOTICE OF CERTAIN APPELLEES' CROSS-APPEAL in Case No.

16SA243 was served bye-filing via ICCES and addressed to the following:

Name

Colorado Ground Water Commission

Equus Fanns, Inc

Front Range Resources, Lie

O_vJ,_)t!IC)..__~.:W SL Andrea L. Browne, White & Jankowski

Efiled per C.R.C.P. 121 Duly signed original on file at White & Jankowski, LLP

Type Attorney

Defendant- Patrick E Kowaleski (CO Attorney General) Appellee Jennifer Lyn Mele (CO Attorney General)

Defendant- Michael Browning (Porzak Browning & Bushong LLP) Appellee

PlaintiffAppellant

......................... - ............ __ ,.,, .............................................. , 1

John David Buchanan (Buchanan Sperling and Holleman PC) Timothy Ray Buchanan (Buchanan Sperling and Holleman PC) Paul F Holleman (Buchanan Sperling and Holleman PC)

I Henrylyn Irrigation Distli~~--·~··~~m~.•m·-·--·~-t·D-·e~fi·~en~d~an~t~-~A~l-y-so_n_M_e_y-er·-·Gould (Holsinger Law LLC) ·--~~-···-.. -~~·-·--1

Appellee Kent Hugh Holsinger (Holsinger Law LLC)

[-hri~~ti~~;t~~A~~~~;~~k,~;·;~~~;r;;~~~~·i.. - ....... ...... o~i~~dant-. M~~~~l!~il·l3;~~--(car1~~~:-Hammond &;;;;;;;~;k: LL.c.)

~L~o~s~t~C~~~·~~.~~~;N~~~~~~~~--

Morgan County Quality Water District

Northern Col

Weldon Valley Ditch Company

Appellee Karl David Ohlsen (Carlson, Hammond & Paddock, L.L.C.)

endant- P Andrew Jones (Lawrence Jones Custer Grasmick LLP) ellee Curran Ann Trick (Lawrence Jones Custer Grasmick LLP)

...................................... _,_ ...... - ............. _ ....................... ·-!

fendant- Jeffrey J Kahn (Lyons Gaddis Kahn Hall Jeffers Dworak and Grant PC)

pellee ...... I\1~~~~~ Ma.~~a.~~ .. ~~~~~~ ?~~~~~~~~.~.~11 ~::!..::~:'~~~~~~.?rant rP·•'-'r J' i

fendant- Douglas M Sinor (Trout Raley) pellee

Defendant- Jeffrey J Kahn (Lyons Gaddis Kahn Hall Jeffers Dworak and Grant PC) Appellee Matthew Machado (Lyons Gaddis Kahn Hall Jeffers Dworak and Grant .P' ~c-:. 1) !

~--~·~~~------------------J-~----L--------·

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APPENDIX A TO NOTICE OF CERTAIN APPELLEES’ CROSS-APPEAL

(16SA243)


District Court, Adams County, Colorado 1100 Judicial Center Dr. Brighton, CO 80601 (303)659-1161

COURT USE ONLY

Plaintiff/Appellant: FRONT RANGE RESOURCES, LLC v. Defendant/Appellee: COLORADO GROUND WATER COMMISSION Defendants: Lost Creek Land & Cattle Company; Lost Creek Ground Water Management District; Equus Farms, Inc.; Henrylyn Irrigation District; Morgan County Quality Water District; Weldon Valley Ditch Company; Northern Colorado Water Conservancy District; and Irrigationists’ Association, Water District 1 Attorneys for Plaintiff/Appellant Front Range Resources, LLC Paul F. Holleman John D. Buchanan Buchanan Sperling & Holleman PC 7703 Ralston Rd. Arvada, Colorado 80002 Phone: (303)431-9141 Fax: (800)803-6648 Email: [email protected]; [email protected] Atty. Reg. Nos: 21888; 45191

Case No. 15CV30493 Div: T, Crtm: 405

PLAINTIFF/APPELLANT’S MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59

Plaintiff/Appellant, Front Range Resources, LLC (“Front Range”), acting by and through

its attorneys, Buchanan Sperling & Holleman PC, hereby files this Motion for New Trial and to

Amend the Findings and Judgment pursuant to C.R.C.P. 59.

Pursuant to C.R.C.P. 121 § 1-15, undersigned counsel certifies that it attempted to confer

with opposing counsel before filing this motion. Counsel for Equus Farms, Inc., Lost Creek

Land & Cattle Company, Northern Colorado Water Conservancy District, Lost Creek Ground

DATE FILED: June 9, 2016 4:41 PM FILING ID: 18EE779CB2572 CASE NUMBER: 2015CV30493

Front Range Resources, LLC Case No. 15CV30493

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Water Management District, Weldon Valley Ditch Company, and Henrylyn Irrigation District

indicated that they oppose or do not consent to the motion.

I. INTRODUCTION This Court granted summary judgment dismissing the Replacement Plan application due

to its conclusion that the anti-speculation doctrine applies to the Replacement Plan. Order at 10-

11. The Court based this conclusion on its finding that Front Range is seeking new

appropriations of water and changes of water rights. Id. This finding, however, was based on

statements in a preliminary draft of the notice of the Replacement Plan that Front Range filed

with the Commission in 2011. Id. These statements do not represent the current Plan before the

Court, which, as described in several pleadings, does not seek new appropriations or a change of

water rights.

Because the Court based its entry of summary judgment on prior descriptions of the

Replacement Plan, as discussed below, Front Range respectfully requests the Court amend its

findings and judgment pursuant to C.R.C.P. 59(a)(3) and (4) to reflect that Front Range does not

seek new appropriations or changes of water rights and, therefore, that the anti-speculation

doctrine does not apply.

In the alternative, if the Court believes that Front Range’s currently proposed terms and

conditions require amendment to ensure that no new appropriations or changes of water rights

are sought, Front Range respectfully requests the opportunity to propose terms and conditions to

clarify that the Plan does not involve new appropriations or changes of water rights. The

opportunity to amend the currently proposed terms and conditions is a standard, and required,


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part of water court practice under C.R.S. § 37-92-305(3)(a) and should be allowed here pursuant

to that statute and C.R.C.P. 59(d)(6).

II. STANDARD OF REVIEW Motions for new trial and amendment of findings and judgment under C.R.C.P. 59 “may

be combined or asserted in the alternative.” C.R.C.P. 59(a)(4). A motion to reconsider entry of

summary judgment is considered a motion for post-trial relief under C.R.C.P. 59. Zolman v.

Pinnacol Assur., 261 P.3d 490, 502 (Colo. App. 2011). Under C.R.C.P. 59(a)(3) and (4), within

14 days after entry of judgment, a party may move for amendment of findings and/or judgment.

Under C.R.C.P. 59(d)(6), a new trial may be granted due to errors in law.

When summary judgment is granted, permission to amend pleadings should be given

when the amendment will cure the deficiencies upon which summary judgment was entered.

Smith v. Mills, 225 P.2d 483, 484-85 (Colo. 1950); Discovery Land & Dev. Co. v. Colorado-

Aspen Dev. Corp., 577 P.2d 1101, 1104-05 (1977). “A summary judgment ‘should never be

entered, save in those cases where the movant is entitled to such beyond all doubt. The facts

conceded should show with such clarity the right to a judgment as to leave no room for

controversy or debate. They must show affirmatively that plaintiff would not be entitled to

recover under any and all circumstances. . . .’” Discovery, 577 P.2d at 1104 (emphasis in

original).

This requirement is particularly important in water rights applications, wherein applicants

are not simply describing prior transactions or occurrences, but are proposing future uses of

water that will ultimately be controlled by the specific terms and conditions found appropriate by


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the courts. Thus, if a court determines that certain claims or proposed terms and conditions are

inconsistent with Colorado law or could cause injury to other water rights, the applicant must be

allowed to cure any such issues. See C.R.S. § 37-92-305(3)(a); City of Colorado Springs v. Yust,

126 Colo. 289, 295, 249 P.2d 151, 154 (Colo. 1952); Buffalo Park Dev. Co. v. Mountain Mut.

Reservoir Co., 195 P.3d 674 (Colo. 2008). This is more fully described in Front Range’s

response to the “Banking Motion”, ICCES Filing ID No. 764F3EC7CDB49, at 6-9. The policy

behind this rule is that when courts identify issues with water rights applications, such issues can

often be cured through revised terms and conditions or adding or withdrawing claims, and when

possible this method is preferable to dismissing and refiling applications each time a new issue

arises. Indeed, in such situations the Supreme Court has stated that an applicant “has a

responsibility” to alert the court and make a motion or offer of proof to introduce protective

terms and conditions under C.R.S. § 37-92-305(3)(a) while the case is still pending in the trial

court. Buffalo Park, 195 P.3d at 691.

III. ARGUMENT 1. Front Range is not seeking new appropriations or changes of water rights. Front Range’s “Notice of Appeal and Complaint for De Novo Review,” which initiated

the action in this Court, stated that “Front Range will recharge water into the Lost Creek Basin

alluvial aquifer and later withdraw the recharged water” and thus utilize the aquifer for storage of

such recharged water. ICCES Filing ID No. FA931A6A97D5F at 1-2. The “Detailed

Description of Replacement Plan Application,” filed in August 2015 pursuant to Defendants’

request and the Court’s order, does not describe new appropriations or changes of water rights;


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instead, it states that Front Range shall recharge water, maintain dominion and control over such

recharged water, and later withdraw such recharged water. ICCES Filing ID No.

52BC0C06FBAF3 at 10-11; see also Front Range’s Response to Speculation Motion at 20, 22.

Neither of these documents indicate that Front Range seeks new appropriations or changes of

water rights.

The most recent draft of the proposed decree filed with Front Range’s C.R.C.P. 26(a)(2)

rebuttal disclosures notes that Front Range initially “filed 40 well permit applications for new

appropriations associated with the requested Replacement Plan” in December 2008, but the draft

proposed decree does not request new appropriations of water. This change in the operation of

the Replacement Plan is consistent with its evolution as modifications have been made due to

Front Range’s work with the Commission staff and Defendants and as the Commission staff has

made new interpretations of its existing rules – all of which has affected how the Replacement

Plan will be operated.

In the most recently filed draft of Front Range’s proposed decree, the only reference to

“appropriations” under the Replacement Plan is the claimed priority of appropriation date.1

Front Range stated to the Court at oral argument on the speculation motion that it would

withdraw the claimed priority date, which is no longer necessary because the Plan does not

involve new appropriations. As the Court notes, the draft proposed decree does request well

permits to allow withdrawals of recharged water from Front Range’s existing wells and to

construct new wells to allow such withdrawals; however, the water that Front Range seeks to

1 Front Range included this claim to protect itself during the application proceedings if the Commission or any other party alleged that a priority date was necessary.


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withdraw is water that Front Range will recharge, store, and maintain dominion and control over.

The only way that Front Range can withdraw this stored water under the Replacement Plan is by

withdrawing the water from Front Range’s existing wells and/or by constructing new wells.

Requesting permits to withdraw water under the Replacement Plan does not mean that Front

Range is seeking new appropriations of the public water supply or changes of its existing water

rights. Front Range is only seeking to withdraw the volume of water it has recharged and stored.

That is why the “priority date” is no longer material or relevant to this proceeding, and can thus

be disregarded. Front Range is also not seeking a change of water rights; none of the pleadings

describing the Replacement Plan or the proposed decree requests changes of water rights, and

Front Range has consistently stated that it is not seeking changes of the terms and conditions

applicable to the existing water rights that are used as replacement water sources.

Because the current Replacement Plan proposal as filed in this Court does not seek new

appropriations of water, Front Range respectfully requests that this Court amend its findings and

judgment pursuant to C.R.C.P. 59(a)(3) and (4) and determine that the anti-speculation doctrine

does not apply to the Replacement Plan. However, if the Court believes that the currently

proposed operations of the Replacement Plan could potentially involve new appropriations or

changes of water rights, Front Range must be allowed to propose terms and conditions to address

this issue, as discussed below, to clarify that the Plan does not involve new appropriations or

changes of water rights.


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2. Front Range must be allowed to amend the currently proposed terms and conditions to clarify that no new appropriations or changes of water rights will be decreed.

Because the Court granted summary judgment based on findings that the Replacement

Plan requests new appropriations and changes of water rights, Front Range requests a new trial

pursuant to C.R.C.P. 59(d)(6) and C.R.S. § 37-92-305(3)(a) so that Front Range may amend the

terms and conditions in its current proposed decree to clarify that no new appropriations or

changes of water rights are sought or will be granted. Examples of amendments to the terms and

conditions in the current draft of the proposed decree include:

Add a sentence to the end of paragraph 2 of the draft proposed decree, stating that

“Although Front Range is requesting new large capacity well permits to recover water

previously recharged under the Replacement Plan, Front Range is not seeking, and

shall not be awarded, new appropriations of designated ground water or changes of

existing water rights.”

Revise paragraph 13 to state in full: “No Priority of Appropriation. Because Front

Range shall only withdraw water under the Replacement Plan that it has previously

recharged into the aquifer, and therefore the Replacement Plan does not include new

appropriations of designated ground water, no priority date is necessary. Because

withdrawals of such previously recharged water are not appropriations of the public

water supply and do not cause material injury to other water rights, such withdrawals

are not subject to curtailment under the modified priority system.”


Page 8

Revise paragraph 17.b.ix to state in full: “Place and Type of Use: The use of

Recharged Water withdrawn under the Replacement Plan shall have the same uses

allowed under the water court decree or Commission order associated with each

Replacement Water Source.”

Any other modifications to the current proposed decree that this Court determines,

after a trial on the merits and entry of findings of fact and conclusions of law, that

must be made to ensure that the Replacement Plan is consistent with Colorado law and

will not cause material injury to other water rights.

The exact terms and conditions necessary to ensure that the Replacement Plan does not

allow new appropriations of the public water supply or changes of water rights will depend on

the findings and conclusions that this Court enters after consideration of all of the evidence and

proposed operation of the Replacement Plan at trial. Front Range respectfully submits that under

C.R.C.P. 59(d)(6) and C.R.S. § 37-92-305(3)(a), it is an error of law to dismiss a water rights

application on summary judgment for reasons that could be resolved by terms and conditions in

the final decree. Yust, 249 P.2d at 154. Because the Court’s dismissal of this application under

the anti-speculation doctrine is based on aspects of the Replacement Plan that can be amended

consistent with the Court’s findings, Front Range requests a new trial pursuant to C.R.C.P.

59(d)(6) and C.R.S. § 37-92-305(3)(a).

IV. CONCLUSION Front Range respectfully requests the Court amend its findings and judgment under

C.R.C.P. 59(a)(3) and (4) to reflect that Front Range does not seek new appropriations or


Page 9

changes of water rights and, therefore, that the anti-speculation doctrine does not apply. In the

alternative, if the Court believes that Front Range’s currently proposed terms and conditions

require amendment to ensure that no new appropriations or changes of water rights are sought,

Front Range respectfully requests a new trial under C.R.C.P. 59(d)(6) and C.R.S. § 37-92-

305(3)(a) to allow Front Range to propose terms and conditions to clarify that the Plan does not

involve new appropriations or changes of water rights.

Respectfully submitted this 9th day of June, 2016. BUCHANAN SPERLING & HOLLEMAN PC By: /s/ John D. Buchanan Paul F. Holleman, Reg. No. 21888 John D. Buchanan, Reg. No. 45191 Attorneys for Plaintiff/Appellant Front Range Resources, LLC

E-FILED PURSUANT TO C.R.C.P. 121 Duly signed original on file at the law offices of Buchanan Sperling & Holleman PC

CERTIFICATE OF SERVICE I hereby certify that on the 9th day of June, 2016, a true and correct copy of the foregoing PLAINTIFF/APPELLANT’S MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59 upon the following parties:

Party Party Type Attorney


Defendant/Appellee Patrick E. KowaleskiJennifer Mele Colorado Attorney General’s Office

Equus Farms Inc. Defendant Michael BrowningPorzak Browning & Bushong LLP

Henrylyn Irrigation District Defendant Alyson M GouldKent H Holsinger Holsinger Law LLC

Irrigationists’ Association, Water District 1

Defendant Karl D OhlsenMason H Brown Carlson Hammond & Paddock LLC

Lost Creek Ground Water Management District

Defendant P. Andrew JonesLawrence Jones Custer Grasmick LLP

Lost Creek Land and Cattle Company

Defendant Alan E. CurtisWhite & Jankowski LLP


Defendant Jeffrey J KahnMatthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC

Northern Colorado Water Conservancy District

Defendant Douglas M SinorApril H. Killcreas Trout Raley Montano Freeman Sinor Thompson PC

Weldon Valley Ditch Co Defendant Jeffrey J KahnMatthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC

/s/ Peggy Sue Wells Peggy Sue Wells


COURT USE ONLY

Plaintiff/Appellant: FRONT RANGE RESOURCES, LLC v. Defendant/Appellee: COLORADO GROUND WATER COMMISSION Defendants: Lost Creek Land & Cattle Company; Lost Creek Ground Water Management District; Equus Farms, Inc.; Henrylyn Irrigation District; Morgan County Quality Water District; Weldon Valley Ditch Company; Northern Colorado Water Conservancy District; and Irrigationists’ Association, Water District 1 Case No. 15CV30493

Div: T, Crtm: 405

[PROPOSED] ORDER RE: PLAINTIFF/APPELLANT’S MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59

THIS MATTER having come before the Court upon Plaintiff/Appellant, Front Range Resources, LLC’s (“Plaintiff”) Motion for New Trial and to Amend the Findings and Judgment Pursuant to C.R.C.P. 59, and the Court being fully advised in the premises, finds and determines that the Court’s previous finding that the Replacement Plan sought new appropriations and changes of water rights was based on previous descriptions of the Plan; moreover, the Court finds and determines that terms and conditions may be added to the proposed Replacement Plan to ensure that no new appropriations or changes of water rights are approved, and that the specific terms and conditions should be proposed after this Court has considered all of the evidence and testimony regarding the Plan at trial.

WHEREFORE, it is hereby ORDERED that, pursuant to C.R.C.P. 59(a)(3) and (4) and

C.R.S. § 37-92-305(3)(a), Plaintiff’s motion is granted, the Court’s Order re Speculation dated May 26, 2016 is vacated, and the parties shall set a status conference with the court to discuss further case management deadlines.

Dated this ____ day of , 2016. BY THE COURT: Patrick T. Murphy Chief Judge, Adams County District Court

DATE FILED: June 9, 2016 4:41 PM FILING ID: 18EE779CB2572 CASE NUMBER: 2015CV30493

DISTRICT COURT, ADAMS COUNTY, STATE OF COLORADO 1100 Judicial Center Dr. Brighton, CO 80601 (303) 659-1161

Court Use Only

Plaintiff/Appellant: FRONT RANGE RESOURCES, LLC v.

Defendants/Appellees: COLORADO GROUND WATER COMMISSION Defendants: Lost Creek Land & Cattle Company, LLC; Lost Creek Ground Water Management District; Equus Farms, Inc.; Henrylyn Irrigation District; Morgan County Quality Water District; Weldon Valley Ditch Company; Northern Colorado Water Conservancy District; and Irrigationists’ Association, Water District 1.

Attorneys for the Colorado Ground Water Commission

CYNTHIA H. COFFMAN, Attorney General Patrick Kowaleski, 9598* Jennifer Mele, 30720* Senior Assistant Attorneys General Natural Resources and Environment Section, Water Rights Unit 1300 Broadway, 7th Floor Denver, Colorado 80203 Telephone: (720) 508-6300 patrick.kowaleski@ coag.gov [email protected] *Counsel of Record

Attorneys for Lost Creek Land & Cattle Company, LLC Alan E. Curtis, #34571 David C. Taussig, #16606 Courtney J. Krause, #45520 Tacy K. Hass, #45247 WHITE & JANKOWSKI, LLP 511 Sixteenth Street, #500 Denver, Colorado 80202 Telephone: (303) 595-9441 Fax: (303) 825-5632 [email protected] [email protected] [email protected] [email protected]

Case No. 15CV30493

Crtrm/Div:

DATE FILED: June 30, 2016 4:34 PM FILING ID: 9250D00636156 CASE NUMBER: 2015CV30493

Attorneys for Equus Farms, Inc.

Michael F. Browning, #8217 PORZAK BROWNING & BUSHONG LLP 2120 13th Street Boulder, Colorado 80302 Telephone: (303) 443-6800 Fax: (303) 443-6864 [email protected] Attorneys for Lost Creek Ground Water Management District P. Andrew Jones, #29076 LAWRENCE JONES CUSTER GRASMICK LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, Colorado 80534 Telephone: (970) 622-8181 Fax: (970) 660-4412 [email protected] Attorneys for Henrylyn Irrigation District

Kent Holsinger, #33907 Alyson Meyer Gould, #42672 HOLSINGER LAW, LLC 1800 Glenarm Place, Suite 500 Denver, Colorado 80202 Telephone: (303) 722-2828 Fax: (303) 496-1025 [email protected] [email protected] Attorneys for Morgan County Quality District and Weldon Valley

Ditch Co.

Matthew Machado, #31233 LYONS GADDIS KAHN HALL JEFFERS DWORAK & GRANT, PC P.O. Box 978 Longmont, Colorado 80502-0978 Telephone (303) 776-9900 Fax: (303) 776-9100 [email protected]

Attorneys for Irrigationists' Association, Water District 1 Mason H. Brown, # 44831 Karl D. Ohlsen, #32497 CARLSON, HAMMOND & PADDOCK, L.L.C. 1900 Grant Street, Suite 1200 Denver, Colorado 80203 Telephone: (303) 861-9000 Fax: (303) 861-9026 [email protected]

DEFENDANTS’ RESPONSE TO PLAINTIFF/APPELLANT’S MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS

AND JUDGMENT PURSUANT TO C.R.C.P. 59

Defendant/Appellee the Colorado Ground Water Commission (“Commission”) and

Defendants Lost Creek Land & Cattle Company, LLC (“LCLC”), Equus Farms, Inc. (“Equus”),

the Lost Creek Ground Water Management District (the “District”), Henrylyn Irrigation District

(“Henrylyn”), Weldon Valley Ditch Company (“Weldon”), Morgan County Water Quality

District (“MCWQD”) and the Irrigationists’ Association, Water District 1 (“Irrigationists”)

(collectively, “Defendants”), by and through their respective undersigned attorneys, submit this

response to the motion by Plaintiff/Appellant Front Range Resources, LLC (“Front Range”)

requesting that this Court either: (1) revise findings in its order dismissing all claims in this case

as speculative (“Dismissal Order”); or (2) grant Front Range a new trial to change its claims for

purposes of avoiding application of the anti-speculation doctrine (“New Trial Motion”).

For the reasons discussed below, the New Trial Motion should be denied in its entirety

and Defendants should be awarded costs and attorney fees in connection with responding to the

New Trial Motion.

The Commission, Weldon, MCWQD and the Irrigationists concur with and support this

Response with the exception of Section II.E seeking costs and fees for responding to the New

Trial Motion, on which they take no position. Henrylyn concurs and supports Section II. B of

this Response and takes no position on the remainder thereof.

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493

Page 2

I. SUMMARY OF ARGUMENT

The Dismissal Order was not in error. The undisputed factual bases supporting dismissal

of Front Range’s consistent claims for appropriations and changes of water rights were provided

in both the proceedings before the Commission in Case No. 13GW07 (“Commission

Proceedings”) and in this appeal. Front Range cannot change these claims after its case has been

dismissed in an attempt to avoid application of the anti-speculation doctrine.

A de novo appeal does not entitle Front Range to assert new claims that were not

presented to the Commission. If Front Range wants to change its claims, it must file a new

application with the Commission. The New Trial Motion should be denied in its entirety and

Defendants should be awarded costs and attorney fees in connection with responding to the New

Trial Motion.

II. ARGUMENT

A. THE DISMISSAL ORDER WAS NOT IN ERROR AND SHOULD NOT BE CORRECTED.

Front Range argues that this Court’s conclusion in the Dismissal Order that the anti-

speculation doctrine applies to Front Range’s Replacement Plan was in error, because:

[t]he Court based this conclusion on its finding that Front Range is seeking new appropriations of water and changes of water rights. . . . This finding, however, was based on statements in a preliminary draft of the notice of the Replacement Plan that Front Range filed with the Commission in 2011. . . . These statements do not represent the current Plan before the Court, which, as described in several pleadings, does not seek new appropriations or a change of water rights.

New Trial Motion at 2 (emphasis added). Front Range goes on to argue that the current plan

before the court is provided in “[t]he most recent draft of the proposed decree filed with Front

Range’s C.R.C.P. 26(a)(2) rebuttal disclosures [which] . . . does not request new appropriations

of water.” New Trial Motion at 5 (emphasis added, underlining in original).


Page 3

However, as discussed in detail in Defendants’ June 16, 2016 Motion for Costs and

Attorney Fees (“Costs/Fees Motion”), the Court made no such error. The Dismissal Order

refers directly to the proposed decree filed with Front Range’s rebuttal expert disclosures in this

case on March 7, 2016 (“March 7 Decree”) finding that:

Front Range’s Proposed Decree requests amendment to allow increased use of its existing alluvial wells and permission to construct new wells. . . . The court thus finds that the Replacement Plan seeks to appropriate and change water rights. Accordingly, the court finds that the Replacement Plan is subject to the anti-speculation doctrine.

Dismissal Order at 10-11 (emphasis added). Moreover, the March 7 Decree specifically

acknowledges that the anti-speculation doctrine applies and requests a finding it has been

satisfied based on the end user contracts provided by Front Range. See March 7 Decree, ¶18 at

34-35.

The Court also recognized that these appropriative claims were consistent with Front

Range’s claims as noticed and presented in the Commission Proceedings: “Moreover, the legal

notices of the Replacement Plan seeks approval to authorize ‘new appropriations of water’ and

‘issuance of new large capacity well permits for the withdrawal of water associated with the new

appropriations.’” Dismissal Order at 10 (emphasis added).1

As discussed in the Costs/Fees Motion, in the Defendants’/Commission’s March 14,

2016 Motion for Summary Judgment Re Speculation (“Speculation Motion”) and the April 21,

2016 Reply in support of the Speculation Motion (“Speculation Reply”), Front Range has

consistently claimed, in both the Commission Proceedings and throughout this appeal: (1) the

1“…the Lost Creek Designated Ground Water Basin is determined to be overappropriated . . . no new large capacity well permits shall be granted . . . unless a replacement plan is approved by the Commission in accordance with Rule 5.6.” Rules and Regulations For the Management and Control of Designated Ground Water, 2 CCR 410-1, Rule 5.2.5.2 (emphasis added).


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Replacement Plan is for purposes of obtaining new appropriations; and (2) the anti-speculation

doctrine applies to the Replacement Plan. See Costs/Fees Motion, II.B at 2-3, II.D at 3-4, and

II.F at 4; Speculation Motion at 8; Speculation Reply at 3-4.

Finally, during the May 25, 2016 oral argument regarding the Speculation Motion (“May

25 Argument”), Front Range agreed that if the Speculation Motion was granted, all of Front

Range’s claims would be dismissed and the trial vacated:

THE COURT: . . . If I grant the motion, the case would be dismissed and the trial would be vacated? MR. HOLLEMAN: I believe so, Your Honor, yes.

Transcript of May 25, 2016 oral argument, Case No. 15CV30493 (“May 25 Transcript”)2 at

38:12-14. The Dismissal Order disposed of all Front Range’s claims that were properly before

this Court on appeal. The New Trial Motion should be denied.

B. IT IS TOO LATE FOR FRONT RANGE TO AMEND ITS CLAIMS. “[A]mendment of pleadings may not be requested for the first time on appeal.” Civil

Service Com'n v. Carney, 97 P.3d 961, 968 (Colo. 2004) (emphasis added) (citing Fladung v.

City of Boulder, 438 P.2d 688, 690 (1968)). Moreover, “[o]nce there is a final judgment,

motions to amend a complaint may no longer be entertained.” Id. “After judgment it is too late to

amend pleadings unless consent of all parties is obtained.” In re Vilm's Estate, 299 P.2d 513,

514 (Colo. 1956).

“While the policy of the law is that courts should be extremely liberal in the allowance of

amendments to pleadings in the furtherance of justice . . . amendments after judgment are made

for the purpose of supporting and maintaining, and not for the purpose of destroying,

2Relevant portions of the May 25 Transcript are attached as EXHIBIT A.


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impeaching, or setting aside, the judgment.” Peck v. Peck, 80 P. 1063, 1065 (Colo. 1905)

(emphasis added).

This is an appeal of claims Front Range noticed and presented in the Commission

Proceedings. Front Range is not free to alter its claims in this proceeding: (1) after those claims

have been dismissed; (2) when the sole purpose of amending the claims is to set aside the

Dismissal Order; and (3) the Commission/Defendants do not consent to the amendment. The

New Trial Motion should be denied in its entirety.

C. FRONT RANGE CANNOT AMEND ITS CLAIMS THROUGH TERMS AND CONDITIONS.

Front Range argues that C.R.S. § 37-92-305(3)(a) and the two cases cited in the New

Trial Motion, including Buffalo Park Dev. Co. v. Mountain Mut. Reservoir Co., 195 P.3d 674

(Colo. 2008)3 allow Front Range to propose new terms and conditions and to obtain a new trial

for purposes of doing so. At the outset, it must be noted that the statute and cases cited by Front

Range deal with proceedings before the Water Court, not proceedings before the Commission or

on appeal.

In addition, C.R.S. § 37-92-305(3)(a) allows terms and conditions to be proposed in

connection with augmentation plans and changes of water rights. See C.R.S. § 37-92-305(3)(a).

Just like replacement plans, augmentation plans are designed to allow new appropriations. See

Buffalo Park, 195 P.3d at 685 (“Like a ditch, a well is a diversion device for obtaining water in

connection with a beneficial use. . . . If unappropriated water is not available for

appropriation, an adequate augmentation plan allows diversions in areas where they would not

3Buffalo Park involved new appropriations via wells under an augmentation plan. The other case cited by Front

Range, City of Colorado Springs v. Yust, involved terms and conditions to prevent injury in a change of water rights case. See 249 P.2d 151, 154 (Colo. 1952). As discussed below, both are appropriative claims, subject to the anti-speculation doctrine.


Page 6

be possible otherwise.”) (emphasis added). Thus, the ability to propose terms and conditions

applies to new appropriations under augmentation plans and changes of water rights. The anti-

speculation doctrine also applies to these claims.

Further, “Section 37–92–305(3),(5) & (8), C.R.S. . . . allows the applicant the opportunity

to propose adequate terms and conditions to prevent injury to vested water rights and conditional

water rights.” Id. at 690 (emphasis added). Front Range cannot simultaneously argue that it is

not seeking new appropriations and that it has the right to propose terms and conditions to

prevent injury as allowed in connection with new appropriations. Moreover, the statutes cited by

Front Range have never been applied for purposes of allowing an applicant to change its claims

to circumvent the anti-speculation doctrine.

Finally, any terms and conditions must be proposed while the case is still pending:

A party to a water case, believing that it has not been offered an adequate opportunity to propose protective terms and conditions under section 37–92–305(3), has a responsibility to alert the water judge of its position in this regard, and make a motion or offer of proof to introduce evidence and protective terms and conditions for an adequate augmentation plan while the case is still pending in the water court.

Id. at 691 (emphasis added).4 Assuming for the sake of argument Front Range could have

amended its claims through terms and conditions, Front Range was aware of the speculation

issue from very beginning of both the Commission Proceedings and this appeal. Front Range

also had numerous opportunities to propose terms and conditions dealing with this issue prior to

entry of the Dismissal Order. See Costs/Fees Motion at II.E-II.F at 4, II.L-II.M at 6, II.Q-II.R at

6-7 and II.T at 7.

4This same language is cited in the New Trial Motion as a basis for allowing Front Range to change its claims after its case has been dismissed. See New Trial Motion at 4.


Page 7

For example, as discussed in the Costs Fees Motion, this Court specifically required that

Front Range identify, by August 15, 2015, “[t]he terms and conditions under which Plaintiff

proposes to operate the Replacement Plan.” See Id., II.T at 7 (quoting July 24, 2015 Case

Management Order entered by this Court).

Further, Front Range had additional opportunities to deal with this issue in its March 7

Decree and in a proposed order submitted on October 5, 2015 with Front Range’s initial expert

disclosures. However, rather than withdrawing its appropriative claims, Front Range sought a

ruling that these claims were non-speculative, based on end user contracts provided by Front

Range. See Id. at II.F at 4.

Finally, during the May 25 Argument, Front Range was given an additional opportunity

to withdraw its Replacement Plan claims. Front Range declined to do so, arguing it was not

appropriating or changing anything:

MR. CURTIS: . . . Front Range has asked for new appropriations for well permits, changes to existing permits -- and this is right out of their order -- and additional withdrawals. You heard Mr. Holleman testify that they want to take 9,000 out of the basin. They have the current right to take 3,880 out of the basin. These requests, are they willing to withdraw these claims?

. . . .

MR. HOLLEMAN: Your Honor, the only change we're seeking is the right to take the personal property that we have recharged into the basin back out via the wells. We do need permission from the Court to do that. It is not a new appropriation and it is not a change.

May 25 Transcript at 47:15-22; 47:25-48:5 (emphasis added). Front Range’s argument that it can amend its claims through terms and conditions to

avoid application of the anti-speculation doctrine concedes the fact that Front Range’s claims

prior to dismissal were for new appropriations and changes of water rights. More importantly,


Page 8

C.R.S. § 37-92-305(3)(a) allows for proposed terms and conditions in order to prevent injury.

Here, the Court did not dismiss the claims because they would result in injury, but because the

entire application was speculative.

Front Range’s argument that it can suggest terms and conditions to avoid application of

the anti-speculation doctrine after its case has been dismissed is directly at odds with the Buffalo

Park case cited by Front Range. The New Trial Motion should be denied in its entirety.

D. A DE NOVO APPEAL DOES NOT ENTITLE FRONT RANGE TO ASSERT NEW CLAIMS.

This matter is an appeal of the denial of a replacement plan application filed before the

Commission. C.R.S. § 37-90-115(1)(b)(III) (the “De Novo Statute”) provides that:

“Proceedings on appeal shall be de novo; except that evidence taken in any administrative

proceeding appealed from may be considered as original evidence, subject to legal objection, as

if said evidence were originally offered in such district court.” (Emphasis added).

Despite the fact that the De Novo statute calls for de novo proceedings on appeal, Front

Range argues in its Complaint that “[t]he Replacement Plan application is . . . properly the

subject of de novo review before this Court. C.R.S. § 37-90- 115(1)(a), (1)(b)(III). A trial de

novo is a trial anew of the entire controversy, including the hearing of evidence, as though no

previous action had been taken. Turner v. Rossmiller, 532 P.2d 751 (Colo. 1975).” Complaint

¶5 at 3 (emphasis added).

Consistent with this position, when this Court ordered Front Range to clarify its claims

early on in this appeal Front Range did so, but also reserved the right to modify its claims. See

Costs/Fees Motion, II.T-II.U at 7. The New Trial Motion now seeks to modify Front Range’s


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claims following dismissal of the case and requests a new trial for purposes of presenting

evidence supporting these new claims.

Interpreting the De Novo Statute as allowing Front Range to present new claims on

appeal renders the Commission Proceedings meaningless, as this Court would consider new

claims never noticed or presented in the Commission Proceedings. This also renders

meaningless the requirement that the record of the Commission Proceedings be transferred to

this Court, as required C.R.S. §§ 37-90-115(1)(b)(IV). A plain reading of the De Novo Statute

prevents Front Range from presenting new claims in this appeal.

The Defendants/Commission are aware of a Division 1 Water Court Order in Case No.

03CV1335 for Gallegos Family Properties LLC addressing the De Novo Statute (“Gallegos

Order”) (EXHIBIT B). The Gallegos Order recognized a concern:

that allowing new evidence to be presented to the district court would encourage litigants to intentionally withhold evidence when before the administrative agency, thereby undermining the administrative process. . . . a party ‘who pursues such a strategy would be intentionally undermining his claims before the [administrative body] on the speculative chance that he will gain some advantage in the proceeding by presenting new evidence to a district court judge.’ . . . The court finds that the likelihood of such a scenario occurring in the context of [the De Novo Statute] . . . does not, in and of itself, justify a determination regarding the scope of de novo review contrary to the existing legal authority on this issue.

Id. at 6 (emphasis added) (citing Kappos v. Hyatt, 132 S. Ct. 1690, 1696-97; 1700 (U.S. 2012)).

Front Range has continually changed its claims during this appeal, and now seeks a new

trial so it can continue this pattern and practice even though the case has been dismissed. Front

Range’s interpretation of the De Novo Statute has led to exactly the result the Gallegos Order

suggests could require reconsideration of the proper scope of de novo review.


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The Court only has jurisdiction to determine whether the Commission should have

granted rather than denied Front Range’s claims as they were noticed and presented in the

Commission Proceedings. If Front Range desires to make new claims, it must file a new

application with the Commission. The original jurisdiction of the Commission must be honored.

An appeal, even a de novo appeal, is just an appeal, not an original proceeding. This

Court should deny the New Trial Motion in its entirety and rule that the De Novo Statute does

not allow Front Range to present new claims on appeal.

E. LCLC, EQUUS AND THE DISTRICT ARE ENTITLED TO COSTS AND ATTORNEY FEES FOR RESPONDING TO THE NEW TRIAL MOTION.

C.R.S. §13-17-102(4) provides that:

The court shall assess attorney fees if . . . it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct . . . . As used in this article, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

(Emphasis added). “[I]f the record reveals that counsel or any party has brought, maintained, or

defended an action in bad faith, the rationale for awarding attorney fees is even stronger. Bad

faith may include conduct which is arbitrary, vexatious, abusive, or stubbornly litigious. It also

may include conduct aimed at unwarranted delay or disrespectful of truth and accuracy.” W.

United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984) (emphasis added).

As discussed above and in the Costs/Fees Motion, the New Trial Motion ignores Front

Range’s own filings in both this appeal and in the Commission Proceedings, as well as the actual

text of the Dismissal Order. See Costs/Fees Motion at 21. The New Trial Motion is premised

on arguments that have no basis in law, as demonstrated by the cases cited by Front Range.


Page 11

Front Range seeks a new trial so it can present new claims never noticed or presented in the

Commission Proceedings or to this Court prior to dismissal.

The New Trial Motion also repeatedly attempts to reargue that Front Range's claims do

not involve appropriations or changes of water rights, despite the fact that the Court has already

determined that they do and that such claims are speculative. See New Trial Motion, I at 2; III at

4-6.

As discussed in the Costs/Fees Motion, the New Trial Motion is part of Front Range's

ongoing pattern and practice of attempting tore-litigate andre-characterize its claims until Front

Range wins by attrition. See Costs/Fees Motion at 21. The New Trial Motion is substantially

frivolous, substantially groundless and substantially vexatious and it was filed in bad faith. The

New Trial Motion should be denied in its entirety and LCLC, Equus and the District should be

awarded costs and attorney fees. 5

Respectfully submitted this 30th day of June, 2016.

CYNTHIA H. COFFMAN, Attorney General

Alan E. Curtis fOr Jennifer Mele Jennifer Mele (#30720) Senior Assistant Attorney General Natural Resources and Environmental Section Water Rights Unit Attorneys for Colorado Ground Water Commission

PORZAK BROWNING & BUSHONG, LLP

Alan E. Curtis {Or Michael F. Browning Michael F. Browning (#8217) Attorneys for Equus Farms

Alan E. Curtis (#34 1) David C. Taussig, (#16606) Courtney J Krause, (#45520) Tacy K Hass, (#45247) Attorneys for Lost Creek Land & Cattle Co.

LAWRENCE JONES CUSTER GRASMICK LLP

Alan E. Curtis {Or P. Andrew Jones P. Andrew Jones (#29076) Attorneys for Lost Creek Ground Water Management District

5LCLC, Equus and the District will provide additional bills of costs via a separate pleading.


Page 12

CARLSON, HAMMOND & PADDOCK, L.L.C.

S/Alan E. Curtis for Mason H. Brown

Mason H. Brown (# 44831)

Karl D. Ohlsen (#32497)

Attorneys for Irrigationists' Association, Water

District No. 1

LYONS GADDIS KAHN HALL JEFFERS DWORAK & GRANT PC

S/Alan E. Curtis for Matthew Machado

Jeffrey J. Kahn (#6894)

Matthew Machado (#31233)

Attorneys for Morgan County Quality Water and

District Weldon Valley Ditch Company

HOLSINGER LAW LLC S/Alan E. Curtis for Alyson Meyer Gould

Kent Holsinger (#33907)

Alyson Meyer Gould ( #42672)

Attorneys for Henrylyn Irrigation District


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CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of June, 2016, I served a true and correct copy of DEFENDANTS' RESPONSE TO PLAINTIFF/APPELLANT'S MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59 in Case No. 15CV30493via electronic mail addressed to the following:

Party Name Party Type

Defendant

Lost Creek Ground Water Mgmt endant Dist

£~ite & Jankowski Efiled per C.R.C.P. 121 Duly signed original on file at White & Jankowski, LLP

Attorney N arne

I Je:nm:terLVIl M.ele (CO Attorney General) yGeneral)

David Buchanan (Buchanan and Sperlin6 , 1 P.C.)

Alyson Meyer Gould (Holsinger Law LLC) LLC)

Karl David Ohlsen (Carlson, Hammond & Paddock, L.L.C.) Mason Hamill Brown (Carlson, Hammond & Paddock, L.L.C.)

P Andrew Jones (Lawrence Jones Custer vntsmtcK 1 LLP)

~~----~~~~~~~----------~~----~·---·----~ Morgan County Quality Water Dist Defendant

Northern Colorado Water Conservancy Dist

Weldon Valley Ditch Co

Defendant

Defendant

Jeffrey J Kahn (Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, PC.) Matthew Machado (Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, PC.)

-·--------····~··~-1

Andrea M. Bronson (Trout, Raley, Montano, Witwer & Freeman, PC) Douglas M Sinor (Trout, Raley, Montano, Witwer & Freeman, PC)

Jeffrey J Kahn (Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, PC.) Matthew Machado (Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, PC.)

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me that her supervisor told her that Judge Murphy had

a short hearing this morning. She was kind of tricked

into coming up here.

For Front Range, I'd like you to go to the

podium. I want to ask you a couple of questions.

I'll start with the defendants because it's your

motion. That's the fairest way to do it. The first

question is what happens if the Court grants this

motion? What do we do?

MR. CURTIS: The case would be dismissed.

THE COURT: Okay. Front Range, are you in

agreement with that? If I grant the motion, the case

would be dismissed and the trial would be vacated?

MR. HOLLEMAN: I believe so, Your Honor, yes.

THE COURT: Thank you. I want to continue

with the defendants. Front Range, the plaintiffs

mentioned in their brief -- I'm just going to say in

briefs.

In their response I guess I'll say on pages 6

to 8, they cited for the proposition that the

commission has approved plans for change on use based

on commitments far less binding than option contracts.

How would you distinguish the letters of intent cited

by Front Range in this response? Do you follow what

I'm saying?

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addressed. We explained the water needs in the

pioneer development in our disclosures.

THE COURT: Thank you. Are Resource Colorado

and PB obligated to purchase water from Front Range?

Is there an obligation?

MR. HOLLEMAN: May I check again, Your Honor?

I'm sorry. To the extent that they provide service to

Front Range's property, there is an obligation.

THE COURT: Is Front Range an agent for

Dominion, Aurora, Resource Colorado, or PB?

MR. HOLLEMAN: We're not an agent, Your

Honor. Our relationship is contractual.

THE COURT: Now you can ask your questions.

MR. CURTIS: I just have two because you

asked my third question. Front Range has asked for

new appropriations for well permits, changes to

existing permits -- and this is right out of their

order -- and additional withdrawals.

You heard Mr. Holleman testify that they want

to take 9,000 out of the basin. They have the current

right to take 3,880 out of the basin. These requests,

are they willing to withdraw these claims?

THE COURT: There you go. That's your

question.

MR. HOLLEMAN: Your Honor, the only change

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we're seeking is the right to take the personal

property that we have recharged into the basin back

out via the wells. We do need permission from the

Court to do that. It is not a new appropriation and

it is not a change.

THE COURT: Thank you. Next question?

MR. CURTIS: Doesn't Front Range's operation

involve diverting water, moving it around the basin to

new points of diversion and recharge at new wells, and

then changing the timing of that diversion and use

through this operation? If so, why is this not a

change under High Plains that implicates the

speculation doctrine?

THE COURT: Thank you. Go ahead.

MR. HOLLEMAN: We're not extending the water

or doing anything new with it that isn't already

allowed by the present terms and conditions. It is

recharged at the sites and goes to the aquifer and it

moves by virtue of the aquifer but we're not doing

that movement. We're recapturing it from the wells

that we're asking for permission to recapture it from.

THE COURT: Thank you. I have another

question for Front Range. I'm pretty familiar with

the Rules of Evidence, especially with regard to

relevance. Do you think it would be relevant in this

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WATER DIVISION NO. 1, STATE OF COLORADO DISTRICT COURT, WELD COUNTY P.O. BOX 2038 Greeley, CO 80632 (970) 475-2400

▲COURT USE ONLY▲

GALLEGOS FAMILY PROPERTIES, LLC, Plaintiffs in Original Proceeding, v. COLORADO GROUND WATER COMMISION, an Administrative Agency of the State of Colorado, and Mr. Dick Wolfe, in his capacity as the COLORADO STATE ENGINEER, and as ex officio Executive Director of the Colorado Ground Water Commission and as a non-voting member of the Colorado Ground Water Commission. Defendants-Appellees, EDNA B. ANDERSON, et al., Defendants

Case No.: 2003CV1335 Div. 1

ORDER RE:SCOPE OF DE NOVO REVIEW OF APPEALS TAKEN PURSUANT TO C.R.S. § 37-90-115

This matter comes before the court on the appeal from the decision of the Colorado Ground Water Commission denying Plaintiff Gallegos Family Properties, LLC’s (“Plaintiff”) petition to de-designate certain portions of the Upper Crow Creek Designated Ground Water Basin. The Plaintiff appealed the decision pursuant to C.R.S. § 37-90-115(1)(a)(III), which states in pertinent part that “proceedings upon appeal shall be de novo. . .” The court requested that all parties submit position briefs on the proper scope of the de novo proceeding. Plaintiff, Defendants-Appellees Colorado Ground Water Commission and Colorado State Engineer (“Commission”), and Defendants-Cross Appellants William Anderson, Larry Lang, Dan Loyd, Jesse Loyd, Evelyn Loyd, Loyd Farms, Lisa R. Pettinger, Richard L. Pettinger, Rory J. Pettinger, Clarence E. Tietmeyer, and Vonda Jean Tietmeyer (“Defendants-Cross Appellants”) filed their position briefs on January 24, 2013. The court also held oral argument on the proper scope of the court’s de novo review on May 23, 2013. Having reviewed the briefs, taken consideration of the oral arguments presented on May 23, 2013, and being otherwise fully informed and advised, the court makes the following determinations.

DATE FILED: June 20, 2013 3:23 PM CASE NUMBER: 2003CV1335

EXHIBIT B TO RESPONSE TO NEW TRIAL MOTION (CASE NO. 15V30493)


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I. FACTUAL AND PROCEDURAL HISTORY

The Plaintiff initiated this matter in 2003 when it requested the State Engineer or the Colorado Ground Water Commission (“Commission”) to curtail pumping of certain wells within the Upper Crow Creek Designated Ground Water Basin (“Basin”). Harold Simpson, the State Engineer and Director of the Commission at the time, responded that there was no basis for the Commission to order the curtailment of any of the wells. The Plaintiff appealed the State Engineer’s determination to the Commission. The Hearing Officer for the Commission issued an initial decision in June 2003, finding that the Plaintiff’s claims were barred by res judicata, that the Commission had exclusive jurisdiction over the administration of designated ground water but no jurisdiction over surface water rights, and that it would be improper to order the curtailment of any of the wells in the Basin. The Commission affirmed the Hearing Officer’s June 2003 decision. Subsequently, the Plaintiff appealed the Commission’s decision to the Weld County District Court. The District Court reversed the Commission’s finding that the Plaintiff’s claims were barred by claim or issue preclusion and remanded the case for further factual findings related to the question of jurisdiction. The District Court also found that the Plaintiff’s surface water rights were subject to a modified prior appropriation doctrine, the unreasonable method of diversion doctrine, and the futile call doctrine. The Plaintiff appealed to the Colorado Supreme Court, asserting that the District Court erred in concluding that the Plaintiff’s senior surface water rights were subject to a modified prior appropriation, the unreasonable method of diversion doctrine, and the futile call doctrine. The Defendants Colorado Ground Water Commission and Harold D. Simpson, as Colorado State Engineer, cross-appealed, asserting the District Court erred in holding that the Plaintiff was not barred by claim or issue preclusion. On appeal, the Colorado Supreme Court affirmed the District Court’s determination that the Plaintiff’s claims were not barred by claim or issue preclusion. Gallegos v. Colorado Ground Water Comm’n, 147 P.3d 20, 33 (Colo. 2006). The Colorado Supreme Court also held that the Commission has jurisdiction over surface water rights “only for the purpose of altering the boundaries of a designated ground water basin.” Id. at 23. The Colorado Supreme Court then remanded the matter to this court for further proceedings consistent with the Supreme Court’s decision.

This court in turn remanded the case to the Commission for determination as to whether

the withdrawal of water from the subject wells caused more than a de minimis impact on the Plaintiff’s surface water rights and was causing injury to those rights, and if so, whether altering the boundaries of the Basin was necessary to prevent depletion of water supplies necessary for Plaintiff’s surface water rights. This court retained jurisdiction to consider any appeal of the order remanding the case to the Commission.

An eight-day hearing occurred before a hearing officer for the Commission in 2011 and on

March 12, 2012, the hearing officer issued a written ruling denying the Plaintiff’s Petition to de-designate portions of the Basin. The Plaintiff’s appealed that decision to the entire Commission and on September 20, 2012, the Commission issued an order upholding the hearing officer’s decision.

The present appeal of the Commission’s denial of the Plaintiff’s petition to de-designate

certain portions of the Basin followed. The Plaintiff appealed pursuant to C.R.S. § 37-90-115(1)(a), which states:

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Any party, including a ground water management district, adversely affected or aggrieved by any decision or act of the ground water commission, except for the adoption of rules, under the provisions of this article or by a decision or act of the state engineer under section 37-90-110 may take an appeal to the district court in the county wherein the water rights or wells involved are situated.

The statute further provides that “[p]roceedings upon appeal shall be de novo; except that evidence taken in any administrative proceeding appealed from may be considered as original evidence, subject to legal objection, as if said evidence were originally offered in such district court.” C.R.S. § 37-90-115(1)(a)(III). All parties agree that the appellate proceeding in this court is to be de novo, but the parties disagree as to the proper scope of the de novo proceeding. The Plaintiff asserts that the de novo proceeding is to be akin to an entirely new trial, where all relevant evidence is properly before the court, subject only to applicable Colorado Rules of Evidence and procedural rules. The Defendants-Appellees and the Defendants-Cross Appellants (collectively “Defendants”) assert that offering evidence that was not previously before the Commission is improper. The Defendants do not argue that this court should merely perform a review of the Commission’s record on the matter. Rather, they assert this court is to make independent findings and determinations but must do so based only on the evidence that was presented to the Commission. II. ISSUE The issue presented is whether “de novo,” as provided in C.R.S. § 37-90-115(1)(a)(III) permits a party on appeal to the district court to offer evidence that was not previously before the Ground Water Commission.

III. ANALYSIS

A. De Novo Review as Contemplated in C.R.S. Section 37-90-115(1)(a)(III)

The Plaintiff asserts that the appeal from the Ground Water Commission’s denial of its petition to de-designate certain portions of the Basin is to be de novo, as provided by C.R.S. § 37-90-115(1)(a)(III). The Plaintiff further asserts that the de novo proceeding before this court allows the parties to present all evidence the court deems relevant and otherwise admissible under the Colorado Rules of Evidence, regardless of whether this same evidence was before the Commission in the previous proceeding. In support of its argument the Plaintiff directs the court to a series of cases that articulate the de novo standard as providing the parties an opportunity to try the matter in the reviewing court as though no previous proceeding had occurred.

The Defendants agree that the appeal of the Commission’s denial of the Plaintiff’s petition

to de-designate certain portions of the Basin should be de novo. The Defendants assert that de novo, as contemplated in § 37-90-115(1)(a)(III) does not allow the parties to present evidence that was never before the Commission in the previous proceeding. In support of their position the Defendants direct the court to the Colorado Supreme Court decision in Colorado Ground Water Comm’n v. Eagle Peak Farms, Ltd., 919 P.2d 212 (Colo. 1996), wherein the Colorado Supreme Court discussed the proper scope of de novo judicial review of agency rulemaking as provided by § 37-90-115. The Defendants do not assert that the opinion in Eagle Peak Farms speaks squarely

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to the present appeal. They nevertheless assert that portions of the decision apply here, specifically Justice Hobbs’ comment regarding a litigant’s need to exhaust administrative remedies by presenting all relevant evidence in the administrative proceeding before seeking judicial review.

After review of the applicable statutory provisions and case law, the court finds that de

novo review of this matter, as contemplated in C.R.S. § 37-90-115(1)(a)(III), permits the parties to offer evidence that was not before the Commission in the previous proceeding.

The court first recognizes that the relevant case law makes no meaningful distinction

between the word “proceeding” and “trial” when discussing the de novo standard. To the contrary, Colorado decisions have used the phrase “proceeding de novo” and “trial de novo” interchangeably. See Bd. of Assessment Appeals v. Sampson, 105 P.3d 198, 2012-03 (Colo. 2005) (using both “de novo proceeding” and a “trial de novo” when referring to a statute that provides for a “trial de novo”); B.C., Ltd. v. Krinhop, 815 P.2d 1016, 1018 (Colo. App. 1991) (using both “trial de novo” and “de novo proceedings” when referring to a statute that provides for a “trial de novo”); Estes v. Denver & R.G.R. Co., 113 P. 1005, 1008 (Colo. 1910) (referring to a “trial de novo” being held in the district court pursuant to a statute that provides for de novo “proceedings”). In light of these cases, the court concludes that for purposes of the present issue, there is no significance in the use of the word “proceedings” in § 37-90-115(1)(a)(III) as opposed to “trial.”

The court next considers the proper scope of de novo review, as contemplated in C.R.S. §

37-90-115. Section 37-90-115(1)(a) provides:

Any party, including a ground water management district, adversely affected or aggrieved by any decision or act of the ground water commission, except for the adoption of rules, under the provisions of this article or by a decision or act of the state engineer under section 37-90-110 may take an appeal to the district court in the county wherein the water rights or wells involved are situated.

Section 37-90-115(1)(a)(III) then states that “[p]roceedings upon appeal shall be de novo; except that evidence taken in any administrative proceeding appealed from may be considered as original evidence, subject to legal objection, as if said evidence were originally offered in such district court.”

Courts discussing the meaning of de novo judicial review of agency action have determined that a de novo proceeding affords the parties the opportunity to try the matter as though no previous administrative proceeding occurred. B.C., Ltd. v. Krinhop, 815 P.2d 1016, 1018 (Colo. App. 1991) (“Thus, de novo proceedings ordinarily afford the same parties an opportunity to try a controversy anew and to present such evidence as could have been presented in the initial forum.”); Arapahoe Partnership v. Bd. of Cnty. Comm’rs, 813 P.2d 766, 768 (Colo. App. 1990) (“Upon consideration of § 39-8-108(1), we conclude that, in calling for trial de novo without limitation, the General Assembly intended that the process of ‘appeal’ lose its character as a review and be considered the same as though it were an original proceeding, with the reviewing court making an entirely independent determination.”); Estes v. Denver & R.G.R. Co., 113 P. 1005, 1008 (Colo. 1910) (stating that a de novo appeal from county court to district court gives

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“the parties an opportunity to present all questions raised in the county court for the judgment of the district court, and to take all steps therein which could have been taken in the county court, without regard to whether they were taken in that forum. . .”).

The above-cited cases do not address the scope of de novo review as provided by § 37-90-

115(1)(a)(III). They do, however, address de novo judicial review in the context of appeals from county court to district court pursuant to Mills Annotated Statute §§ 1085, 1089, and appeals from the Board of Equalization to the district court pursuant to C.R.S. § 39-8-108(1), which statutes provide no explanation as to the proper scope of their de novo review. The court therefore finds that the analysis in these cases is relevant to the issue here, where § 37-90-115(1)(a)(III) provides for proceedings de novo but similarly offers no further guidance as to the proper scope of that de novo review. In the absence of authority that directly contradicts these cases, the court finds that the proper scope of de novo review pursuant to § 37-90-115(1)(a)(III) permits the parties to offer evidence that was not before the Ground Water Commission in the previous proceeding.

B. Exhaustion of Administrative Remedies

In so finding, the court does not disregard the Defendants’ concerns regarding exhaustion of administrative remedies. As the Defendants point out, Justice Hobbs spoke to this concern in Eagle Peak Farms:

At oral argument, Eagle Peak suggested that it might have presented different evidence, or additional evidence, to the Commission in the rulemaking proceeding had it known that de novo presentation before the ground water judge was not available. But parties involved in administrative proceedings are required to exhaust their administrative remedies before seeking judicial review.

Eagle Peak Farms, 919 P.2d at 219. Justice Hobbs’ statement regarding exhausting administrative remedies was made during an analysis of the proper scope of de novo judicial review of quasi-legislative agency action. In contrast to the underlying facts of Eagle Peak Farms, the agency action the parties have appealed in this matter was a quasi-judicial agency action—specifically the denial of the Plaintiff’s petition to de-designate portions of the Upper Crow Creek Designated Ground Water Basin. Eagle Peak Farms made very clear that the de novo standard as applied to judicial review of agency rulemaking does not afford the parties an opportunity to present evidence that was not previously before the Commission. Id. at 217. The opinion does not determine the de novo standard as it applies to agency action that is quasi-judicial rather than quasi-legislative. As a consequence, the court will not infer a more expansive meaning from Justice Hobbs’ words without direct authority that supports such an inference.

The United States Supreme Court recently had occasion to comment on exhaustion of

administrative remedies in the context of a district court proceeding after administrative action. Kappos v. Hyatt, 132 S.Ct. 1690, 1696-97 (U.S. 2012). In Kappos, a 2012 decision involving a civil action against the director of an administrative agency, the Court reasoned that because a “primary purpose of administrative exhaustion ‘is, of course, the avoidance of premature interruption of the administrative process’, [t]hat rationale does not apply here because, by the time [the district court] proceeding occurs, the [agency’s] process is complete.” Id. at 1697. The Court also explained that the presentation of new evidence at the district court level did not justify

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a remand to the administrative body, commenting that “there is no pressing need for such a procedure because a district court, unlike a court of appeals, has the ability and the competence to receive new evidence and to act as a factfinder.” Id. While Kappos is factually distinct from the present matter in so far as it involved an independent civil action against the director of an administrative agency rather than judicial review of agency action, the Court’s observations regarding exhaustion of administrative remedies are nevertheless relevant here. Like the proceeding before the Patent and Trade Office in Kappos, the proceeding before the Commission in the present matter is complete and the denial of the Plaintiff’s petition was final. There is therefore no risk of premature interruption of agency process in this situation.

The Director of the Patent and Trade Office in Kappos also expressed a concern similar to

one of the Defendants’ concerns here – specifically that allowing new evidence to be presented to the district court would encourage litigants to intentionally withhold evidence when before the administrative agency, thereby undermining the administrative process. The Court found such a scenario unlikely, stating that a party “who pursues such a strategy would be intentionally undermining his claims before the [administrative body] on the speculative chance that he will gain some advantage in the proceeding by presenting new evidence to a district court judge.” Id. at 1700. While the concern regarding such a scenario is not to be summarily disregarded, Justice Thomas’ comment in Kappos offers a useful context for the Defendants’ concern here. The court finds that the likelihood of such a scenario occurring in the context of § 37-90-115(1)(a)(III) appeals is also minimal, and as such does not, in and of itself, justify a determination regarding the scope of de novo review contrary to the existing legal authority on this issue.

IV. ORDER

The court determines that a de novo proceeding pursuant to C.R.S. § 37-90-115(1)(a)(III) permits the parties to offer relevant evidence on appeal that was not before the Ground Water Commission in the previous proceeding.

Dated: June 20, 2013 By the court:

____________________________ James F. Hartmann Water Judge, Water Division No. 1


COURT USE ONLY

Plaintiff/Appellant: FRONT RANGE RESOURCES, LLC v. Defendant/Appellee: COLORADO GROUND WATER COMMISSION Defendants: Lost Creek Land & Cattle Company; Lost Creek Ground Water Management District; Equus Farms, Inc.; Henrylyn Irrigation District; Morgan County Quality Water District; Weldon Valley Ditch Company; Northern Colorado Water Conservancy District; and Irrigationists’ Association, Water District 1 Attorneys for Plaintiff/Appellant Front Range Resources, LLC Paul F. Holleman John D. Buchanan Buchanan Sperling & Holleman PC 7703 Ralston Rd. Arvada, Colorado 80002 Phone: (303)431-9141 Fax: (800)803-6648 Email: [email protected]; [email protected] Atty. Reg. Nos: 21888; 45191

Case No. 15CV30493 Div: T, Crtm: 405

PLAINTIFF/APPELLANT’S REPLY IN SUPPORT OF MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59

Plaintiff/Appellant, Front Range Resources, LLC (“Front Range”), acting by and through

its attorneys, Buchanan Sperling & Holleman PC, hereby files this Reply in Support of Motion

for New Trial and to Amend the Findings and Judgment pursuant to C.R.C.P. 59 (“Motion”).

INTRODUCTION

This Court held that Front Range’s evidence of beneficial use on its own land and its

option agreements with other water users are insufficient to satisfy the anti-speculation doctrine.

DATE FILED: July 7, 2016 2:21 PM FILING ID: 62DCF58D8A2FA CASE NUMBER: 2015CV30493


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Although Front Range respectfully disagrees with this conclusion, Front Range is not requesting

reconsideration of this ruling. Rather, Front Range asks this Court to allow the Replacement

Plan application to proceed on the basis of terms and conditions to clarify that no new

appropriations or changes of water rights can occur under the Plan operations, thus ensuring that

the anti-speculation doctrine is not implicated in this proceeding. Front Range’s requested relief

is consistent with this Court’s summary judgment order, C.R.C.P. 59, and standard procedures

that apply to both water court and Commission applications. Defendants have conspicuously

failed to argue that terms and conditions cannot resolve these issues.

1. The Replacement Plan does not request new appropriations or changes of water rights, and therefore the anti-speculation doctrine doesn’t apply.

Defendants have never explained why they believe that the Replacement Plan would

constitute new appropriations of the public water supply under the legal definition of

appropriation. Instead, Defendants simply cite – in italicized, bold type – the word

“appropriation” without explaining to the Court how they believe the actual operation of the

Replacement Plan would result in new appropriations.

“Appropriation” is a thoroughly defined term in the statutes, Commission rules, and case

law. An appropriation is “the application of a specified portion of the waters of the state to a

beneficial use pursuant to the procedures prescribed by law.” C.R.S. § 37-92-103(3)(a)

(emphasis added); 2 CCR 410-1 Rule 4.2.4. When unappropriated waters of the state are applied

to a beneficial use, thereby completing an appropriation, this act gives rise to a new, vested water

right. Shirola v. Turkey Canon Ranch Ltd. Liab. Co., 937 P.2d 739, 748 (Colo. 1997). The

Replacement Plan does not request any use or application of the waters of the state; therefore, by


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definition, the Plan does not involve appropriations of new vested water rights, regardless of

whether Front Range and the Commission (which was heavily involved in and actually published

the legal notice of the application) have used the word “appropriation” in the past.

Instead, the Replacement Plan involves taking dominion and control over specific

quantities of water diverted under existing water rights, recharging such water into the aquifer

for storage while maintaining dominion and control, and later recovering similar amounts of

water. This recovery of water over which dominion and control is maintained does not constitute

a new appropriation. See City and County of Denver v. Fulton Irrigating Ditch Co., 179 Colo.

47, 506 P.2d 144, 146-149 (1972) (holding that existing water rights, over which dominion and

control was maintained, could be reused for the same uses, successively used for new uses, and

disposed of through lease, sale, exchange or otherwise); see also Public Service Co. of Colo. v.

Willows Water Dist., 856 P.2d 829 (Colo. 1993).

Defendants have not disputed that the replacement water sources are already permitted or

decreed for replacement use. The Replacement Plan was not requested to change the approved

uses of these existing water rights or to appropriate new rights to use the public water supply; it

was requested to adjudicate the terms and conditions necessary to prevent injury to other water

rights under the currently approved uses of the existing water rights.

2. Front Range is not requesting to add or amend any claims made in the Replacement Plan application.

Defendants’ argument that Front Range cannot amend its pleadings or claims after a final

judgment is entered is not relevant to this motion. Front Range is not trying to amend the claims

described in its legal notice or in the complaint filed in this court. These claims have not


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changed: Front Range will recharge water at certain identified locations and later withdraw up to

the same amount of water at other identified locations utilizing existing wells, and/or new wells

at the same location of the existing wells, to withdraw the recharged water that remains under

Front Range’s dominion and control. See, e.g., Defendants’ Motion re: Water Quality, ICCES

Filing ID 83790C5C401B6 at ¶ 3 (“Under the Replacement Plan, Front Range proposed to

recharge water into the Lost Creek Basin alluvial aquifer and later withdraw…the actual amount

of water that Front Range has recharged and stored in the Lost Creek Alluvium”). Front Range

only seeks to clarify and limit the Replacement Plan with terms and conditions in the current

proposed draft decree that specify how these claims will be implemented if the Replacement Plan

is approved. As discussed below, the draft proposed terms and conditions are subject to change

during the course of these proceedings, including after findings and conclusions are entered by

the Court.

3. Front Range should be granted the opportunity to propose terms and conditions to address the Court’s determinations of law.

In its Order re Speculation, this Court determined that the anti-speculation doctrine

applies to Front Range’s Replacement Plan because the Plan included new appropriations and

changes of water rights. Front Range thus proposed terms and conditions to clarify that no new

appropriations or changes of water rights were sought or would be granted under operation of the

Plan. Defendants’ arguments why the Court should not allow such terms and conditions to

address the issues raised in the Court’s order are wrong and misleading.

Defendants argue that the right to propose new terms and conditions under C.R.S. § 37-

92-305(3)(a) applies only to water court proceedings; however, Defendants do not dispute that


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the principle enshrined in the statute was set forth by the Supreme Court prior to enactment of

that statute in 1969 and applies to all water rights applications. City of Colorado Springs v. Yust

249 P.2d 151, 154 (Colo. 1952); Farmers’ Reservoir & Irr. Co. v. Town of Lafayette, 24 P.2d

756, 758 (Colo. 1933). Moreover, although the statute is in the Water Right Determination Act

that applies to water courts, provisions of this Act have been applied to designated ground water

rights. See, e.g., Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 371-72 (Colo. 1982) (applying

injury standard from Water Right Determination Act to designated ground water). In fact, the

statute regarding anti-speculation at issue in this case, C.R.S. § 37-92-103(3), is in the Water

Right Determination Act. Most importantly, if the anti-speculation provisions of the Act apply

to Front Range’s application, as Defendants have argued, then the provisions of the Act allowing

Front Range to propose terms and conditions must also apply.

Defendants inaccurately claim that Front Range has proposed terms and conditions to

“circumvent” the anti-speculation doctrine rather than to prevent injury. However, it was

Defendants who claimed that the Replacement Plan would result in new appropriations or

changes of water rights subject to the anti-speculation doctrine. Front Range thus proposed

terms and conditions to clarify and ensure that no new appropriations or changes are sought or

granted under the Plan, and these issues directly relate to prevention of injury. See Defendants’

Motion re: Banking Rule, ICCES Filing ID DBA0663616865 at ¶¶ 7, 8, 10 (alleging that

operation of the Plan will result in changes of water rights and potential injury to other water

users); Exhibit A, Excerpt of Commission 26(a)(2) report (“stating that new appropriations could

cause injury to other appropriators because the Basin is overappropriated”). Any potential injury


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is easily avoided by terms and conditions that limit and clarify the Replacement Plan so that it

cannot cause a new appropriation or change of water rights. Pursuant to the Supreme Court case

law outlined above, therefore, Front Range must be given the opportunity to propose terms and

conditions. Yust, 249 P.2d at 154.

Defendants also argue that Front Range should be held to the terms and conditions in

either the Commission proceedings, or the detailed description of the Plan filed July 31, 2015, or

Front Range’s initial or rebuttal expert disclosures. This is similar to their argument that Front

Range should not be allowed to modify its ground water model or proposed operations in its

rebuttal disclosures. That argument was already rejected by this Court. Front Range has

consistently stated in its responses to Defendants’ motions and at oral argument on the

speculation motion that, if the Court agreed with the issues raised by Defendants, Front Range

could and would propose terms and conditions to address those issues, and in particular

specifically and repeatedly offered to withdraw the priority date identified in its draft proposed

decree. E.g., Surreply to Speculation Motion, ICCES Filing ID 91C12F5222F3B, at 8. In fact,

Defendants knew and agreed that Front Range would be filing a revised proposed decree with its

trial brief prior to trial, which is also standard water court procedure. See ¶ I.a of the stipulated

proposed trial management order, ICCES Filing ID 5E44B37D54270.

Moreover, the opportunity to propose terms and conditions in response to a court’s

findings and orders, such as the Order re Speculation, is the most important, and often final,

opportunity to propose such terms and conditions. Buffalo Park Development Co. v. Mountain

Mut. Reservoir Co., 195 P.3d 674, 691 (Colo. 2008); see also 04CW81 Findings and Order,


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discussed in Front Range’s Response to Defendants Motion re: Banking, ICCES Filing ID No.

764F3EC7CDB49, at 6-9. A party is not required to propose terms and conditions in response to

every allegation raised by opposing parties; however, once a court has entered a ruling, both

applicants and opposing parties must have the opportunity to propose terms and conditions to

address issues raised in the ruling. Id.

4. The de novo appeal does not prohibit Front Range from adding or revising its proposed terms and conditions.

Defendants’ final attempt to convince the Court that Front Range should not be allowed

to propose simple terms and conditions to address the issues raised in the Speculation Order is to

argue that such procedure is not possible in a de novo review of the Commission’s decision.

Defendants go so far as to allege that the Court’s jurisdiction in this de novo appeal is limited to

review of the Commission’s denial of Front Range’s application. This argument is misleading

and totally without merit.

As Defendants are well aware, this Court has previously ruled that a de novo appeal is

much broader than Defendants now claim:

“A trial de novo contemplates that the entire controversy in question shall be tried anew. The trial shall be conducted [as] though no prior adjudication or administrative action had occurred. A de novo proceeding does not concern itself with whether the matter was or was not correctly decided in the tribunal or agency below.”

Exhibit B at 4 (citations omitted) (emphasis added); see also C.R.S. § 37-90-115(1)(b)(IIII).

Defendants’ implication that Front Range intentionally withheld evidence during the

Commission proceedings to gain some advantage in the appeal is insulting to Front Range and


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this Court. The Commission did not hold a hearing and thus Front Range had no opportunity to

present its evidence, let alone purposely withhold evidence it planned to present at a later time.

5. Defendants’ claim for costs and attorney fees is groundless.

Front Range has a “responsibility” to alert the Court of its position that terms and

conditions could resolve the issues identified by the Court while the case is still pending. Buffalo

Park, 195 P.3d at 691. This case is still pending before the Court and the Motion was proper

under C.R.C.P. 59. Goodwin v. Eller, 258 P.2d 493, 495 (Colo. 1953).

Front Range notes that no other party joined Defendants’ groundless request for attorney

fees, including the parties that joined in other sections of Defendants’ response. Front Range

will further address Defendants’ request for attorney fees in connection with this motion in its

forthcoming response to Defendants’ motion for costs and attorney fees.

Respectfully submitted this 7th day of July, 2016. BUCHANAN SPERLING & HOLLEMAN PC By: /s/ John D. Buchanan Paul F. Holleman, Reg. No. 21888 John D. Buchanan, Reg. No. 45191 Attorneys for Plaintiff/Appellant Front Range Resources, LLC

E-FILED PURSUANT TO C.R.C.P. 121 Duly signed original on file at the law offices of Buchanan Sperling & Holleman PC

CERTIFICATE OF SERVICE (15CV30493)

I hereby certify that on the 7th day of July, 2016, a true and correct copy of the foregoing PLAINTIFF/APPELLANT’S REPLY IN SUPPORT OF MOTION FOR NEW TRIAL AND TO AMEND THE FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59 was electronically served via ICCES upon the following parties:

Party Party Type Attorney


Defendant/Appellee Patrick E. KowaleskiJennifer Mele Colorado Attorney General’s Office

Equus Farms Inc. Defendant Michael BrowningPorzak Browning & Bushong LLP

Henrylyn Irrigation District Defendant Alyson M GouldKent H Holsinger Holsinger Law LLC

Irrigationists’ Association, Water District 1

Defendant Karl D OhlsenMason H Brown Carlson Hammond & Paddock LLC

Lost Creek Ground Water Management District

Defendant P. Andrew JonesLawrence Jones Custer Grasmick LLP

Lost Creek Land and Cattle Company

Defendant Alan E. CurtisWhite & Jankowski LLP


Defendant Jeffrey J KahnMatthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC

Northern Colorado Water Conservancy District

Defendant Douglas M SinorApril H. Killcreas Trout Raley Montano Freeman Sinor Thompson PC

Weldon Valley Ditch Co Defendant Jeffrey J KahnMatthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC

/s/ John D. Buchanan John D. Buchanan

Case No. 15CV30493

Adams County District Court

Front Range Resources, LLC Application for Replacement Plan and New Appropriations

Expert Report

Prepared for Colorado Ground Water Commission

By

Keith Vander Horst, P.E. Designated Basins Team Leader

Office of the State Engineer Colorado Division of Water Resources

Colorado Department of Natural Resources

February 1, 2016

EXHIBIT A


Ground Water Commission’s Expert Witness Report Page 3 Case No. 15CV30496, Front Range Resources LLC Replacement Plan applications had been submitted, the documents subsequently provided by the Applicant (identified in the paragraph above) indicate that the Applicant now desires to utilize 31 Well Pairs to withdraw water under the plan. Those 31 Well Pairs consist of 29 of the Well Pairs for which applications have been submitted, and the 2 Well Pairs for which applications have not yet been submitted. The 31 Well Pairs now intended to be used are identified in Table 1. 2. NEED FOR A REPLACEMENT PLAN – STANDARD OF REVIEW 2.1 Statute and Rule Section 37-90-107(5) C.R.S. states that in ascertaining whether a proposed use will unreasonably affect the rights of other appropriators, the Commission shall take into consideration the area and geologic conditions, the average annual yield and recharge rate of the water, the proposed method of use, and all other matters appropriate to such questions; and that with regard to whether a proposed use will impair uses under existing water rights, impairment shall include the unreasonable lowering of the water level beyond reasonable economic limits of withdrawal or use; and that if an application for a well permit cannot otherwise be granted pursuant to the section a well permit may be issued upon approval by the ground water commission of a replacement plan that meets the requirements of the article and the rules adopted by the commission. As stated in Rule 5.2.5.2 of the Commission’s Designated Basin Rules, the Commission has determined that the alluvial aquifer of the Lost Creek Designated Basin is over appropriated, and therefore no new large capacity well permits (allowing either new or increased appropriations) shall be granted in the alluvial aquifer unless a replacement plan is approved by the Commission in accordance with Rule 5.6. Because the alluvial aquifer has been determined to be over appropriated, any new appropriations would be considered to unreasonably affect the rights of other appropriators, and would be considered to impair uses under existing water rights including unreasonably lowering the water level beyond reasonable economic limits of withdrawal or use, absent approval of a replacement plan that meets the requirement of the rules adopted by the Commission. The application for a replacement plan was submitted, therefore, in order to allow the Applicant to withdrawn new appropriations from the alluvial aquifer. Section 37-90-107.5 C.R.S. states the Commission shall approve a replacement plan if the Commission determines that the replacement plan meets the requirements of the article and rules adopted by the Commission. Replacement plans are evaluated pursuant to and must meet the requirements of Section 37-90-103(12.7) C.R.S. and Designated Basin Rule 5.6. The definition of replacement plan in Section 37-90-103(12.7) C.R.S. states the purpose of a plan is to prevent material injury to other water rights. Designated Basin Rule 5.6.1 states a plan must be adequate to prevent any material injury to water rights of other appropriators. Pursuant to Rule 5.6.1.C the plan must contain proof that it will not cause material injury to water rights of other appropriators.

District Court, Adams County, State of Colorado Court Address: Adams County Justice Center 1100 Judicial Center Drive Brighton, Colorado 80601 Phone Number (303) 659-1161 _____________________________________________ EAGLE PEAK FARMS, LTD., A Colorado Limited Partnership, and PROSPECT VALLEY FARMS, LTD., A Colorado Limited Partnership, Plaintiffs-Appellants, v. GROUND WATER COMMISSION, an Administrative Agency of the State of Colorado, STATE ENGINEER, Hal D. Simpson, ex officio executive director of the Ground Water Commission of he State of Colorado, Defendant-Appellee and Interested Party, and LOST CREEK GROUND WATER MANAGEMENT DISTRICT, A Colorado Governmental Subdivision and Body Corporate, Defendant-Appellee and Interested Party, And LARRY E. BAUMGARTNER, Baumgartner Farms, MARC E. BAUMGARTNER; RONALD BECKEL; STEVE BENSON; JEANIE BENSON; GEORGE H. BUSH; GREGG DALRYMPLE, Dalrymple & Sons, Inc.; THOMAS J. DENNING; KEVIN HELZER; HENRYLYN IRRIGATION DISTRICT; ELAINE D. HEPNER; FREDERICK A. HEPNER, JR.; JIM HETT, Bittersweeet Farms, Inc.; BRUCE KAUFFMAN; MARK A. KAUFFMAN; CURTIS D. LEWTON; GLENN H. LEWTON; JOHN B. PARKER, Parker Ranch; JULIUS A. PLUSS; JIM POSTLE, James Company; JOEL SHOENEMAN; ROBERT VICKROY; DALE L. WASHBURN; KATHARINA WASHBURN; KENNETH L.

? COURT USE ONLY ?

________________________

Case Number: 99CV0097 Div.C Ctrm: 504

EXHIBIT B


ZIMBELMAN; or persons who may be “all interested parties” pursuant to C.R.S. section 37-90-115(1)(b)(I), Interested Party Defendants-Appellees.

ORDER

This action is an appeal to the district court of a ruling of the Colorado Ground Water Commission (hereinafter “GWC” or commission). Plaintiffs seek a trial de novo before this court invoking the subject matter jurisdiction conferred by C.R.S. 37-90-115(1). The first and second claims for relief in the complaint filed in this court seek trial de novo and approval of the applications filed by plaintiffs before the GWC. The complaint also includes several collateral claims for relief. The collateral claims are stated in the third through ninth claims for relief. Generally, the third claim is for a declaratory determination of the respective authority of the GWC and the defendant, Lost Creek Ground Water Management District (hereinafter “district”) to determine the applications filed by plaintiffs. The fourth claim seeks declaratory relief to determine GWC Rule 7.7.4 is void on its face and as applied to plaintiffs’ petitions. The fifth claim seeks a declaratory order holding the order of the District denying export of water to be void.1 The sixth claim for relief seeks declaratory relief with regard to service of process issues. The seventh claim is for declaratory relief holding the GWC ruling to be an unconstitutional violation of the commerce clause of the United States Constitution. The eighth claim seeks a ruling that actions by the GWC and District are due process violations. The ninth and last claim for relief seeks a declaratory ruling that the actions by the GWC and District are an unconstitutional taking of property. The core facts in this case are not disputed. In December 1994, Eagle Peak filed an Application for Change of Water Rights, With Export and for Approval of Replacement Plan for certain wells in the lost Creek Designated Ground Water Basin. The application was filed with both the GWC and the District. The application was

1 This order is the subject matter of action 98CV1727 referred to in this order.

filed with the GWC since, pursuant to C.R.S. 37-90-111, approval of changes of water rights and approval of replacement plans can be given only by the GWC. The application was filed with the district pursuant to C.R.S. 37-90-111(3) as the district is required to make recommendations to the GWC and because of C.R.S. 37-90-130(2)(f) under which the District can disapprove use of ground water outside the boundaries of the district under certain circumstances. (See Complaint paragraph 24). At the time of the application, Eagle Peak held permits issued by the GWC which allowed the diversion and use of water for irrigation purposes within the Lost Creek Designated Ground Water Basin. By order dated June 18, 1997, a hearing officer for the GWC required Eagle Peak to first submit its application to the district for approval before he would proceed to have a hearing on the application. By order of December 4, 1997, the commission affirmed the order of the hearing officer. Hearings were then held before the district. At the conclusion of the hearings the district denied the application for export of water from the basin. Based on that order and applying GWC Rule 7.7.4 the GWC then denied plaintiffs’ application finding that since the purpose for the requested change in use was for export and since the district found that ground water could not be exported there was no need for the GWC to consider the requested change of location and use of ground water. Following the final commission order dated December 30, 1998, plaintiffs initiated this action. Multiple motions responses and replies have now been filed with the court as permitted in its order of May 13, 2003. These include: 1. Motion for Determination of a Question of Law filed by the Colorado Ground Water Commission. 2. Lost Creek Ground Water Management District’s Motion for Summary Judgment. 3. Eagle Peak’s Rule 56 Motion on Third Claim for Relief (Declaration of Rights under the 1965 Act). 4. Eagle Peak’s Rule 56 Motion on Fourth Claim for Relief (Declaration Voiding Rule 7.7.4). 5. Eagle Peak’s Rule 56 Motion on Fifth Claim for Relief (Declaration Voiding Lost Creed District’s Order).

6. Motion for Judgment that Defendants’ First Affirmative Defenses Fail to State a Legal Defense –issue Presented Trial De Novo vs. Remand. The foregoing motions are now all at issue. Responses and replies have been filed and considered by the court. The court dispenses with oral arguments and enters its ruling on the motions pursuant to C.R.C.P. 121, §1-15 as stated herein.

TRIAL DE NOVO

All of the above motions incorporate a common question as to the nature of the procedural remedy which is to be afforded plaintiffs in this action. The court will first address this central issue. This action invokes the subject matter jurisdiction set forth in C.R.S. 37-90-115. Under that section any party adversely affected by any decision or act of the ground water commission, except for the adoption of rules, may take an appeal to the district court. Proceedings upon appeal shall be de novo. A trial de novo contemplates that the entire controversy in question shall be tried anew. The trial shall be conducted a though no prior adjudication or administrative action had occurred. M & J Leasing v. Director of Department of Revenue, 796 P.2d 28 (Colo.App. 1990); Turner v. Rossmiller, 532 P.2d 751 (Colo. 1975). A de novo proceeding does not concern itself with whether the matter was or was not correctly decided in the tribunal or agency below. Whether the controversy was or was not correctly decided in the first instance is of no importance. So long as the appeal is properly perfected following action by the ground water commission, the right to trial de novo is statutorily granted and is not discretionary with the court.2 The court now orders that a trial de novo will be afforded plaintiffs regarding the issues raised by the filing of the above referenced application with the ground water commission. Similarly, the plaintiffs filed action 98CV1727 under the authority of C.R.S. 37-90-131(1)(C) seeking trial de novo of the ruling made by the District denying the application for export. Under that section, judicial review of district decisions may be 2 In action 98CV1727, the Court of Appeals has remanded specified issues to this court concerning whether that appeal has been properly perfected. A separate order will be issued in that action regarding the remanded issues.

taken in the manner and governed by the standards set forth for review of commission decisions in section 37-90-115. Subject to determination of issues remanded by the Court of Appeals in Eagle Peak Farms v. Lost Creek Ground Water Management District, 7 P.3d 1006 (Colo.App 1999) the court will also retry de novo the issues determined by the District in ruling on the application filed by plaintiffs.

GROUND WATER COMMISSION’S MOTION FOR DETERMINATION OF QUESTION OF LAW

This motion suggests that the court should rule as a matter of law that this court lacks jurisdiction to consider plaintiff’s application for changes in ground water rights and replacement plan until the matters have been ruled on by the GWC. Additionally, GWC argues that the only issue which is on appeal de novo is the issue of whether the commission was correct in its refusal to consider the applications on the merits. In making these arguments GWC takes the position that the commission did not act on plaintiffs’ application but merely issued an order declining to do so. The court does not agree with these arguments. Pursuant to C.R.S. 37-90-115, Eagle Peak is entitled to a trial de novo as discussed above. The GWC did rule on plaintiffs’ application by its order of December 30, 1998. This was agency action as referred to in section 37-90-115(1)(a). The fact that the GWC relied on the ruling of the district and elected not to hold an evidentiary hearing is of no import. There is no issue on de novo review as to whether the GWC acted correctly. Therefore, this motion is denied.

LOST CREEK GROUND WATER MANAGEMENT DISTRICT MOTION FOR SUMMARY JUDGMENT

The District’s motion seeks summary judgment on each of the nine claims for relief identified above. The motion addresses those claims progressively. With regard to the first claim for relief, plaintiffs’ claim for de novo review, the District takes much the same position as GWC did in its motion. District argues that the GWC did not rule on the application therefore this court is without jurisdiction to act until the commission does so. For the same reasons as stated above, the court rejects this argument. The District also argues the commission’s reliance on Rule 7.7.4 was proper and that unless

the District’s ruling at issue in 98CV1727 is changed by the court, the commission ruling should stand. Again, this fails to recognize the nature of de novo proceedings as discussed above. The motion fails to show any basis for summary judgment as against the first claim for relief. Therefore, summary judgment as to that claim is denied. The Districts motion for summary judgment as against the remaining claims for relief need not be addressed by the court. In general terms the granting of trial de novo negates the remainder of plaintiffs’ claims for relief. The second claim for relief will necessarily be resolved by the trial de novo. Because the court will allow trial de novo on the issues identified in this action and 98CV1727 and will determine both the matters submitted to the commission and the district, this court need not grant relief under the third claim for relief.3 By granting trial to the court as to all matters, the question of the jurisdiction of the district as compared to the commission is eliminated. The fourth claim for relief seeking a declaration that Rule 7.7.4 is invalid is now moot. The court will decide all issues. Therefore, any question of improper delegation of authority by the commission to the district under Rule 7.7.4 will no longer be relevant. The fifth claim for relief seeks declaratory relief holding the district’s ruling void. Because the matter will be tried de novo in 98CV1727, this issue is now moot. The sixth claim for relief relates to deficiencies in service of process which might exist. There is no indication in any of the pending motions that any claim of insufficient service of process exists in this action.4 However, if any such claim does exist, it will be properly raised and resolved in the proceeding de novo. The seventh, eighth and ninth claims for relief raise various constitutional arguments tied to the rulings made by the commission and district. Because granting de novo trial of the rulings necessarily vacates the rulings made by the commission and the district, these claims are now moot. Any due process 3 Trial de novo of the issues is 98CV1727 is subject to determination of matters remanded by the Court of Appeals. 4 The court will address remanded issues in Action 98CV1727.

violations will be cured by trial de novo. Because the rulings of the commission and district are vacated, no unconstitutional taking or violation of the Commerce Clause exists. While these questions may arise in the future based on the rulings to be made by this court de novo, they exist only as hypothetical issues at this time. The court will not enter advisory rulings on hypothetical issues. In summary, the motion for summary judgment filed by the Lost Creek Ground Water Management District is denied.

PLAINTIFFS’ RULE 56 MOTION ON THIRD CLAIM FOR RELIEF

This motion asks the court to resolve questions relating to the jurisdiction of the Ground Water Commission on one hand and the Lost Creek Ground Water District on the other. As indicated above, this motion is moot. The court will hear all matters de novo. Since the court’s subject matter jurisdiction covers all issues, there is no need to now rule on this motion.

PLAINTIFFS’ MOTION ON FOURTH CLAIM FOR RELIEF

This motion asks the court to declare Ground Water Commission Rule 7.7.4 void. This motion is also moot for the same reasons stated above. The entirety of issues previously before the commission and the district will now be determined de novo by the court. The validity of Rule 7.7.4 is no longer a relevant issue.

PLAINTIFFS’ RULE 56 MOTION ON FIFTH CLAIM FOR RELIEF

This motion asks the court to declare the March 26, 1998 order of the Lost Creek Ground Water Management District void. This issue is now moot. The order is necessarily vacated by granting a trial de novo on all issues determined.

PLAINTIFFS’ MOTION FOR JUDGMENT THAT DEFENDANTS’ FIRST AFFIRMATIVE DEFENSES FAIL TO STATE A

LEGAL DEFENSE

This motion is also moot. By ordering trials de novo the court has resolved the issue as to whether it has jurisdiction to hear the matters at issue. The defense of lack of jurisdiction will not be recognized by the court.

SUMMARY OF ORDER

The court will try the issues raised before the Ground Water Commission and the Lost Creek Ground Water Commission de novo. The orders previously entered by the commission and the district are vacated. The commission’s Motion for Determination of a Question of Law is denied. The district’s Motion for Summary Judgment is denied. By granting trial de novo, plaintiffs’ several motions become moot. Dated at Brighton, Colorado this 5th day of August, 2003. By the court:

Duly signed original in court file

_________________________ Donald W. Marshall, Jr. District Court Judge

CERTIFICATE OF MAILING

I hereby certify that the foregoing document was sent via JusticeLink (e-file) to all counsel of record and all pro se parties this 7th day of Aug., 2003.

Duly signed original in court file

_________________________ Division Clerk

APPENDIX B TO NOTICE OF CERTAIN APPELLEES’ CROSS-APPEAL

(16SA243)


DATE FILED: July 21, 2016 CASE NUMBER: 2015CV30493

DISTRICT COURT, ADAMS COUNTY, STATE OF COLORADO Adams County Justice Center 1100 Judicial Center Dr. Brighton, CO 80601

FRONT RANGE RESOURCES, LLC, Plaintiffs,

V.

COLORADO GROUND WATER COMMISSION,

COURT USE ONLY

Case No. 15-CV -30493

et. al. Division: T Defendants. Courtroom: 403

ORDER reNew Trial and to Amend

Plaintiff Front Range Resources, LLC ("Front Range") filed a Motion for

New Trial and to Amend the Findings and Judgment Pursuant to C.R.C.P. 59 on

June 9, 2016. Defendants, the Colorado Ground Water Commission (the

"Commission"), Lost Creek Land and Cattle Company, LLC ("LCLC"), Equus

Farms, Inc. ("Equus"), the Lost Creek Ground Water Management District (the

"District"), Weldon Valley Ditch Company ("Weldon"), Morgan County Water

Quality District ("MCWQD"), and Irrigationists' Association, Water District 1

("Irrigationists") (collectively, "Defendants") filed a Response on June 30, 2016.

Front Range filed a Reply on July 7, 2016.

The court takes judicial notice of the court file and findings therein under

CRE 201 (c) and being fully informed, finds and orders as follows:

Background

This case arises out of Front Range's Notice of Appeal and Complaint for

De Novo Review of a decision by the Colorado Ground Water Commission (the

"Commission"). Front Range filed an application with the Commission for a

Replacement Plan, in which Front Range proposed to recharge water into the Lost

Creek Basin alluvial aquifer and withdraw the recharged water at wells in the Lost

Creek Basin (the "Replacement Plan"). The Commission's Hearing Officer entered

an initial order on February 13, 2015, dismissing the Replacement Plan with

prejudice. The Commission entered a final order on February 26, 2015, approving

the Hearing Officer's initial order and dismissing the Replacement Plan application

with prejudice. On May 26, 2016, this court granted Defendants' Motion for

Summary Judgment regarding the Anti-Speculation Doctrine.

Nature of Relief Sought

Front Range seeks an order amending the court's findings and judgment to

reflect that Front Range does not seek new appropriations or changes of water

fights and thus that the anti-speculation doctrine does not apply. In the alternative,

Front Range requests a new trial to allow it to propose terms and conditions to

clarify that the Plan does not involve new appropriations or changes or water

rights. Defendants oppose.

Brief Summary of the Parties' Arguments

Motion

Front Range is not seeking any new appropriations. The draft proposed

decree does not request new appropriations of water. Front Range plans to

withdraw water under the Replacement Plan from its existing wells and/or

constructing new wells. No pleading describing the Replacement Plan or proposed

decree request changes of water rights and Front Range has consistently stated it is

not seeking changes to the terms and conditions applicable to the existing water

rights to be used as replacement water sources. The court should thus amend its

findings and judgment to determine that the anti-speculation doctrine does not

apply to the Replacement Plan. In the alternative, Front Range must be allowed to

amend the terms and conditions in the proposed decree to clarify that no new

2

appropriations or changes of water rights are sought or will be granted. Because

the court's dismissal of the application is based on aspects of the Replacement Plan

that can be amended consistent with the court's findings, Front Range requests a

new trial.

Response

The court's summary judgment order specifically identified areas in which

Front Range seeks to appropriate and change water rights. Moreover, throughout

the proceedings, Front Range has claimed that the Replacement Plan is for

purposes of obtaining new appropriations and that the anti-speculation doctrine

applies. Furthermore, Front Range cannot now seek to amend its claim. This case

is before the court on an appeal. Amendment of pleadings may not be requested for

the first time on appeal. The sole purpose of amending the claim is to set aside the

dismissal order, an impermissible purpose to amend. The cases relied upon by

Front Range apply to proceedings before the Water Court, not proceedings before

the Commission or on appeal. Regardless, Front Range has had ample opportunity

to withdraw and amend the Replacement Plan. A de novo appeal does not entitle

Front Range to assert new claims. Such an allowance would render the

Commission proceedings meaningless. Finally, LCLC, Equus, and the District are

entitled to costs and attorney fees for responding to this Motion because the

Motion merely repeats claims that the Replacement Plan does not involve

appropriations or changes or water rights, despite the court's previous order.

Reply

The term appropriation 1s thoroughly defined as the application of a

specified portion of the waters of the state to a beneficial use pursuant to the

procedures prescribed by law. The Replacement Plan does not request any use or

application of the waters of the state. The mere use of the term "appropriation" in

the past does not by itself bring the Replacement Plan within the scope of the anti-

3

speculation doctrine. Furthermore, Front Range is not requesting to add or amend

any claims made in the Replacement Plan application. Front Range is not changing

the claims described in its legal notice or in the complaint. Rather, Front Range

seeks to clarify and limit the Replacement Plan with terms and conditions in the

current proposed draft decree that specify how these claims will be implemented if

the Replacement Plan is approved. The right to propose new terms and conditions

applies to all water rights applications, regardless of the venue. Further, a de novo

appeal does not prohibit Front Range from adding to or revising its proposed terms

and conditions. The de novo appeal is conducted as if no prior adjudication or

administrative action had occurred. Finally, Defendants' claim for costs and

attorney fees is groundless.

Issues

(1) Did the court err in finding that the Replacement Plan seeks new

appropriations or changes in existing water rights?

(2) If not, should Front Range be permitted to amend its application to conform

to the court's findings?

Principles of Law

C.R.C.P. 59. Motions for Post-Trial Relief

(a) Post-Trial Motions. Within 14 days of entry of judgment as provided in C.R.C.P. 58 or such greater time as the court may allow a party may move for post-trial relief including: I I I (3) Amendment of findings; or ( 4) Amendment of judgment. Ill (d) Grounds for New Trial. Subject to provisions of Rule 61, a new trial may be granted for any of the following causes: Ill ( 6) Error in law.

4

Standard of Review

"A trial court' s decision on C.R.C.P. 59 motions and mistrial motions will

not be reversed absent an abuse of discretion." Blood v. Qwest Services Corp. , 224

P.3d 301, 320 (Colo. App. 2009). "A trial court abuses its discretion only if it acts

in a manifestly arbitrary, unreasonable, or unfair manner." !d.

Analysis

Error in the Summary Judgment Order Regarding Speculation

Front Range requests that this court amend its findings and judgments

regarding application of the anti-speculation doctrine to the Replacement Plan.

Front Range does not appear to request that the court reevaluate its other findings

included in the May 26, 2016 Order (i.e., application of the summary judgment

standard, application of the governmental exception, or sufficiency of Front

Range's contracts).

In the Speculation Order, the court interpreted the term "appropriation"

broadly for the purposes of the anti-speculation doctrine analysis. Order (May 26,

2016) at 9-10. The court noted that the anti-speculation doctrine applies to changes

in water rights, including a change in the type, place, or time of use and change in

the point of diversion. !d. at 10 (citing High Plains A&M, LLC v. Southeastern

Colorado Water Conservancy Dist. , 120 P.3d 710, 714 (Colo. 2005)). In the Order,

the court found that the Proposed Decree specifically requested increased use of

Front Range ' s existing alluvial wells and permission to construct new wells. !d. at

10. Front Range argues that it will maintain control and dominion over water

recharged into the aquifer and later recovered. However, Front Range has not

sufficiently rebutted this court' s finding that the Proposed Decree seeks to allow

increased use of its existing alluvial wells. Moreover, the case law cited by Front

Range concerns issues of when water rights vest but do not contradict the central

holding of High Plains . The court, thus, reaffirms the application of High Plains to

5

this case and the findings that the Replacement Plan seeks to appropriate and

change water rights.

Amendments to Application

Front Range argues in the alternative that it should be permitted to amend its

proposed terms and conditions to clarify that no new appropriations or changes of

water rights will be decreed. Under C.R.S. 37-92-305(3)(a):

In cases in which a statement of opposition has been filed, the applicant shall provide to the referee or to the water judge, as the case may be, a proposed ruling or decree to prevent such injurious effect in advance of any hearing on the merits of the application, and notice of such proposed ruling or decree shall be provided to all parties who have entered the proceedings. If it is determined that the proposed change, contract, or plan as presented in the application and the proposed ruling or decree would cause such injurious effect, the referee or the water judge, as the case may be, shall afford the applicant or any person opposed to the application an opportunity to propose terms or conditions that would prevent such injurious effect.

The court declines to address whether this statute applies to this particular

proceeding. Rather, assuming that this statute is applicable, the Supreme Court has

held that the party wanting to amend "has a responsibility to alert the water judge

of its position ... and make a motion or offer of proof to introduce evidence and

protective terms and conditions for an adequate augmentation plan while the case

is still pending in the water court." Buffalo Park Development Co. v. Mountain

Mut. Reservoir Co., 195 P.3d 674, 691 (Colo. 2008). The Speculation Order

dismissed Front Range's Replacement Plan. Moreover, Front Range did not offer

to amend the Decree when Defendants brought the Speculation Summary

Judgment Motion. Accordingly, under the Buffalo analysis, Front Range's Motion

to Amend is untimely.

Regardless of the timing of this Motion, the court is also unpersuaded that

6

the proposed amendments would eliminate any appropriations or change of rights.

The Speculation Order relied in part on ~ll.a-b of the Proposed Decree in

determining that Front Range sought to change existing water rights. Front

Range's proposed amendments do not, however, alter this paragraph. While the

proposed amendments may contain language that on the surface negates concerns

of appropriation, the court is doubtful that such cosmetic additions would negate

the changes that Front Range seeks through the Replacement Plan.

Order

Front Range's Motion for Reconsideration or to Amend is DENIED.

Dated this 21st day of July, 2016.

Patrick Thomas Murphy District Court Judge

7

CERTIFICATE OF MAILING

I hereby certify that the foregoing document was sent via JPOD ( e-file) to

all counsel of record and to all prose parties this 21st day of July, 2016.

Luann Patton, Division Clerk

8

APPENDIX C TO NOTICE OF CERTAIN APPELLEES’ CROSS-APPEAL

(16SA243)


DATE FILED: July 25, 2016 CASE NUMBER: 2015CV30493

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