Board of County Commissioners of Arapahoe v. Crystal Creek Homeowners Ass'n
Board of County Commissioners of Arapahoe v. Crystal Creek Homeowners Ass'n
Opinion of the Court
Crystal Creek Homeowners Association (Crystal Creek) and Ernest H. Cockrell (jointly, the objectors) appeal from a judgment of the District Court for Water Division 4 (water court) denying them an award of costs under C.R.C.P. 54(d) after they successfully opposed applications for decrees determining conditional water rights filed by the Board of County Commissioners of Arapahoe County (Arapahoe) and its predecessor in interest, Natural Energy Resources Company (NECO). Having affirmed the underlying consolidated case in part, reversed it in part, and remanded the case to the water court by our opinion captioned In the Matter of the Application for Water Rights of the Board of County Commissioners of the County of Arapahoe, in Gunnison County, 891 P.2d 952 (Colo. 1995) (hereinafter Arapahoe Water Rights), we now conclude that a decision on allowance of costs would be premature. Accordingly, we vacate the water court’s judgment denying costs to the objectors and remand the case for such further proceedings as may become appropriate when the underlying claims are resolved by the water court.
I.
The costs at issue stem from litigation concerning claims for determination of conditional water rights for a large development' known as the Union Park Project in the Gunnison River basin. In 1982, the water court decreed a 325,000 acre feet conditional storage right to Union Park Reservoir for hydroelectric power generation purposes in case no. 82-CW-340. NECO held the storage right and in 1986 applied for a conditional water rights decree in case no. 86-CW-226 to increase the capacity of the proposed reservoir to 900,000 acre feet and to expand the decreed uses for the entire 900,000 acre feet conditional storage right as well as to decree several direct flow rights for the Union Park Project. The expanded additional uses sought by NECO for water to be stored in Union Park Reservoir included recreational purposes, fish and wildlife propagation, and reservoir evaporation replacement.
On December 30, 1988, Arapahoe filed an application in case no. 88-CW-178 to reassert the claims dismissed in case no. 86-CW-226 but with a later priority date. Both Crystal Creek and Cockrell filed statements of opposition to that application. Then, on November 30, 1990, Arapahoe filed an amendment to its applications in case nos. 86-CW-226 and 88-CW-178 to add a plan for augmentation and to claim a number of alternate points of diversion.
After extensive pre-trial proceedings relating to the amended applications in case nos. 88-CW-178 and 86-CW-226, the water court bifurcated the trial and in phase I heard evidence to determine the availability of water for Arapahoe’s Union Park Project as framed in those two applications. Following a lengthy trial, the water court determined that a maximum of 20,000 acre feet of unappropriated water is legally available for appropriation on an annual basis at the points of diversion claimed by Arapahoe. Arapahoe Water Rights, at 963. Arapahoe advised the water court that 20,000 acre feet of water was insufficient to justify proceeding to trial on the remaining issues to determine the feasibility of the project. Id. at 963. Therefore, the water court dismissed the amended application in case nos. 86-CW-226 and 88-CW-178 and issued its findings of fact, conclusions of law, judgment and decree on October 21, 1991. On December 30, 1991, the water court issued a comprehensive order resolving certain pending motions as well as post trial motions and dismissing the applications and amended applications in case nos. 86-CW-226 and 88-CW-178 in their entirety.
Arapahoe appealed the dismissal of the claims originally asserted by NECO in 86-CW-226, as well as the dismissal of Arapahoe’s amended claims in case nos. 86-CW-226 and 88-CW-178. We affirmed the dismissal of the NECO claims but reversed and remanded for further proceedings on Arapahoe’s amended claims in case nos. 88-CW-178 and 86-CW-226, based on our determination that the water judge applied the wrong standard in determining availability of water. Arapahoe Water Rights, at 958, 973.
In the meantime, certain objectors, including Crystal Creek and Cockrell, having succeeded in their opposition to Arapahoe’s claims in the trial court, sought an award of costs against Arapahoe under C.R.C.P. 54(d). The water court conducted appropriate proceedings and denied an award, based on the conclusion that Arapahoe County as a governmental entity is immune from an award of costs. The objectors appealed, challenging the immunity determination.
II.
In determining whether to award costs, a court is to be guided by C.R.C.P. 54(d), which provides in relevant part:
Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law....
In construing this rule we have held that “unless there is a statute or rule specifically prohibiting the award of costs, trial courts
III.
We conclude that a “prevailing party” cannot be identified at this stage of the litigation. Therefore, any determination of costs at this stage would be premature.
The present status of the water rights applications by Arapahoe for its Union Park Project can be briefly summarized. The objectors successfully opposed the claims acquired by Arapahoe from ÑECO.
For the foregoing reasons, we vacate the water court’s judgment denying costs to the objectors and remand the case for such further proceedings as may become appropriate upon resolution of the underlying claims.
. Ernest H. Cockrell did not file a statement of opposition in case no. 86-CW-226.
. Although the application in case no. 86-CW-226 to change the 325,000 acre feet conditional storage right decreed to Union Park Reservoir in case no. 82-CW-340 to include uses for recreational purposes, fish and wildlife propagation, and reservoir evaporation replacement was not dismissed by the December 29, 1988, summary judgment order, the water court ultimately dismissed the entire case no. 86-CW-226 by its December 30, 1991, comprehensive order.
Reference
- Full Case Name
- In the Matter of the Application for WATER RIGHTS OF the BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, IN GUNNISON COUNTY. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Applicant-Appellant v. CRYSTAL CREEK HOMEOWNERS ASSOCIATION, and Ernest H. Cockrell, Objectors-Appellants v. COLORADO RIVER WATER CONSERVATION DISTRICT Upper Gunnison River Water Conservancy District United States of America Henry J. Berryhill, Jr. Board of County Commissioners of the County of Gunnison City of Delta City of Montrose City of Grand Junction City of Gunnison Tri-State Generation and Transmission Association, Inc. Colorado Wildlife Federation Crested Butte Water and Sanitation District Perkins D. Sams East River at Almont Property Owners Association Gunnison Angling Society Gunnison County Electric Association Murdie Homeowners' Association, Inc. National Wildlife Federation Rainbow Services, Inc., Colorado Wildlife Federation, Gunnison Angling Society and Western Colorado Congress Mr. and Mrs. Charles Reeder Virgil and Lee Spann Ranches, Inc. State Engineer State Board of Land Commissioners Three Rivers Resort, Inc. Uncompahgre Valley Water Users Association Joseph P. Vader, Raymond P. Van Tuyl, Charles Richard Collard, Thomas E. Collard and Taylor Park Pool Association and Wapiti Canyon Ranch, Ltd., Objectors-Appellees, and Keith Kepler, Division Engineer, Water Division 4, pursuant to C.A.R. 1(e)
- Cited By
- 6 cases
- Status
- Published