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Legal fees sought after rec water rights case

Geraldine Haldner

“The judge took a very dim view on the merit of their case,” said Vail councilman Greg Moffet. “Several, if not all, of their claims were frivolous and designed to vex us only.”The claim for reimbursement of a unspecified amount in legal fees follows a recent ruling by Judge Thomas Ossola of the Division 5 Water Court in Glenwood Springs. The claim, according to a preliminary estimate, could be as high as $100,000.Earlier this month, Ossola ruled the Colorado Water Conservation Board and several water users failed to present a convincing case in opposition to recreational water rights sought by Breckenridge and Vail.Ted Kowalski, a legal protection specialist for the conservation board, refused to comment on the judge’s decision, citing the board’s policy of not commenting on ongoing legal matters.Ironically, the conservation board is one of several state agencies that monitor stream flows and act as an impartial arbiters between individual water user groups – usually agricultural and industrial interest groups.Faced with the relatively new genre of recreational water rights filings, the conservation board, however, has adopted a defensive stance, claiming that agricultural and industrial uses of water should take precedence over recreational water rights.”The state was arguing that these forms of recreation either should not be entitled to water rights or the water rights should be greatly limited to just enough water to float a boat,” said Steve Bushong, partner of the Boulder law firm Porzak, Browning & Bushong, which represented Vail and Breckenridge in the dispute.The judge disagreed with the plaintiffs’ arguments that tourism should not impact other water users.”Higher flows attract the greatest number of users, spectators and competitive events,” Ossola wrote, adding that recreational water rights are equally important to the state’s financial well-being, especially “in a municipality such as Breckenridge and Vail, whose economies are based on tourism.”With his ruling, Ossola validated Vail’s application for up to 400 cubic feet per second, or cfs, from Gore Creek and Breckenridge’s application for 500 cfs from the Blue River.Ossola’s ruling marks the second time traditional water users have failed to convince the the lower courts to produce case law that would protect traditional water diverters from the pressures of in-stream, recreational water users.Though new recreational water rights are junior to the rights of down-stream diverters, they are “non-consumptive,” meaning no water is removed. Recreational water rights, however, do affect up-stream users, mainly trans-mountain diverters, such as the cities of Aurora and Colorado Springs, by limiting how much water they can divert in times of low flows.Ossola’s decision mirrors an earlier conclusion reached by a Front Range water judge, who awarded the City of Golden 1,000 cfs for its whitewater park, over the objection of traditional water users.The Golden case has been appealed to the Colorado Supreme Court, which is expected to hear oral arguments sometime later this summer and could settle the ongoing dispute between competing water users within the year, Bushong said.A decision in favor of recreational water rights could overturn a legislative bill passed last year. The bill has stalled any new recreational water rights filings, pending the outcome of court challenges involving the cities and towns of Vail, Breckenridge, Aspen and Golden.Kowalsky said the board attempted to save Vail and Breckenridge the legal expenses by holding off on a second legal challenge until the Golden case had been resolved.”But Vail and Breckenridge chose not to proceed in that manner,” he said adding that the conservation board will object to paying the town’s legal bills.Both towns have authorized Bushong to seek reimbursement for legal expenses from the judge. A ruling on that could come as early as mid-July, Bushong said.”The basis for that is that in the opinion of Breckenridge and Vail a large portion of the opposition’s arguments lacked any substantial justification, as a result (the towns) incurred unnecessary expenses,” Bushong said.The actual amount of legal fees paid by Vail was not available at press time. Bushong said an exact break-down of services provided by his firm will be provided to the Vail and Breckenridge by the end of next week, before the claims have to be filed in Glenwood Springs.Vail councilman Greg Moffet said seeking reimbursement from the plaintiffs is the town’s duty to Vail taxpayers.”We have an obligation to our constituents to recover the cost of defending ourselves against such claims, when we can,” he said.Geraldine Haldner covers Vail, Minturn and Red Cliff. She can be reached at 949-0555, ext. 602, or at ghaldner@vaildaily.com


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