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

Supreme Court, State of Colorado Two East 14th Ave. Denver, Colorado 80203 (720) 625-5150 DATE FILED: September 16, 2016 3:55 PM 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. COURT USE ONLY Case No. 16SA243 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.

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: alanc@white-jankowski.com; davet@white-jankowski.com; courtneyk@white-jankowski.com; tacyh@white-jankowski.com 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: mfbrowning@pbblaw.com 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: paj@ljcglaw.com; curran@ljcglaw.com NOTICE OF CERTAIN APPELLEES CROSS-APPEAL 1

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. 2

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). 3

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. 4

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 5

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. necessary. The Order on review was not issued by a magistrate where consent was 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 trb@tbvs.net fholleman@tbvs.net jbuchanan@tbvs.net (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 patrick.kowaleski@state.co.us jennifer.mele@state.co.us (720) 508-6297 6

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 paj@ljcglaw.com curran@ljcglaw.com (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 mbrowning@pbblaw.com (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 kholsinger@holsingerlaw.com agould@holsingerlaw.com (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 kohlsen@chp-law.com mbrown@chp-law.com (303) 861-9000 7

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 alanc@white-jankowski.com davet@white-jankowski.com courtneyk@white-jankowski.com tacyh@white-jankowski.com (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 jkahn@lyonsgaddis.com mmachado@lyonsgaddis.com (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 dsinor@troutlaw.com (303) 339-5831 8

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: 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 Name Colorado Ground Water Commission Type Defendant- Appellee Attorney Patrick E Kowaleski (CO Attorney General) Jennifer Lyn Mele (CO Attorney General) Equus Fanns, Inc Defendant- Appellee Michael Browning (Porzak Browning & Bushong LLP)...-...,.,,..., 1 Front Range Resources, Lie Plaintiff John David Buchanan (Buchanan Sperling and Holleman PC) Appellant 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 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 Weldon Valley Ditch Company 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-------- 10

DATE FILED: September 16, 2016 3:55 PM 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 DATE FILED: June 9, 2016 4:41 PM FILING ID: 18EE779CB2572 CASE NUMBER: 2015CV30493 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: fholleman@tbvs.net; jbuchanan@tbvs.net Atty. Reg. Nos: 21888; 45191 COURT USE ONLY 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

Front Range Resources, LLC Case No. 15CV30493 Page 2 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,

Front Range Resources, LLC Case No. 15CV30493 Page 3 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

Front Range Resources, LLC Case No. 15CV30493 Page 4 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;

Front Range Resources, LLC Case No. 15CV30493 Page 5 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.

Front Range Resources, LLC Case No. 15CV30493 Page 6 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.

Front Range Resources, LLC Case No. 15CV30493 Page 7 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.

Front Range Resources, LLC Case No. 15CV30493 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

Front Range Resources, LLC Case No. 15CV30493 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 9 th 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 9 th 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 Colorado Ground Water Commission Defendant/Appellee Patrick E. Kowaleski Jennifer Mele Colorado Attorney General s Office Equus Farms Inc. Defendant Michael Browning Porzak Browning & Bushong LLP Henrylyn Irrigation District Defendant Alyson M Gould Kent H Holsinger Holsinger Law LLC Irrigationists Association, Water District 1 Lost Creek Ground Water Management District Lost Creek Land and Cattle Company Morgan County Quality Water District Northern Colorado Water Conservancy District Defendant Defendant Defendant Defendant Defendant Karl D Ohlsen Mason H Brown Carlson Hammond & Paddock LLC P. Andrew Jones Lawrence Jones Custer Grasmick LLP Alan E. Curtis White & Jankowski LLP Jeffrey J Kahn Matthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC Douglas M Sinor April H. Killcreas Trout Raley Montano Freeman Sinor Thompson PC Weldon Valley Ditch Co Defendant Jeffrey J Kahn Matthew Machado Lyons Gaddis Kahn Hall Jeffers Dworak & Grant PC /s/ Peggy Sue Wells Peggy Sue Wells

District Court, Adams County, Colorado 1100 Judicial Center Dr. Brighton, CO 80601 (303)659-1161 Plaintiff/Appellant: FRONT RANGE RESOURCES, LLC DATE FILED: June 9, 2016 4:41 PM FILING ID: 18EE779CB2572 CASE NUMBER: 2015CV30493 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 COURT USE ONLY 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

DISTRICT COURT, ADAMS COUNTY, STATE OF COLORADO 1100 Judicial Center Dr. Brighton, CO 80601 (303) 659-1161 DATE FILED: June 30, 2016 4:34 PM FILING ID: 9250D00636156 CASE NUMBER: 2015CV30493 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 jennifer.mele@coag.gov *Counsel of Record Court Use Only Case No. 15CV30493 Crtrm/Div: 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 alanc@white-jankowski.com davet@white-jankowski.com courtneyk@white-jankowski.com tacyh@white-jankowski.com

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 mfbrowning@pbblaw.com 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 paj@ljcglaw.com 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 kholsinger@holsingerlaw.com agould@holsingerlaw.com 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 MMachado@lgkhlaw.com 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 mbrown@chp-law.com

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 antispeculation 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).

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

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493 Page 4 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, 2 Relevant portions of the May 25 Transcript are attached as EXHIBIT A.

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493 Page 5 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 3 Buffalo 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 antispeculation doctrine.

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493 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 antispeculation 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. 4 This 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.

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

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

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493 Page 9 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.

Response to Motion for Revised/Findings/New Trial Case No. 15CV30493 Page 10 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.