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Home My WebLink About2021CV30425 - Save The Poudre And No Pipe Dream Coporation V. Northern Colorado Water Conservancy District, Northern Integrated Supply Project Water Activity Enterprise, The City Of Fort Collins - 029 - Response To Motion To Compile Administrative RecordLarimer County District Court 201 La Porte Ave, Suite 100 Fort Collins, CO 80521 COURT USE ONLY SAVE THE POUDRE, and NO PIPE DREAM CORPORATION Plaintiffs v. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, NORTHERN INTERGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE, and THE CITY OF FORT COLLINS, a Colorado home rule city and municipal corporation, Defendants. Attorneys for Northern Colorado Water Conservancy District and Northern Integrated Supply Project Water Activity Enterprise: Bennett W. Raley, #13429 Peggy E. Montaño, #11075 William Davis Wert, #48722 Mirko L. Kruse, #52488 TROUT RALEY 1120 Lincoln Street, Suite 1600 Denver, CO 80203 Telephone: (303) 861-1963 FAX Number: (303) 832-4465 email: braley@troutlaw.com, pmontano@troutlaw.com, dwert@troutlaw.com, mkruse@troutlaw.com Case No. 21CV30425 DEFENDANT NORTHERN COLORADO WATER CONSERVANCY DISTRICT’S RESPONSE TO PLAINTIFFS’ RE-FILED MOTION TO PREPARE AND CERTIFY THE ADMINISTRATIVE RECORD Defendant, the Northern Colorado Water Conservancy District (“Northern Water”), by and through its undersigned attorneys, hereby responds to Plaintiffs’ Re-Filed Motion to Prepare and Certify the Administrative Record. Plaintiffs move this Court for an Order directing Northern Water to prepare and certify the administrative record “pertaining to its actions of August 12, 2021 and adoption of Resolution D- 1 1367-08-21.” Plaintiffs’ Motion includes an enumerated list of documents and materials they request Northern Water to include in an administrative record. In general, Northern Water agrees that the Court should enter an order in accordance with C.R.C.P. 106 requiring preparation and certification of an administrative record with “the evidence in the record before” the Northern Water Board of Directors, to the extent that Northern Water’s actions were quasi-judicial in nature. However, Northern Water disagrees with some of the specifics of Plaintiffs’ Motion and proposed order and responds as follows: 1. An administrative record is necessary for this Court to review under Rule 106 any quasi-judicial actions undertaken by Northern Water’s Board of Directors during the August 12, 2021, proceeding. C.R.C.P. 106(a)(4). Northern Water believes both quasi-judicial and quasi- legislative actions were taken at this proceeding and therefore an administrative record is needed to review only those actions that are quasi-judicial. 2. Under C.R.C.P. 106(a)(4)(I), review of quasi-judicial action is “based on the evidence in the record before the defendant body or officer.” There are several enumerated items Plaintiffs listed for inclusion in the administrative record that Northern Water does not believe comprise this administrative record. Specifically, Plaintiffs request that Northern Water state whether any regulations exist governing “overturn proceedings” pursuant to section 31-23-209, C.R.S. See Plaintiffs’ Re-Filed Motion, ¶¶ h, i. Such a statement is not a document that comprises “evidence in the record before the defendant body or officer,” C.R.C.P. 106(a)(4)(I), and cannot be included in the administrative record, Higby v. Bd. of Cty. Comm’rs of El Paso Cty., 689 P.2d 635, 639 (Colo. App. 1984) (holding that review under C.R.C.P. 106(a)(4) “is limited to a review of the record only”). 2 3. As part of the administrative record, Plaintiffs also request that Northern Water prepare a transcript of the August 12, 2021 proceeding. In lieu thereof, Northern Water proposes to submit a video recording of the proceeding, which would reduce the expense and time of preparing a transcript. Northern Water believes a video would be more than adequate and within its discretion to include as substitute for a transcript. See Civil Service Commission v. Doyle, 483 P.2d 380, 383 (Colo. 1971) (“The certification of the record is an official act of the inferior tribunal . . . .”). If the Court requires a transcript, however, Northern Water requests that such a ruling include an express order that Plaintiffs reimburse Northern Water for these costs, along with all other reasonable costs Northern Water incurs in preparing the administrative record. See C.R.C.P. 106(a)(4)(IV) (plaintiffs must pay for the reasonable costs of compiling the record). 4. According to Rule 106, the Court must determine a specified date by when Northern Water must file the certified record along with a certificate of authenticity. C.R.C.P. 106(a)(4)(III). Plaintiffs’ proposed order does not specify this date and requirement. Northern Water’s proposed order, attached herewith, proposes that the record be certified within 21 days after Northern Water and the NISP Enterprise file their answer to Plaintiffs’ Amended Complaint. 3 Respectfully submitted: September 28, 2021. TROUT RALEY /s/ Peggy E. Montaño Peggy E. Montaño, #11075 Bennett W. Raley, #13429 William Davis Wert, #48722 Mirko L. Kruse, #52488 1120 Lincoln Street, Suite 1600 Denver, CO 80203 Telephone: (303) 861-1963 Facsimile: (303) 832-4465 braley@troutlaw.com pmontano@troutlaw.com dwert@troutlaw.com mkruse@troutlaw.com Attorneys for Defendants, Northern Colorado Water Conservancy District and Northern Integrated Supply Project Water Activity Enterprise Pursuant to C.R.C.P. 121, a printed or printable copy of the document bearing the original, electronic, or scanned signatures is on file in the offices of counsel. 4 CERTIFICATE OF SERVICE I certify that on September 28, 2021, a true and correct copy of the foregoing DEFENDANT NORTHERN COLORADO WATER CONSERVANCY DISTRICT’S RESPONSE TO PLAINTIFFS’ RE-FILED MOTION TO PREPARE AND CERTIFY THE ADMINISTRATIVE RECORD was served via the Colorado Courts E-Filing System, on the following: Name Attorney Organization City of Fort Collins Marni L Nathan Kloster Nathan Dumm and Mayer PC City of Fort Collins Nicholas Poppe Nathan Dumm and Mayer PC City of Fort Collins John R Duval City Attorneys Office No Pipe Dream Corp John Mclain Barth John M Barth Attorney at Law Save the Poudre John Mclain Barth John M Barth Attorney at Law S/ Meichell Walsh E-filed pursuant to C.R.C.P. 121 §1-26 via the Colorado Courts E-Filing System. A printed or printable copy of this document bearing the original, electronic, or scanned signatures is on file at the office of Trout Raley