HomeMy WebLinkAbout2021CV30425 - 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 - 049 - Motion To Dismiss For MootnessLarimer 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, and
NORTHERN INTERGRATED SUPPLY PROJECT
WATER ACTIVITY ENTERPRISE,
Defendants,
and
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
Defendant–Cross-Claimant.
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
MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR
MOOTNESS
Defendants, the Northern Colorado Water Conservancy District (“Northern Water”) and
the Northern Integrated Supply Project Water Activity Enterprise’s (“NISP Enterprise”), move the
DATE FILED: January 7, 2022 3:43 PM
FILING ID: 6D0517BE60212
CASE NUMBER: 2021CV30425
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Court to dismiss Plaintiffs’ Amended Complaint as moot and therefore for the Court’s lack of
subject matter jurisdiction under C.R.C.P. 12(b)(1).
C.R.C.P. 121 § 1-15(8) CERTIFICATION
Pursuant to C.R.C.P. 121 § 1-15(8), counsel for Northern Water and the NISP Enterprise
certify that they conferred with the other parties regarding the relief requested in this Motion. The
City of Fort Collins (“Fort Collins” or “the City”) supports this Motion. Plaintiffs oppose the
Motion.
INTRODUCTION
On November 17, 2021, the Court granted Northern Water and the NISP Enterprise’s
Motion to Partially Dismiss Plaintiffs’ First Amended Complaint. Plaintiffs’ remaining claims in
this lawsuit and Fort Collins’ Cross-Claim are nearly identical—each alleges that the Board of
Directors of Northern Water (“Board”), through its resolution adopted August 12, 2021 and
attached as Exhibit A (“Resolution”), did not have the authority to approve a site specific
development plan for construction of the Poudre River Intake and Pipeline and establish a vested
right for the project under the Vested Property Rights Act, C.R.S. §§ 24-68-101 et seq.
On January 6, 2022, Northern Water, the NISP Enterprise, and Fort Collins entered into a
stipulation, attached as Exhibit B (“Stipulation”), in which Northern Water and the NISP
Enterprise agreed that the Resolution does not establish a site specific development plan and vested
right for the Poudre River Intake and Pipeline under the Vested Property Rights Act.
Although Plaintiffs are not a party to it, the Stipulation has effectively removed any
remaining controversy between Plaintiffs and Northern Water and the NISP Enterprise, mooting
any remaining issues in this case and leaving the Court with no further relief to award Plaintiffs.
Therefore, the Court should dismiss the remaining claims in Plaintiffs’ Amended Complaint and
this lawsuit in its entirety for lack of subject matter jurisdiction over a live controversy.
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BACKGROUND AND FACTS OF THE CASE
I. The NISP Enterprise and the Northern Integrated Supply Project
The NISP Enterprise is a TABOR “enterprise” owned and controlled by Northern Water.
Amend. Compl., ¶¶ 11, 12; see also C.R.S. §§ 37-45.1-101 et seq. (water activity enterprise
statute). Northern Water is a water conservancy district organized pursuant to the Water
Conservancy Act, C.R.S. §§ 37-45-101, et seq. Amend. Compl., ¶ 11. The NISP Enterprise is
developing a new water supply project called the Northern Integrated Supply Project (“NISP”).
Id., ¶ 16. NISP would bring two new reservoirs to Northern Colorado, supplying fifteen Northern
Front Range water providers with 40,000 acre-feet of new reliable water supplies annually. Id.,
Ex. 6 at 2.
NISP spans several counties and consists of multiple components—all of which are subject
to other state and federal permitting requirements that are not at issue in this dispute. Id., Ex. 1 at
1. The NISP Enterprise has already obtained several of these permits and approvals. See id.
II. Location and Extent Review and Fort Collins’ “SPAR” Process.
The L&E Statute, found in section 31-23-209, requires public projects proposed within a
municipality’s boundaries to undertake a “location, character, and extent” review by the city’s
planning commission. If the planning commission disapproves of the proposed project, the
governmental body of the public entity authorizing the project can overrule the disapproval. § 31-
23-209.
To implement this statute, the City of Fort Collins (“City” or “Fort Collins”) adopted its
Site Plan Advisory Review (“SPAR”) process. See Fort Collins Land Use Code [hereinafter
“LUC”] §§ 2.1.3(E)(2), 2.16.2(G). Under SPAR, the Planning Commission assesses whether a
proposed public project meets siting and location standards and considers what potential impacts
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it poses. LUC § 2.16.2(H). This assessment is for advisory purposes only, and consistent with
section 31-23-209, any disapproval by the Planning Commission can be overruled by the
governmental body of the public entity proposing the project. Id., § 2.16.2(L).
III. The NISP Enterprise’s SPAR Application.
Only two components of NISP are located within Fort Collins city limits and were
reviewed by the Planning Commission under SPAR. See Amend. Compl., Ex. 6 at 1. Those
components are a water intake structure from the Poudre River and a pipeline within Fort Collins
city limits that will deliver the water to end-users (“the Poudre River Intake and Pipeline”). Id.
The NISP Enterprise submitted its SPAR application on May 5, 2021, consisting of maps,
plans, studies, and reports relating to Poudre River Intake and Pipeline. Amend. Compl., Ex. 4.
On June 30, the Planning Commission held a hearing and denied the application by a vote of 3-2.
Id., ¶ 38 & Ex. 1 at 1.
On August 12, 2021 the Board held a proceeding after which it adopted the Resolution,
attached as Exhibit A. Id., ¶ 39. The Resolution, among other actions, “resolves that the application
disapproved by the Fort Collins Planning and Zoning Commission is hereby overturned by a vote
of not less than two thirds of the board membership and a site specific development plan as
provided in C.R.S. § 24-68-101, et seq. for the Poudre River Intake and Pipeline is hereby
approved.” Id., Ex. 1 at 2. Section 24-68-101, et seq., the Vested Property Rights Act, establishes
a vested property right for a project upon the valid approval of a site specific development plan for
the project. § 24-68-103(1)(b).
IV. Procedural Background.
Plaintiffs initiated this action originally seeking a preliminary injunction from this Court
to enjoin the SPAR hearing before the Planning Commission. See Plaintiffs’ Complaint for
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Declaratory Relief Under C.R.C.P. 57; Plaintiffs’ Motion for Temporary Restraining Order and/or
Preliminary Injunction and Request for Emergency Hearing. The Court denied that motion. See
Order Denying Motion for Temporary Restraining Order and/or Preliminary Injunction and
Request for Emergency Hearing. Plaintiffs then filed an amended complaint under C.R.C.P. 57,
or alternatively under C.R.C.P. 106, seeking to vacate the Resolution, including that portion of the
Resolution that approved a site specific development plan and vested right under the Vested
Property Rights Act. Amend. Compl., ¶¶ 40-49, 59(d), 59(e). Plaintiffs alleged that the Board did
not have the authority to approve a site specific development plan and vested right for the project
under the Vested Property Rights Act. Id.
On September 28, 2021, Fort Collins filed a cross-claim against Northern Water and the
NISP Enterprise also alleging that the Board’s Resolution did not establish a vested property right
under the Vested Property Rights Act (“Cross-Claim”). See City of Fort Collins Answer and Cross
Claim at ¶¶ 20, 24-25.
On September 28, 2021, Northern Water and the NISP Enterprise filed a Motion to
Partially Dismiss Plaintiffs’ First Amended Complaint. That motion requested dismissal of the
several of Plaintiffs’ claims under C.R.C.P. 12(b)(5) not directly related to Plaintiffs’ claims
concerning the Vested Property Rights Act. On November 17, 2021, the Court granted that motion
in full. Therefore, the remainder of this lawsuit now concerns Plaintiffs’ claims and Fort Collins’
Cross-Claim relating to the Vested Property Rights Act.
On January 6, 2022, Northern Water, the NISP Enterprise, and Fort Collins entered into
the Stipulation in which Northern Water and the NISP Enterprise agreed that the Resolution does
not establish a site specific development plan and vested right for the Poudre River Intake and
Pipeline under the Vested Property Rights Act. See Ex. B. This stipulation resolved Fort Collins’
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Cross-Claim and allowed Fort Collins to notice its dismissal pursuant to C.R.C.P. 41(a)(1)(A),
which Fort Collins filed on January 7, 2022. See Fort Collins’ Notice of Dismissal of Cross-Claim
Pursuant to C.R.C.P. 41(a)(1)(A). Northern Water, the NISP Enterprise, and Fort Collins have not
reached a stipulation with Plaintiffs over their remaining claims.
STANDARD OF REVIEW
C.R.C.P. 12(b)(1) requires a trial court to have subject matter jurisdiction over the case.
Issues concerning subject-matter jurisdiction may be raised at any time. In re Water Rights of
Columbine Ass’n, 993 P.2d 483, 488 (Colo. 2000). Under C.R.C.P. 12(b)(1), the plaintiff has the
burden of proving jurisdiction, and the trial court is authorized to make appropriate factual findings
regarding its jurisdiction. Medina v. State, 35 P.3d 443, 452 (Colo. 2001) (citations omitted). The
trial court “need not treat the facts alleged by the non-moving party as true as it would under
C.R.C.P. 12(B)(5).” Id. Thus, whereas Rule 12(b)(5) constrains the court by requiring it to take
the plaintiff’s allegations as true and draw all inferences in the plaintiff’s favor, Rule 12(b)(1)
permits the court “to weigh the evidence and satisfy itself as to the existence of its power to hear
the case.” Id.
The subject matter jurisdiction of a trial court requires an actual controversy between the
parties because courts are not permitted to make “advisory opinions” when no dispute actually
exists. Robertson v. Westminster Mall Co., 43 P.3d 622, 628 (Colo. App. 2001) (citation omitted)
(emphasis added). An actual controversy is an essential requisite to jurisdiction. Id.
ARGUMENT
I. There is No Remaining Controversy in this Case and Therefore Plaintiffs’ Remaining
Claims Should be Dismissed as Moot.
A. A Controversy is Mooted and Should Be Dismissed if the Plaintiffs Are
Effectively Given the Relief They Are Requesting.
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“The duty of this court, as of every other judicial tribunal, is to decide actual controversies
by a judgment which can be carried into effect, and not . . . to declare principles or rules of law
which cannot affect the matter in issue before it.” Anderson v. Applewood Water Ass’n, 2016
COA 162, ¶ 26, 409 P.3d 611, 617 (quoting Tippett v. Johnson, 742 P.2d 314, 315 (Colo. 1987)
(alteration in original)). A case becomes moot and subject to dismissal “when the relief granted by
the court would not have a practical effect upon an existing controversy.” Id. ¶¶ 26–27, 409 P.3d
at 618 (quoting Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo. 1998)). To
determine mootness, a court must look at circumstances that have arisen after the case commenced.
Sensible Housing Co., Inc. v. Town of Minturn, 2010 WL 3259829 (Colo. App. 2010), cert.
granted, 2011 WL 3301554 (Colo. 2011) and judgment rev’d on other grounds, 2012 CO 23, 273
P.3d 1154 (Colo. 2012). Typically, a case will be mooted when the action sought to be prevented
by the plaintiff is accomplished. See, e.g., In re Marriage of Salby, 126 P.3d 291, 301 (Colo. App.
2005) (the review and modification of parenting orders following a full hearing moots the issue of
whether the prior parenting order was appropriate).
When the defendants have effectively provided the relief the plaintiffs are seeking, there
typically is no longer an existing controversy or any reason to proceed with the litigation. C. I. R.
v. Shapiro, 424 U.S. 614, 622 n.7 (1976). This is true in situations where the defendants have
essentially afforded the injunctive relief the plaintiffs are seeking. See, e.g., Cornucopia Institute
v. United States Dept. of Agriculture, 560 F.3d 673, 675-676 (7th Cir. 2009) (defendant producing
documents in accordance with Freedom of Information act request by plaintiff mooted injunctive
action to require defendant to produce the documents).
A settlement of all the claims amongst all the parties moots an action and “[s]o too
settlement among fewer than all the parties may moot an action if it accords all the relief claimed.”
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Wright & Miller, 13B Fed. Prac. & Proc. § 3533.2 (3d ed. 2021). For example, in S-1 v. Spangler,
832 F.2d 294, 296 (4th Cir. 1987), plaintiff-parents sued both a local school board and state
officials to recover certain tuition they had paid. During the pendency of the case, the parents
settled with the school board for the full amount claimed. Id. The court concluded that the appeal
was moot as to the remaining and unstipulated party—the state officials—because an injunction
requiring the state officials to award past tuition payments was not likely to serve any continuing
need. Id. at 297-98. Similarly, in Gagliardi v. TJCV Land Trust, 889 F.3d 728, 731 (11th Cir.
2018), the plaintiffs sought to enjoin construction of a religious space on constitutional grounds.
Different plaintiffs brought an action in state court to enjoin the same construction on the grounds
of violating local ordinances, and the state court enjoined the construction. Id. at 732. Despite
this, the plaintiffs in the original suit sought to continue their litigation, relying on “nothing but the
fear that the challenged conduct may recur in some unstated form at an unknown time and place.”
Id. at 735. The court in the original suit dismissed the action as moot. Id.
Consistent with these federal decisions, the Colorado Court of Appeals held in Rudnick v.
Ferguson that settlement between the defendant and plaintiffs is not necessary to moot an action
where the defendant afforded the relief requested by plaintiffs on its own volition. 179 P.3d 26,
31 (Colo. App. 2007) (“[W]e conclude the trial court did not err in permitting the physicians to
tender $150,000 into the court registry and in dismissing the case as moot without requiring the
physicians to confess judgment, to admit their liability, or to enter into a settlement with the
Rudnicks.”).
B. Northern Water and the NISP Enterprise’s Stipulation with Fort Collins
Effectively Provided the Relief Plaintiffs Are Requesting.
The relief requested in Fort Collins’ Cross-Claim and Plaintiffs’ Amended Complaint are
nearly identical. Plaintiffs’ Amended Complaint alleges that the “Resolution purportedly approves
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a ‘site specific development plan’” pursuant to the Vested Property Rights Act but that the Vested
Property Rights Act “does not grant jurisdiction or authority to [Northern Water] to approve a ‘site
specific development plan’ to its own government-owned Enterprise business” or a “vested right”
thereby. Amend. Compl. ¶¶ 40, 42, 48. Plaintiffs’ claim for relief requests declaratory and
injunctive relief to resolve the controversy over “whether [Northern Water] has the legal authority
to grant its Enterprise a ‘vested right’ pursuant to ‘C.R.S. § 24-68-101 et seq.’ (‘Vested Rights
Act’) or C.R.S. § 31-23-209, to construct the Poudre River Intake and/or Pipeline as purportedly
occurred by the Resolution and [Northern Water’s] actions on August 12, 2021.” Amend. Compl.
¶ 59(e).
Fort Collins’ Cross-Claim alleges that “a controversy exists between the City and Northern
[Water] as to whether the Board’s adoption of the Resolution has established a vested property
right under the Vested Rights Statutes for the Enterprise’s development and use of the Diversion
Structure and the Pipeline.” Cross-Claim at ¶ 24. The Cross-Claim then requests relief in the form
of “a declaration from this Court that the Board’s adoption of the Resolution has not established a
vested property right under the Vested Rights Statutes for the Enterprise’s development and use of
the Diversion Structure and the Pipeline.” Id., ¶ 24.
The Stipulation provides the relief sought by both Fort Collins and Plaintiffs. Under
paragraph five of the Stipulation, Northern Water and the NISP Enterprise agree that “Section 3
and any other part of the Resolution do not establish a vested property right under the Vested
Property Rights Act for the development of the Poudre River Intake and Pipeline by Northern
Water and the NISP Enterprise.” Ex. B. Paragraph six of the Stipulation also ensures that Northern
Water and the NISP Enterprise “will not take any action in the future purporting to establish or
claim a vested property right under the Vested Property Rights Act for the development of the
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Poudre River Intake and Pipeline in any judicial proceeding or in any Fort Collins administrative
or quasi-judicial proceeding and hereby waives any claim of a vested right under the Vested
Property Rights Act in any such proceedings.”1 Id.
The Stipulation has afforded Plaintiffs the relief they request and dissolves any controversy
remaining in this case. Northern Water and the NISP Enterprise will not be relying on the
Resolution as the basis for establishing a vested right under the Vested Property Rights Act. There
is no further relief the Court could award Plaintiffs that has not been effectively provided for by
the Stipulation. The fact that Plaintiffs are not parties to the Stipulation does not alter this
conclusion, see Rudnick, 179 P.3d at 31; S-1 v. Spangler, 832 F.2d at 296. Plaintiffs’ controversy
has been mooted, and the Court should dismiss the remainder of Plaintiffs’ Amended Complaint
and this lawsuit in its entirety for lack of subject matter jurisdiction over a live dispute. Any further
proceedings in this case would be an unneeded and unjustified use of the parties’ and the Court’s
limited resources.
CONCLUSION
The Stipulation has effectively removed any remaining controversy between Plaintiffs and
Northern Water and the NISP Enterprise, mooting any remaining issues in this case and leaving
the Court with no further relief to award Plaintiffs. Therefore, the Court should dismiss the
remaining claims in Plaintiffs’ Amended Complaint and this lawsuit in its entirety for lack of
subject matter jurisdiction under C.R.C.P. 12(b)(1).
1 Plaintiffs’ Amended Complaint also alleges that the Resolution could not establish a vested right under
section 31-23-209, C.R.S., the statute allowing the Board’s location-and-extent review of Fort Collins’
SPAR disapproval of the project. See Amend. Compl., ¶¶ 59(d), 59(e). Paragraphs five and six of the
Resolution also establish that the Resolution does not grant a vested right for the project under that statute
nor will the Board do so in the future. Ex. B.
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Respectfully submitted: January 7, 2022.
TROUT RALEY
__/s/ Peggy E. Montaño________________
By: Peggy E. Montaño, #11075
Bennett W. Raley, #13429
William Davis Wert, #48722
Mirko L. Kruse, #52488
Attorneys for Defendants, Northern
Colorado Water Conservancy District and
Northern Integrated Supply Project Water
Activity Enterprise
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CERTIFICATE OF SERVICE
I certify that on January 7, 2022, a true and correct copy of the foregoing Motion to Dismiss
Plaintiffs’ First Amended Complaint for Mootness 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 Corporation John McLain Barth John M Barth Attorney at
Law
Save the Poudre John McLain Barth John M Barth Attorney at
Law
S/ Britta Petersen
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