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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 - 051 - Reply In Support Of 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 REPLY TO PLAINTIFFS’ COMBINED RESPONSE TO MOTION TO APPROVE STIPULATION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT AS MOOT DATE FILED: January 14, 2022 3:18 PM FILING ID: 318549017153B CASE NUMBER: 2021CV30425 1 Defendants, the Northern Colorado Water Conservancy District (“Northern Water”) and the Northern Integrated Supply Project Water Activity Enterprise’s (“NISP Enterprise”), reply to the Plaintiff’s opposition of Defendants’ Motion for Approval of Stipulation and Motion to Dismiss Plaintiffs’ First Amended Complaint for Mootness. Fort Collins continues to support Northern Water and the NISP Enterprise’s motions. ARGUMENT I. Plaintiffs’ have no basis to oppose the entry of the Stipulation between Northern Water, the NISP Enterprise, and Fort Collins. A court “has a duty, once litigants have agreed to settle their differences, either to adopt the settlement or to state solid reasons why it should not and does not do so.” Colo. River Water Conservation Dist. v. Bar Forth Seven Co., 579 P.2d 636, 638 (Colo. 1978). Plaintiffs have not provided any basis for why the Court should not enter the Stipulation—an agreement made between Northern Water, the NISP Enterprise, and Fort Collins—as an order of the Court. The Stipulation is enforceable between the stipulating parties as any other agreement or contract would be enforceable. By entering it as an order of the Court, the Stipulation will become part of the court record and enforceable in this case, adding another mechanism of enforceability and also alerting the Court to its existence and providing a basis as to why Northern Water and the NISP Enterprise were able to resolve Fort Collins’ Cross-Claim in an efficient and harmonious manner. See Yaekle v. Andrews, 195 P.3d 1101, 1106 (Colo. App. 2008) (describing the mechanism of entering a stipulation as an order of the court). A party is free to “stipulate away valuable rights so long as it is not a violation of public policy.” Cherokee Metro. Dist. v. Upper Black Squirrel Creek Designated Ground Water Mgmt. Dist., 247 P.3d 567, 573 (Colo. 2011). A party that enters into a stipulation that is approved by a court cannot argue legal contentions contrary to its plain meaning. Id. Counsel for Northern Water 2 and the NISP Enterprise has not found any authority in Colorado in which a court has refused to enter a stipulation supported by both parties to the stipulation. Colorado courts regularly enter stipulations as court orders for the benefit of the parties to the stipulation and the court. See, e.g., In re Marriage of Dadiotis, 343 P.3d 1017, 1018 (Colo. App. 2014); Hinojos v. Lohmann, 182 P.3d 692, 694 (Colo. App. 2008). Presumably the Court could deny entry of such a stipulation if it violated public policy or raised any other questions as to its validity and enforceability, but Plaintiffs have not asserted any such grounds here. Rather, Plaintiffs appear to oppose entry of the Stipulation because it implicates the mootness of their own claims, which calls for a separate analysis and one that is discussed below. II. In light of the Stipulation, there is no remaining controversy in this case. Plaintiffs offer several arguments for why the Stipulation has not mooted Plaintiffs’ remaining claims in this case, none of which are substantiated in fact or law. A. The Stipulation achieves the same result as vacating the Board’s Resolution to the extent that it purports to establish a vested right. First, Plaintiffs contend that the case is not moot because the Stipulation does not actually vacate that portion of the Resolution that purports to establish a vested right under the Vested Rights Act, the only remaining dispute in this case. See Plaintiffs’ Response at 4. The Stipulation does not require the Board of Northern Water to formally vacate portions of its Resolution, but it achieves the same result through alternative but equally effective means. Under Paragraph 5 of the Stipulation, Northern Water and the NISP Enterprise agree with Fort Collins 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.” See Motion to Dismiss, Ex. B. Paragraph 6 of the Stipulation also provides that Northern Water and the NISP Enterprise “will not take any action in the future 3 purporting to establish or claim a vested property right under the Vested Property Rights Act for the development of the 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.” Id. The Stipulation negates the need for Plaintiffs to seek relief because Northern Water and the NISP Enterprise will not be relying on the Resolution, or any action by the Board in the future, as the basis for establishing a vested right under the Vested Property Rights Act. See e.g., Willard v. Ciccone, 507 F.2d 1, 3 (8th Cir. 1974) (holding that a suit to compel expungement of all records of disciplinary proceedings at a medical center for federal prisoners was mooted by the act of prison authorities in voluntarily agreeing to expunge all references to the matters giving rise to the proceedings). Plaintiffs’ argument is really a concern over whether the Stipulation sufficiently ensures that Northern Water will not in fact attempt to establish a vested property right under the Vested Property Rights Act. But such a concern hangs on pure speculation. As noted above, the Stipulation is an enforceable agreement between the stipulating parties, and upon approval by this Court will be enforceable as an order of the Court. Plaintiffs have not articulated a basis for why they believe Northern Water would violate the Stipulation it just entered into in a way that renews this controversy. Such unsubstantiated concerns do not create a present controversy between the parties. See Aulenback, Inc. v. Federal Highway Admin., 103 F.3d 156, 161-163 (D.C. Cir. 1997) (holding that the possibility of continued controversy “on the basis of an as-yet-undetermined violation of the consent agreement is too speculative to overcome mootness”); Sanofi-Aventis U.S., LLC v. Dr. Reddy’s Laboratories, Inc., 933 F.3d 1367, 1372-1375 (Fed. Cir. 2019) (rejecting argument that a judgment in a patent case would provide ‘patent certainty’ as unnecessary and speculative because a decision by the patent board concerning the patent had resolved and mooted 4 the controversy). Plaintiffs cannot rely on “nothing but the fear that the challenged conduct may recur in some unstated form at an unknown time and place.” Gagliardi v. TJCV Land Trust, 889 F.3d 728, 735 (11th Cir. 2018). The Stipulation removed the controversy alleged by Plaintiffs. Any of Plaintiffs’ lingering concerns that the Board of Northern Water would recant on the promises made in the Stipulation are speculative. B. Plaintiffs did not need to be a party to the Resolution. Plaintiffs also rely on the fact that they were not parties to the Stipulation. In the Motion to Dismiss, Northern Water and the NISP Enterprise provided authority explaining why Plaintiffs did not need to be parties to the Stipulation to moot the controversy presented in their complaint. See Motion to Dismiss at 6-7. Plaintiffs did not address this authority or provide any authority of their own to support a contrary position. C. Declaratory or injunctive relief from the Court will not provide any meaningful relief to Plaintiffs. Plaintiffs also seem to contend that the Court could still provide Plaintiffs relief in this case—in the form of the declaration and injunction they request. But again, the Court only has jurisdiction to award relief if that relief would solve an actual live controversy. 1B Colo. Prac. § 35:4 (7th ed. 2021) (“It has often been stated that declaratory relief is not available to settle hypothetical, speculative, academic, or moot questions . . . .”). Declaratory or injunctive relief is not necessary when Northern Water and the NISP Enterprise have already provided assurance that the Resolution will not establish a vested right under the Vested Property Rights Act nor will the Board do so in the future. See S-1 v. Spangler, 832 F.2d 294, 296 (4th Cir. 1987) (stating that declaratory and injunctive relief requested was not necessary when plaintiffs had already received the “ultimate object of their action”). 5 D. Plaintiffs cannot request relief that has already been foreclosed by the Court’s order granting partial dismissal of Plaintiffs’ amended complaint. Plaintiffs also assert that the Court could still award relief because it could enter an injunction against the Resolution in its entirety, rendering that part of the Resolution that overturned Fort Collins’ SPAR denial null and void. The Court has already foreclosed any possibility that it would award such a remedy. In its November 17, 2021 order granting Northern Water and the NISP Enterprise’s motion to partially dismiss Plaintiffs’ amended complaint, the Court dismissed Plaintiffs’ claims challenging that portion of the Resolution overturning the City’s SPAR denial. See Order Granting Defendants Partial Motion to Dismiss at 10. Plaintiffs’ remaining claims concern only that portion of the Resolution that purportedly established a vested right for the project. That controversy has now been mooted by the Stipulation. The Court could not somehow award relief for Plaintiffs’ dismissed claims. 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 for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). Because Plaintiffs’ remaining claims are moot and Fort Collins has noticed dismissal of its Cross-Claim under C.R.C.P. 41(a)(1)(A), this lawsuit has been resolved in its entirety. 6 Respectfully submitted: January 14, 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 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. 7 CERTIFICATE OF SERVICE I certify that on January 14, 2021, a true and correct copy of the foregoing REPLY TO PLAINTIFFS’ COMBINED RESPONSE TO MOTION TO APPROVE STIPULATION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT AS MOOT 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/ 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