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 - 012 - Reply On City Preliminary Injunction
Larimer County District Court
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
SAVE THE POUDRE, and
NO PIPE DREAM CORPORATION
Plaintiffs
v.
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
PAUL SIZEMORE, in his official capacity as Interim
Director of Community Development & Neighborhood
Services Department of the City of Fort Collins,
NORTHERN INTEGRATED SUPPLY PROJECT WATER
ACTIVITY ENTERPRISE.
Defendants.
COURT USE ONLY
John M. Barth, Attorney at Law
P.O. Box 409
Hygiene, CO 80533
(303) 774-8868 (fax and phone)
barthlawoffice@gmail.com
Counsel for Save the Poudre and No Pipe Dream Corp.
Case Number
2021CV030425
Division 5B
PLAINTIFFS’ REPLY TO CITY OF FORT COLLINS’ RESPONSE TO MOTION
FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY
INJUNCTION AND REQUEST FOR EMERGENCY HEARING
________________________________________________________________________
Plaintiffs submit this Reply to the City of Fort Collins’ (“City”) Response to
Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction and
Request for Emergency Hearing.
DATE FILED: June 25, 2021 11:05 AM
FILING ID: 956F5813DFF0E
CASE NUMBER: 2021CV30425
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I. Procedural Update.
Prior to the filing of the City’s Response, the Court held a Case
Management Conference on June 24, 2021. At the Case Management
Conference, Plaintiffs’ counsel indicated that Plaintiffs may amend their
complaint to add an alternative Rule 106 claim in the event the June 30, 2021
SPAR hearing is allowed to proceed. When asked by the Court whether Plaintiffs
wanted Defendants to respond to the current complaint, Plaintiffs counsel stated,
“No.”
Accordingly, the Court ruled that Plaintiffs are allowed to file an amended
complaint on or before July 30, 2021. The Court also ruled that Defendants
should file a responsive pleading to the current or amended complaint by August
20, 2021.
2. The City May Not Include a Motion to Dismiss in Its Response.
The City’s Response argues “Plaintiffs’ lack standing to challenge the
SPAR process.” City’s Response, p. 7. Because legal standing deals with issues of
subject matter jurisdiction, any attempt by the City to dismiss this case on that
basis must be “made by separate motion filed on or before the date the answer or
reply to a pleading under C.R.C.P. 12(a) is due.” Colo.R.Civ.Pro. 12(b).
Further, Colo.R.Civ.Pro. 121, Section 1-15(1)(d) states, “[a] motion shall not be
included in a response or reply to the original motion.”
The City’s Response appears to include an inappropriate motion to dismiss
this entire case based on lack of subject matter jurisdiction, in contravention of
Colo.R.Civ.Pro. 12(b) and 121, Section 1-15(1)(d). Plaintiffs’ request that any
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order on the pending Motion for Temporary Restraining Order and/or Preliminary
Injunction clearly state that the City’s motion-by-response is denied for the
reasons stated above. Should the Court choose to entertain the City’s motion-by-
response, Plaintiffs request that the Court set a briefing schedule on the motion-
by-response or otherwise clarify that Plaintiffs’ “have 21 days after the filing” of
the City motion-by-response to file a responsive brief. Colo.R.Civ.Pro. 121,
Section 1-15(1)(b).
Respectfully submitted this 28th day of June 2021.
/s/ John M. Barth
John M. Barth
Attorney at Law
P.O. Box 409
Hygiene, CO 80533
barthlawoffice@gmail.com
303-774-8868 telephone and fax
Counsel for Save the Poudre
CERTIFICATE OF DELIVERY
I hereby certify that on this 28th day of June 2021, a true and correct copy of the
foregoing Plaintiffs’ Reply to City of Fort Collins’ Response to Motion for
Temporary Restraining Order and/or Preliminary Injunction and Request for
Emergency Hearing, was filed via Colorado Courts E-filing System and was served by
email to Defendants’ legal counsel.
DEFENDANTS CITY OF FORT COLLINS AND PAUL SIZEMORE
John Duval (jduval@fcgov.com)
Deputy City Attorney, City of Fort Collins
300 Laporte Ave.
Fort Collins, CO 80522
NATHAN DUMM & MAYER P.C.
Marni Nathan Kloster (MNathan@ndm-law.com)
Nicholas C. Poppe (NPoppe@ndm-law.com)
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DEFENDANT NORTHERN WATER
Bennett Raley (braley@troutlaw.com)
Peggy E. Montaño (pmontano@troutlaw.com)
William Davis Wert (dwert@troutlaw.com)
Mirko L. Kruse (mkruse@troutlaw.com)
Trout and Raley
1120 Lincoln St., Suite 1600
Denver, CO 80203-2141
/s/ John M. Barth
John M. Barth