Front Range Resources, LLC, Plaintiff-Appellant/Cross-Appellee,
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 and Cattle Company, LLC; Equus Farms, Inc.; and Lost Creek Ground Water Management District, Defendants-Appellees/Cross-Appellants
from the District Court Adams County District Court, Case No.
15CV30493 Honorable Patrick Thomas Murphy, District Court
Attorneys for Plaintiff-Appellant/Cross-Appellee: Buchanan
Sperling & Holleman PC Paul F. Holleman John D. Buchanan.
Attorneys for Defendant-Appellee Northern Colorado Water
Conservancy District: Trout Raley Douglas M. Sinor William D.
Attorneys for Defendant-Appellee Irrigationists'
Association, Water District 1: Carlson, Hammond &
Paddock, LLC Karl D. Ohlsen Mason H. Brown.
Attorneys for Defendant-Appellee/Cross-Appellant Lost Creek
Land and Cattle Company, LLC: White & Jankowski, LLP Alan
E. Curtis David C. Taussig Courtney J. Krause.
Attorneys for Defendant-Appellee/Cross-Appellant Equus Farms,
Inc: Porzak Browning & Bushong LLP Michael F. Browning
Corina A. Hach.
Attorneys for Defendant-Appellee/Cross-Appellant Lost Creek
Ground Water Management District: Lawrence Jones Custer
Grasmick LLP Pollowing issues:. Andrew Jones Curran A.
appearance by or on behalf of: Colorado Ground Water
Commission, Henrylyn Irrigation District, Morgan County
Quality Water District, or Weldon Valley Ditch Company.
About a decade ago, Front Range Resources, LLC, a private
company that owns or manages various water rights, applied
for a replacement plan in the Lost Creek Designated Ground
Water Basin. A replacement plan allows an applicant to
withdraw designated ground water from an alluvial aquifer
where no ground water is available for appropriation by
replacing the withdrawn ground water with other sources of
water. Under the plan, Front Range sought to divert water
from its existing water rights (including some rights it had
in the South Platte River) to recharge the Lost Creek
Basin's alluvial aquifer. It then planned to withdraw the
recharged water by increasing the use of its existing wells
and by constructing new wells.
Defendants (parties that believed their water rights would be
impaired by the plan) objected to Front Range's
replacement plan, and the Ground Water Commission ultimately
dismissed Front Range's application with prejudice. This
allowed Front Range to appeal to the district court.
Meanwhile, Front Range and the City of Aurora entered into an
option contract for Aurora to purchase some or all of the
replacement-plan water upon the replacement plan's
On appeal, the district court rejected Front Range's use
of water rights in the South Platte River in the replacement
plan. It further found the replacement plan involved new
appropriations and changes of water rights, triggering the
anti-speculation doctrine. The anti-speculation doctrine
prohibits changes of water rights or new appropriations based
on a speculative sale or where an applicant has not
demonstrated a specific plan and intent to put the water to
beneficial use. In granting summary judgment against Front
Range, the district court concluded Front Range's planned
use of the replacement-plan water (including its option
contract with Aurora) violated the anti-speculation doctrine.
Some of the Defendants then pursued attorney fees, arguing
Front Range's claims lacked substantial justification.
But the district court denied their motion.
We hold that the anti-speculation doctrine applies to
replacement plans involving new appropriations or changes to
designated ground water rights. Because Front Range could not
demonstrate that it or Aurora would put the replacement-plan
water to beneficial use, the district court did not err in
granting Defendants' motion for summary judgment. We
further conclude the district court did not abuse its
discretion in denying Defendants' motion for attorney
Thus, we affirm.
Facts and Procedural History
In 2008, Front Range Resources, LLC ("Front Range")
applied for a replacement plan in the Lost Creek Designated
Ground Water Basin with the Colorado Ground Water Commission
("the Commission"). Under the plan, Front Range
proposed to divert water from its existing water rights
(including rights it had in the South Platte River), recharge
the Lost Creek Basin Alluvial Aquifer, and then recover the
recharged water within ten years through increased use of
Front Range's existing wells and by constructing
thirty-one new, large-capacity wells.
The Defendants objected, and the Commission assigned a
hearing officer to review the matter. The hearing officer
dismissed Front Range's South Platte Water Rights from
being used as replacement sources in the plan. The parties
then stipulated to dismiss the application with prejudice,
thus allowing Front Range to file a de novo appeal with the
district court under section 37-90-115, C.R.S. (2017).
Front Range simultaneously entered into an option contract
with the City of Aurora, under which Front Range granted
Aurora the option to purchase some or all of the replacement
water under the proposed replacement plan.
In the district court, the Defendants filed a motion for a
determination of a question of law and partial summary
judgment regarding whether the South Platte Water Rights
could be used as a source of replacement water in the plan.
Finding in the Defendants' favor, the district court,
like the hearing officer, concluded the South Platte Water
Rights could not be used as a source of replacement water
because those rights were not decreed for replacement use in
the Lost Creek Basin.
Defendants then moved for summary judgment to dismiss the
replacement plan, arguing it violated the anti-speculation
doctrine. Front Range countered that the anti-speculation
doctrine didn't apply because its replacement plan
involved neither new appropriations nor changes of water
rights. But if the doctrine did apply, the argument went,
then Front Range asserted it had shown a specific plan and
intent to beneficially use replacement-plan water through its
option contract with Aurora and for use in a planned unit
development called the Pioneer Development on land Front
Relying on language in Front Range's proposed
decree-which included modifying its existing wells in the
Lost Creek Basin to provide for increased use and
constructing new wells in the Basin to withdraw the recharged
water-the district court concluded the replacement plan
involved new appropriations and changes of water rights. So,
it held the anti-speculation doctrine applied.
Further, the district court determined Front Range's
replacement plan violated the anti-speculation doctrine's
beneficial use requirement. Specifically, the district court
observed that because Aurora alone had the discretion to
purchase replacement-plan water, the option contract did not
evince any actual commitment to beneficially use the plan
water. Similarly, the court concluded Front Range's
evidence regarding its need for water in the Pioneer
Development didn't satisfy the anti-speculation doctrine
because it failed to show how replacement-plan water would be
beneficially used there. Thus, it granted summary judgment in
Defendants' favor. Front Range later filed a motion for
reconsideration on anti-speculation, or in the alternative,
to amend its application, which the district court denied.
Some of the Defendants moved for attorney fees, arguing Front
Range's replacement-plan application lacked substantial
justification. In denying the attorney-fees motion, the
district court observed that this case involved complex legal
issues and ...