Hi Everyone,
See the below email from our attorney to the water court referee. After all this time with not a word from the referee and now it turns out that NOT ONLY did the referee not follow the requirements of the water court, but, without responding to our comments at all, he decided in Independence’s favor by filing the decree Independence wanted.
As you can see by the email below that our attorney sent to the referee, our comments appear to have been totally ignored in this process. We will be filing a protest today. I think it’s important that we have a community meeting to discuss all of this with our attorney, understand next steps and get any questions answered that any of you may have so that we can determine how the community wants to go forward.
MEETING AUGUST 12TH AT 6:30 AT THE FRANKTOWN FIRESTATION. See you all there.
Diana Love
President
FCC II
From: John Buchanan <[email protected]>
Sent: Thursday, July 22, 2021 1:57 PM
To: cowan, john <[email protected]>
Cc: Diana Love <[email protected]>
Subject: RE: 19CW3220 Independence District Motion
Dear Referee Cowan,
My client, FCC II, asked me to write to you to express their extreme frustration and disappointment with the process that occurred while this case was on the referee’s docket.
Your initial case management order required that opposers file comments on the applicant’s proposed decree and engineering and stated that failure to follow the deadline to comment “could result in dismissal of the application or any statement of opposition” and that you would “consider all comments and the Applicant’s replies, and will likely enter a ruling following completion of comments and replies.” Your amended case management order similarly asked for comments on the applicant’s revised ruling and engineering and again stated that failure to follow the deadlines could result in dismissal of statements of opposition. After FCC II filed their two rounds of comments on the decree and engineering, and retained their own engineer to analyze the applicant’s report, FCC II’s comments (and those filed by other opposers) appear to have been totally ignored in this process.
This case was on the referee’s docket for 18 months. Under Water Court Rule 6(f), the referee may extend the time on the docket for up to six months after the expiration of the initial one-year period, “upon finding that there is a substantial likelihood that the remaining issues in the case can be resolved, without trial before the water judge, in front of the referee.” No such finding was made in this case to extend the time on the docket. During the time on the referee’s docket, there was no communication whatsoever regarding the status of the case. Water Court Rule 6(h) states that the referee “shall set a status conference with the referee and all parties. The status conference shall occur within 63 days after the deadline for filing of statements of opposition, unless the deadline is extended by the referee for good cause.” No status conference was ever held in this case.
Finally, when the applicant filed a motion to enter its proposed decree on July 20, in this highly controversial case with many opposers, there was no time given for any opposing parties to respond to the motion in violation of the rules of civil procedure, and the proposed decree was entered as the referee’s ruling the next day as if this was an unopposed application.
If the reason for approving the motion and entering the proposed decree was that you assumed it would be protested due to the high number of opposers and the controversial nature of this application, then this case should have been rereferred back to the water court prior to the expiration of the initial one-year period back in January.
I have advised my client that the water court rulings are completely de novo and that the referee’s ruling for the applicant, and against the opposers, will not prejudice them before the water court. Nonetheless, my client is understandably concerned that the referee proceedings were a sham and a waste of time and money, and that the applicant will now get to proceed in the water court with an initial victory under their belt.
At this point, FCC II requests that you consider withdrawing the referee’s and rerefer the case to the water court. Because the required findings to extend the time on the referee’s docket were never made, either in writing or orally at a status conference, it does not appear that the referee has jurisdiction to enter a ruling at this time.
Sincerely,
John D. Buchanan
The Law Office of John D. Buchanan
2806 N Speer Blvd
Denver, CO 80211
(720) 413-2773 (telephone)
[email protected] (email)
JDBuchananlaw.com
The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone 720-413-2773 or reply by e-mail and delete or discard the message. Thank you.
From: cowan, john <[email protected]>
Sent: Wednesday, July 21, 2021 8:57 AM
To: John Buchanan <[email protected]>
Subject: RE: 19CW3220 Independence District Motion
Hi John. I already entered the ruling, expecting that with 425 opposers, there will be a protest. If you contact Eric with specific concerns, I’m, sure we can enter an amended referee ruling before the end of the protest period, or if Eric requests, we can maybe extend the protest period if a settlement is possible.
John
From: John Buchanan <[email protected]>
Sent: Wednesday, July 21, 2021 8:53 AM
To: cowan, john <[email protected]>
Subject: 19CW3220 Independence District Motion
Hi Referee Cowan,
I wanted to check and make sure that opposers will get the normal 14 days to respond to the applicant’s motion for entry of the Referee’s ruling?
Thanks,
John D. Buchanan
The Law Office of John D. Buchanan
2806 N Speer Blvd
Denver, CO 80211
(720) 413-2773 (telephone)
[email protected] (email)
JDBuchananlaw.com
The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone 720-413-2773 or reply by e-mail and delete or discard the message. Thank you.