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                                                  ADVANCE SHEET HEADNOTE
                                                                June 15, 2020

                                    2020 CO 56

No. 19SA170, People v. Meagher—Water Law—Administrative Orders—
Injunctions—Motions to Dismiss—Summary Judgment.

      Plaintiff brought claims against defendant for injunctive relief, civil

penalties, and costs, arising from defendant’s failure to submit a form required by

Rule 6.1 of Water Division No. 3’s Measurement Rules. The water court denied

defendant’s motion to dismiss plaintiff’s claims and subsequently granted plaintiff

summary judgment on those claims, and defendant now appeals.

      The supreme court concludes, contrary to defendant’s contentions, that

(1) the water court properly denied defendant’s motion to dismiss because

plaintiff’s claims were not mooted by defendant’s belated compliance with

Rule 6.1; (2) the water court correctly determined that neither Rule 6.1 nor the

pertinent provisions of section 37-92-503, C.R.S. (2019), required plaintiff to prove

that defendant had a culpable mental state and therefore defendant’s allegation

that he was not at fault for violating Rule 6.1 did not establish a genuine issue of

material fact so as to preclude the entry of summary judgment for plaintiff; (3) the
injunction entered by the water court was statutorily authorized and conformed

to Colorado standards for enjoining further violations of the Measurement Rules;

and (4) the water court properly awarded plaintiff costs and fees under subsection

37-92-503(6)(e).

      Accordingly, the court affirms the judgment of the water court, concludes

that plaintiff is entitled to an award of reasonable appellate attorney fees, and

remands this case to allow the water court to determine the amount of appellate

fees to be awarded.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                   2020 CO 56

                    Supreme Court Case No. 19SA170
                       Appeal from the District Court
     Alamosa County District Court, Water Division 3, Case No. 18CW3003
                  Honorable Pattie P. Swift, Water Judge

                             Plaintiffs-Appellees:

 The People of the State of Colorado, ex rel. Kevin G. Rein, State Engineer, and
          Craig W. Cotten, Division Engineer for Water Division 3,

                                       v.

                            Defendant-Appellant:

                         Nick Meagher, an individual.

                              Judgment Affirmed
                                   en banc
                                  June 15, 2020


Attorneys for Plaintiffs-Appellees:
Philip J. Weiser, Attorney General
Andrew Nicewicz, Assistant Attorney General
Philip E. Lopez, Senior Assistant Attorney General
      Denver, Colorado

Attorneys for Defendant-Appellant:
S.W. Atencio and Associates, P.C.
Stephane W. Atencio
      Colorado Springs, Colorado
Attorneys for Amicus Curiae The Rio Grande Water Conservation District:
Hill & Robbins, P.C.
David W. Robbins
Peter J. Ampe
Matthew A. Montgomery
       Denver, Colorado




JUSTICE GABRIEL delivered the Opinion of the Court.
                                     2
¶1    Kevin G. Rein, the State Engineer, and Craig W. Cotten, the Division

Engineer for Water Division 3 (the “Engineers”), brought claims against Nick

Meagher for injunctive relief, civil penalties, and costs, arising from Meagher’s

failure to submit Form 6.1—Water Use Data Submittal Form, as required by

Rule 6.1 of the Rules Governing the Measurement of Ground Water Diversions

Located in Water Division No. 3, The Rio Grande Basin (the “Measurement

Rules”). Meagher now appeals the water court’s orders denying his motion to

dismiss the Engineers’ claims and granting the Engineers summary judgment on

those claims. He contends that the court erred in (1) denying his motion to dismiss

because the Engineers’ claims were mooted by his ultimate submission of

Form 6.1; (2) granting summary judgment for the Engineers based on an

erroneous interpretation of Rule 6.1 and section 37-92-503, C.R.S. (2019), and

notwithstanding the existence of genuine issues of material fact as to his culpable

mental state and the amount of the civil penalties to be imposed; (3) enjoining

future violations of Rule 6.1; and (4) awarding costs and fees to the Engineers.

¶2    We reject each of these contentions in turn. First, we conclude that the water

court did not err in denying Meagher’s motion to dismiss because the Engineers’

claims were not mooted by Meagher’s belated submission of Form 6.1. Second,

we conclude that the water court correctly determined that neither Rule 6.1 nor



                                         3
the pertinent provisions of section 37-92-503 required the Engineers to prove that

Meagher had a culpable mental state. Accordingly, Meagher’s allegation that he

was not at fault for violating Rule 6.1 did not establish a genuine issue of material

fact so as to preclude the entry of summary judgment for the Engineers. Third, we

conclude that the injunction entered by the water court was appropriate because

(1) the court was not required to comply with the requirements of C.R.C.P. 65,

given that section 37-92-503 provides special statutory procedures for issuing

injunctions, and (2) the injunction conformed to Colorado standards for enjoining

further violations of the Measurement Rules. Finally, we conclude that the water

court properly awarded the Engineers costs and fees under subsection

37-92-503(6)(e), and therefore we need not address whether costs and fees could

also have been awarded under subsection 37-92-503(1)(b).

¶3    Accordingly, we affirm the judgment of the water court, conclude that the

Engineers are entitled to the reasonable attorney fees that they incurred on appeal,

and remand this case to allow the water court to determine the amount of fees to

be awarded.

                        I. Facts and Procedural History

¶4    The State Engineer adopted the Measurement Rules in 2005, and the

Division 3 Water Court approved them in 2006. Rule 6.1 of these Rules requires




                                         4
certain well owners to report in writing, on an annual basis, the amounts of water

pumped from their wells in a given irrigation year.

¶5    Meagher owns and pumps water from three tributary groundwater wells

located in Conejos County, and he does not dispute that the wells are subject to

the Measurement Rules. Before the events leading to this case, the Engineers had

issued multiple orders to Meagher to compel compliance with the Measurement

Rules and with conditions of his well permits and decrees, including orders to

comply with Rule 6.1.

¶6    As pertinent here, in October 2017, the Engineers sent Meagher Form 6.1, so

that he could submit his report of water pumped from his wells, as required by

Rule 6.1. The form gave Meagher a deadline of December 1, 2017 to submit the

required reports. When Meagher did not comply, the Division Engineer issued,

pursuant to section 37-92-502, C.R.S. (2019), a “Notice of Violation and Order to

Comply with Rules Governing Measurement of Ground Water Diversions”

(“Order”). This Order required Meagher to complete and submit Form 6.1 within

ten days. Again, Meagher did not comply. Accordingly, on March 16, 2018, the

Engineers filed a complaint in the water court. In this complaint, the Engineers

sought an injunction to prevent Meagher from further violating the Measurement

Rules and the Order, civil penalties of up to five hundred dollars for each violation,



                                          5
and costs, including reasonable attorney fees. Meagher ultimately completed and

submitted Form 6.1 on April 4, 2018, which was ninety-nine days after the

deadline set by the Order.

¶7    Thereafter, Meagher filed a motion to dismiss the Engineers’ complaint. In

this motion, he argued that his belated compliance with the Order rendered the

Engineers’ claims moot. The water court denied this motion, concluding that

Meagher’s eventual compliance with the Order did not render moot either the

Engineers’ claim for an injunction against further violations or their demand for

civil penalties.

¶8    Meagher then filed an answer and cross-claim in which he alleged that he

had reasonably relied on the Engineers’ designation of certified well testers.

Specifically, he asserted that although he had hired several certified well testers to

submit the required reports, through no fault of his own, the well testers had failed

to do so.

¶9    The Engineers subsequently filed a motion for summary judgment,

contending that there were no genuine issues of material fact and that they were

entitled to judgment as a matter of law permanently enjoining Meagher from

further violating Rule 6.1 and ordering him to pay civil penalties, fees, and costs.

The court granted this motion, concluding that there were no genuine issues of



                                          6
material fact because, among other things, Meagher did not dispute that he had

failed to comply on a timely basis with the applicable provisions of section

37-92-503, the Measurement Rules, and the Order. The court thus entered an

injunction that provided, “Pursuant to C.R.S. § 37-92-503(6)(e) Mr. Meagher is

permanently enjoined from further violations of Rule 6.1 of the Measurement

Rules, and he is ordered to complete and submit Form 6.1—Water Use Data Form,

for the Wells, each year, no later than December 1st.” The court also ordered

Meagher to pay a total of $1,500 in civil penalties ($500 for each of his wells), as

well as the Engineers’ costs of bringing this proceeding, including their reasonable

attorney fees.

¶10   Meagher now appeals the water court’s denial of his motion to dismiss and

its grant of summary judgment in the Engineers’ favor.

                                   II. Analysis

¶11   We begin by considering whether the water court erred in rejecting

Meagher’s assertion that his belated compliance with the Measurement Rules

mooted the Engineers’ claims.      Perceiving no error, we proceed to consider

whether either Rule 6.1 or section 37-92-503 required the Engineers to prove that

Meagher had a culpable mental state and, if so, whether genuine issues of material

fact precluded the entry of summary judgment here. We conclude that neither the




                                         7
statute nor the rule requires any showing of a culpable mental state and that the

water court properly entered summary judgment for the Engineers. Next, we

address and reject Meagher’s challenges to the injunction issued against him. Last,

we consider whether the Engineers are entitled to an award of the costs and

reasonable attorney fees that they incurred both in the water court and on appeal,

and we conclude that they are.

                      A. Meagher’s Motion to Dismiss
¶12   Meagher first contends that the water court erred in denying his motion to

dismiss the Engineers’ claims against him because (1) his belated submission of

the requisite form mooted the Engineers’ claim for injunctive relief and (2) all of

the Engineers’ remaining claims were dependent on the viability of the claim for

injunctive relief. Because we view Meagher’s argument as part and parcel of his

appeal of the grant of injunctive relief (even though he frames his argument as an

appeal of the denial of his motion to dismiss), we will presume that this issue is

properly before us. Nonetheless, we are unpersuaded by Meagher’s contention.

¶13   We review de novo a district court’s decision on a C.R.C.P. 12(b)(5) motion

to dismiss. N.M. v. Trujillo, 2017 CO 79, ¶ 18, 397 P.3d 370, 373. We have adopted

a “plausibility” standard for assessing such motions. Id. at ¶ 20, 397 P.3d at 373.




                                        8
Under this standard, in order to survive a motion to dismiss, a plaintiff must allege

a plausible claim for relief. Id.

¶14   We also review de novo the question of whether a case is moot. See People

in Interest of C.G., 2015 COA 106, ¶ 11, 410 P.3d 596, 599. “A case is moot when the

relief sought, if granted, would have no practical legal effect.”         State Bd. of

Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 970 (Colo. 1997). If a case is moot,

a court will decline to render an opinion on its merits. Id.

¶15   Here, pursuant to, among other provisions, subsection 37-92-503(6)(e), the

Engineers sought injunctive relief.       Subsection 37-92-503(6)(e) provides, in

pertinent part:

      The state engineer and the particular division engineer in the name of
      the people of the state of Colorado, through the attorney general, shall
      apply to the water judge of the particular division to recover the civil
      penalties specified in paragraphs (a), (b), and (c) of this subsection (6)
      or for a temporary restraining order, preliminary injunction, or
      permanent injunction, as appropriate, enjoining further violations of
      this subsection (6). If the state engineer and the division engineer
      prevail, the court shall also award the costs of the proceeding
      including the allowance of reasonable attorney fees.

(Emphasis added.)

¶16   This subsection expressly allows for an order enjoining “further violations”

of subsection 37-92-503(6). “Further” means “going or extending beyond what

exists.”    Further, Webster’s Third New International Dictionary (2002).

Accordingly, subsection 37-92-503(6)(e)’s plain language indicates that an

                                          9
injunction may be issued for violations that occur in the future, in addition to what

has already taken place. Meagher’s belated submission of the required form

therefore did not moot the Engineers’ claim for an order enjoining “further

violations” of the statute and Rule 6.1, and the water court thus correctly rejected

Meagher’s assertion that the Engineers’ claim for injunctive relief was somehow

moot. And because Meagher’s assertion that the Engineers’ remaining claims

were moot depended on a finding that the claim for injunctive relief was moot, the

court likewise properly rejected Meagher’s assertion as to those claims.

¶17   Accordingly, we conclude that the water court did not err in denying

Meagher’s motion to dismiss the Engineers’ claims.

                         B. Summary Judgment Order
¶18   Meagher next contends that (1) the water court erred in concluding that

neither Rule 6.1 nor subsections 37-92-503(1)(a) and (6)(b) required the Engineers

to prove that Meagher had a culpable mental state and (2) genuine issues of

material fact as to his culpable mental state and the determination of the civil

penalties imposed on him precluded the entry of summary judgment.                We

disagree.

¶19   We review an order granting summary judgment de novo.                 Dep’t of

Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 15, 441 P.3d 1012, 1016. Summary




                                         10
judgment is only proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” C.R.C.P. 56(c); accord Agilent Techs., Inc.,

¶ 15, 441 P.3d at 1016.

¶20   In considering whether summary judgment is appropriate, a court grants

the nonmoving party the benefit of all favorable inferences that may reasonably

be drawn from the undisputed facts and resolves all doubts against the moving

party. Agilent Techs., Inc., ¶ 15, 441 P.3d at 1016. In responding to a properly

supported summary judgment motion, however, the nonmoving party may not

rest on mere allegations or demands in its pleadings but rather must provide

specific facts demonstrating a genuine issue for trial. Id.

¶21   Summary judgment is a drastic remedy, and it should only be granted when

it is clear that the applicable legal standards have been met. Westin Operator, LLC v.

Groh, 2015 CO 25, ¶ 21, 347 P.3d 606, 611.

¶22   We also review questions of statutory interpretation de novo. Agilent Techs.,

Inc., ¶ 16, 441 P.3d at 1016. In construing a statute, we aim to effectuate the

legislature’s intent. Id. “In doing so, we look to the entire statutory scheme in

order to give consistent, harmonious, and sensible effect to all of its parts, and we



                                          11
apply words and phrases in accordance with their plain and ordinary meanings.”

UMB Bank, N.A. v. Landmark Towers Ass’n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840.

Additionally, “[w]e must avoid constructions that would render any words or

phrases superfluous or that would lead to illogical or absurd results.” Agilent

Techs., Inc., ¶ 16, 441 P.3d at 1016. Furthermore, we respect the legislature’s choice

of language, and we do not add words to or subtract words from a statute. Id. If

the statutory language is clear, we will apply it as written, and we need not resort

to other tools of statutory construction. Id.

¶23   We likewise review court rules de novo. Mercantile Adjustment Bureau,

L.L.C. v. Flood, 2012 CO 38, ¶ 30, 278 P.3d 348, 358. In construing such rules, we

employ the same interpretive rules that we use in interpreting a statute. Id.

Accordingly, we look first to the language of the rule itself, and if the rule is

unambiguous, then we will apply it as written. Id.

¶24   Rule 6.1 of the Measurement Rules provides:

      All owners of Wells within the scope of these rules shall report in
      writing the annual amounts of water pumped from Wells for the
      period of November 1, to October 31 and, for irrigation Wells, the
      method of irrigation (flood, center-pivot, etc.), to the Division 3
      Engineer no later than December 1, 2008 and every irrigation year
      thereafter.

¶25   Subsection 37-92-503(1)(a), in turn, states:




                                         12
      In the event an order of a division engineer or the state engineer
      issued pursuant to section 37-92-502 is not complied with, the state
      engineer and the particular division engineer in the name of the
      people of the state of Colorado, through the attorney general, shall
      apply to the water judge of the particular division for an injunction
      enjoining the person to whom such order was directed from
      continuing to violate same.

¶26   And subsection 37-92-503(6)(b) provides:

      Any person who, when required to do so by rules and regulations
      adopted by the state engineer, fails to submit data as to amounts of
      water pumped from a well, makes a false or fictitious report of the
      amounts of water pumped from a well, falsifies any data as to
      amounts pumped from a well, makes a false or fictitious report of a
      power coefficient for a well, or falsifies any power coefficient test shall
      forfeit and pay a sum not to exceed five hundred dollars for each
      violation.

¶27   Contrary to Meagher’s assertion, nothing on the face of either Rule 6.1 or the

above-quoted statutes includes a culpable mental state requirement as to the

failure to file Form 6.1, and we are not at liberty to add such a requirement to the

statutes or rule. See Agilent Techs., Inc., ¶ 16, 441 P.3d at 1016. Moreover, Meagher

cites no applicable authority suggesting that we must infer a culpable mental state

in a civil case like this one, and we have seen no such authority. To the contrary,

the case law that we have seen suggests that courts do not presume such an

element. See, e.g., Black Diamond Fund, LLLP v. Joseph, 211 P.3d 727, 736 (Colo. App.

2009) (concluding that a statute that allowed the Colorado Securities

Commissioner to seek an injunction to enforce the Colorado Securities Act did not



                                          13
require proof of scienter, notwithstanding the fact that a damages action for

violations of the Act did require such proof, as did a criminal prosecution for

violations of the Act); Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283, 1287

(Colo. App. 2001) (rejecting an accountant’s contention that a statute providing for

discipline of certified public accountants contained a scienter element).

¶28      Accordingly,    we   conclude    that   neither   Rule 6.1   nor   subsections

37-92-503(1)(a) or (6)(b) required the Engineers to establish Meagher’s culpable

mental state to prevail on their claims for injunctive relief and civil penalties. As

a result, we reject Meagher’s contention that his purported reliance on certified

well testers to file Form 6.1 established a genuine issue of material fact that

precluded the entry of summary judgment for the Engineers. Suffice it to say that

Rule 6.1 required Meagher to file his form by December 1, 2017, and he failed to

do so.

¶29      In reaching this conclusion, we are unpersuaded by Meagher’s numerous

assertions as to why summary judgment was improper here. We address and

reject each of these arguments in turn.

¶30      First, we disagree with Meagher’s reliance on strict liability in tort cases to

suggest that the water court erred in effectively creating a strict liability offense

here. Most of the cases on which Meagher relies are based in the common law.



                                            14
See, e.g., N.M., ¶¶ 1–2, 397 P.3d at 371 (concerning a common law negligence action

brought against a dog owner); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 725–27

(Colo. 2010) (concerning a strict products liability claim against a tanning booth

manufacturer). This case, however, involves a statute, and the penalty created is

“entirely a creature of statute,” so the common law does not govern. Vaughn v.

People ex rel. Simpson, 135 P.3d 721, 723 (Colo. 2006). And in the one case that

Meagher cites involving a statute, the division relied on the plain meaning of the

statutory phrase “sets fire to,” which suggested some level of intent, to conclude

that the statute did not apply to someone who unintentionally ignited a fire.

Minto v. Sprague, 124 P.3d 881, 886 (Colo. App. 2005). Neither the rule nor statutes

at issue before us contain similar language suggesting that a culpable mental state

is required in connection with a failure to file Form 6.1.

¶31   Second, we are unconvinced by Meagher’s contention that the use of the

word “willfully” in subsection 37-92-503(6)(c) establishes a culpable mental state

that must be imputed to all other subsections of the statute. To the contrary,

“[w]hen the General Assembly includes a provision in one section of a statute, but

excludes the same provision from another section, we presume that the General

Assembly did so purposefully.” Well Augmentation Subdistrict of Cent. Colo. Water

Conservancy Dist. v. City of Aurora, 221 P.3d 399, 419 (Colo. 2009). Here, the



                                         15
legislature knew how to include a culpable mental state when it intended to do so,

and it did not include such an element in subsections 37-92-503(1)(a) or (6)(b),

which are the subsections at issue.

¶32   Third, we reject Meagher’s assertions that declining to read a culpable

mental state requirement into Rule 6.1 or subsections 37-92-503(1)(a) and (6)(b)

(1) implicates due process concerns, (2) allows for circumstances in which

compliance will be impossible, and (3) precludes Meagher from putting on a

defense.

¶33   As to Meagher’s due process concerns, he contends that the water court’s

conclusion that Rule 6.1 and the above-quoted statutes do not include a culpable

mental state requirement raises such concerns because it makes the statute

unconstitutionally vague.      “The essential inquiry in addressing a void for

vagueness challenge is whether the statute ‘forbids or requires the doing of an act

in terms so vague that persons of ordinary intelligence must necessarily guess as

to its meaning and differ as to its application.’” People v. Gross, 830 P.2d 933, 937

(Colo. 1992) (quoting People v. Becker, 759 P.2d 26, 31 (Colo. 1988)).

¶34   Here, Meagher does not suggest that he could not understand that Rule 6.1

and section 37-92-503 required him to submit Form 6.1 by December 1, 2017. And

Meagher does not explain why the absence of a culpable mental state element



                                          16
somehow renders the statute unconstitutionally vague. Indeed, we long ago

observed that the absence of such an element does not render an ordinance

unconstitutionally vague. See People ex rel. City of Arvada v. Nissen, 650 P.2d 547,

551 (Colo. 1982) (“We do not see how the failure of the ordinance to require an

intent to injure raises a problem of unconstitutional vagueness. It goes without

saying that the decision to include or exclude a particular element in defining

unlawful conduct is, in the first instance, a matter of legislative prerogative.”).

¶35   As to Meagher’s assertion that the absence of a culpable mental state

element would render it impossible for him to comply with Rule 6.1 or section

37-92-503, he never explains why this is so. Although he suggests that well pumps

may sometimes stop working, we fail to perceive—and Meagher does not say

—why such an issue would make it impossible for him to file the requisite form.

¶36   And with respect to Meagher’s assertion that our conclusion today would

preclude him from putting on any defense and is contrary to our decision in

Vaughn, we again disagree.       By way of example, in an appropriate case, a

defendant might have an argument that the form at issue was not required.

Meagher has made no such argument here. Moreover, Vaughn actually supports

our determination that subsections 37-92-503(1)(a) and (6)(b) do not include a

culpable mental state element. In Vaughn, we concluded that statutory language



                                          17
imposing liability on any person who diverted ground water contrary to a valid

order of the State Engineer or a Division Engineer rendered such person

responsible for the physical acts of others, at least when the unlawful diversion

occurred with the person’s authorization. Vaughn, 135 P.3d at 724. For the same

reason, Meagher is responsible for his failure to comply with the Division

Engineer’s Order, notwithstanding his assertion that others were at fault for his

noncompliance.

¶37   Finally, we are not persuaded by Meagher’s argument that the provision in

subsection 37-92-503(6)(b) allowing for the imposition of civil penalties “not to

exceed five hundred dollars” for each offense reflects a legislative mandate that a

judge must consider mitigating circumstances (including consideration of the well

owner’s culpability), thereby precluding the entry of summary judgment as to the

amount of such penalties. Meagher cites no applicable authority supporting this

position, and to the extent that his argument is premised on his assumption that

the Engineers were required to establish his culpable mental state, we have already

rejected that contention.

¶38   Moreover, trial courts typically enjoy considerable discretion in assessing

civil penalties under a statute. See, e.g., Colo. Dep’t of Pub. Health & Env’t v. Bethell,

60 P.3d 779, 787 (Colo. App. 2002). Here, Meagher cites no applicable authority,



                                           18
and we have seen none, precluding a court from assessing and imposing civil

penalties on summary judgment when, as here, the facts supporting the penalties

were undisputed and the amount imposed was statutorily authorized. Indeed,

Bethell suggests that the entry of such an order on summary judgment is proper.

See id. (concluding that the trial court properly entered summary judgment

assessing civil penalties when it was undisputed that the defendant had failed to

provide financial assurance in response to a compliance order demanding such

assurance and the penalty assessed was within the statutorily prescribed range of

allowable penalties).

¶39   For all of these reasons, we conclude that the water court properly entered

summary judgment in the Engineers’ favor on their claims for injunctive relief and

civil penalties.

                            C. Injunction at Issue

¶40   Meagher next contends that the water court erred in issuing its order

permanently enjoining him from “further violations of Rule 6.1” and requiring

him to complete and submit Form 6.1 “each year, no later than December 1st.”

Meagher contends that, in issuing this injunction, the water court erroneously

failed to make the findings required by C.R.C.P. 65 and that the injunction was




                                       19
what Meagher characterizes as an improper “obey-the-law” injunction. We again

are not persuaded.

¶41   With respect to Meagher’s assertion that to enter the Engineers’ requested

injunction, the water court had to make the findings required by C.R.C.P. 65 and

Rathke v. MacFarlane, 648 P.2d 648, 653–54 (Colo. 1982) (setting forth six findings

that a district court must make before entering a preliminary injunction), we view

our decision in Kourlis v. District Court, 930 P.2d 1329 (Colo. 1997), as dispositive.

In that case, we observed that special statutory procedures may supersede or

control the more general application of civil procedure rules. Id. at 1335. There,

the statutory procedures at issue included a provision authorizing the

Commissioner of Agriculture to issue a cease and desist order upon determining

that the Pet Animal Care and Facilities Act had been violated. Id. at 1334. If the

recipient of the order did not cease and desist as ordered and the violations

continued for a period exceeding twenty-four hours, then the Commissioner could

seek injunctive relief. Id. We characterized these procedures as “a comprehensive

enactment which includes a restraining order and injunction provision as an

essential feature of the enforcement design of a licensing statute.” Id. at 1335. We

observed that the legislature made clear that when the Commissioner had

sufficient evidence to show that a person had violated the Act there at issue, “the



                                         20
legislature presumed that a court would act to enjoin the illegal act or practice.”

Id. at 1336. Thus, we opined that the application of the civil procedure rules and

the Rathke factors would have frustrated the licensure requirements set forth in the

Act. Id.

¶42   In our view, subsections 37-92-503(1) and (6) evince similar special statutory

procedures. Just like the statute at issue in Kourlis, these subsections establish a

comprehensive enforcement process under which the Engineers may issue an

order and then apply to the water court for an injunction and civil penalties if the

recipient does not comply with that order. See § 37-92-503(1)(a), (6)(e). And as in

Kourlis, these provisions disclose a legislative intent that a court will issue an

injunction to enforce a valid order issued by the Engineers. Accordingly, for the

reasons set forth in Kourlis, 930 P.2d at 1335–36, we perceive no error in the water

court’s determination that neither C.R.C.P. 65 nor the Rathke factors apply here.

Indeed, to conclude otherwise would frustrate the comprehensive enforcement

mechanism set forth in section 37-92-503. See Kourlis, 930 P.2d at 1336.

¶43   With respect to Meagher’s assertion that the injunction entered in this case

was an improper “obey-the-law” injunction, we note first that Colorado has not

adopted such a standard. Our courts have, however, consistently stated that “[t]he

general rule is that injunctive relief will not be granted to restrain the commission



                                         21
of a crime.” Bd. of Cty. Comm’rs v. Vandemoer, 205 P.3d 423, 430 (Colo. App. 2008);

see also State v. Tolbert, 56 P.2d 45, 47 (Colo. 1936) (“The general rule undoubtedly

is that injunction does not lie to restrain the commission of a crime . . . .”). And we

have also stated that “an injunction prohibiting conduct must be sufficiently

precise to enable the party subject to the equitable decree to conform its conduct

to the requirements thereof.” Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d 494,

499 (Colo. 1989). Thus, we have concluded that a decree that simply prohibited a

party from violating Colorado’s antitrust laws did not sufficiently inform the party

to whom the order was issued of the steps that it had to take to avoid violations

thereof. Id.

¶44   Here, the injunction was civil in nature and did not restrain the commission

of a crime. Moreover, notwithstanding Meagher’s assertion to the contrary, the

injunction was precise and prescribed with specificity the actions that he was

required to take to comply with the injunction, namely, to cease violating Rule 6.1

and to complete and submit Form 6.1 each year on a timely basis. And the

injunction was closely tailored to ensure Meagher’s compliance with the exact rule

that he violated in this case.

¶45   In these circumstances, we conclude that the entry of the injunction at issue

and the scope of that injunction were proper.



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                          D. Costs and Attorney Fees

¶46   Finally, Meagher contends that the water court improperly imposed

sanctions in the form of costs and fees pursuant to subsection 37-92-503(1)(b).

Specifically, he asserts that the Order was issued by the Division Engineer, but

subsection 37-92-503(1)(b) refers only to a court ruling upholding the order of the

State Engineer. Thus, he argues that the award of costs and fees against him was

improper. In addition, Meagher contends that an award of appellate attorney fees

would be improper because subsection 37-92-503(6)(e) refers to an award of fees

for “the proceeding,” and, in Meagher’s view, “the proceeding” refers solely to the

litigation in the water court. We do not agree with any of these arguments.

¶47   Subsections 37-92-503(1)(b) and (6)(e) both address awards of fees and costs

in cases like that at issue here. Subsection 37-92-503(1)(b) provides, in pertinent

part, “[I]f the court upholds the order of the state engineer, the person against whom

such order was issued shall pay the costs of the proceeding, including the

allowance of reasonable attorney fees.”          (Emphasis added.)        Subsection

37-92-503(6)(e), however, provides “If the state engineer and the division engineer

prevail [on a claim for civil penalties or injunctive relief enjoining further

violations of this subsection (6)], the court shall also award the costs of the




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proceeding including the allowance of reasonable attorney fees.”          (Emphasis

added.)

¶48   Here, contrary to Meagher’s apparent misperception, the water court

awarded attorney fees under both subsections 37-92-503(1)(b) and (6)(e). The

Engineers have unquestionably prevailed in their effort to recover civil penalties

and to obtain injunctive relief to preclude further violations of subsection

37-92-503(6). Accordingly, under the plain language of subsection 37-92-503(6)(e),

the water court correctly determined that the Engineers were entitled to recover

the costs of the proceeding, including reasonable attorney fees.

¶49   The question thus becomes whether the award of costs and fees “of the

proceeding,” as set forth in subsection 37-92-503(6)(e), includes the recovery of fees

and costs that the Engineers incurred on appeal. We conclude that it does.

¶50   Colorado courts have consistently construed fee-shifting statutes like those

at issue to include fees incurred in appellate proceedings. See, e.g., Hartman v.

Freedman, 591 P.2d 1318, 1322 (Colo. 1979) (concluding that a then-existing statute

that provided that a judgment shall include a reasonable attorney fee in favor of

the prevailing party also warranted an award of reasonable appellate fees because,

among other things, the statute did not limit the fee award to fees resulting from

the trial); Akin v. Four Corners Encampment, 179 P.3d 139, 147 (Colo. App. 2007)



                                         24
(concluding that the award of appellate attorney fees was appropriate in a

condemnation proceeding when the authorizing statute provided for the award of

attorney fees to the property owner who participated in the proceedings);

Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006) (“When a party is

awarded attorney fees for a prior stage of the proceedings, it may recover

reasonable attorney fees and costs for successfully defending the appeal.”).

¶51   These cases allow an award of appellate fees because “[t]he fundamental

purpose of awarding attorney fees for the trial stage, where authorized by statute,

is to make the [prevailing party] whole. This purpose would be frustrated by a

requirement that [the prevailing party] pay attorney fees to defend the [opposing

party’s] appeal.” Levy-Wegrzyn v. Ediger, 899 P.2d 230, 233 (Colo. App. 1994).

¶52   Accordingly, and because we perceive nothing on the face of subsection

37-92-503(6)(e) that limits a fee award to fees incurred in the water court, we

conclude that subsection 37-92-503(6)(e) entitles the Engineers to recover the

reasonable costs, including attorney fees, that they incurred in this appeal.

¶53   Because we conclude that the water court properly awarded the Engineers

costs and fees under subsection 37-92-503(6)(e), we need not address Meagher’s

argument that subsection 37-92-503(1)(b) limits an award of fees and costs to cases

in which the water court upholds an order of the State Engineer.



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¶54   Pursuant to C.A.R. 39.1, we exercise our discretion to remand this case to

the water court for a determination of the amount of reasonable appellate fees to

be awarded.

                                 III. Conclusion

¶55   Because Meagher’s belated filing of Form 6.1 did not moot the Engineers’

claims, we conclude that the water court correctly denied Meagher’s motion to

dismiss. In addition, because the summary judgment record established that

Meagher violated section 37-92-503 and Rule 6.1 and that there were no genuine

issues of material fact, we further conclude that the water court properly granted

summary judgment in the Engineers’ favor. And because the water court’s rulings

entering an injunction and awarding civil penalties, costs, and attorney fees to the

Engineers comported with the law governing such remedies, we conclude that the

water court properly ordered such injunctive relief, penalties, costs, and fees.

¶56   Accordingly, we affirm the judgment of the water court, conclude that the

Engineers are entitled to an award of the reasonable attorney fees that they

incurred in this appeal, and remand this case to allow the water court to determine

the amount of fees to be awarded.




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