1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                          ADVANCE SHEET HEADNOTE
7                                                                        June 19, 2017
8
9                                         2017 CO 73
0
1   Nos. 15SA118 and 15SA277, Gallegos Family Properties, LLC v. Colorado
2   Groundwater Commission—Water Law—Designated Groundwater Basins—Costs.
3
4         The supreme court concludes that the designated groundwater court properly

5   concluded that petitioners failed to satisfy their statutory burden in seeking to

6   de-designate a portion of a designated groundwater basin, and therefore, properly

7   denied the petition to de-designate a portion of the basin.     The supreme court also

8   concludes that the designated groundwater court properly awarded the respondents a

9   portion of their litigation costs as prevailing parties under C.R.C.P. 54(d). The supreme

0   court affirms the designated groundwater court in both cases.

1

2

3

4
1

2

3

4                         The Supreme Court of the State of Colorado
5                           2 East 14th Avenue • Denver, Colorado 80203


6                                          2017 CO 73

7                            Supreme Court Case No. 15SA118
8                               Appeal from the District Court
9               Weld County District Court, Water Division 1, Case No. 03CV1335
0                Honorable James F. Hartmann, Designated Groundwater Judge

1                                     Plaintiffs-Appellants:
2   Gallegos Family Properties, LLC; Marianne Gallegos; Ellen Gallegos; Gene J. Gallegos; and
3                                     Reinaldo Gallegos,
4                                               v.
5                                    Defendants-Appellees:
6    Colorado Groundwater Commission, an administrative agency of the State of Colorado;
7       Dick Wolfe, in his capacity as the Colorado State Engineer, and as ex officio Executive
8    Director of the Colorado Ground Water Commission, and as a non-voting member of the
9     Colorado Ground Water Commission; Joseph B. Grantham, in his capacity as a Hearing
0   Officer for the Colorado Ground Water Commission; Edna B. Anderson; William Anderson;
1      BCK Heath Property LLC; Larry L. Croissant; Jean L. Croissant; Deerco LLC; Kenneth
2   Everitt; Penny Everitt; Four Diamonds Ranch LLC; Hereford Farms, LLC; Rosella J. Jessen;
3      Anita R. Johnson; Rod Johnson; Carl A. Johnson; James L. Karst; Judy Karst; James M.
4    Konig; Janet F. Konig; Michael D. Konig; Konig Investments LLC; Larry Lang; Dan Loyd;
5   Loyd Farms; Loyd Farms General Partnership; Jesse E. Loyd; Evelyn T. Loyd; F & R Marick;
6    Fred D. Marick; Roxanne L. Marick; Philip McKinley; Diane McKinley; Colin W. Nicklas;
7   Charles E. Nussbaum; Dorothy Nussbaum; C & D Nussbaum; Richard L. Pettinger; Lisa R.
8     Pettinger; Rory J. Pettinger; Rocky Plains LLP; TR, Inc.; Lee A. Tappy; Tennick Land &
9     Cattle Co.; Clarence W. Tietmeyer; Vonda J. Tietmeyer; Clarence E. Tietmeyer; Scott W.
0    Tietmeyer; Paula J. Tietmeyer; Vonda Jean Tietmeyer; Darrell J. Timm; Donald L. Timm;
1                              Town of Grover; and Sharon C. Young.

2                                     Judgment Affirmed
3                                             en banc
4                                         [June 19, 2017]

5                                            *****
1                            Supreme Court Case No. 15SA277
2                               Appeal from the District Court
3               Weld County District Court, Water Division 1, Case No. 03CV1335
4                Honorable James F. Hartmann, Designated Groundwater Judge

5                                       Plaintiff-Appellant:
6                                Gallegos Family Properties, LLC,
7                                                v.
8                                     Defendants-Appellees:
9    William Anderson, Larry Lang, Dan Loyd, Loyd Farms, Loyd Farms General Partnership,
0     Jesse E. Loyd, Evelyn T. Loyd, Richard L. Pettinger, Lisa R. Pettinger, Rory J. Pettinger,
1     Clarence W. Tietmeyer, Vonda J. Tietmeyer, Clarence E. Tietmeyer, Scott W. Tietmeyer,
2                         Paula J. Tietmeyer, and Vonda Jean Tietmeyer.

3                                      Judgment Affirmed
4                                              en banc
5                                          [June 19, 2017]

6   Attorneys for Plaintiffs-Appellants:
7   Buchanan Sperling & Holleman, PC
8   Timothy R. Buchanan
9   John D. Buchanan
0    Arvada, Colorado
1
2   Attorneys for Defendants-Appellees Colorado Groundwater Commission, an
3   administrative agency of the State of Colorado; Dick Wolfe, in his capacity as the
4   Colorado State Engineer, and as ex officio Executive Director of the Colorado Ground
5   Water Commission, and as a non-voting member of the Colorado Ground Water
6   Commission; and Joseph B. Grantham, in his capacity as a Hearing Officer for the
7   Colorado Ground Water Commission:
8   Natural Resources & Environment Section
9   Office of the Colorado Attorney General
0   Cynthia H. Coffman, Attorney General
1   Patrick E. Kowaleski, Senior Assistant Attorney General
2    Denver, Colorado
3
4   Attorneys for Defendants-Appellees William Anderson, Larry Lang, Dan Loyd, Loyd
5   Farms, Loyd Farms General Partnership, Jesse E. Loyd, Evelyn T. Loyd, Richard L.
6   Pettinger, Lisa R. Pettinger, Rory J. Pettinger, Clarence W. Tietmeyer, Vonda J.
7   Tietmeyer, Clarence E. Tietmeyer, Scott W. Tietmeyer, Paula J. Tietmeyer, and Vonda
8   Jean Tietmeyer:
9   Lawrence Jones Custer Grasmick LLP
0   David P. Jones

                                                 2
1   Wesley S. Knoll
2    Johnstown, Colorado
3
4   No appearance by or on behalf of: Edna B. Anderson; BCK Heath Property LLC; Larry
5   L. Croissant; Jean L. Croissant; Deerco LLC; Kenneth Everitt; Penny Everitt; Four
6   Diamonds Ranch LLC; Hereford Farms, LLC; Rosella J. Jessen; Anita R. Johnson; Rod
7   Johnson; Carl A. Johnson; James L. Karst; Judy Karst; James M. Konig; Janet F. Konig;
8   Michael D. Konig; Konig Investments LLC; F & R Marick; Fred D. Marick; Roxanne L.
9   Marick; Philip McKinley; Diane McKinley; Colin W. Nicklas; Charles E. Nussbaum;
0   Dorothy J. Nussbaum; C & D Nussbaum; Rocky Plains LLP; TR, Inc.; Lee A. Tappy;
1   Tennick Land & Cattle Co.; Darrell J. Timm; Donald L. Timm; Town of Grover; and
2   Sharon C. Young.
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
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8
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1
2   JUSTICE BOATRIGHT delivered the Opinion of the Court.




                                              3
¶1      Gallegos Family Properties, LLC (“Gallegos”), returns to this court for a second

time in its effort to de-designate a portion of the Upper Crow Creek Designated Ground

Water Basin (“the Basin”) and redraw the Basin boundaries to exclude twenty-five wells

so that the State Engineer can curtail these junior groundwater rights in favor of

Gallegos’s senior surface water rights on Crow Creek. The defendants–appellees (“Well

Owners”) oppose this petition because if their properties remain within the Basin, the

State Engineer cannot curtail their junior groundwater rights.

¶2      This opinion addresses appeals from two related cases: Gallegos’s petition to

de-designate a portion of the Basin, Case No. 15SA118, and an order awarding the Well

Owners a portion of their litigation costs, Case No. 15SA277. We must decide whether

Gallegos satisfied the statutory standard for de-designating a portion of the Basin set

forth in section 37-90-106(1)(a), C.R.S. (2003),1 and as interpreted by this court in




1 The General Assembly amended section 37-90-106 in 2010. The amended statute
preserves the Commission’s ability to alter designated groundwater basin boundaries,
but only on the condition that “factual data justify the alteration and the alteration
would not exclude from the designated groundwater basin any well for which a
conditional or final permit to use designated groundwater has been issued.”
§ 37-90-106(1)(a). The amended statute also explicitly conveys the General Assembly’s
intent that “there be a cut-off date beyond which the legal status of groundwater
included in a designated groundwater basin cannot be challenged, and that such cut-off
date was intended to be the date of finality for the original designation of the basin.”
Id. The amended statute also provides that the amendment shall not affect litigation
pending as of January 1, 2010, meaning it does not affect this litigation. Id.
§ -106(1)(a.5).



                                            4
Gallegos v. Colorado Ground Water Commission, 147 P.3d 20 (Colo. 2006),2 and

whether Gallegos should bear the Well Owners’ costs.3 Specifically, we must determine

whether Gallegos successfully showed by new evidence not before the Designated



2 As to the Basin de-designation matter, Case No. 15SA118, Gallegos raises the
following two issues:
      1. Whether the district court erred by applying standards other than those
         directed by the General Assembly and this court in Gallegos v. Ground
         Water Commission, 147 P.3d 20 (Colo. 2006), when the district court
         refused to modify the boundaries of the Upper Crow Creek Designated
         Ground Water Basin (“Basin”) to prevent withdrawals of tributary
         ground water that injure the Gallegos Family’s senior surface water
         rights.
      2. Whether the district court erred by determining that the Gallegos
         Family’s petition to de-designate a portion of the Basin was precluded
         based on evidence that was not before the Commission when the Basin
         was designated, which directly contradicts the standard set forth by
         the supreme court in Gallegos.
3 As to the matter of costs awarded to the Well Owners, Case No. 15SA277, Gallegos
raises the following five issues:
      1. Whether the costs incurred by Defendants in supporting the Ground
         Water Commission’s opposition to the Gallegos Family, LLC’s petition
         were necessary and may be awarded under C.R.C.P. 54(d).
      2. Whether the trial court erred as a matter of law by awarding expert
         witness fees to Defendants in excess of the number of hours that the
         court found reasonable.
      3. Whether the trial court abused its discretion by awarding costs related
         to a discovery deposition when Defendants provided the court with no
         information regarding their need for or use of the deposition.
      4. Whether the trial court erred as a matter of law by awarding to
         Defendants the costs incurred by the Gallegos Family, LLC’s expert
         witness in responding to Defendants’ discovery requests, which costs
         must be paid by Defendants pursuant to C.R.C.P. 26(b)(4)(C).
      5. Whether an entity that was not a party to the proceedings may recover
         costs under C.R.C.P. 54(d).



                                          5
Groundwater Commission in 1987 (“1987 Commission”) that “future conditions require

and factual data justify” de-designation because well pumping in the Basin has greater

than a de minimis impact on Gallegos’s surface rights. The designated groundwater

court concluded that Gallegos had failed to make new showings sufficient to justify

de-designating a portion of the Basin and taxed Gallegos for a portion of the Well

Owners’ costs. We affirm.

¶3      We conclude that Gallegos failed to prove by evidence not before the 1987

Commission that the Well Owners are pumping water connected to Crow Creek such

that future conditions and factual data justify de-designating a portion of the Basin.

Because a party must show connectivity to prove impact, Gallegos failed to meet its

burden, and de-designation is improper.        Accordingly, we affirm the designated

groundwater court’s order denying Gallegos’s petition.       Furthermore, because the

designated groundwater court properly denied Gallegos’s petition for de-designation,

we conclude that the court did not abuse its discretion in concluding that the Well

Owners were prevailing parties for purposes of C.R.C.P. 54(d), that the costs awarded

were reasonable and necessary, and that Gallegos should pay these costs pursuant to

Rule 54(d).

                            I. Facts and Procedural History

¶4      Gallegos’s surface water rights consist of a combined flow of 413 cubic feet per

second in the Consolidated Larson Ditch and storage of 59.5 acre-feet in Larson

Reservoir #1. These rights were decreed in 1914 to irrigate up to 1,920 acres of land in

Weld County. This consolidated decree, known as the Larson rights, is senior to the


                                           6
Well Owners’ groundwater rights in the Basin, most of which date back to the 1940s

and ’50s. The Larson rights divert from a headgate on Crow Creek, a tributary of the

South Platte River that originates in Wyoming and flows into Colorado. Before 1950,

Crow Creek had a reliable base surface flow in Colorado, but as surface use and

pumping increased in Wyoming, water users in Colorado turned from increasingly

unreliable surface rights to pumping from the aquifers underlying Crow Creek.

¶5      In 1983, a group that included the Well Owners (or their predecessors in

interest) and Gallegos’s predecessor in interest petitioned the Colorado Groundwater

Commission to designate the Basin.       Gallegos’s predecessor was one of the main

supporters of the designation effort because he, like the Well Owners, could no longer

rely on his surface rights to meet his needs. Following a state-funded viability study,

the results of which are detailed in a document that the parties call the Kirkham Report,

the Commission’s hearing officer held the initial designation hearing in 1986. After

amending the proposed Basin boundaries to accommodate the sole objection to

designation, the hearing officer designated the Basin pursuant to one of the two

designation standards in section 37-90-103(6)(a), C.R.S. (2016).4    Under the second

standard (the standard under which the 1987 Commission designated the Basin),

designation is proper for “groundwater in areas not adjacent to a continuously flowing

natural stream wherein groundwater withdrawals have constituted the principal water


4 The definitions of designated groundwater in section 37-90-103(6)(a), which serve as
the two designation standards, have not been changed or amended since the 1987
Commission designated the Basin.



                                           7
usage for at least fifteen years preceding the date of the first hearing on the proposed

designation of the basin.” § 37-90-103(6)(a). The 1987 Commission affirmed the hearing

officer’s findings and decision to designate the Basin under this designation standard.

No party appealed.

¶6      In 1999, Gallegos purchased the Larson rights and most of the associated

farmland. Gallegos leased out the land and water rights until 2002, when the tenant

farmer’s alfalfa crop failed because insufficient surface flows precluded irrigation.

Gallegos petitioned the State Engineer to curtail the Well Owners’ pumping, claiming

that the Well Owners’ pumping had injured Gallegos’s senior surface rights. When the

State Engineer denied the request for lack of jurisdiction over designated groundwater

basins, Gallegos appealed to the Commission.       The hearing officer, and later the

Commission, concluded that claim and issue preclusion barred Gallegos from seeking

curtailment of the Well Owners’ wells because (1) Gallegos’s predecessor had notice of

the designation proceeding, and (2) Gallegos’s predecessor had actually sought the

designation. The Commission also concluded that it lacked jurisdiction over surface

waters and could not, therefore, curtail pumping in a designated groundwater basin to

protect such waters.     On appeal, the designated groundwater court disagreed,

concluding that Gallegos was not barred by claim or issue preclusion and that the

Commission had erred in concluding that it lacked jurisdiction. Although this result

validated Gallegos’s ability to seek de-designation from the Commission, it did not

mandate that the Commission de-designate the Basin as Gallegos had hoped.




                                           8
¶7      Gallegos appealed to this court. Gallegos v. Colo. Ground Water Comm’n

(Gallegos I), 147 P.3d 20 (Colo. 2006). To resolve that appeal, we clarified two salient

points of distinction between tributary groundwater managed under the Water Rights

Determination and Administration Act, sections 37-92-101 to -602, C.R.S. (2016)

(“1969 Act”), and designated groundwater managed under the Colorado Groundwater

Management Act, sections 37-90-101 to -143, C.R.S. (2016) (“Management Act”). We

first distinguished tributary groundwater from designated groundwater, explaining

that “designated groundwater cannot, as a matter of law, impact surface flows by

greater than a de minimis amount.” Gallegos I, 147 P.3d at 28. Second, we affirmed

that the Commission has jurisdiction to determine whether groundwater is tributary to

surface water or designated groundwater, id. at 29–30, and that it retains jurisdiction

over groundwater that it concludes is designated groundwater, id. at 31–32. Only if the

Commission has determined that the disputed water is not designated groundwater

does it lose jurisdiction. Id.

¶8      Having confirmed that the Commission had jurisdiction over Gallegos’s claim,

we also concluded, however, that claim and issue preclusion limited the evidence that

Gallegos could offer to only that evidence that was not before the 1987 Commission. Id.

at 33. We remanded the case to the hearing officer to afford Gallegos its opportunity to

show by such evidence that the Well Owners’ pumping has greater than a de minimis

impact on—i.e., is connected to and injures—Gallegos’s senior surface rights, and that

future conditions and factual data justified de-designating a portion of the Basin.




                                            9
¶9      On remand to the hearing officer, Gallegos retained several experts to

substantiate and testify to its claim that the Well Owners’ pumping impacted its senior

surface rights. As to connectivity, Gallegos asserted that the 1987 Commission had not

seen or considered evidence that Crow Creek was a gaining stream at the Larson

headgate, and by implication, that the alluvial aquifer thinned to a neck at the Larson

headgate, causing groundwater to come to the surface and become available for

diversion.   Gallegos’s expert drilled test wells and observed stream flows in the

immediate vicinity of the alluvial neck to substantiate this point. As to injury, Gallegos

argued that the 1987 Commission had inadequate evidence of, and thus

underestimated, the extent of depletion that pumping in Wyoming and Colorado

would have on surface water availability in Crow Creek. The Well Owners disputed

Gallegos’s methodology and asserted that Gallegos had failed to meet its burden under

section 37-90-106(1)(a) and Gallegos I.

¶10   The hearing officer ultimately concluded that Gallegos had not met its burden of

producing new evidence not before the 1987 Commission. As to connectivity, the

hearing officer concluded that Plate 2 in the Kirkham Report, an image of a

potentiometric5 map of the Basin designation area, clearly shows the necking of the

alluvial aquifer, and because the Kirkham Report was one of the primary pieces of


5A “potentiometric surface”—also known as a “piezometric surface”—is “an imaginary
surface representing the level to which groundwater will rise as a result of the pressure
under which it is confined in an aquifer.” 5 Waters and Water Rights Glossary (Amy K.
Kelley, ed., 3d ed. LexisNexis/Matthew Bender 2017). A potentiometric surface is
analogous to a water table, though they are technically different. Id. § 18.03(a.01).



                                           10
evidence that the 1987 Commission relied on, this evidence was not new. As to injury,

the hearing officer concluded that the lack of streamflow measurements on Crow Creek

impeded Gallegos’s showing of injury because there was no way to quantify stream

depletion and the effect, if any, that curtailment would have on streamflow.           The

hearing officer also found, contrary to Gallegos’s argument, that the 1987 Commission

had received evidence of and anticipated increased pumping in Wyoming.               More

significantly, the hearing officer found that pumping in Colorado had actually

decreased since the Basin was designated. Having concluded that Gallegos had failed

to meet its burdens under section 37-90-106(1)(a) and Gallegos I, the hearing officer

recommended denial of the petition in March 2012. The full Commission affirmed this

recommendation on appeal.

¶11   Gallegos appealed to the designated groundwater court in de novo proceedings.

On Gallegos’s motion, the court issued three pretrial orders limiting the scope and focus

of the litigation, the most significant for our purposes being one that found that

evidence “before the [1987] Commission” included evidence actually presented during

the designation proceedings and evidence available but not actually presented so long

as the parties had notice of it. At trial, Gallegos refined its connectivity argument about

the necking of the alluvium, arguing that the 1987 Commission had not known that

water discharged to the surface at the neck when the aquifer was sufficiently saturated.

As to injury, Gallegos’s expert testified about monitoring the recharge rate and water

table measurements in eight test wells, and extrapolated an injury quantity from similar




                                            11
measurements taken during the designation viability study. Gallegos also reiterated the

arguments that it had raised about connectivity and injury to the hearing officer.

¶12   The designated groundwater court affirmed the decision not to de-designate a

portion of the Basin. The court acknowledged the consensus among the parties that the

groundwater in the Basin was connected to the surface water that feeds the Larson

rights. However, it also noted that the 1987 Commission had considered Plate 2 of the

Kirkham Report and other evidence of this connection, and that Gallegos had not,

therefore, offered evidence that was not before the 1987 Commission. Consequently,

the designated groundwater court rejected Gallegos’s argument that the connectivity

was a future condition pursuant to section 37-90-106. Under the injury prong, the court

agreed with the hearing officer that the 1987 Commission had received evidence of

increasing water use in Wyoming and that its designation decision anticipated that this

trend would continue. It also found that pumping in the Basin had actually decreased

since 1987 when the Basin was designated, and that Colorado pumping activity

therefore could not have created a new injury arising as a future condition pursuant to

section 37-90-106. Finally, the court found the Well Owners’ primary expert to be more

credible than Gallegos’s primary expert, and it credited the former’s testimony that the

latter’s injury estimates were incorrect and based on flawed modeling. The court thus

concluded that Gallegos had failed to meet its burden in proving injury.              The

designated groundwater court ultimately concluded that Gallegos had failed to satisfy

both its statutory burden and the standard we set out in Gallegos I, meaning

de-designation of part of the Basin to exclude the Well Owners’ wells was improper.


                                           12
¶13      Having resolved the merits of the dispute, the designated groundwater court

awarded $44,746.92 in costs to the Well Owners. The court initially found that although

the Well Owners were not the named defendants when Gallegos first filed its petition,

they were nevertheless “parties” for purposes of awarding costs under C.R.C.P. 54(d).

Because the Well Owners joined the litigation as indispensable parties to defend their

interests in maintaining the Basin boundaries and they obtained this result, the court

concluded that they had prevailed.       Having established the Well Owners’ general

eligibility to move for and obtain a costs award, the court analyzed each claimed

category of costs. The bulk of the costs related to expert witnesses. The court awarded

those costs as being reasonable and necessary, particularly in light of the court’s finding

that the Well Owners’ primary expert was “integral” to their challenge against

Gallegos’s petition. The court also exercised its discretion to award the other costs—

mileage expenses, hotels, transcript preparation fees, and copying fees—as having been

reasonable and necessary to resist Gallegos’s attempt to de-designate a portion of the

Basin.

¶14      Gallegos now appeals the order denying de-designation of a portion of the Basin

to exclude the Well Owners’ wells and the order awarding the Well Owners a portion of

their costs.

                                      II. Analysis

¶15      Although the designated groundwater court addressed both the connectivity and

injury prongs in its order on de-designation, we find it unnecessary to do so. Because

Gallegos must prove both connectivity and injury under the impact showing, failure to


                                            13
prove either is fatal to Gallegos’s claim. We conclude that Gallegos failed to prove by

evidence not before the 1987 Commission that the Well Owners are pumping water

connected to Crow Creek such that future conditions and factual data justify

de-designating a portion of the Basin. Because connectivity is an essential element of

the impact showing, Gallegos failed to meet its burden, and de-designation is improper.

We also conclude that the designated groundwater court did not abuse its discretion in

concluding that the Well Owners were prevailing parties for purposes of C.R.C.P. 54(d),

that the costs awarded were reasonable and necessary, and that Gallegos should pay

these costs pursuant to Rule 54(d).

¶16   We begin by discussing the applicable law governing de-designation of a

designated groundwater basin under section 37-90-106(1)(a).           We then address

connectivity and why Gallegos failed to meet its burden under the designation statute

and Gallegos I. Finally, we address Gallegos’s appeal of the designated groundwater

court’s order awarding the Well Owners a portion of their costs.

               A. De-Designation of the Basin—Case No. 15SA118

                              1. Standard of Review

¶17   This case presents questions of both law, which we review de novo, and fact,

which we review for clear error. See Meridian Serv. Metro. Dist. v. Ground Water

Comm’n, 2015 CO 64, ¶ 12, 361 P.3d 392, 395. We will only disturb the designated

groundwater court’s findings of fact if they are without support in the record. Id.




                                           14
                               2. Law and Application

            a. Designated Groundwater Basins and De-Designation

¶18   Subsurface water (i.e., groundwater) is generally presumed to be tributary to

surface water and is thus managed within the prior appropriation system pursuant to

the 1969 Act. Colo. Ground Water Comm’n v. N. Kiowa-Bijou Groundwater Mgmt.

Dist., 77 P.3d 62, 69–70 (Colo. 2003).    However, the groundwater in a designated

groundwater basin is presumed to be designated groundwater—water that, as a matter

of law, “has no more than a de minimis impact on any surface stream.” Gallegos I, 147

P.3d at 28–29.   Designated groundwater is managed by the Commission within a

modified prior appropriation system pursuant to the Management Act. Chatfield E.

Well Co. v. Chatfield E. Prop. Owners Ass’n, 956 P.2d 1260, 1268 (Colo. 1998).

¶19   The Commission designates a groundwater basin pursuant to its statutory

authority under the designation statute, section 37-90-106(1)(a). The groundwater in the

putative basin must meet one of two standards to be designated: It must be

(1) “groundwater which in its natural course would not be available to and required for

the fulfillment of decreed surface rights,” or (2) “groundwater in areas not adjacent to a

continuously flowing natural stream wherein groundwater withdrawals have

constituted the principal water usage for at least fifteen years.” § 37-90-103(6)(a). The

General Assembly created this designation mechanism for the express purpose of

“permit[ting] the full economic development of designated groundwater resources.”

§ 37-90-102(1), C.R.S. (2016); Upper Black Squirrel Creek Ground Water Mgmt. Dist. v.




                                           15
Goss, 993 P.2d 1177, 1183–84 (Colo. 2000). The designation criteria are meant to achieve

this goal in a manner that also protects surface water rights from injury.

¶20      Apart from designation authority, the General Assembly also gave the

Commission authority to de-designate, or “alter the boundaries or description” of, an

already-designated basin to ensure that surface rights are not injured. § 37-90-106(1)(a).

Under the version of the statute in effect at all times pertinent to these proceedings, the

Commission could only alter a designated groundwater basin’s boundaries where

“future conditions require and factual data justify” de-designating a portion of the

basin.    Id.6   To justify de-designation, the petitioner must prove that pumping of

subsurface water within a designated groundwater basin has “more than a de minimis

impact on their surface water rights and is causing injury to those rights.” Gallegos I,

147 P.3d at 31 (clarifying State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981),

and Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983)).

¶21      Because de-designation revisits a prior adjudication, claim and issue preclusion

may apply to limit the evidence that the party seeking de-designation may rely on. Id.

at 32–33. When a preclusion doctrine applies, a party’s showings of impact, measured

by connectivity and injury, must be made with evidence that was not “before the

Commission when the Basin was originally designated.” Id. at 33.




6 As we detailed above, the amended statute also provides that the amendment shall
not affect litigation pending as of January 1, 2010, meaning it does not affect this
litigation. § 37-90-106(1)(a.5).



                                            16
¶22      Here, Gallegos seeks partial de-designation of a basin and must show that future

conditions and factual data justify altering the Basin boundaries pursuant to section

37-90-106(1)(a). But as we held in Gallegos I, Gallegos is precluded from relitigating

any matter that was actually litigated or could have been litigated before the original

1987 Commission. Id. at 32. Consequently, Gallegos’s claim “must fail if [Gallegos is]

unable to present evidence on connectivity and injury other than that which was before

the Commission when the Basin was originally designated.” Id. at 33. In sum, then,

Gallegos must: (1) show by new evidence not before the 1987 Commission (2) that the

Well Owners’ pumping has a greater than de minimis impact on its senior surface rights

(3) such that future conditions and factual data justify de-designating a portion of the

Basin.

¶23      To show that the pumping has a greater than de minimis impact, Gallegos must

prove both connectivity and injury.       We conclude that Gallegos failed to prove

connectivity in accordance with these standards. Therefore, we need not reach the

injury prong to affirm the designated groundwater court’s order denying

de-designation.

                                    b. Connectivity

¶24      The parties do not dispute that groundwater in the Basin is connected to the

surface water that would feed the Larson rights. Rather, the dispute is over whether

Gallegos proved by new evidence not before the 1987 Commission that future

conditions and factual data justify de-designating a portion of the Basin because the

Basin waters are connected to the waters that feed Gallegos’s surface water rights. To


                                            17
resolve this dispute, we begin by clarifying the meaning of the future conditions and

factual data requirements under section 37-90-106(1)(a) and defining connectivity. We

then assess whether Gallegos introduced new evidence not before the 1987 Commission

of connectivity such that future conditions and factual data justify de-designating a

portion of the Basin.

¶25    When interpreting a statute, this court’s primary task is to give effect to the

legislature’s intent. Open Door Ministries v. Lipschuetz, 2016 CO 37M, ¶ 18, 373 P.3d

575, 579. “To do so, we look to the plain meaning of the statutory language and

consider it within the context of the statute as a whole.” Lewis v. Taylor, 2016 CO 48,

¶ 20, 375 P.3d 1205, 1209. Where the language is clear, we must apply the language as

written. Goodman v. Heritage Builders, Inc., 2017 CO 13, ¶ 7, 390 P.3d 398, 401. Only

where statutory language is susceptible to more than one reasonable interpretation is it

ambiguous, and only then can we resort to extrinsic aids to determine and effectuate the

legislature’s intent. See Carson v. Reiner, 2016 CO 38, ¶ 13, 370 P.3d 1137, 1140.

¶26    The General Assembly did not define any part of the phrase “as future

conditions require and factual data justify” in the designation statute or elsewhere in

article 90, nor have we had occasion to construe it.

¶27    Applying the above principles of statutory construction here, we conclude that

section 37-90-106(1)(a) is unambiguous. First, the phrase “factual data” in this context

can only mean an evidence-based determination. Second, the term “conditions” refers

to the status of the basin and the waters that it encapsulates, including water levels, the

flow rate of any surface waters, and water use practices within the basin.             See


                                            18
§ 37-90-106(1)(b)(I)–(V) (outlining the findings required to designate a basin). Finally,

the term “future” is only reasonably read as modifying “conditions” to mean that only

conditions discovered or arising after the basin is designated can provide a sufficient

basis to justify modifying a designated groundwater basin boundary.     We conclude on

this basis that section 37-90-106(1)(a) plainly requires evidence of conditions newly

discovered or occurring after the original basin designation date to justify the

modification of a basin boundary.

¶28   The connectivity requirement, on the other hand, requires definition.          The

General Assembly did not define “connectivity” in the designation statute, but

commentators have suggested that groundwater is hydrologically connected to surface

water if it will influence the rate at which the surface water flows. Robert V. Trout et

al., Acquiring, Using, and Protecting Water in Colorado 24, 60 (rev. ed. 2011); see 2

Waters and Water Rights § 18.01–.03 (Amy K. Kelley, ed., 3d ed. LexisNexis/Matthew

Bender 2017) (discussing hydrogeology and the need for conjunctive management of

ground and surface waters due to their interrelatedness, i.e., connectivity). We also

have recognized that connectivity turns on the influence that groundwater has on

surface water. See N. Kiowa-Bijou, 77 P.3d at 70 (“Because tributary ground water is

connected to surface waters, use of this ground water may reduce available surface

water . . . .”). Indeed, hydrologic connectivity is the defining feature of tributary

groundwater, the type of groundwater managed under the 1969 Act within the

constitutional prior appropriation system that governs surface waters. Water Rights of

Park Cty. Sportsmen’s Ranch LLP v. Bargas, 986 P.2d 262, 265 (Colo. 1999) (“In


                                           19
Colorado, ground water that is hydrologically connected to a surface stream is

generally considered ‘tributary’ and is subject to the constitutional doctrine of prior

appropriation.”); see also § 37-90-103(10.5) (defining non-tributary groundwater based

on the rate at which the groundwater will affect surface waters). We conclude against

this backdrop that connectivity means a linkage between groundwater and surface

water such that augmenting or depleting groundwater impacts the availability or flow

of surface water.

¶29    Having clarified the meaning of “future conditions,” “factual data,” and

“connectivity,” we now assess whether Gallegos satisfied these requirements.

¶30    Gallegos points to several pieces of evidence that it introduced to show

connectivity. First, Gallegos asserts that there is no actual dispute that the waters are

connected, but the 1987 Commission received no evidence on connectivity because the

Commission designated the Basin pursuant to a designation standard that did not

implicate or require any investigation into connectivity. According to this argument,

any evidence that Gallegos produced in the present dispute would necessarily

constitute new evidence not before the 1987 Commission. Second, Gallegos alleges that

Crow Creek is a gaining stream where the alluvial aquifer necks down at the Larson

headgate, thus indicating that the groundwater in the alluvium is connected to the

surface flows of Crow Creek. In making this second argument, Gallegos heavily relies

on the Plate 2 hydrologic map from the Kirkham Report. Gallegos’s primary expert

asserted at trial that there is very little permeability between the alluvial aquifer and the

aquifer underlying it, so saturating the alluvial aquifer means that surface water will


                                             20
discharge at the gaining sections of Crow Creek (as indicated by upward-sweeping

potentiometric curves on the Plate 2 map).7 Another Gallegos expert testified that he

observed water running in Crow Creek at the Larson headgate on dates when no water

was flowing in the creek at the Wyoming state line. Gallegos asserts that this testimony

similarly indicates that water wells up from the aquifer to become surface water in

Crow Creek, or in other words, that the groundwater in the Basin is connected to Crow

Creek. This evidence fails under both section 37-90-106(1)(a) and Gallegos I.

¶31   Gallegos’s showings are inadequate under the designation statute because they

do not consist of evidence of conditions newly discovered or occurring after the original

basin designation date sufficient to justify the modification of a basin boundary. The

Gallegos experts’ interpretations of Plate 2 and the data that they gathered for the

proceedings below do suggest that, however we would measure it, the groundwater in

the Basin is connected to Crow Creek.       But as the designated groundwater court

concluded, this testimony and evidence “merely confirmed what the [1987]

Commission already knew at the time of the designation hearing—that the aquifer is

hydraulically connected to Crow Creek.” At best, Gallegos has merely shown that the

groundwater and Crow Creek were connected when the Basin was designated and are

still connected today. This does not constitute a showing of either a condition arising

since 1987 or a condition newly discovered since 1987, and does not, therefore, satisfy

the statutory requirements for de-designation.

7The hearing officer and designated groundwater court found that at least some of the
Well Owners are pumping from the alluvial aquifer.



                                           21
¶32   Gallegos’s showings similarly fail under our holding in Gallegos I.         As we

reiterated in Gallegos I, claim preclusion bars relitigation of matters that “could have

been litigated in a prior proceeding.” 147 P.3d at 32. Just as we conclude that Gallegos

has, at best, shown a continuing connectivity that existed at the time of designation, we

also conclude that the connectivity claim could have been litigated in the designation

proceedings.    The designated groundwater court noted that Gallegos “relie[d]

extensively” on Plate 2 and the testimony of Kirkham and the other state experts who

conducted the viability study to make its connectivity showing. This evidence would

also have been the primary evidence for litigating connectivity at designation, and thus,

was plainly before the 1987 Commission because the 1987 Commission relied on Plate 2

and its preparers’ testimony in designating the Basin.

¶33   The 1987 Commission also relied on this evidence and related testimony to

modify the originally proposed Basin boundaries.         When the 1987 Commission

conducted its hearing to decide whether to designate the Basin, only one family in the

area, the Lambertsons, objected to the proposed designation boundaries.              The

Lambertsons argued that designation would harm their surface rights on nearby Little

Crow Creek. The primary author of the Kirkham Report testified before the 1987

Commission that he “believe[d]” the aquifer was hydrologically connected to surface

waters in the area generally, but that Little Crow Creek was outside the Crow Creek

study area and no hard data could confirm the connection between groundwater and

the surface waters in Little Crow Creek. Despite the lack of data specifically pertaining

to Little Crow Creek, the 1987 hearing officer found that the aquifer water was


                                           22
connected to the Lambertsons’ surface water and modified the proposed Basin

boundaries to exclude the Lambertsons’ farm.

¶34    Even if this testimony and the supporting evidence in the Kirkham Report

merely went to carving the Lambertsons’ property out of the Basin’s proposed

boundaries, it was nevertheless available to the 1987 Commission. Pursuant to the

designated groundwater court’s unchallenged pretrial order, evidence that was

“available” to the 1987 Commission was in fact “before” the 1987 Commission. We

therefore decline to disturb the designated groundwater court’s finding that Gallegos

relies on a reformatted presentation of old evidence that was before the 1987

Commission. Consequently, we conclude that Gallegos’s showings do not meet the

standard that we set forth in Gallegos I.

                          3. Conclusion on De-Designation

¶35    We conclude that Gallegos failed to prove by evidence not before the 1987

Commission that the Well Owners are pumping water connected to Crow Creek such

that factual data and future conditions justify de-designating a portion of the Basin.

Accordingly, we affirm the designated groundwater court’s order denying Gallegos’s

petition.

                        B. Costs Award—Case No. 15SA277

¶36    Having resolved the merits in favor of the Well Owners, we now turn to the

propriety of the designated groundwater court’s order awarding them a portion of their

litigation costs. Gallegos raises five issues on appeal in this regard. We reject four of

these arguments; because the fifth is unpreserved, we decline to address it.         We


                                            23
ultimately conclude that the designated groundwater court did not abuse its discretion

in concluding that the Well Owners were prevailing parties for purposes of Rule 54(d),

that the costs awarded were reasonable and necessary, and that Gallegos should pay

these costs pursuant to Rule 54(d).

                  1. Standard of Review and Issue Preservation

¶37    We review a trial court’s award of costs for an abuse of discretion and will only

disturb the award if it is manifestly arbitrary, unreasonable, or unfair. Archer v. Farmer

Bros. Co., 90 P.3d 228, 230 (Colo. 2004).         We review de novo the trial court’s

interpretation of a rule of civil procedure. Garcia v. Schneider Energy Servs., Inc., 2012

CO 62, ¶ 7, 287 P.3d 112, 114.

¶38    The Well Owners argue that Gallegos failed to preserve all but one of the five

issues it appeals regarding the cost award. Gallegos counters that it either preserved

the issues or that the issues arose post-award and that preservation is irrelevant. Our

review of the record suggests that Gallegos previously argued—and thus preserved—

four of the issues that it raises here. See, e.g., White v. F. A. Heckendorf, Inc., 433 P.2d

112, 113 (Colo. 1967) (conditioning the availability of an issue for review on its

argument in the court below).

¶39    Our review of the record further reveals, however, that Gallegos failed to raise a

timely objection to the designated groundwater court’s decision to award costs to a

non-party. This fifth issue is not of the sort to arise only after the court below issued its

order—Gallegos knew that the Well Owners claimed these expenses when it filed its

response to the Well Owners’ motion for costs, and it could have objected in its


                                             24
response. Because this issue is unpreserved, we decline to address it. Robinson v. State

Lottery Div., 179 P.3d 998, 1008 (Colo. 2008) (“We have often said that issues not raised

in or decided by a lower court will not be addressed for the first time on appeal.”);

Union Gold Mining Co. v. Rocky Mountain Nat. Bank, 2 Colo. 248, 257 (1873) (opinion

of Hallett, C.J.) (“It does not appear that any objection . . . was made by appellant, and,

therefore, it is in no position to question its regularity here.”).

        2. Prevailing Parties Eligible for Costs Pursuant to C.R.C.P. 54(d)

¶40    First, Gallegos argues that the Well Owners are not eligible to receive the costs of

their litigation because Gallegos did not bring claims directly against the Well Owners

that would have required them to incur costs. Rather, Gallegos argues that it named the

Commission as defendant, that the Commission bore the responsibility of defending the

current Basin boundaries, and that only the Commission necessarily incurred litigation

costs. In contrast, Gallegos asserts, the Well Owners participated voluntarily rather

than relying on the Commission to defend their interests, and consequently, that any

litigation costs they incurred were not necessary and cannot be awarded under C.R.C.P.

54(d). Gallegos argues in the alternative that even if the Well Owners’ participation was

generally necessary, their expert witnesses were redundant to the Commission’s

experts, meaning those expert witness fees may not be awarded as necessary to the

litigation.

¶41    Rule 54(d) provides in relevant part that “[e]xcept when express provision

therefor is made . . . reasonable costs shall be allowed as of course to the prevailing

party considering any relevant factors which may include the needs and complexity of


                                              25
the case and the amount in controversy.” A party prevails for purposes of Rule 54(d)

when it “prevails on a significant issue in the litigation and derives some of the benefits

sought.”   Archer, 90 P.3d at 230.      Rule 54(d) expressly requires that the cost be

“reasonable,” and we have also required that the cost be “necessary for the

development of the case,” Cherry Creek Sch. Dist. No. 5 v. Voelker ex rel. Voelker, 859

P.2d 805, 813 (Colo. 1993) (discussing discovery depositions); accord First Citizens Bank

& Tr. Co. v. Stewart Title Guar. Co., 2014 COA 1, ¶ 54, 320 P.3d 406, 415–16 (extending

Cherry Creek to transcript preparation).

¶42    In sum, Rule 54(d) permits the award of reasonable and necessary costs of

litigation to the prevailing party unless another statute or rule prohibits or provides for

cost-shifting. The designated groundwater court only awarded costs associated with

the trial de novo; it did not award costs for the preceding administrative hearings. The

trial de novo before the designated groundwater court—presided over by a district

court judge sitting by designation as the designated groundwater court judge—qualifies

as litigation. See Fort Morgan Reservoir & Irrigation Co. v. Groundwater Appropriators

of S. Platte River Basin, Inc., 85 P.3d 536, 541 (Colo. 2004) (“By the time a water case gets

to a de novo hearing before a water judge, it carries many of the indicia of contested

civil litigation. The issues have been crystallized, and the parties have likely identified

witnesses, perhaps expert witnesses, and exhibits that they intend to introduce at

trial.”). Gallegos has not identified another statute or rule that otherwise governs

cost-shifting in this context, and we have found none. Thus, awarding costs under Rule




                                             26
54(d) was permissible as long as the Well Owners were prevailing parties and their

expert witness costs were reasonable and necessary.

¶43   We agree with the court below that the Well Owners were prevailing parties for

purposes of Rule 54(d). The Well Owners, whose water rights and farming income

were at stake, were “necessary” parties to the litigation.      Indeed, the designated

groundwater court issued an order joining the Well Owners as indispensable parties

under C.R.C.P. 19(a) precisely because of their stake in this litigation. To be sure, the

Well Owners could have chosen not to participate. They could have relied on the

Commission to defend the Basin boundaries and, for all practical purposes, their ability

to pump water for irrigation. But had the Commission failed, the Well Owners’ place in

the Basin would be gone, their junior water rights would be curtailed, and their farms

would have faced the same failure that precipitated this lawsuit. Worse still for the

Well Owners, claim and issue preclusion would likely impede, if not outright bar, any

subsequent attack on the de-designation judgement.         Having participated in the

litigation to oppose Gallegos’s efforts, however, the Well Owners obtained the results

they wanted: The Basin boundaries remain the same, their wells are still in the Basin,

and the State Engineer cannot curtail their pumping. Given the Well Owners’ interests

in the litigation and the results they obtained, the designated groundwater court did not

abuse its discretion in concluding that the Well Owners were prevailing parties under

Rule 54(d). See Cotton Creek Circles, LLC v. Rio Grande Water Conservation Dist., 218

P.3d 1098, 1102–03 (Colo. 2009) (affirming an award of costs to the State Engineer and

proponents of a rulemaking in a proceeding to challenge the rulemaking).


                                           27
¶44   We also conclude that the Well Owners’ experts were reasonable and necessary

to this litigation for purposes of Rule 54(d).      The designated groundwater court

explained in its order that the Well Owners’ primary expert, whose fees constitute the

bulk of the cost award, was pivotal in persuading the designated groundwater court

that Gallegos’s experts employed deficient methodology and that their testimony was

therefore flawed. The court found the Well Owners’ expert to be “more persuasive”

than Gallegos’s experts and credited the former’s testimony that the latter’s analysis

was “too simplistic and did not account for a number of critical factors.”

¶45   Because we conclude that the Well Owners are prevailing parties in this litigation

for purposes of Rule 54(d), and because we conclude that their expert fees were

reasonable and necessary to develop this litigation, we conclude that the designated

groundwater court did not abuse its discretion in awarding costs to the Well Owners.

                         3. Excessive Award of Expert Fees

¶46   Second, Gallegos argues that the designated groundwater court found only 96

hours of the Well Owners’ expert’s bill to be reasonable, but that the court awarded

costs for all 228 hours the expert billed for the litigation. The Well Owners counter that

Gallegos has misread or misconstrued the costs order, and that the $37,000 expert fee

award reflects an implicit finding that all 228 hours billed were reasonable. The Well

Owners also point out that they submitted multiple affidavits in the record

substantiating the 228 hours charged, and that the court’s order awarding the full

amount is thus supported in the record.




                                            28
¶47    The starting point for determining the amount of a reasonable expert witness fee

is the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 386

(Colo. 1994). The issue here is whether the designated groundwater court accurately

performed this calculation.

¶48    Gallegos’s argument references a single finding in the costs order in which the

court recounted that the Well Owners’ primary expert “performed an additional

ninety-six hours of work that was billed to the Defendants at the rate of $165.00 per

hour.” There is no indication in this sentence or the surrounding text of the order that

this assessment is exclusive of other findings that the full 228 hours were reasonable.

Indeed, the order states without qualification that the Well Owners’ experts were

“integral” to the litigation, that their testimony was “quite persuasive,” and that the fees

charged were “reasonable.”        Following this assessment and a brief discussion

approving one expert’s mileage claim, the designated groundwater court ordered that

Gallegos pay $37,000 in expert witness fees. This amount roughly corresponds to the

$165 hourly rate multiplied by 228 hours, the number of hours that the Well Owners

submitted for their expert’s time.8

¶49    Because the record supports that the designated groundwater court calculated

the cost award for the expert fees by multiplying the number of hours that the expert


8 This calculation would actually yield a total of $37,620, but the designated
groundwater court explained that the expert did not charge the Well Owners for a
portion of the hours that he worked.



                                            29
worked by the expert’s reasonable rate, we conclude that the designated groundwater

court did not abuse its discretion in awarding $37,000 in expert witness fees.

                 4. Costs Associated with Attending a Deposition

¶50   Third, Gallegos argues that the designated groundwater court abused its

discretion in awarding costs associated with the Well Owners’ primary expert attending

the deposition of Gallegos’s primary expert. Gallegos asserts that, although such costs

are now permissible in complex contemporary litigation, this water case is not complex.

It also asserts that the expert’s attendance did not further the litigation and was thus

unnecessary because (1) the Well Owners did not explain why they needed an expert,

and (2) Gallegos had already made the pretrial expert witness testimony disclosures

that informed the Well Owners of the anticipated substance of his testimony. Finally,

Gallegos argues that it is unfair to make it pay both for its own expert’s fees (as the

deponent) and the Well Owners’ expert’s fees.

¶51   The thrust of Gallegos’s argument is that it was unnecessary for the Well

Owners’ expert to attend the deposition and that it is therefore unfair to charge

Gallegos for the cost.    The designated groundwater court disagreed, finding that

Gallegos relied heavily on its expert’s testimony at trial, that deposing Gallegos’s expert

before trial was “essential to the development of the case,” and that the Well Owners’

expert was “integral” to challenging Gallegos’s expert. The court also found that the

expert’s fees were reasonable.




                                            30
¶52    As we explained above, taxing costs associated with expert witnesses under Rule

54(d) is proper where those costs are reasonable and necessary for the development of

the case. See Cherry Creek, 859 P.2d at 813.

¶53    We conclude that the designated groundwater court did not abuse its discretion

in awarding the Well Owners’ costs associated with having their expert witness attend

the deposition. Expert witnesses are important fixtures in most water rights litigation.

Because of the lack of quantitative data here, the experts’ investigations, reports, and

interpretive testimony effectively constituted the entirety of each side’s case. Given the

technical nature of these experts’ subject matter, methodology, and testimony, it is only

natural that the Well Owners would rely on an expert to explain and counter Gallegos’s

expert. We thus affirm the designated groundwater court’s decision to award the Well

Owners’ costs associated with having their expert prepare for and attend the deposition

of Gallegos’s expert.

       5. Expert Fees Associated with Responding to Discovery Requests

¶54    Gallegos argues that, under C.R.C.P. 26(b)(4)(C), the designated groundwater

court should have imposed the costs of deposing Gallegos’s expert on the Well Owners,

not on Gallegos. Gallegos asserts that the text of Rule 26 provides for the award of such

fees, and therefore that they cannot be taxed under Rule 54(d). The Well Owners

counter that this argument misapprehends the plain language of Rule 26(b)(4)(C),

which only provides for the initial cost allocation, not a final cost allocation that would

render such costs untaxable under Rule 54(d).




                                            31
¶55       As we recited above, Rule 54(d) allows trial courts to tax costs “[e]xcept when

express provision therefor is made either in a statute of this state or in these rules.”

Rule 26(b)(4)(C) provides that “[u]nless manifest injustice would result . . . the court

shall require that the party seeking discovery pay the expert a reasonable fee for time

spent in responding to discovery under this subsection . . . .”

¶56       The plain language of Rule 26 appears to make an “express provision” for which

one party must bear the costs of deposing an expert in preparation for trial, meaning

those expenses would not be eligible to be awarded under Rule 54(d). But we have

explained that Rule 54(d)’s prohibition against awarding costs only applies where

“there is a statute or rule specifically prohibiting the award of costs . . . .” Rossmiller v.

Romero, 625 P.2d 1029, 1030 (Colo. 1981) (emphasis added). Rule 26(b)(4)(C) does not

“specifically prohibit[] the award of costs,” so a party who pays these costs and then

prevails in the litigation is entitled to have those costs taxed to the non-prevailing party.

See id.

¶57       We conclude on this basis that the designated groundwater court did not abuse

its discretion in taxing these costs to Gallegos.

                                6. Conclusion on Costs

¶58       We have addressed the substantive arguments that Gallegos advances in support

of its appeal of the order awarding costs to the Well Owners. To the extent that we

have not expressly addressed its other arguments, we note that we have considered

these arguments and found them to be unpersuasive.




                                             32
¶59   We conclude that the designated groundwater court did not abuse its discretion

in concluding that the Well Owners were prevailing parties for purposes of Rule 54(d),

that the costs awarded were reasonable and necessary, and that Gallegos should pay

these costs pursuant to Rule 54(d).

                                      III. Conclusion

¶60   We conclude that Gallegos failed to prove by evidence not before the 1987

Commission that the Well Owners are pumping water connected to Crow Creek such

that factual data and future conditions justify de-designating a portion of the Basin. As

such, we affirm the designated groundwater court’s order denying Gallegos’s petition.

We also conclude that the designated groundwater court did not abuse its discretion in

concluding that the Well Owners were prevailing parties for purposes of Rule 54(d),

that the costs awarded were reasonable and necessary, and that Gallegos should pay

these costs pursuant to Rule 54(d).




                                            33
