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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
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
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.
22 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
23 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.
25 ¶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
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.