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June 21, 2017 Practice Points

Colorado High Court Affirms Award of Expert Fees in Water Case

Given the "technical nature" of the case, it was "only natural" the well owners would rely on an expert to explain the case and counter the landowner’s expert.

By Jack Edwards – June 21, 2017

On June 19, 2017, the Supreme Court of Colorado affirmed an award of expert fees to the prevailing party in a water-rights case. The plaintiff in Gallegos Family Properties v. Colorado Groundwater Commission, 217 CO 73 (Colo. June 19, 2017), was a landowner who sought to limit the pumping of water by well owners. It brought proceedings before the Colorado Groundwater Commission and then the designated groundwater court, but both bodies ruled against the landowner. The groundwater court also awarded the well owners over $44,000 in costs, including $37,000 in expert fees, as prevailing parties under Colorado Rule of Civil Procedure 54(d). The landowner appealed.

The Supreme Court of Colorado affirmed the award of costs to the well owners. Under Rule 54(d), “[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 the case and the amount in controversy.” The court held that “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.” Given the “technical nature” of the case, it was “only natural” the well owners would rely on an expert to explain the case and counter the landowner’s expert. “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.” The designated groundwater court therefore did not abuse its discretion in awarding the well owners the costs associated with their expert witness.

Jack Edwards is senior counsel with Ajamie LLP in Houston, Texas.

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