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043 PSCo Opposition to Petition for Writ of Cert - Rule 50 US.126056384.14 COLORADO SUPREME COURT 2 East 14th Avenue Denver, CO 80203 COURT USE ONLY _____________________ Case No. 2019SC001006 Trial Court below: DISTRICT COURT, BOULDER COUNTY, CO The Honorable Thomas F. Mulvahill Case No. 2019-CV-030637, Division 5 Court of Appeals (pending): COLORADO COURT OF APPEALS 2 East 14th Avenue Denver, CO 80203 Case No. 2019CA1940 Petitioner: CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE CO. OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. Attorneys for Respondent, Public Service Company of Colorado: John R. Sperber, #22073 Matthew D. Clark, #44704 FAEGRE BAKER DANIELS LLP 1470 Walnut Street, Suite 300 Boulder, CO 80302 Telephone: 303-447-7700 Facsimile: 303-447-7800 Email: Jack.Sperber@faegrebd.com Matthew.Clark@faegrebd.com OPPOSITION TO PETITION FOR WRIT OF CERTIORARI UNDER C.A.R. 50 DATE FILED: January 10, 2020 2:57 PM FILING ID: 8374EFCEAB436 CASE NUMBER: 2019SC1006 i US.126056384.14 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 32 and 53. Specifically, the undersigned certifies that: This brief complies with C.A.R. 53(f)(1), as it contains 3769 words, exclusive of the caption, table of contents, table of authorities, certificate of compliance, certificate of service, and signature block. I acknowledge that this opposition may be stricken if it fails to comply with any of the requirements of C.A.R. 32 and C.A.R. 53. s/ Matthew D. Clark Mathew D. Clark ii US.126056384.14 TABLE OF CONTENTS I. INTRODUCTION ................................................................................. 1 II. ADVISORY LISTING OF THE ISSUES IN THIS CASE .................. 2 III. STATEMENT OF THE CASE ............................................................. 3 A. The PUC’s Declaratory Rulings. ........................................................... 4 B. The District Court Affirms the PUC’s Declaratory Rulings. ................ 5 C. Dismissal of Boulder’s First Condemnation Action. ............................ 6 D. The PUC Approval Proceedings. .......................................................... 7 E. Boulder’s Second and Third Condemnation Actions. .......................... 9 IV. ARGUMENT AGAINST CERTIORARI...........................................10 A. Boulder Cannot Use This Condemnation Action as a Vehicle to Appeal Final Issues Decided in Other Actions. ..................................10 B. The District Court Properly Applied Issue Preclusion. .......................13 C. Boulder Identifies No Other Basis for Granting the Petition. .............16 V. CONCLUSION ...................................................................................17 iii US.126056384.14 TABLE OF AUTHORITIES Page(s) STATE CASES Bristol Bay Prods., LLC v. Lampack, 312 P.3d 1155 (Colo. 2013) ................................................................................ 13 Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718 (Colo. 1992) .................................................................................. 13 Marks v. Gessler, 350 P.3d 883 (Colo. App. 2013) ......................................................................... 11 People v. Stanley, 170 P.3d 782 (Colo. App. 2007) ........................................................................... 4 Peterson v. People, 113 P.3d 706 (Colo. 2005) .................................................................................. 11 Rush Creek Solns. Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. App. 2004) ......................................................................... 16 Silver Eagle Servs., Inc. v. Pub. Utils. Comm’n, 768 P.2d 208 (Colo. 1989) .................................................................................. 11 Tegeler v. Schneider, 114 P. 288 (Colo. 1911) ...................................................................................... 12 Villas at Highland Park Homeowners Ass’n, Inc. v. Villas at Highland Park, LLC, 394 P.3d 1144 (Colo. 2017) .................................................................... 13, 16, 17 Walker v. Van Laningham, 148 P.3d 391 (Colo. App. 2006) ........................................................................... 4 FEDERAL STATUTES 42 U.S.C. § 5195c(b)(3) ............................................................................................. 3 iv US.126056384.14 STATE STATUTES C.R.S. § 24-33.5-1604(5)(f) ....................................................................................... 3 C.R.S. § 29-20-108(1)(a) ........................................................................................... 3 C.R.S. § 40-6-115 .......................................................................................... 6, 10, 11 RULES C.A.R. 3(a) ............................................................................................................... 11 C.A.R. 4(a) ............................................................................................................... 11 C.A.R. 50.................................................................................................. 3, 10, 15, 16 Rule 12(b)(1) ............................................................................................................ 16 CONSTITUTIONAL PROVISIONS Colorado Constitution Article XX ............................................................................. 5 1 US.126056384.14 I. INTRODUCTION This Court should deny Boulder’s Petition for Writ of Certiorari (“Petition”), which seeks review of issues Boulder declined to appeal to this Court when finally decided five years ago, and instead allow the Court of Appeals to consider the only issue presently ripe for review regarding issue preclusion. In 2013, the City of Boulder (the “City” or “Boulder”), the Public Utilities Commission (“PUC”), and Public Service Company of Colorado (“PSCo”), among others, participated in proceedings concerning the PUC’s role and jurisdiction related to Boulder’s possible municipalization of PSCo’s electrical distribution system in Boulder. In late 2013, the PUC issued orders holding that completion of PUC approval proceedings concerning any facilities used at least in part to provide service outside city limits was a condition precedent to Boulder’s commencement of a condemnation lawsuit. Boulder disagreed with the PUC’s rulings and sought district court review pursuant to statute. On January 14, 2015, the Boulder County District Court affirmed the PUC’s orders, holding in pertinent part: The PUC has the authority to regulate public utilities and the facilities, which provide service within the City of Boulder as well as unincorporated Boulder. . . . [I]t is necessary and appropriate for the PUC to determine how facilities should be assigned, divided, or jointly used to 2 US.126056384.14 protect the system’s effectiveness, reliability, and safety. Such a determination must be made prior to the City’s condemnation of property for utility municipalization. CF, 495. Contrary to Boulder’s assertion in the Petition, Pet. 13, the district court did not limit its holding to Boulder’s attempt to serve out-of-city customers. Instead, the court presumed that PSCo would continue serving county customers and addressed the allocation of the electrical facilities that would be necessary, holding that it would not be easy to separate the property and would thus require the PUC’s “technical expertise in determining the best method of separation in order to avoid negatively impacting the statewide energy grid.” CF, 492. By statute, Boulder could have appealed the district court’s ruling directly to this Court but decided instead to forego that appeal and commence the required PUC proceeding. While Boulder appears to regret its strategic decision now, that provides no basis for reopening settled decisions and disturbing subsequent PUC proceedings that many parties participated in and relied upon in the intervening years, much less doing so via the appeal of a condemnation dismissal directly to this Court. II. ADVISORY LISTING OF THE ISSUES IN THIS CASE Boulder’s advisory listing of issues is not appropriate for appellate review because Boulder is improperly seeking to use the dismissal of its condemnation 3 US.126056384.14 lawsuit as a vehicle to relitigate issues conclusively and finally decided more than five years ago in related PUC litigation that Boulder chose not to appeal to this Court. The only issue ripe for review now relates to the district court’s application of issue preclusion principles to dismiss the case based upon an undisputed factual record. That question does not warrant the Colorado Supreme Court’s review pursuant to C.A.R. 50. III. STATEMENT OF THE CASE 1 PSCo provides retail electric service to customers in the City, unincorporated Boulder County, and elsewhere in the State of Colorado. PSCo’s electric distribution system is part of “an interconnected grid system serving every area of the state,” such that “[i]mpacts on the electric grid system … in one area of the state may have impacts on other areas of the state.” C.R.S. § 29-20-108(1)(b)– (c). The “reliable supply of electric power … statewide is of vital importance to the health, safety, and welfare of the people of Colorado,” C.R.S. § 29-20-108(1)(a), and an issue of national and state security concern. E.g., 42 U.S.C. § 5195c(b)(3); C.R.S. § 24-33.5-1604(5)(f). 1 Except as set forth herein, PSCo objects to and disputes the Petition’s numerous unsupported factual allegations and characterizations of orders and proceedings. 4 US.126056384.14 In the underlying condemnation action, Boulder seeks to “separate the existing electrical distribution system serving customers in the vicinity of the City into two separate distribution systems … one serving only customers within the City … and the other serving customers of” PSCo. CF, 267–68 ¶ 6. The condemnation implicates facilities currently used to provide service to customers outside the city limits. See, e.g., CF, 267–68, 273–74 ¶¶ 6, 39, 42, 44. A. The PUC’s Declaratory Rulings. In 2013, PSCo filed a Verified Petition for Declaratory Orders (“Declaratory Petition”) with the PUC.2 In its initial order on the Declaratory Petition, the PUC held that its jurisdiction required it to determine the assignment, division, and joint use of facilities prior to a condemnation action. CF, 512 ¶ 28 (Decision Issuing Declaratory Rulings (October 29, 2013) (“Declaratory Decision”)). Following Boulder’s request for reconsideration, the PUC reaffirmed its jurisdiction and the necessity of completing approval proceedings prior to condemnation: 2 The docket for these proceedings and the parties’ extensive briefing is available on the PUC’s website: https://www.dora.state.co.us/pls/efi/EFI_Search_UI.search under Proceeding No. 13D-0498E. This Court may take judicial notice of filings in related municipal, administrative, and judicial proceedings. See, e.g., C.R.E. 201(b)(2); People v. Stanley, 170 P.3d 782, 793 (Colo. App. 2007); Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006). 5 US.126056384.14 Regulatory oversight of the assets, plant, and facilities used to provide electricity outside Boulder’s territorial boundaries advances important public interests. Public Service constructs, engineers, and operates its network as an integrated system, and its service capabilities cross the political boundaries defining the City of Boulder and Boulder County. Performance of the Commission’s duty to ensure the reliability of the system for unincorporated Boulder County and other regions of the state requires an evaluation and determination of the optimal division, joint use, and potential replacement of assets and facilities providing services both inside and outside Boulder city limits. * * * Commission approval proceedings over regulated property is a condition precedent to a condemnation action over the subject property.” CF, 525–26 ¶¶ 19, 20 (emphasis added) (December 18, 2013, Decision Denying City of Boulder’s Application for Rehearing, etc. (“RRR”; together with the Declaratory Decision, the “PUC Rulings”)). B. The District Court Affirms the PUC’s Declaratory Rulings. Boulder timely sought certiorari review of the PUC’s Rulings in the district court, claiming that: (1) the PUC exceeded its jurisdiction when it issued the PUC Rulings; and (2) Boulder’s home rule powers pursuant to Article XX of the Colorado Constitution allowed it to condemn property free from PUC involvement. See generally Jan. 15, 2014, Petition for Writ of Certiorari or Review ( “PUC Review Petition”) (Boulder County Case No. 2014CV30047; Filing ID 6 US.126056384.14 C1C9ED94C82B7). After extensive briefing from Boulder, the PUC, and PSCo, the district court affirmed the PUC Rulings without qualification or exception: It is necessary for the PUC to determine which entity will be providing service outside of the City and to then determine how to best allocate the property to accomplish service to the extraterritorial customers and the statewide power grid. In the event Public Service continues serving those outside of Boulder, the Court finds that the property in question will not be easy to separate and may require technical expertise in determining the best method of separation in order to avoid negatively impacting the statewide energy grid. The PUC is best suited to exercise jurisdiction in this regard; when the General Assembly vested the PUC with this jurisdiction in the Colorado constitution, it intended to provide a regulatory body with more expertise in administering utilities than the district court. CF, 492 (January 14, 2015, Order Re: Judicial Review of the Colorado Public Utilities Commission Decisions (Boulder County Case No. 2014CV30047) (“Final Opinion”)).3 By statute, Boulder had the right to have this Court review the Final Opinion. See C.R.S. § 40-6-115(5). Instead, City Council approved a motion “to submit application to PUC and forego any appeal of court actions.” App., Ex. 1. C. Dismissal of Boulder’s First Condemnation Action. Notwithstanding the PUC Rulings requiring approval proceedings prior to 3 Boulder’s Petition refers to this opinion as the “Prior Decision.” 7 US.126056384.14 condemnation, Boulder also commenced its first condemnation action while its appeal of the PUC Rulings was pending. The district court dismissed the condemnation action based upon the Final Opinion. See CF, 497 (Feb. 13, 2015, Order Re: … Motion to Dismiss under C.R.C.P. 12(b)(1), etc. (Boulder County Case No. 2014CV30890) (hereinafter “First Condemnation Dismissal”)). Boulder also chose not to appeal the First Condemnation Dismissal. D. The PUC Approval Proceedings. On July 7, 2015, Boulder initiated the PUC proceeding required by the Final Opinion, seeking approval for the transfer of certain PSCo assets.4 More than a dozen entities obtained leave to participate as parties or amici. See Aug. 14 & 28, 2015, Interim Decisions C15-0888-I & C-15-0946-I. After the PUC rejected Boulder’s first two separation plans, Boulder submitted a third supplemental application, nearly two years after it began the proceedings.5 See generally May 4 The PUC docket for the Proceeding (15A-0589E) is available at https://www.dora.state.co.us/pls/efi/EFI_Search_UI.search (the “PUC Docket”). 5 Without evidentiary support, Boulder blames PSCo and the PUC for creating a “regulatory quagmire.” Pet. 4. The PUC Docket reveals that Boulder’s own decisions and actions caused its problems and delays, including, for example: (1) not proposing facility separation in its first application but instead trying to force PSCo to accept “wheeled” power across taken facilities to serve PSCo’s remaining customers, see, e.g., Dec. 30, 2015, Interim Decision C15-1360-I ¶ 36 (“[T]he joint use statute cannot be used to force a certificated utility to sell its assets to a 8 US.126056384.14 12, 2017, Third Supplemental Verified Application of the City of Boulder, Colorado (Proceeding No. 15A-0589E) (“Third Application”). The PUC conditionally granted in part and denied in part the Third Application. See generally CF, 43–132 (Sept. 14, 2017, Decision, etc. (“Third Application Order”)). The Third Application Order made two rulings relevant to these proceedings. First, as to assets located outside of substations, the PUC held that the designation for potential transfer of those assets was subject to the satisfaction of three additional conditions. See, e.g., CF, 130 ¶ VIII.A.2. Second, as to assets inside substations, the PUC denied Boulder’s application. See, e.g., CF, 85–87 ¶¶ 128–132. Boulder did not seek reconsideration of or appeal the Third Application Order. Consistent with the Third Application Order, the Commission also entered an order on September 30, 2019 confirming its prior rulings that Boulder was not municipal utility so that the municipal utility can then charge the public utility to “wheel power” over those facilities to its customers.”); (2) proposing such a flawed second application, after going “back to the drawing board” before submitting it, see, e.g., Sept. 28, 2016, Direct Testimony of Heather Bailey 14:9–12; that it (3) fundamentally changed it in rebuttal testimony resulting in an Apr. 24, 2017, Interim Decision C17-0318-I ordering the City to file a third application. Id. ¶¶ 1, 6. 9 US.126056384.14 authorized to condemn any substation assets. PUC Docket Sept. 30, 2019, Interim Decision C19-0805-I. On October 28, 2019, the PUC issued its final order finding that the three conditions had been met, approving the designation of assets outside substations for transfer, and closing the proceedings. PUC Docket Oct. 28, 2019, Decision C19-0974. Boulder also did not seek reconsideration of or appeal this final PUC order.6 E. Boulder’s Second and Third Condemnation Actions. While the PUC proceedings were still pending last year and before the PUC ruled that the conditions in the Third Application Order had been satisfied, Boulder filed the second condemnation action that is at issue in this appeal. Because Boulder had not yet completed the required PUC proceedings, PSCo moved to dismiss the condemnation for lack of subject matter jurisdiction, primarily due to issue preclusion based upon the rulings in the Final Opinion. The district court granted the Motion to Dismiss (“Motion”) adopting the legal 6 Moreover, while Boulder now argues that the PUC’s jurisdiction depended upon Boulder seeking to serve out-of-city customers, every application filed by Boulder with the PUC disclaimed any intent to serve out-of-city customers and simply sought PUC approval for the transfer of PSCo assets. See, e.g., PUC Docket July 7, 2015, Verified Application at 22 (“The City is not seeking to serve customers outside its jurisdictional boundaries.”); Sept. 28, 2016, Second Supplemental Verified Application at 2–3 (same). 10 US.126056384.14 reasoning and conclusions in the Motion and Reply as its own. CF, 1287; see also CF, 462–80 (Motion); CF, 1187–1202 (Reply). Boulder has since filed a third condemnation action at the same time it seeks to prosecute an appeal of this condemnation action. See generally Boulder County District Court Case No. 2019CV31226. IV. ARGUMENT AGAINST CERTIORARI Boulder’s Petition fails to show that any unusual or compelling circumstances warranting this Court’s C.A.R. 50 review exist. In fact, Boulder recently argued the opposite to the district court when challenging PSCo’s right to reimbursement of attorney fees upon dismissal: “Xcel filed a Motion to Dismiss making two relatively basic legal arguments that were neither novel nor unprecedented: (1) issue preclusion barred the condemnation; and (2) the Court lacked subject matter jurisdiction.” CF, 1433 (emphasis added). A. Boulder Cannot Use This Condemnation Action as a Vehicle to Appeal Final Issues Decided in Other Actions. The Petition seeks review of issues decided in an earlier action no longer subject to appeal. The district court issued the Final Opinion on January 14, 2015. CF, 484. Boulder had 49 days to seek review as a matter of right from this Court. See C.R.S. 11 US.126056384.14 § 40-6-115(5) (“Appellate review may be obtained in the supreme court concerning any final judgment of the district court on review … in the same manner and with the same effect as appellate review of judgments of the district court in other civil actions.”); C.A.R. 4(a) (notice of appeal must be filed within 49 days); see also Silver Eagle Servs., Inc. v. Pub. Utils. Comm’n, 768 P.2d 208, 209 (Colo. 1989) (C.R.S. § 40-6-115 provides exclusive procedure for review of PUC decisions). Boulder’s failure to timely appeal the Final Opinion creates a jurisdictional bar to appellate review. See, e.g., Peterson v. People, 113 P.3d 706, 709 (Colo. 2005) (“We have consistently held that filing a timely notice of appeal in the appellate court is a jurisdictional prerequisite to appellate review.”); Marks v. Gessler, 350 P.3d 883, 890 (Colo. App. 2013) (same); C.A.R. 3(a). Similarly, Boulder can no longer appeal the PUC’s Sept. 14, 2017, Third Application Order or its Oct. 28, 2019, Decision C19-0974 concluding the PUC proceedings. See C.R.S. § 40-6-115(1) (party has 30 days to “apply to the district court for a writ of certiorari or review” of PUC decision). Moreover, throughout the proceedings that led to the Final Opinion—as it now does in the Petition—Boulder argued that cases such as Miller, Buck, Shaklee, Loveland, and Fort Morgan mandate that “an electric utility condemnor need not obtain the PUC’s approval before the electric utility condemnor may initiate a 12 US.126056384.14 condemnation proceeding” Compare Pet. 10, 16, with, e.g., May 14, 2014, Opening Brief (Case No. 2014CV30047; Filing ID: A690DC85174B0); July 23, 2014, Reply Brief (Case No. 2014CV30047; Filing ID: 2F16EB30945E0) (citing to same cases). The PUC and district court rejected Boulder’s arguments, relying instead on other controlling Colorado Supreme Court authority. See, e.g., Final Opinion 9, 10 (relying on Southern Railway and distinguishing Miller, Loveland, Holyoke, and Ft. Morgan); June 25, 2014, PSCo Answer Brief (Case No. 2014CV30047; Filing ID: 9290643522E36) at 17 (distinguishing Miller and Shaklee from Southern Railway). Finally, even if the jurisdictional bar to review of the Final Opinion did not exist, this condemnation lawsuit would still be a particularly poor vehicle to review the PUC’s jurisdiction, since condemnation actions are special statutory proceedings limited in scope, e.g., Tegeler v. Schneider, 114 P. 288, 289 (Colo. 1911), and the PUC is not a party.7 7 The PUC moved for limited intervention before the condemnation court to preserve its jurisdiction and sought to file its own Motion to Dismiss. See CF, 615, 617. Boulder opposed the intervention, CF, 1157–71, and the court ultimately denied intervention as moot after granting PSCo’s Motion to dismiss. CF, 1261. 13 US.126056384.14 B. The District Court Properly Applied Issue Preclusion. In Boulder’s own words, the district court’s issue preclusion ruling is neither “novel nor unprecedented,” CF, 1433, and thus it provides no basis for granting the Petition. Moreover, the district court correctly applied the doctrine. Issue preclusion has four elements: (1) the issues are identical; (2) the party to be estopped was a party or privy to the prior proceeding; (3) a final ruling on the issue in the prior proceeding; and (4) the estopped party had a full and fair opportunity to litigate the issues. Villas at Highland Park Homeowners Ass’n, Inc. v. Villas at Highland Park, LLC, 394 P.3d 1144, 1152 (Colo. 2017). Boulder only disputes whether the issues are identical. CF, 920; Pet. 12. “In most cases, the issue raised in a later proceeding is found to be the same, or not to be the same, as the issue decided in the first proceeding without in-depth analysis.” Bristol Bay Prods., LLC v. Lampack, 312 P.3d 1155, 1160 (Colo. 2013). As the Motion and Reply adopted by the district court reflect, PSCo argued that the Final Opinion precluded Boulder from relitigating “the issue of whether the City can commence a condemnation action before completing PUC proceedings.”8 CF, 473. 8 The Petition raises new arguments on appeal about what was “actually litigated” and “necessarily adjudicated.” See Pet. 12–13. While Boulder’s brief below quoted the phrase “actually litigated and necessarily adjudicated” in passing, CF, 919, it did not make arguments based on either concept. The Court should therefore 14 US.126056384.14 Contrary to Boulder’s arguments, both the Final Opinion and the underlying PUC Rulings grounded the PUC’s jurisdiction on the integrated nature of facilities, the necessity to separate them, and the PUC’s technical expertise to do so—not on whether Boulder sought to serve out-of-city customers rather than just customers within the municipality’s limits. See, e.g., CF, 492 (“In the event Public Service continues serving those outside of Boulder, the … PUC is best suited to exercise jurisdiction in this regard….”); CF, 494 (“The property the City desires to condemn provides service outside of the municipality and the PUC has the authority under the Colorado Constitution … to govern the provision of utilities to extraterritorial customers and state interests. Boulder … does not have a constitutional right to usurp the PUC’s constitutional right to regulate facilities and services that serve utility customers in unincorporated Boulder County.”); CF 525 ignore Boulder’s new arguments. See Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Regardless, Boulder’s PUC Review Petition raised whether Boulder could commence a condemnation action before completing PUC proceedings. See, e.g., PUC Review Pet. ¶ 50 (“The Commission’s ruling that Colorado district courts lack jurisdiction over eminent domain matters prior to the Commission’s approval of the transfer of regulated property is contrary to law.”); id. ¶ 52 (“The Commission’s assertion of its authority is overbroad in that … it precludes acquisition by Boulder via eminent domain of even those facilities inside the City that provide service to City residents if those facilities also might be used as a backup for electric service to customers outside the City.”); see also id. ¶¶ 49–57. The relevant issue was actually litigated, decided, and necessarily adjudicated. 15 US.126056384.14 ¶ 19 (“Performance of the Commission’s duty to ensure the reliability of the system for unincorporated Boulder County and other regions of the state requires an evaluation and determination of the optimal division, joint use, and potential replacement of assets and facilities providing services both inside and outside Boulder city limits.”); CF, 492 (“The Court proceeds under the assumption that Public Service maintains its right to provide service outside of the municipality unless and until the PUC determines” otherwise.); CF, 495 (“The City’s constitutional right is not unfettered because the PUC has constitutional authority to regulate public utilities for those outside the municipality. This limitation provides a certain level of protection for those who have no vote, and therefore no voice, within a municipality.”); see generally CF, 472–74 (Motion); CF, 1195–97 (Reply). The Final Opinion resolved the issue of whether Boulder could commence a condemnation action as to facilities used at least in part to serve out-of-city customers before completing PUC proceedings and held that Boulder could not. Boulder’s advisory issues in the Petition reveal that it seeks to relitigate precisely those same issues in this second condemnation case. The district court correctly dismissed on issue preclusion grounds Boulder’s condemnation action filed before 16 US.126056384.14 completion of the required PUC proceedings. There is no reason for this Court to revisit those rulings on a C.A.R. 50 Petition. C. Boulder Identifies No Other Basis for Granting the Petition. None of Boulder’s remaining arguments justify extraordinary treatment under C.A.R. 50. First, Boulder intimates the district court erred by quickly ruling on the Motion and adopting PSCo’s reasoning. Pet. 3, 12. But Boulder was given the full opportunity to present its position and did so; and quick resolution of the Motion effectuated the purposes of the issue preclusion doctrine: “By barring such successive litigation, the doctrine protects litigants from needless relitigation of the same issues, furthers judicial economy, and promotes the integrity of the judicial system by affirming that one can rely upon judicial decrees because they are final.” Villas at Highland Park, 394 P.3d at 1151–52 (cleaned up). The court’s ruling spared PSCo and several would-be intervenors from further costly litigation. Second, Boulder identified no factual disputes relevant to the issue preclusion issue that would require a hearing. CF, 1189-90, 1201. Thus, the Court did not err in ruling on the papers. See Rush Creek Solns. Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (fact finding on Rule 12(b)(1) motion not required when material facts undisputed). 17 US.126056384.14 Finally, Boulder argues that if allowed to stand, the district court’s ruling will force other municipalities wishing to condemn a utility “to endure years of protracted, expensive, and indefinite proceedings before the PUC before the municipality is able to even initiate condemnation proceedings.” Pet. 3. But district court opinions are not binding on other courts and issue preclusion only applies to parties to the first action and their privies. See Villas at Highland Park, 394 P.3d at 1152. Thus, the district court’s dismissal of this condemnation action affects only Boulder under the unique circumstances of this case. Other municipalities need not make the same strategic decisions or pursue the multiple different separation plans that caused Boulder’s lengthy proceedings. V. CONCLUSION For the reasons set forth herein, the Court should deny the Petition. 18 US.126056384.14 Respectfully submitted this 10th day of January 2020. s/ Matthew D. Clark John R. Sperber, #22073 Matthew D. Clark, #44704 FAEGRE BAKER DANIELS LLP 1470 Walnut Street, Suite 300 Boulder, CO 80302 Telephone: 303-447-7700 Facsimile: 303-447-7800 Email: Jack.Sperber@faegrebd.com Matthew.Clark@faegrebd.com Counsel for Respondent Public Service Company of Colorado 19 US.126056384.14 CERTIFICATE OF SERVICE I hereby certify that on the 10th day of January 2020, the foregoing OPPOSITION TO PETITION FOR WRIT OF CERTIORARI UNDER C.A.R. 50 was e-filed via the ICCES system on the Court and served through the ICCES system on the following: Attorneys for Petitioner: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 Hamre, Rodriguez, Ostrander & Dingess, P.C. 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Email: mail@hrodlaw.com Co-Attorneys for Petitioner: Thomas A. Carr, Esq. Kathleen E. Haddock, Esq. Boulder City Attorney’s Office P.O. Box 791 Boulder, CO 80306 Email: carrt@bouldercolorado.gov haddockk@bouldercolorado.gov s/ Michelle L. Poling Legal Administrative Assistant Appendix DATE FILED: January 10, 2020 2:57 PM FILING ID: 8374EFCEAB436 CASE NUMBER: 2019SC1006 EXHIBIT 1 Exhibit 1 is a true and correct copy (highlighting added) of an Action Summary from Boulder’s February 17, 2015, City Council meeting and available from the Boulder City Council’s Record’s Archive, found here: https://bouldercolorado.gov/central-records/document-archive (click on “Browse City Council Records,” then “Action Summary,” then “2015,” then “02 – FEB,” and finally “Action Summary - 02.17.15”). CITY OF BOULDER CITY COUNCIL ACTION SUMMARY Tuesday, February 17, 2015 1. CALL TO ORDER AND ROLL CALL Matthew Appelbaum Present Tim Plass Present Macon Cowles Present Andrew Shoemaker Present Suzanne Jones Present Sam Weaver Present George Karakehian Present Mary Young Present Lisa Morzel Present 2. OPEN COMMENT and COUNCIL/STAFF RESPONSE 3. CONSENT AGENDA 9:0 amended Vote taken at 7:20 PM A. Consideration of a motion to approve the Special City Council Meeting Minutes from the January 22, 2015 executive session Approved B. Consideration of a motion to accept the January 13, 2015, study session summary on the Pre-Retreat Planning Accepted C. Consideration of a motion to accept the January 27, 2015, study session summary on the University Hill moratorium project and the CU Hotel/Conference Center Comparative analysis Amended Accepted Comments: Lisa Morzel submitted minor changes to the summary. D. Consideration of a motion to re-appoint Mohammed Akacem to a three-year (3) term as the Citizen-at-Large trustee for the City of Boulder “Old Hire” Police Defined Benefit pension Plan Approved E. Consideration of a motion to adopt Resolution No. 1156 supporting a GOCO Conservation Excellence grant award for $50,000 to partially fund a study to provide water resource management strategies for the benefit of the environment within the Open Space and Mountain Parks system Adopted F. Third reading and consideration of a motion to adopt Ordinance No. 8015, amending Chapter 6-4, B.R.C. 1981, adding a new section, 6-4-3.5 “Smoking Prohibited in Public Places,” including electronic smoking devices in the definition of smoking, and setting forth related details Adopted G. Introduction, first reading, and consideration of a motion to order published by title only an emergency measure Ordinance No. 8030 amending Title 9, “Land Use Code,” B.R.C. 1981, to limit residential uses within the University Hill General Improvement District in the BMS zoning district and correct BMS zone standards, and setting forth related detail Intro - OPBTO H. Introduction, first reading and consideration of a motion to adopt Emergency Ordinance No. 8031 adopting Supplement No. 122, which codifies previously adopted Ordinance Nos. 7957, 7967, 7982, 7983, 7992, 7996, 8004, 8005, 8011, 8016, 8018, 8020, Appendix Council Procedure, and other miscellaneous corrections and amendments, as an amendment to the Boulder Revised Code, 1981 Adopted 4. POTENTIAL CALL-UP CHECK IN Comments: No interest expressed. 5. PUBLIC HEARINGS A. Consideration of a motion authorizing the City Manager to transfer ownership of 4525 Palo Parkway to Boulder Housing Partners to develop affordable housing on the 3.2 acre site Approved Comments: 9:0 Vote taken 8:29 PM 6. MATTERS FROM THE CITY MANAGER A. Consideration of a motion to provide direction to the City Attorney regarding Municipalization. Approved Comments: Motion to submit application to PUC and forego any appeal of court actions. 8:1 Karakehian opposed Vote taken at 10:47 PM B. Direction on draft Zero Waste Strategic Plan and Feedback on Proposed Zero Waste Regulations C. Discussion and consideration of a motion to approve the January 23-24, 2015 City Council Retreat Summary and the 2015 City Council Committee Assignments Approved Comments: 9:0 Vote taken 10:48 PM 7. MATTERS FROM THE CITY ATTORNEY A. Consideration of a motion adopting a charter to create a sub-committee for analysis of, solicitation of public input on and negotiation of the city’s lease with the Colorado Chautauqua Association Approved Comments: 9:0 Vote taken 10:48 PM 8. MATTERS FROM MAYOR AND MEMBERS OF COUNCIL A. Potential Call-Ups 1. Landmark Alteration Certificate to demolish an addition to a contributing house and demolish a c.1988 garage to make way for the construction of a 616 sq. ft. two-car garage and storage shed at 603 Highland Ave. in the Mapleton Hill Historic District, per section 9-11-18 of the Boulder Revised Code (HIS2014-00345). This Landmark Alteration Certificate is subject to City Council call-up no later than February 17, 2015. No Action 2. 3059 6th Street Minor Site Review Amendment (LUR2014-00088) No Action B. Consideration of a motion authorizing affiliate membership in the WestConnect Coalition Approved Comments: 9:0 Vote taken 10:48 PM 9. PUBLIC COMMENT ON MATTERS Comments: 10. FINAL DECISIONS ON MATTERS Comments: 11. DEBRIEF Comments: 12. ADJOURNMENT: 10:49 PM