December 11, 2017

Colorado Supreme Court: Petitioners Failed to Satisfy Burden to De-Designate Groundwater Basin

The Colorado Supreme Court issued its opinion in Gallegos Family Properties, LLC v. Colorado Groundwater Commission on Monday, June 19, 2017.

Water Law—Designated Groundwater Basins—Costs.

The supreme court concluded that the designated groundwater court properly concluded that petitioners failed to satisfy their statutory burden in seeking to de-designate a portion of a designated groundwater basin, and therefore, properly denied the petition to de-designate a portion of the basin. The court also concluded that the designated groundwater court properly awarded respondents a portion of their litigation costs as prevailing parties under C.R.C.P. 54(d). The court affirmed the designated groundwater court in both cases.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Storage of Water Right Prior to Use Was Not Lawful

The Colorado Supreme Court issued its opinion in Grand Valley Water Users Association v. Busk-Ivanhoe, Inc. on Monday, December 5, 2016.

Change of Water Right Application—Historic Consumptive Use Analysis—Transmountain Diversion.

This appeal from the water court in Water Division 2 concerns certain rulings relevant to the historic consumptive use quantification of transmountain water rights that are the subject of a change application. The Supreme Court held that the water court erred when it concluded that storage of the water rights on the eastern slope prior to use for their decreed purpose was lawful. The Court concluded that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree. Here, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court’s finding of an implied right in the decree for such storage. To the extent that unlawful storage of the water on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.

Because storage of the subject water rights in the basin of import prior to use was unlawful, the water court erred in including the volumes of exported water paid as rental fees for storage on the eastern slope in its historic consumptive use quantification of the water rights.

Finally, the water court erred in concluding that it was required to exclude the 22 years of undecreed municipal use of the subject water rights from the representative study period. In this case, the undecreed use did not represent expanded use of the decreed right for which an appropriator may not receive credit but rather, 22 years of non-use of the decreed rights. Because unjustified non-use of a decreed right should be considered when quantifying historic consumptive use for purposes of a change application, the water court must determine whether the years of non-use of the rights for their decreed purpose were unjustified. If so, the water court should consider including the years of unjustified non-use in the representative study period as “zero-use” years for purposes of its historic consumptive use analysis.

The Court reversed the water court’s rulings and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Uniform Local Rules for All State Water Court Divisions Amended

On July 12, 2016, the Colorado Supreme Court issued Rule Change 2016(09), amending Rule 11 of the Uniform Local Rules for All State Water Court Divisions. There were several changes to the Rule, including updating citations, clarifying deadlines, formatting changes, and more. The most significant change was the addition of subsections (4) and (5) to 11(c), which address Case Management Conferences and amendments to the Case Management Order. A redline of the changes is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Water Authority Can Use Junior Priority First but Must Live with Its Decision

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the Upper Eagle Regional Water Authority in the Eagle River in Eagle County, Colorado: Upper Eagle Regional Water Authority v. Wolfe on Tuesday, May 31, 2016.

Actual Use of Water and Application to Beneficial Use—Nature and Extent of Rights Acquired.

The Upper Eagle Regional Water Authority filed an application to make absolute 0.47 cubic feet per second of its Eagle River Diversion Point No. 2 conditional water right. The State and Division Engineers opposed the application, asserting that the Upper Eagle Regional Water Authority could not make its Eagle River Diversion Point No. 2 water right absolute when it owned another, more senior conditional water right, decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The Supreme Court held that where there is no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights is entitled to select which of its different, in-priority conditional water rights it wishes to first divert and make absolute.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Pro Se Non-Attorney Trustee May Not Represent Trust’s Interest in Court

The Colorado Supreme Court issued its opinion in Tucker v. Town of Minturn on Monday, October 26, 2015.

Trustees—Pro Se Litigants.

In this appeal, the Supreme Court considered whether a non-attorney trustee of a trust may proceed pro se before the water court. Opposer-appellant appealed the water court’s order ruling that as trustee of a trust, he was not permitted to proceed pro sebecause he was representing the interests of others. He further appealed the water court’s order granting applicant-appellee’s application for a finding of reasonable diligence in connection with a conditional water right. He asserted that the water court erred in granting the application because its supporting verification was deficient. Addressing a matter of first impression in Colorado, the Court concluded that the water court correctly ruled that a non-attorney trustee cannot proceed pro se on behalf of a trust. In light of this determination, the Court declined to address opposer-appellant’s arguments regarding the sufficiency of the verification. Accordingly, the Court affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Challenges to Water Plan Failed to Allege or Establish Injury

The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District: San Antonio, Los Pinos and Conejos River Acequia Preservation Association v. Special Improvement District No. 1 of the Rio Grande Water Conservation District on Monday, June 29, 2015.

Water Management Plans—Groundwater Management Plans—Retained Jurisdiction of Water Management Plans.

Objectors invoked the water court’s retained jurisdiction under CRS § 37-92-501(4)(c) over a plan of water management to raise challenges to an annual replacement plan developed pursuant to that plan of water management. The Supreme Court held: (1) the water court correctly rejected challenges raising issues decided by the water court in a prior decree and approved by this Court in San Antonio, Los Pinos, and Conejos River Acequia Preservation Association v. Special Improvement District No. 1, 270 P.3d 927, 931–32 (Colo. 2011); (2) an annual replacement plan need not be stayed pending resolution of objections; (3) the annual replacement plan’s identification of Closed Basin Project water was a suitable and adequate source of replacement water; and (4) the annual replacement plan’s treatment of augmentation plan wells did not violate the plan of water management, and its failure to include a separate list of augmentation plan wells did not render the annual replacement plan invalid. The Court affirmed the water court’s pretrial orders and its judgment and decree upholding the annual replacement plan.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Attorney Fees Awarded for Vindication of Rights Pursuant to C.A.R. 39.5

The Colorado Supreme Court issued its opinion in St. Jude’s Co. v. Roaring Fork Club, L.L.C. on Monday, June 29, 2015.

Water Law—Beneficial Use.

St. Jude’s Co. appealed directly to the Supreme Court from a consolidated judgment of the water court in favor of Roaring Fork Club, L.L.C. (Club). With regard to the Club’s two applications for water rights, the water court granted appropriative rights for aesthetic, recreation, and piscatorial uses; approved the Club’s accompanying augmentation plan; and amended the legal description of the Club’s point of diversion for an already-decreed right. With regard to the separate action filed by St. Jude’s Co., the water court denied all but one of its claims for trespass; denied its claims for breach of a prior settlement agreement with the Club; denied its claims for declaratory and injunctive relief concerning its asserted entitlement to the exercise of powers of eminent domain; quieted title to disputed rights implicated in the Club’s application for an augmentation plan; and awarded attorney fees in favor of the Club according to the terms of the settlement agreement of the parties.

The Supreme Court reversed the water court’s order decreeing appropriative rights because the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use as contemplated by either the Colorado Constitution or statutes. The Court affirmed the remaining rulings of the water court, finding that the water court did not misinterpret the various agreements at issue or other governing law, make any clearly erroneous factual findings, or abuse its discretion concerning discovery matters or the award of attorney fees. Finally, the Court granted the Club’s request for appellate attorney fees and remanded the matter to the water court for a determination of the amount of those fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Water Court’s Conditional Decree of Non-Consumptive Hydropower Right Affirmed

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Tidd: Frees v. Tidd on Monday, June 1, 2015.

Ditch Easement—Dominant and Servient Interests—Alterations to a Ditch—Conditional Water Right for Non-Consumptive Hydropower Use—Declaratory Judgment and Conditional Water Right Decree With Conditions to Protect Against Injury to Ditch and Water Right Interests—Water Right Determination and Administration Act of 1969.

The Supreme Court upheld the water court’s judgment entering a conditional water right decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1 in Saguache County, Water Division No. 3. Charles and Barbara Tidd properly obtained a judicial declaration of no material injury to ditch and water right interests owned by the Frees in connection with a ditch easement located on the Tidds’ property. The Court upheld the water court’s finding that water is available for the non-consumptive conditional appropriation under the terms of the Water Right Determination and Administration Act of 1969, and the conditions included in the water court’s judgment and decree were sufficient to protect against injury to senior adjudicated water rights and the Frees’ ditch rights.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statutory Deadline for Water Right Abandonment List Non-Jurisdictional

The Colorado Supreme Court issued its opinion in Concerning the Protest of Tom McKenna and McKenna Ranch to the Revised Abandonment List of Water Rights in Water Division No. 2: McKenna v. Witte on Monday, April 6, 2015.

Water Court’s Jurisdiction—Abandonment.

This case was a direct appeal from a water court judgment that decreed three of the appellants’ water rights abandoned. The appellants challenged the water court’s jurisdiction to enter the judgment, based on the Division Engineer’s six-day delay in preparing the decennial abandonment list, as required by CRS § 37-92-401(1)(a), and asserted that there was insufficient evidence to support a judgment of abandonment.

The Supreme Court held that the deadline to prepare the abandonment list under CRS § 37-92-401(1)(a) is directional and is not a jurisdictional mandate. Thus, the Division Engineer’s failure to prepare the abandonment list by the statutory deadline did not divest the water court of jurisdiction over the case. Further, the Court declined to overturn the water court’s determination of abandonment because the record supports the conclusion that the appellants intended to permanently discontinue their use of the three water rights. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Burden Shifted to Water Right Holder to Prove Excuse for Non-Diversion of Water Right

The Colorado Supreme Court issued its opinion in Wolfe, P.E. v. Jim Hutton Educational Foundation on Monday, March 16, 2015.

Presumption of Abandonment—Nonuse of Decreed Diversion Point—CRS § 37-92-402(11).

The Supreme Court held that when the State and Water Division Engineers prove that the water-right holder has not used the decreed point of diversion for ten years or more, the Engineers trigger the rebuttable presumption of abandonment under CRS § 37-92-402(11). Once triggered, the burden shifts to the water-right holder to demonstrate a lack of intent to abandon. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse to rebut the presumption. The Court therefore reversed the water court’s judgment and remanded the case for reconsideration of whether the Jim Hutton Educational Foundation met its burden of rebutting the presumption of abandonment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Historical Consumptive Use Analysis May Only Be Conducted on Water Associated with Water Right

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Widefield Water & Sanitation District and the City of Fountain in Custer County: Widefield Water & Sanitation District v. Witte, Division Engineer for Water Division 2 on Monday, December 22, 2014.

Historical Consumptive Use Analysis.

In this interlocutory appeal from the water court, the Supreme Court determined whether, when a decree delineates specific acreage to be irrigated, an applicant seeking to change the decreed right may conduct a historical consumptive use analysis on acreage beyond that lawfully associated with the relevant water right. The Court held that this is impermissible and that an applicant may conduct such an analysis only on acreage lawfully irrigated in accordance with the expressly decreed appropriation. Accordingly, the Court affirmed the judgment of the water court and remanded the case to that court for proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Proposed Rule Changes to Water Court Rules 6 and 11

The Colorado Supreme Court Water Court Committee is seeking comments on proposed changes to Water Court Rule 6, “Referral to Referee, Case Management, Rulings, and Decrees,” and Rule 11, “Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues.” A redline of the proposed changes is available here.

The Water Court Committee would like public comments before submitting its changes to the Colorado Supreme Court. Comments may be emailed to Justice Hobbs, the chair of the Water Court Committee, by 5 p.m. on June 13, 2014.