December 7, 2016

Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

The Colorado Supreme Court issued its opinion in Concerning the Revised Abandonment List of Water Rights in Water Division 2 and Concerning the Protest of Thorsteinson in Pueblo County: Harrison v. Simpson, State Engineer; Concerning the Application for Change of Water Right of Harrison, Personal Representative: Harrison v. St. Charles Mesa Water District on May 14, 2012.

Water Law—Change of Diversion Point—Stipulation—Unconstitutional Taking—Abandonment of Right.

John Harrison appealed directly to the Supreme Court from adverse rulings of the Water Court for Water Division No. 2 in two separate cases. With regard to Harrison’s Application for a Change of Water Right, the water court granted the State Engineers’ motion to dismiss at the close of Harrison’s case. The water court found that he was required, but failed, to establish the historic use of the right, to which he sought a change in the point of diversion. With regard to Harrison’s protest to the inclusion of the interests he claimed in the Mexican Ditch on the Division Engineer’s decennial abandonment list, the water court granted the Engineer’s motion for abandonment, as a stipulated remedy for Harrison’s failure to succeed in his change application.

The Court affirmed the water court’s dismissal of Harrison’s application, holding that (1) Harrison neither proved historic use of the right for which he sought a change nor was excepted from the requirement that he do so as a precondition of changing its point of diversion, and (2) denying a change of water right for failing to prove the historic use of the right does not amount to an unconstitutional taking of property. The Court reversed the water court’s order granting the Engineers’ motion for abandonment, because Harrison did not stipulate to an order of abandonment as the consequence of failing to succeed in his change application, but only as the consequence of failing to timely file an application reflecting historic use, a condition with which he complied.

Summary and full case available here.

Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

Colorado Supreme Court: No Collateral Estoppel; Entitlement to Water Not Actually Determined in Prior Litigation

The Colorado Supreme Court issued its opinion in Reynolds v. Cotten, Division Engineer, Water Division 3 on April 16, 2012.

Collateral Estoppel—Water Law.

Plaintiffs, ditch owners who were diverting water from La Jara Creek, appealed to the Supreme Court from an order of the water court denying their claim for declaratory relief. Plaintiffs sought a declaration that their appropriative rights to La Jara Creek water were not limited to water flowing into the creek from the San Luis Valley Drain Ditch. Without directly addressing the merits of their claim, the water court granted summary judgment in favor of defendants on the ground that substantially the same issue had been litigated and decided against plaintiffs in a prior declaratory judgment action involving the same parties or their predecessors in interest. Specifically, the water court concluded that all of the water rights of the parties in La Jara Creek were not only at issue but were in fact finally determined in the prior litigation, and therefore plaintiffs’ current claim of entitlement to non-drain native La Jara Creek water had been implicitly resolved against them in the judgment concluding that litigation.

The Court found that plaintiffs’ entitlement to non-drain native La Jara Creek water was not actually determined in the prior litigation, either expressly or by necessary implication. It therefore reversed the summary judgment of the water court and remanded the case for further proceedings.

Summary and full case available here.

Judge Eyler Named Chief Judge in Tenth Judicial District; Judge Schwartz Named as New Water Court Judge

On Wednesday, April 4, 2012, Colorado Supreme Court Chief Justice Michael L. Bender appointed the Honorable Deborah Eyler as the new chief judge and the Honorable Larry Schwartz as the new water court judge in the Tenth Judicial District (Pueblo County). Chief Justice Bender made the appointments to fill positions currently held by Chief Judge C. Dennis Maes, who will retire from the bench on May 31.

The appointment of Judge Eyler to chief judge is effective June 1, upon Chief Judge Maes’ retirement.  The appointment of Judge Schwartz to water judge is effective immediately. Chief Judge Maes will continue to serve as a water judge until his retirement.

Judge Eyler was appointed by Governor Ritter to the district court bench in August of 2008 and took the bench on December 1, 2008.  Before being appointed to the bench she was in private practice.  As a district court judge, Judge Eyler presides over a domestic relations, dependency and neglect and truancy docket.

Judge Schwartz was appointed to the bench by Governor Ritter in March of 2008, and began serving July 1, 2008. He began his law career as an Assistant District Attorney with the Pueblo County District Attorney’s Office in November of 1982. From 1985 until his appointment to the bench, Judge Schwartz was in private practice.

Colorado is divided into twenty-two judicial districts, each with a chief judge who serves as the administrative head. Chief judges’ responsibilities include appointing the district administrator, chief probation officer, and clerks of the court, assisting in the personnel, financial and case-management duties of the district, seeing that the business of the courts is conducted efficiently and effectively, and making judicial assignments within the district.

Water judges are district judges appointed by the Supreme Court and have jurisdiction in the determination of water rights, the use and administration of water, and all other water matters within the jurisdiction of the water divisions.

Filing Fees Temporarily Reduced in Certain Civil Actions

The Colorado Supreme Court has issued a new Chief Justice Directive, which temporarily reduces the filing fees for certain civil actions, effective January 23, 2012.

CJD 12-02 temporarily decreases filing fees credited to the Justice Stabilization fund.  Pursuant to Colorado Revised Statutes, cash funds must maintain no more than a 16 percent excess fund balance, and it is projected that the fund will exceed this target reserve limit.  In order to comply with the statutory requirement, Chief Justice Bender has temporarily reduced filing fees.

As necessary, the Chief Justice may later increase these fees back to their statutorily permitted level.

The reduced fees apply across the board throughout Colorado courts and are outlined in Appendix A to CJD 12-02 – “Temporary Reduction of Filing Fees in Certain Civil Actions”

Questions about the change may be directed to Linda Bowers, Court Services Manager, at (720) 921-7839 or linda.bowers@judicial.state.co.us.

Water Court Forms Again Updated by Colorado State Judicial

The Colorado State Judicial Branch has once again issued numerous revised forms for use in the state’s water courts, including many that were just previously updated in October. Also, a new Denver Basin Application form was issued. Practitioners should begin using the new forms immediately.

State Judicial also advises that these revised forms must be used for applications filed on and after January 1, 2012. All deadlines that occur after January 1, 2012, even if the deadlines are in existing cases, should be calculated under the amended Water Court Rules and/or amended Rules of Civil Procedure, unless there is a Water Court order to the contrary.

The updated forms are available only in Microsoft Word format; Adobe Acrobat (PDF) and Word template formats are likely forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Water

  • JDF 296W – “Application for Water Rights (Surface)” (revised 12/11)
  • JDF 297W – “Application for Water Storage Right” (revised 12/11)
  • JDF 298W – “Application for Underground Water Right” (revised 12/11)
  • JDF 299W – “Application for Change of Water Right” (revised 12/11)
  • JDF 300W – “Application: For Finding of Diligence or To Make Absolute” (revised 12/11)
  • JDF 301W – “Application for Approval of Plan for Augmentation” (revised 12/11)
  • JDF 308W – “Denver Basin Application” (12/11)

Colorado Supreme Court: Approval of Ground Water Management Plan

The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.: San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. v. Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.; Rio Grande Water Conservation District v. San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. on December 19, 2011.

Approval of Ground Water Management Plan—Role of State Engineer and Trial Court

The Supreme Court affirmed the judgment and decree of the Alamosa County District Court and the water court for Water Division No. 3 approving the ground water management plan adopted by the Special Improvement District No. 1 (Subdistrict), the Rio Grande Water Conservation District, and the State Engineer. The General Assembly has adopted a series of statutes applicable to confined and unconfined aquifers within the San Luis Valley and Water Division No. 3, empowering the Subdistrict to adopt and implement the plan. The plan as approved and decreed adequately addresses the replacement of well depletions that injure adjudicated senior surface water rights, along with restoring and maintaining sustainable aquifer levels in accordance with the applicable statutes. Provisions of the augmentation statutes do not govern approval of the plan. The Subdistrict bears the burden of going forward, as well as the burden of proof to demonstrate that annual replacement plans prevent material injury to adjudicated senior surface water rights caused by ongoing and past well depletions that have future impact.

Summary and full case available here.

Water Courts to Adopt “Rule of 7” for Procedural Time Periods; Rules Amended Regarding Applications for Water Rights

The Colorado Supreme Court has amended Chapter 36 of the Colorado Court Rules, Uniform Local Rules for All State Water Court Divisions. Broad changes were made throughout the rules to conform them to the “rule of 7″ for procedural time periods. This change, adopting multiples of a week, will help eliminate problems that arise when a deadline falls on a weekend.

Time period changes were also made to Water Court form JDF 319 – “Form 1 – Sample Modified Case Management Order.” The revised form is forthcoming from State Judicial.

Additionally, Rule 3, Applications for Water Rights, was also amended. The amendments address applications that contain multiple claims, rights, and structures, including applications filed by multiple applicants. The Committee Comment to the revised rule states that “[d]eletion of the words ‘and that each has the same ownership’ from the former water court rule 3(b), now numbered water court rule 3(b)(1), is not intended to alter or change any provision of law pertaining to ownership of a claim, right or structure that may otherwise be applicable to the adjudication of an application.”

These amendments are effective January 1, 2012.

Provided below is the complete set of Uniform Water Court Rules, which contains the old rules along with the new amendments (in bold), for reference and comparison purposes.

Click here to review the red line changes to the Uniform Water Court Rules, outlined as Rule Change 2011(16).

Complete CRCP Water Court Rules With Nov 2011 Changes (Effective 2012)

State Judicial Issues Numerous Revised Water Court Forms

The Colorado State Judicial Branch has issued many revised forms for use in the state’s water courts. Virtually every water law form listed by State Judicial has been amended. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word templates. Download the new forms from State Judicial’s individual forms pages, or below.

Water

  • JDF 290 – “Certificate of Notice” (revised 10/11)
  • JDF 296W – “Application for Water Rights (Surface)” (revised 10/11)
  • JDF 297W – “Application for Water Storage Right” (revised 10/11)
  • JDF 298W – “Application for Underground Water Right” (revised 10/11)
  • JDF 299W – “Application for Change of Water Right” (revised 10/11)
  • JDF 300W – “Application: For Finding of Diligence or To Make Absolute” (revised 10/11)
  • JDF 301W – “Application for Approval of Plan for Augmentation” (revised 10/11)
  • JDF 302W – “Pleading: In Protest/In Support to Referee’s Ruling” (revised 10/11)
  • JDF 303W – “Statement of Opposition” (revised 10/11)
  • JDF 304W – “Protest to Revised Abandonment List” (revised 10/11)
  • JDF 307 – “Notice of Change in Ownership of Conditional Water Right and/or Change of Address” (revised 10/11)
  • JDF 312 – Form 2 – Declaration of Expert Regarding Report, Disclosure, and Opinion” (revised 10/11)
  • JDF 319 – “Form 1 – Sample Modified Case Management Order” (revised 10/11)

Filing Fees, Surcharges, and Costs Form Updated for Colorado Courts

The Colorado State Judicial Branch has issued a revised form that outlines the fees and costs of conducting business in all state courts. The changes are minimal, but practitioners should be aware of the revised form.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees

  • JDF 1 – “ Filing Fees, Surcharges, and Costs” (revised 8/11)

New Across-the-Board Procedure Rules for Calculating Trial and Appellate Deadlines Proposed by the Colorado Supreme Court

The Colorado Supreme Court is requesting written public comments by any interested person on revisions to proposed new rules for calculating trial and appellate deadlines. Changes are being made to virtually every rule of procedure (civil, appellate, uniform water, probate, and criminal) – a daunting task undertaken by the Supreme Court to help simplify how one determines when pre- and post-trial actions must be taken. Most of the new rules will take effect at the start of 2012, with a few others kicking in July 2012  to allow for legislative review.

Public review and comment is seen as vital to these changes especially, as they are comprehensive; with such a vast number of rules to review, it is possible mistakes or inconsistencies escaped the notice of the Supreme Court’s rules committees. The Court asks that lawyers who appear in courts—civil, criminal, appellate, or other—review the applicable proposals and submit written comments to the Supreme Court by Friday, September 30, 2011 at 5:00 pm.

According to an advance article from The Colorado Lawyer, the changes again come as a response to revisions in the Federal Rules of Civil Procedure. The amended Colorado rules will adopt the federal rules’ multiples of 7 – or, multiples of a week. This change will virtually eliminate problems that arise when a deadline falls on a weekend; a response that is due in 21 days will always fall on the same weekday.

The revised Colorado rules, however, reject the federal standard of allowing an extra 3 days for mailing and e-service. The Colorado rules will adopt a 7-day standard for that as well.

As a result of these changes, most court deadlines were rounded up to closest 7-day period, with 10 days becoming 14 and 15 rounding up to 21. However, sometimes longer periods were shortened slightly when time frames were deemed important; 30 days before trial could now become 28 days before trial.

All trial and appellate lawyers are urged to review the new proposed rules to determine whether these new deadlines create unintended consequences that should be fixed before final action on the rules is taken.

An original plus eight copies of written comments concerning the proposed new rules should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, at 101 W. Colfax Avenue, Suite 800, Denver, Colorado 80202, no later than Friday, September 30, 2011 at 5:00 pm.

Click here to review The Colorado Lawyer article outlining the proposed changes to the rules. Click here to assist the Colorado Supreme Court and review the amended rules themselves.

Matthew Spengler: Review of the Colorado Supreme Court’s 2010-11 Term

The Colorado Supreme Court’s term 2010-2011 recently concluded.  The Court does not hear oral argument during the months of July and August and it generally refrains from issuing opinions during this time, although it does continue to rule on cert petitions and C.A.R. 21 petitions.

The most recent term was one of significant change to the Court.  After twelve years, the Court elected a new chief justice when Chief Justice Mary Mullarkey retired and Justice Michael Bender was elevated to the position.  On December 10th, Justice Monica Marquez was sworn in as a new associate justice.

The Court issued 86 opinions during this most recent term.  Looking at the composition of the Court’s docket: 52 (60%) of the opinions were appeals of judgments entered by Colo. Court of Appeals; 8 (9%) of the opinions were appeals from the water courts; 10 (11.5%) were appeals pursuant to C.A.R. 21; 13 (15%) were interlocutory appeals from the district court; 1 was an interlocutory appeal from a county court; and 2 opinions involved the Court’s oversight of the legal profession.

49 (57%) of the Court’s opinions were unanimous.  Historically, the Court has manifested an ideological split between four liberal justices — Mullarkey, Hobbs, Bender, and Martinez — and three conservative justices — Rice, Eid, and Coats.  Earlier this term, my co-blogger Peter Krumholz speculated as to how the retirement of Chief Justice Mullarkey, and the addition of Justice Marquez, might affect the Court’s ideological breakdown.

For this most recent term at least, the traditional pattern has held.  The Court issued fourteen opinions in which three justices dissented from at least part of the majority’s decision.  Of those fourteen opinions, Justices Rice, Eid, and Coats were together in dissent nine times.

Turning to individual voting patterns of certain justices, this year’s majoritarian award goes to my old boss, Justice Hobbs.  He voted with the majority in 85 of the 86 opinions issued (98.8%).  In a single case, he joined a concurring opinion written by Justice Martinez.

Former Chief Justice Mullarkey participated in 27 of the Court’s opinions this year (through the December 13, 2010 announcements).  She voted in the majority in 26 of those opinions and joined one dissent.

On the other end of the spectrum, Justice Eid voted in the majority in only 61 (71%) cases.  She wrote, or joined, 21 dissenting opinions and six concurring opinions.

Justice Marquez voted in 52 cases during this term.  She recused herself from seven cases that were decided after she joined the Court.  She voted in the majority in 47 cases (90%) and dissented in 5 cases.

Matthew Spengler is an associate at Hale Westfall who focuses his practice on real estate and eminent domain litigation, as well as general commercial litigation. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 7, 2011.

Uniform Local Rules for All State Water Court Divisions Amended by the Colorado Supreme Court

The Colorado Supreme Court has adopted amendments to the Uniform Local Rules for All State Water Court Divisions. Rule 11, Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues, has been changed to make the notes taken by experts during their meetings not discoverable, and none of the content of the meetings or the written statement prepared will be admissible at trial. Additionally, a Committee Comment was added to outline how such meetings should be conducted and how to prepare the written statement.

Uniform Local Rules for All State Water Court Divisions Rule 11(b)(5)(D)(III) was amended to read as follows:

The content of the meetings of the experts and the written statement prepared pursuant to Water Court Rule 11(b)(5)(D)(II) shall be considered as conduct or statements made in compromise negotiations within the ambit of CRE 408. For this reason, notes taken by the experts or other records of the discussion during these meetings shall not be discoverable, and none of the content of the meetings of the experts or the written statement prepared shall be admissible at trial. The meetings of the experts shall not include the attorneys for the parties or the parties themselves, unless they are the designated expert(s).

The new Committee Comment begins:

Effective July 1, 2011, Rule 11 is further amended in subsection (b)(5)(D)(III) to make explicit the non-discoverability and non-admissibility of the notes, records, content of discussions, and written statement prepared by the experts in accordance with the rule, and, further, to clarify that the meetings of the experts exclude attorneys for the parties or the parties themselves unless they are designated experts. These clarifying changes apply nunc pro tunc on and after July 1, 2009.

In addition, the following Suggested Guide is included in this Comment by way of example for conduct of the meetings of the experts and preparation of the joint written statement of the experts.

Then follows the “Suggested Guide for Conducting Meetings of the Experts in Water Court Proceedings and Preparing Written Statement.”

Click here to read the red line edits, the full Committee Comment and Suggested Guide, and the full release from State Judicial concerning these rules changes.