August 23, 2019

Colorado Supreme Court: Unenforceable 1909 Water Decree Fails to Set Forth Indicia of Enforceability, Including Appropriation Date, Priority Number, and Quantification Information

The Colorado Supreme Court issued its opinion in Dill v. Yamasaki Ring, LLC on Monday, February 25, 2019.

Water Law—Adjudicated Water Rights—Indicia of Enforceability. 

The supreme court considered whether a 1909 water decree adjudicates a water right in certain springs. Because the decree failed to set forth required indicia of enforceability—including an appropriation date, a priority number, and quantification information—with respect to the springs, the court answered the question in the negative. A decree must measure, limit, and define both the nature and extent of a water right. The priority, the location of diversion at the supply’s source, and the amount of water for application to a beneficial use are all essential elements of the appropriative water right. Of these, priority is the most important stick in the water rights bundle because priority is a function of appropriation and adjudication; indeed, the purpose of adjudication is to fix the priority of a water right. 

As the water court concluded, the 1909 decree clearly and unambiguously sets forth an unenforceable entitlement to receive and conduct water from the springs. Without indicia of enforceability, and in particular a priority number, the 1909 decree cannot be deemed to adjudicate a water right in the springs that can be enforced and administered. Therefore, the court affirmed the water court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Water Court Properly Dismissed Objection that Water Right Holder Would Not Be Able to Deliver Augmentation Water

The Colorado Supreme Court issued its opinion in Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association v. Centennial Water and Sanitation District on Tuesday, February 19, 2019.

Water Law—Burden of Proof

Centennial Water and Sanitation District (Centennial) appealed from a water court order dismissing its objection to the Well Augmentation Subdistrict’s (WAS) proposal to use additional sources of replacement water for its previously decreed augmentation plan. Centennial had asserted that WAS failed to comply with the notice requirements of the decree itself and that this failure amounted to a per se injury, for which it was entitled to relief without any further showing of operational effect. The water court heard Centennial’s motion objecting to WAS’s proposed addition of new sources of replacement water and, without requiring WAS to present evidence, found that Centennial failed to establish prima facie facts of WAS’s inability to deliver augmentation water in quantity or time to prevent injury to other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the water court dismissed Centennial’s objection.

The supreme court affirmed. Exercise of the water court’s retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users. Accordingly, the water court’s dismissal of Centennial’s objection was proper.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Inverse Condemnation Claim Grounded in Ownership, Not Use, and Therefore Outside Jurisdiction of Water Court

The Colorado Supreme Court issued its opinion in Allen v. State of Colorado on Tuesday, January 22, 2019.

Water Court Jurisdiction—“Water Matters”—Water Ownership versus Water Use.

This case concerns whether a water court has jurisdiction to consider a claim for inverse condemnation alleging a judicial taking of shares in a mutual ditch company. The water court dismissed plaintiff-appellant’s inverse condemnation claim, concluding that his claim was “grounded in ownership and the conveyance of that ownership, not use,” and therefore the claim was not a water matter within the exclusive jurisdiction of the water court. The supreme court agreed and thus affirmed the water court’s dismissal order.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Water Court Entitled to Draw Reasonable and Commonsense Inferences from Circumstances Before It

The Colorado Supreme Court issued its opinion in People v. Sease on Tuesday, November 13, 2018.

Contempt—Acts or Conduct Constituting Contempt of Court.

In this direct appeal, the supreme court reviewed the water court’s contempt order, which imposed punitive and remedial sanctions on defendant. The water court determined that defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from defendant’s ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The court concluded that the water court had ample evidence to find that defendant is the owner of the Sease Ranch. Further, the court determined that the water court did not shift the burden of proof to defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without defendant’s authorization.

Accordingly, the water court’s judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Appellant Must Adjudicate New Water Right Rather than Amend Existing Augmentation Plans

The Colorado Supreme Court issued its opinion in Coors Brewing Co. v. City of Golden on Monday, June 25, 2018.

Amendment of Augmentation Plans—Return Flows.

This case concerns appellant’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that appellant diverts out of priority pursuant to those plans. On competing motions for determinations of questions of law, the water court ruled that (1) any amount of water not beneficially used by appellant for the uses specified in its decreed augmentation plans must be returned to the stream; (2) appellant’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) appellant may not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right.

The supreme court affirmed the water court’s judgment. To obtain the right to reuse and make successive use of the return flows at issue, appellant must adjudicate a new water right and may not circumvent this requirement by amending its decreed augmentation plans. Further, the diversion of native, tributary water under an augmentation plan does not change its character. Accordingly, the general rule, which provides that return flows belong to the stream, applies. The water court also correctly construed appellant’s augmentation plans.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Water Court Lacked Subject Matter Jurisdiction Over Constitutionality of Groundwater Statute

The Colorado Supreme Court issued its opinion in Jim Hutton Educational Foundation v. Rein on Monday, May 21, 2018.

Water Law—Jurisdiction.

The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The supreme court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction.

The court affirmed the water court’s ruling.

Summary provided courtesy of Colorado Lawyer.

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.