Articles Posted in Environmental Law

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The purpose of the "1940 Agreement" at issue in this appeal was to resolve the parties’ disputes regarding seepage and evaporation losses from three of the City and County of Denver’s streambed reservoirs located on the South Platte River. Under the 1940 Agreement, in lieu of making releases from the streambed reservoirs to replace seepage and evaporation losses, Denver agreed not to reuse or successively use return flows from water imported from the western slope and used in Denver’s municipal water system. Earlier litigation in Case No. 81CW405 established that this reuse prohibition in the 1940 Agreement applied only to return flows derived from decreed water rights from Colorado River sources with appropriation dates before May 1, 1940 (the date Denver entered into the agreement); Denver could therefore use return flows derived from sources that were appropriated or acquired after that date. The question in this appeal was whether the 1940 Agreement prohibited Denver from using return flows from water imported from the Blue River system under exchange and substitution operations that use water stored in the Williams Fork Reservoir under a 1935 priority as a substitute supply. In a written order, the water court resolved competing motions in Denver’s favor, ruling that Denver’s Blue River system water, which was decreed in 1955 with an appropriation date of June 24, 1946, was a source of water that was not owned, appropriated, or acquired by Denver prior to May 1, 1940, and therefore was not subject to the 1940 Agreement. The water court thus held that Denver could reuse or successively use imported water attributed to the Blue River system. Consolidated Ditches and other opposers appealed. The Colorado Supreme Court concurred with the water court, finding the return flows were not subject to the 1940 Agreement and Denver could reuse or successively use those return flows. View "City & Cty. of Denver v. Consol. Ditches of Water Dist. No. 2" on Justia Law

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In 2008, defendant-appellees Roger Brooks and Veryl Goodnight filed an application with the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate was located. Both, however, referred repeatedly to the Davenport Ditch. Appellees successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. Eight years later, plaintiff-appellant Gary Sheek filed this action at the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’s decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. The Colorado Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. View "Sheek v. Brooks" on Justia Law

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In 2008, defendant-appellees Roger Brooks and Veryl Goodnight (together “Brooks”) filed an application in the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate was located. However, both referred repeatedly to the Davenport Ditch. Brooks successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. Eight years later, plaintiff-appellant Gary Sheek filed this action in the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’ decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. After concluding that sufficient notice was provided, the water court granted Brooks’ motion for summary judgment and deemed the trespass and injunction claims moot in light of that ruling. The court then dismissed the prescriptive easement claim as well as the theft and interference claim for lack of subject-matter jurisdiction. The Colorado Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. View "Sheek v. Brooks" on Justia Law

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A series of appeals concerned a dispute over competing rights to irrigation tail and waste water that collected in a borrow ditch. The Colorado Supreme Court was asked to determine whether a driveway that interrupted the flow of water in the ditch rendered the sections of borrow ditch on either side of the driveway separate sources of water for purposes of the postponement doctrine. S. Cade and Bradley Huffaker and a neighboring landowner, Lee Crowther, filed competing applications for rights to this water. The Huffakers filed their application in 2013; Crowther filed his in 2016. The Huffakers argued that under the postponement doctrine, they were entitled to the senior right in the borrow ditch water because they filed their application first. The water court held that the postponement doctrine did not apply here because it concluded the water rights claimed by the Huffakers and Crowther did not derive from the same source. Therefore, the court held that Crowther’s right to divert water at the culvert was not junior to the Huffakers’ right, even though Crowther’s application was filed two and a half years after the Huffakers’ application. The Huffakers appealed, again contending that the postponement doctrine applied to determine the priority of the applicants’ competing rights to the water in the borrow ditch, and that they were entitled to the senior priority because they filed their application first. They further argued the collection area of their absolute water right began not at the driveway, but farther south (upstream) at the same point as Crowther’s right. The Supreme Court agreed with both contentions and reversed the water court. View "Concerning the Application for Water Rights of S. Cade Huffaker" on Justia Law

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The question presented by this appeal to the Colorado Supreme Court was a 1909 water rights decree adjudicated an enforceable water right for the Campbell Ditch in nine springs. Yamasaki Ring, LLC, which owned some of the Campbell Ditch’s water rights, asked the Court to answer the question in the affirmative. The Dills and the Pearces, who owned properties where water from the springs had been put to beneficial use since as early as 1903, urged the Court to answer the question in the negative. In two orders issued in 2016, the water court agreed with the Dills/Pearces and determined that the 1909 decree did not adjudicate a water right in the springs’ water because it did not set forth “the necessary information” for adjudication, including an appropriation date, a priority number, or quantification details. Therefore, the water court concluded the Campbell Ditch’s unquantifiable entitlement to “receive and conduct water” from the springs could not be enforced or administered against any adjudicated water rights. The Supreme Court agreed and therefore affirmed the water court’s judgment. View "Concerning the Application for Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County" on Justia Law

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The issue this case presented for the Colorado Supreme Court's review centered on whether a water court had 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 Sam Allen’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. View "Allen v. Colorado" on Justia Law

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The water court concluded Robert Sease diverted water from Sheep Creek in violation of a 2013 order, which forbade him to use out-of-priority water from Sheep Creek on his Saguache County property (“the Sease Ranch”). Thus, the water court found Sease in contempt of court and imposed both punitive and remedial sanctions on him. Sease appealed, arguing: (1) the water court had no basis to find that he owns the Sease Ranch; and (2) the water court improperly shifted the burden of proof to him when it noted that there was a lack of evidence in the record that “someone else came on the premises and did [the contemptuous] work without [his] authorization or against his will.” The Colorado Supreme Court disagreed with Sease on both arguments and affirmed the water court’s contempt order. View "Colorado v. Sease" on Justia Law

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This case centered on Coors Brewing Company’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that Coors diverted out of priority pursuant to those plans. The City of Golden opposed this application, arguing that Coors could not proceed by amendment but had to adjudicate a new water right to reuse or make successive use of the return flows. The water court ruled: (1) any amount of water not beneficially used by Coors for the uses specified in its decreed augmentation plans had to be returned to the stream; (2) Coors’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) Coors could 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. Coors appealed, arguing that the water court erred: (1) by holding that Coors could not proceed by amendment but had to adjudicate a new water right; (2) by concluding that water unconsumed by Coors’s initial use had to be returned to the stream and was subject to appropriation by other water users; and (3) interpreting Coors’s augmentation plan decrees to require permanent dedication of return flows to the stream. The Colorado Supreme Court concluded that in order to obtain the right to reuse and make successive use of the return flows at issue, Coors had to adjudicate a new water right and could not circumvent this requirement by amending its decreed augmentation plans. Furthermore, the Court held that the diversion of native, tributary water under an augmentation plan did not change its character. Accordingly, the general rule, providing that return flows belong to the stream, applied. Finally, the Court concluded the water court correctly construed Coors’s augmentation plans. View "Coors Brewing Co. v. City of Golden" on Justia Law

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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 was 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 Colorado Supreme Court affirmed that dismissal, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater. Therefore, the water court lacked subject matter jurisdiction over the Foundation's claim. View "Jim Hutton Educ. Found. v. Rein" on Justia Law

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In 2011, the City of Aspen adopted an ordinance which imposed a regulatory scheme designed to meet the city council’s “duty to protect the natural environment and the health of its citizens and visitors.” Under the ordinance, grocery stores within Aspen’s city limits were prohibited from providing disposable plastic bags to customers, though they could still provide paper bags to customers, but each bag is subject to a $0.20 “waste reduction fee,” unless the customer was a participant in a “Colorado Food Assistance Program.” This case presented the question of whether Aspen’s $0.20 paper bag charge was a tax subject to voter approval under the Taxpayer’s Bill of Rights (“TABOR”). The trial court held that this charge was not subject to TABOR because it was not a tax, but a fee. The court of appeals concurred with this holding. The Colorado Supreme Court also agreed, finding the bag charge was not a tax subject to TABOR. View "Colorado Union of Taxpayers Found. v City of Aspen" on Justia Law