Justia Colorado Supreme Court Opinion Summaries

Select Energy Services, LLC, wanted to run a water pipeline across an old, partly destroyed irrigation ditch alongside the South Platte River. An easement arising from a water right long associated with that ditch stood in its way. K-LOW, LLC owned the easement, and attempted to block Select’s pipeline as a trespass. Yet, because the water right supporting the easement recently changed, K-LOW’s easement might no longer exist. Whether the easement existed turned on the scope of the underlying water right. Absent that water right, K-LOW’s trespass claim failed. The water court found no right to divert water from the ditch, and the Colorado Supreme Court agreed with its determination. Because, by its plain language, the decree defining the water right allowed its holder to divert water only at the pump downriver from the disputed ditch, the Court concluded the decree did not include a right to divert water from that ditch. View "Select Energy Servs., LLC v. K-LOW, LLC" on Justia Law

The City of Aurora was the sole owner of the capital stock of Busk-Ivanhoe, Inc., which owned a one-half interest in water rights decreed in 1928 to the Busk-Ivanhoe System for supplemental irrigation in the Arkansas River Basin by Garfield County District Court (in Civil Action 2621, known as the "2621 Decree"). The decree contained no reference to storage of exported water on the eastern slope prior to its decreed use for supplemental irrigation in the Arkansas River Basin. Nevertheless, water decreed to the Busk-Ivanhoe System has been stored in reservoirs before put to beneficial use. In 1987, Busk-Ivanhoe began to put its water rights to use in Aurora. Busk-Ivanhoe did not file an application to change the type and place of use of these rights until 2009. The water court for Water Division 2 approved Busk-Ivanhoe's change application allow use of the rights within Aurora's municipal system. The rulings were confirmed in 2014. The issues raised in this appeal centered on the water court's quantification of the water rights to be changed under the application. After review, the Supreme Court concluded: (1) the water court erred when it concluded that storage of the Busk-Ivanhoe rights on the eastern slope prior to use was lawful; (2) because the storage of the water rights was unlawful, the water court erred in concluding the volumes of exported water paid as rental fees for storage in its historic consumptive use quantification of the water rights; and (3) the water court erred in concluding it was required to exclude the twenty-two years of undecreed use of the water rights from the representative study period. The water court's 2014 order was reversed and the matter remanded for further proceedings. View "Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc." on Justia Law

On July 4, 2004, the Upper Eagle Regional Water Authority (the “Authority”) diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River and delivered that water to the Cordillera area for beneficial use. On that date, there was a “free river” (meaning that there was no call on the Colorado or Eagle Rivers). Of the water diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to its Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”) and filed an application to make this amount absolute. The State and Division Engineers opposed the application, asserting that the Authority could not make its Junior Eagle River Right absolute when it owned another, more senior conditional water right, the SCR Diversion Point No. 1 water right (the “Senior Lake Creek Right”), decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The water court agreed with the Engineers, and held that the July 4, 2004, diversion had to be allocated first to the Senior Lake Creek Right. The Authority appealed, and the Colorado Supreme Court reversed, holding that where there was 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 was entitled to select which of its different, in-priority conditional water rights it wished to first divert and make absolute. "[T]he portfolio owner must live with its choice. Since it has chosen to make a portion of the Junior Eagle River Right absolute, the Authority may not now divert and use the Senior Lake Creek Right unless it demonstrates that it needs that water right in addition to the Junior Eagle River Right." View "Upper Eagle Reg'l Water Auth. v. Wolfe" on Justia Law

Boulder County chose to develop "the Bailey Farm" into a public open-space park which would feature several ponds formed from abandoned gravel pits filled with groundwater. The County had to replace out-of-priority stream depletions caused by evaporation from those ponds. To meet this obligation, the County filed an application for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and exchange. The water court dismissed the application without prejudice, and the County now appeals that judgment. The components of the County’s application were interdependent, such that approval of the application as a whole hinged on approval of the plan for augmentation, which in turn hinged on approval of the change of water rights. To ensure this change would not unlawfully expand the Bailey Farm's water rights, the County conducted a parcel-specific historical consumptive use (“HCU”) analysis of that right. The water court found this HCU analysis inadequate for several reasons and therefore concluded the County failed to carry its burden of accurately demonstrating HCU. The pivotal consideration in this case was whether the County carried its burden of proving HCU. Like the water court, the Supreme Court concluded it did not. The Court therefore affirmed the water court’s judgment on that basis. View "Cty. of Boulder v. Boulder & Weld Cty. Ditch Co." on Justia Law

Boulder County chose to develop "the Bailey Farm" into a public open-space park which would feature several ponds formed from abandoned gravel pits filled with groundwater. The County had to replace out-of-priority stream depletions caused by evaporation from those ponds. To meet this obligation, the County filed an application for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and exchange. The water court dismissed the application without prejudice, and the County now appeals that judgment. The components of the County’s application were interdependent, such that approval of the application as a whole hinged on approval of the plan for augmentation, which in turn hinged on approval of the change of water rights. To ensure this change would not unlawfully expand the Bailey Farm's water rights, the County conducted a parcel-specific historical consumptive use (“HCU”) analysis of that right. The water court found this HCU analysis inadequate for several reasons and therefore concluded the County failed to carry its burden of accurately demonstrating HCU. The pivotal consideration in this case was whether the County carried its burden of proving HCU. Like the water court, the Supreme Court concluded it did not. The Court therefore affirmed the water court’s judgment on that basis. View "Cty. of Boulder v. Boulder & Weld Cty. Ditch Co." on Justia Law

The issue this case presented for the Colorado Supreme Court’s review centered on whether a non-attorney trustee of a trust could proceed pro se before the water court. Appellant-trustee J. Tucker appealed the water court’s ruling that as trustee of a trust, he was not permitted to proceed because he was representing the interests of others. He also appealed the court’s order granting appellee Town of Minturn’s application for a finding of reasonable diligence in connection with a conditional water right. Appellant’s pro se issue was one of first impression before the Supreme Court, and the Court held that the water court correctly ruled that as a non-attorney trustee, appellant could not proceed pro se on behalf of the trust. In light of that determination, the Court did not address appellant’s other arguments regarding the sufficiency of the verification. View "Tucker v. Town of Minturn" on Justia Law

St. Jude’s Co. made a direct appeal to the Colorado Supreme Court a water court decision entered in favor of the Roraring Fork Club, LLC. With regard to the Club’s two applications for water rights, the water court granted appropriative rights, 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. Upon review of St. Jude's arguments on appeal, the Supreme Court concluded the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use. Accordingly, the Court reversed the water court with regard to appropriative rights. The Court found no other reversible errors in the water court's decision. The case was remanded for further proceedings, including a determination of the Club's request for appellate attorney fees. View "St. Jude's Co. v. Roaring Fork Club, L.L.C." on Justia Law

At issue in this case were two water court rulings upholding the Special Improvement District No. 1 (“Subdistrict”) of the Rio Grande Water Conservation District’s (“District”) and the State Engineer’s approval of the 2012 Annual Replacement Plan (“ARP”) developed pursuant to the Subdistrict’s decreed Plan of Water Management (“Amended Plan”). In "San Antonio, Los Pinos & Conejos River Acequia Preservation Association v. Special Improvement District No. 1" (“San Antonio”), (270 P.3d 927 (Colo. 2011)), the Supreme Court affirmed the water court’s May 2010 Decree that approved the Subdistrict’s Amended Plan and imposed additional decree conditions on that Plan. The 2012 ARP under review here was the first ARP prepared pursuant to the Subdistrict’s Amended Plan. Water levels in the unconfined aquifer within the Subdistrict declined significantly due to increased groundwater consumption and sustained drought. The Amended Plan required the Subdistrict to prepare, and obtain the State Engineer’s approval of, an ARP that prevented injury to senior water rights. Objectors San Antonio, Los Pinos and Conejos River Acequia Preservation Association Save Our Senior Water Rights, LLC, Richard Ramstetter, and Costilla Ditch Company were senior surface water right holders on the Rio Grande River and its tributaries. They appealed two pretrial rulings as well as a judgment and decree upholding the 2012 ARP. Upon review of the objections, the Supreme Court concluded that the 2012 ARP complied with the Amended Plan and 2010 Decree, and protected against injury. Accordingly, the Court affirmed the water court's pretrial orders, judgment and decree pertaining to the 2012 ARP. View "San Antonio, Los Pinos & Conejos River Acequia Preservation" on Justia Law

After an exchange of Rule 26 disclosures, Anero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation and Frontier Drilling, LLC (collectively, Antero Resources) asked the trial court to enter a modified case management order requiring plaintffs, William and Beth Strudley, to present prima facie evidence that they suffered injuries attributable to the natural gas drilling operations of Antero Resources. The trial court granted the motion and issued a "Lone Pine" order that directed the Strudleys to provide prima facie evidence to support their claims of exposure, injury, and causation before the court would allow full discovery. The trial court determined that the Strudleys failed to present such evidence, and dismissed their case with prejudice. The court of appeals reversed, concluding that, as a matter of first impression, "Lone Pine" orders were not permitted as a matter of Colorado law. Upon review of the matter from an appeal of the court of appeals, the Supreme Court held that Colorado's Rules of Civil Procedure did not allow a trial court to issue a modified case management order (such as a "lone Pine" order) that required a plaintiff to present prima facie evidence in support of a claim before plaintiff could exercise its full rights of discovery under the Colorado Rules. "Although the comments to C.R.C.P. 16 promote active judicial case management, the rule does not provide a trial court with authority to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation." View "Antero Resources v. Strudley" on Justia Law

Pursuant to its statutory authority, the Colorado Water Conservation Board (CWCB), after a notice and comment period and a hearing, voted to appropriate an instream flow right (ISF) on the San Miguel River, and to file a water application for water rights with the water court. Farmers Water Development Company opposed the proposed San Miguel ISF during the notice and comment period, but did not attend the hearing. Farmers also opposed the application at the water court. On cross-motions for a determination of a question of law, the water court was asked to determine whether the CWCB's decision to appropriate an ISF was a quasi-legislative or quasi-judicial decision. Farmers argued that the decision was quasi-judicial, and that the procedures CWCB followed did not meet the dictates of procedural due process. The water court disagreed, concluding the CWCB was acting in a quasi-legislative capacity when it decided to appropriate the San Miguel ISF because, among other things, it was not adjudicating individual rights. The Supreme Court agreed: the CWCB's ISF appropriation was quasi-legislative because it was a policy decision "to preserve the natural environment" on behalf of the people of Colorado, as opposed to an adjudication of the rights of any specific party. View "Colo. Water Conservation Bd. v. Farmers Water Development Co." on Justia Law