Justia Colorado Supreme Court Opinion Summaries

The issue before the Supreme Court in this matter centered on whether Denver could properly use quantified transmountain lawn irrigation return flows (LIRFs) as a substitute supply of water for its Civil Action (C.A.)3635 exchanges. The Court held that that properly quantified transmountain LIRFs are legally indistinguishable from reusable transmountain effluent and, therefore, the water court correctly determined that Denver could use its properly quantified transmountain LIRFs as substitute supply for the appropriative rights of exchange in C.A. 3635. In addition, the Court affirmed the water court's holding that junior appropriators could not claim injury premised solely upon the proper operation of the C.A. 3635 exchanges. View "Denver v. Englewood" on Justia Law

Cherokee Metropolitan District intervened in a lawsuit to try to minimize the loss of its water rights to some of its wells. In a separate legal malpractice action, Cherokee sued its former attorneys James Felt and James Culichia, and their firm Felt, Monson & Culichia, LLC (collectively "FMC"), alleging that FMC's negligence led to the eventual loss of those water rights. FMC sought to intervene in the water rights action, arguing that intervention was necessary in order to minimize damages it may have suffered in the legal malpractice case. The water court denied FMC's motion to intervene. FMC appealed. The Supreme Court found that despite taking opposite sides in the malpractice action, Cherokee and FMC shared an identical interest in the underlying water rights litigation. Because FMC did not made a compelling showing that Cherokee could not adequately represent the interest that it shared with Cherokee, the Court affirmed the water court's denial of FMC's motion to intervene as of right. Similarly, the Court dismissed FMC's appeal of the water court's denial of FMC's motion for permissive intervention because the water court did not abuse its discretion. View "Cherokee Metro. Dist. v. Felt, Monson & Culichia LLC" on Justia Law

This case was an appeal of a final water court order which voided a rule promulgated by the Office of the State Engineer regarding nontributary ground water extracted in the course of coalbed methane (CBM) production and other oil and gas development. The final rules were challenged by owners of vested water rights and citizen groups whose members owned vested water rights. After extensive briefing by the parties, the water court upheld the Final Rules in their entirety except for the "Fruitland Rule," which it invalidated. The water court held that although H.B. 1303 granted authority to the State Engineer to promulgate the Fruitland Rule, the Tribal Rule essentially divested the State Engineer of that authority. The water court also found that the State Engineer had issued an improper "advisory" rule, and thus could not promulgate the Fruitland Rule unless he first obtained a judicial determination of his authority over nontributary ground water underlying the Reservation. The State Engineer, the Tribe, and several Intervenors appealed the water court's decision. Upon review, the Supreme Court reversed, concluding that the water court erred in invalidating the Fruitland Rule based on the Tribal Rule. The Court concluded the Tribal Rule did not divest the State Engineer of this authority: it stated on its face that the Final Rules themselves do not form the basis of or "establish" the State Engineer's authority to administer the nontributary ground water within Reservation boundaries. Because the Tribal Rule did not divest the State Engineer of his authority, the water court erred in invalidating the Fruitland Rule on that ground. Furthermore, the water court also erred in labeling the Fruitland Rule an "advisory" rule and in requiring the State Engineer to obtain a judicial determination that he had authority to administer nontributary ground water within the boundaries of the Reservation. Accordingly, the Supreme Court reversed the water court’s invalidation of the Fruitland Rule and remanded the case for further proceedings. View "Dick Wolfe v. Pawnee Well Users, Inc." on Justia Law

The issue before the Supreme Court in this case centered on two water rights cases involving Raftopoulos Brothers (Raftopoulos) and Vermillion Ranch Limited Partnership (Vermillion). In Case No. 11SA86, the Court vacated the portions of the water court’s order interpreting the phrase "all other beneficial uses" in a 1974 change decree regarding Raftopoulos’s absolute water rights and whether Raftopoulos had abandoned any right to use the decreed water for commercial or industrial purposes. The Court reversed the portion of the water court’s order decreeing Raftopoulos’s requested new conditional water storage rights to the extent the decree permits the water to be used for industrial and commercial purposes. In Case No. 11SA124, the Court reversed the water court’s order granting Vermillion’s application for a finding of reasonable diligence for previously decreed conditional water storage rights and granting Vermillion’s application for a new conditional water storage right. View "Vermillion Ranch Limited Partnership v. Raftopoulos Brothers" on Justia Law

Respondents Christopher Roinestad and Gerald Fitz-Gerald were overcome by poisonous gases while cleaning a grease clog in a sewer near the Hog's Breath Saloon & Restaurant. The district court concluded that Hog's Breath caused respondents' injuries by dumping substantial amounts of cooking grease into the sewer thereby creating the clog and consequent build up of the gas. On summary judgment, the district court found the saloon liable under theories of negligence and off-premises liability and granted respondents damages. The saloon carried a commercial general liability policy issued by Petitioner Mountain States Mutual Casualty Company which sought a ruling it had no duty to indemnify Hog's Breath. The district court agreed that under the terms of the policy, the insurer had no duty under a pollution exclusion clause. The appellate court reversed the ruling in favor of the insurer, finding the pollution exclusion clause was ambiguous and that its application to cooking grease (a common waste product) could lead to absurd results and negate essential coverage. Upon review, the Supreme Court reversed, finding that the saloon released enough grease to amount to a discharge of a pollutant, and that the insurance policy pollution exclusion clause barred coverage in this case. View "Mountain States Mutual Casualty Company v. Roinestad" on Justia Law

Grand Valley Citizens' Alliance filed a complaint alleging that it was entitled to a hearing on an application for permit to drill pursuant to section 34-60-108(7), C.R.S. (2011), of the Oil and Gas Conservation Act. The district court dismissed the complaint. The court of appeals reversed the district court, holding that under subsection 108(7), Grand Valley Citizens were entitled to a hearing because it had a filed a petition on a matter within the jurisdiction of the Commission. After its review, the Supreme Court reversed the court of appeals judgment, holding that section 34-60-108(7) requires a hearing only for rules, regulations, and orders. Permits are governed by section 34-60-106(1)(f), which grants the Oil and Gas Commission broad authority to promulgate rules governing the permitting process, including the authority to determine who may request a hearing. View "Colorado Oil & Gas Conservation Commission" on Justia Law

With the approval of the Public Utilities Commission (PUC), in 2005 the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as "Comanche 3." When Xcel sought to recover a portion of its construction costs nearly four years later in a rate proceeding, Petitioner Leslie Glustrom intervened. Petitioner sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Petitioner challenged. Petitioner separately challenged the depreciation rate and the possibility that Comanche 3 might not be "used and useful" at the time rates went into effect. The PUC denied her challenges, and the district court affirmed. Upon review, the Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Petitioner's testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. Lastly, the PUC was free to exercise its discretion in departing from a strict application of the "used and useful" principle. Petitioner failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences. View "Glustrom v. Colorado Public Utilities Commission" on Justia Law

The two appeals consolidated for resolution in this case both arose from an attempt by John C. Harrison, acting as personal representative for the estate of Nolan G. Thorsteinson and trustee of The Margie (Dotts) M. Thorsteinson Trust, to avoid an order declaring abandoned a disputed 1.04 c.f.s. interest in the Mexican Ditch. Harrison appealed directly to the Supreme Court adverse rulings of the Water Court in the two cases. With regard to Harrison's Application for a Change of Water Right, the water court granted the Engineers' motion to dismiss at the close of Harrison's case, finding that he was required but failed, to establish the historic use of the right as 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. Upon review, the Supreme Court concluded that because 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 because denying a change of water right for failing to prove the historic use of the right did not amount to an unconstitutional taking of property, the water court's dismissal of Harrison's application was affirmed. But because, Harrison did not stipulate to an order of abandonment as the consequence of failing to succeed in his change application, only as the consequence of failing to timely file an application reflecting historic use, the water court's order granting the Engineers' motion for abandonment was reversed. View "Thorsteinson v. Simpson" on Justia Law

Plaintiff Jesse Reynolds and the owners of several other ditches that divert water from La Jara Creek appealed an order of the Water Court that denied their claim for declaratory relief. Plaintiffs sought a declaration that their appropriative rights to 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 the State and Division Engineers (as well as other defendants) on the grounds that substantially the same issue had been litigated and decided against Plaintiffs in a prior declaratory action. The court concluded that all of the water rights of the parties in La Jara Creek were not only at issue, but were finally determined in that prior litigation, and therefore Plaintiffs’ claims were precluded. Upon review, the Supreme Court concluded that Plaintiffs' claims had not been determined in the prior litigation (either expressly or by implication), and that the grant of summary judgment was inappropriate. The Court reversed the water court's judgment and remanded the case for further proceedings. View "Reynolds v. Cotten" on Justia Law

This appeal came from a judgment and decree of the water court and the Alamosa County District Court in two consolidated cases. The combination of the two involved an amended plan for water management adopted by Special Improvement District No. 1 of the Rio Grande Water Conservation District (Subdistrict). Several parties objected to the approval of the Subdistrict's plan for ground water management. After two trials, the trial court determined the Plan to be "conceptually compatible" with the legal requirements of ground water management plans and the intent of the legislature in enacting SB 04-222. Among a series of findings, it found that (1) the Plan properly sought to stabilize the storage level of the unconfined aquifer at a "sustainable" level; and (2) the strategies proposed to meet that goal were reasonable and supported by the evidence. However, the trial court sent the Plan back to the Subdistrict board of managers and District board of directors for "further consideration and amendment because it lack[ed] detail, grant[ed] discretion with no guidance, fail[ed] to acknowledge the replacement of injurious depletions as a priority, and simply is not a 'comprehensive and detailed plan'" as required by statute. Upon review, the Supreme Court found that the Plan as approved and decreed, adequately addressed 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. "The Subdistrict bears the burden of going forward and 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." The Court affirmed the water court and Alamosa County District Court's decisions. View "In re Subdistrict No. 1" on Justia Law