Cherokee Metropolitan District v. Upper Black Squirrel Creek Designated Ground Water Management District
247 P.3d 567
| Colo. | 2011Background
- Cherokee and UBS entered a Stipulation and Release resolving issues about Cherokee's groundwater rights in the Upper Black Squirrel Creek Basin, incorporated into a 1999 stipulative decree.
- Paragraph 10.f of the decree required Cherokee to file to perfect its conditional rights within two years after the first diversion; no explicit remedy stated for late filing.
- Cherokee filed to make absolute portions of wells 14-16 late and sought a sexennial diligence finding for wells 14-17; opponents moved to dismiss and sought abandonment of wells 14-17.
- Water court granted dismissal of Cherokee’s application to make absolute for wells 14-17 and found abandonment of those portions; attorney-fee request followed.
- This Court held that the stipulated decree contemplated abandonment as the remedy for failure to timely file under Paragraph 10.f, thus only the untimely portions were abandoned.
- A dissent disputed abandonment as the remedy, arguing the stipulation silence did not justify loss of substantial statutory rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the remedy for untimely 10.f filing? | Cherokee contends remedies are contract-like; abandonment should not follow silently. | Objectors and water court argue abandonment is the intended remedy under 10.f. | Abandonment is the remedy for untimely 10.f filing. |
| Does abandonment apply to all wells 14-17 or only the untimely portions? | Cherokee argues for partial abandonment rules; seeks diligence on remaining portions. | Objectors seek abandonment of the entire set of rights if untimely. | Abandonment applies only to the portions untimely filed to perfect. |
| Was the water court required to give notice or follow Act procedures before abandonment? | Cherokee asserts statutory notice requirements apply to abandonment. | Statutory notice not required due to the decree’s standalone 10.f provision. | Statutory notice did not apply under Paragraph 10.f; no required prior notice. |
| Should attorney fees have been awarded to opponents for the dismissal? | Cherokee asserts lack of substantial justification for the contract-like theory. | Objectors claim fees under § 13-17-102(4) due to lack of substantial justification. | Attorney-fee award reversed; action not substantially frivolous or vexatious. |
Key Cases Cited
- Sweetwater Development Corp. v. Schubert Ranches, Inc., 188 Colo. 379 (Colo. 1975) (continued jurisdiction over conditional water rights in designated basins)
- Mun. Subdist., N. Colo. Water Conservancy Dist. v. Getty Oil Exploration Co., 997 P.2d 557 (Colo. 2000) (no fixed maximum filing deadline outside six-year diligence)
- Double RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002) (notice before cancellation of conditional rights discussed)
- Purgatoire River Water Conservancy Dist. v. Witte, 859 P.2d 825 (Colo. 1993) (statutory filing consequences and consequences of noncompliance)
- Talco Ltd. v. Danielson, 769 P.2d 468 (Colo. 1989) (forfeiture for failure to pursue conditional rights)
- Cherokee Metropolitan Dist. v. Simpson (Cherokee I), 148 P.3d 142 (Colo. 2006) (contract-like interpretation of stipulations; impact on water rights)
- City of Golden v. Simpson, 83 P.3d 87 (Colo. 2004) (interpretation of stipulations and contract principles in water matters)
- USI Props. E., Inc. v. Simpson, 938 P.2d 168 (Colo. 1997) (decrees as controlling instruments in water administration)
- Kempter v. Hurd, 713 P.2d 1274 (Colo. 1986) (stipulations may waive rights if not against public policy)
- Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001) (importance of water court decrees in administration)