Concerning the Protest of McKenna and McKenna Ranch to the Revised Abandonment List of Water Rights in Water Division No. 2: McKenna v. Witte, Div. Engineer for Water Div. 2
2015 CO 23
Colo.2015Background
- Three 1889 Sanchez Ditch water rights (priorities 25, 53, 64) were decreed for irrigation on the Cucharas River; ditch and diversion structures deteriorated and were unusable for decades.
- Tom McKenna acquired the ranch and those rights in 1991, developed wells for stock water, and claimed intermittent use of the Sanchez Ditch (including a staged 2003 diversion).
- The Division Engineer included the Sanchez Ditch rights on the 2010 decennial abandonment list (notice mailed July 28, 2010); McKenna protested and the Engineer placed the rights on the Revised 2010 Abandonment List.
- Water court found >10 years nonuse, found McKenna failed to rebut the presumption of intent to abandon, discounted the evidence of staged diversion, and decreed the rights abandoned.
- McKenna appealed, arguing (1) the Division Engineer missed the statutory July 1 preparation deadline, divesting the water court of jurisdiction, and (2) insufficient evidence supported abandonment.
Issues
| Issue | Plaintiff's Argument (McKenna) | Defendant's Argument (Witte/State) | Held |
|---|---|---|---|
| Whether the §37-92-401(1)(a) deadline to "prepare" the decennial abandonment list is jurisdictional | Missed July 1 deadline (list dated July 7, 2010) renders proceedings void for lack of subject-matter jurisdiction | Deadline is procedural/directional; McKenna received notice and was not prejudiced, so water court retained jurisdiction | Deadline is directory, not jurisdictional; failure to meet date did not divest water court of jurisdiction |
| Whether sufficient evidence supported a finding of abandonment (intent + nonuse) | McKenna asserted he used/maintained the ditch and never intended to abandon rights; submitted receipt, notes, photos | State presented decades of nonuse, official diversion records, expert and commissioner testimony showing structure unusable; photos/receipt were staged or not credible | Affirmed: evidence supported presumption of abandonment and McKenna failed to rebut intent-to-abandon presumption |
Key Cases Cited
- S. Ute Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011) (standards for reviewing water court legal conclusions and factual findings)
- Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo. 2000) (repairs/diligent acts as evidence to rebut abandonment presumption)
- E. Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cnty. Comm'rs, 76 P.3d 918 (Colo. 2003) (burden-shifting and evidence needed to rebut ten-year nonuse presumption)
- In re Water Rights of Double RL, Co., 54 P.3d 908 (Colo. 2002) (statutory notice requirement and effect on deadline-related relief)
- Danielson v. Castle Meadows, Inc., 791 P.2d 1106 (Colo. 1990) (statutory "shall" not always jurisdictional; legislative intent controls)
- DiMarco v. Dep’t of Revenue, 857 P.2d 1349 (Colo. App. 1993) (time limits for agency action are presumptively directory absent contrary intent)
- CF & I Steel Corp. v. Purgatoire River Water Conservancy Dist., 515 P.2d 456 (Colo. 1973) (mere desire to retain a right without intent to use is insufficient to prevent abandonment)