Gallegos Family Properties, LLC v. Colorado Groundwater Commission
2017 CO 73
| Colo. | 2017Background
- Gallegos, owner of senior 1914 Larson surface-water rights on Crow Creek, sought to de-designate a portion of the Upper Crow Creek Designated Ground Water Basin to exclude 25 wells so the State Engineer could curtail those junior groundwater users.
- The Basin was designated in 1987 after a viability study (Kirkham Report); designation presumes groundwater in the Basin has no more than a de minimis impact on surface streams.
- This Court’s earlier decision in Gallegos v. Colorado Ground Water Commission (2006) held Gallegos could seek de-designation but was precluded from relitigating matters that were before the 1987 Commission; any impact showing must rely on evidence not before the 1987 Commission.
- On remand Gallegos presented new expert work (test wells, observations of gaining reaches at the Larson headgate, reinterpretation of Plate 2) attempting to show connectivity and depletion sufficient to justify de-designation under § 37-90-106(1)(a).
- The designated groundwater court (and the Commission earlier) found Gallegos failed to produce evidence that was both new (i.e., not before the 1987 Commission) and sufficient to prove connectivity/new future conditions; court denied de-designation and awarded the Well Owners $44,746.92 in costs for litigation expenses, primarily expert fees.
- The Supreme Court affirmed: Gallegos failed the new-evidence/connectivity requirement; the court also upheld the Rule 54(d) cost award as reasonable and necessary and held the Well Owners were prevailing parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 37-90-106(1)(a) de-designation met where Gallegos claims new evidence of connectivity | Gallegos: evidence (test wells, observations, reinterpretation of Plate 2) shows aquifer neck and gaining stream at Larson headgate; thus new evidence justifies boundary alteration | Well Owners/Commission: the alleged connectivity was known or available to 1987 Commission (Kirkham Report/Plate 2); Gallegos is precluded from relitigating those matters | Held: Affirms denial — Gallegos failed to present evidence that was new to the 1987 Commission showing connectivity/future conditions required de-designation |
| Whether Gallegos proved injury (stream depletion) sufficient to justify de-designation | Gallegos: updated measurements and models show depletion and reduced surface flows injuring Larson rights | Well Owners: Gallegos’s methodology and modeling flawed; pumping in Colorado decreased since designation; no reliable streamflow quantification | Held: Court need not reach injury because connectivity showing failed; in any event designated court found injury proof inadequate and credited Well Owners’ expert |
| Whether Well Owners (non-named initially) are prevailing parties eligible for costs under C.R.C.P. 54(d) | Gallegos: Commission was the named defendant; Well Owners voluntarily participated so their costs are not necessarily taxable; experts were redundant to Commission experts | Well Owners: they were indispensable parties with direct stakes; they prevailed on maintaining Basin boundaries and incurred reasonable, necessary costs | Held: Affirms award — Well Owners were prevailing parties; costs under Rule 54(d) permissible |
| Whether specific cost awards (expert fees, deposition attendance, discovery allocation) were proper | Gallegos: fees excessive (claimed mismatch of hours), attendance/deposition costs unnecessary, Rule 26(b)(4)(C) shifts deposition expert fees to propounding party so they cannot be taxed under Rule 54(d) | Well Owners: fees supported by affidavits; expert attendance and deposition costs were necessary; Rule 26 does not bar later taxation under Rule 54(d) where not specifically prohibitory | Held: Affirms award — court did not abuse discretion; expert hours and rates supported; deposition attendance and discovery-related expert fees were reasonable/necessary and taxable under Rule 54(d) |
Key Cases Cited
- Gallegos v. Colo. Ground Water Comm'n, 147 P.3d 20 (Colo. 2006) (preclusion limits new evidence available to challenge a basin designation; must show impact by evidence not before original commission)
- Colo. Ground Water Comm'n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003) (distinguishing tributary versus designated groundwater; connectivity implicates impact on surface flows)
- Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998) (designated groundwater is managed under the Groundwater Management Act and presumed to have no more than a de minimis impact on surface streams)
- Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994) (framework for calculating reasonable expert witness fees: hours reasonably expended times reasonable rate)
- Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805 (Colo. 1993) (expert costs and transcript preparation may be necessary litigation expenses taxable under Rule 54(d))