McKenna v. Witte, 346 P.3d 35

Three historic Sanchez Ditch water rights (priorities 25, 58, 64) were decreed in 1889; physical diversion infrastructure became dilapidated and the ditch could not divert water without major repairs.
McKenna acquired the ranch and the Sanchez Ditch rights in 1991, developed wells instead of repairing the ditch, and asserted occasional limited use (photos, a maintenance receipt, and testimony of a staged diversion in 2008).
The Division Engineer placed the Sanchez Ditch rights on the 2010 decennial abandonment list; McKenna received mailed notice in July 2010, objected in 2011, and filed a protest in water court after the Revised 2010 List was published.
At the water-court hearing, the State produced decades of diversion records and testimony showing nonuse since at least 1982, creating the statutory 10-year presumption of abandonment.
The water court found McKenna’s evidence (receipt, photos, testimony) unpersuasive and concluded he did not intend to apply the rights to beneficial use; it decreed the rights abandoned.
On appeal McKenna argued (1) the Division Engineer missed the statutory "prepare-by" deadline (July 1) and that failure divested the water court of jurisdiction; and (2) the abandonment decree was erroneous on the facts.

Issue	Plaintiff's Argument (McKenna)	Defendant's Argument (State/Division Engineer)	Held
Whether the statutory July 1 "prepare" deadline for the decennial abandonment list is jurisdictional	Failure to meet the July 1 deadline divests the water court of jurisdiction and requires reversal	The deadline is directional/directory; jurisdiction is properly invoked by protest and notice and delay caused no prejudice	Deadline is not jurisdictional; delay did not divest water court of jurisdiction
Whether sufficient evidence supports finding abandonment of the Sanchez Ditch rights	McKenna used and maintained the ditch (photos, receipt, limited repairs) and did not intend to abandon	Decades of nonuse, dilapidated diversion structure, staged 2008 events, and no meaningful attempts to restore or litigate point of diversion support abandonment	Evidence supports statutory presumption and the water court’s finding of intent to abandon; decree affirmed

S. Ute Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011) (standard of review for water court factual findings and statutory interpretation)
In re Water Rights of Double RL, Co., 54 P.3d 908 (Colo. 2002) (notice requirement and statutory harmonization in water-rights cancellations)
Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo. 2000) (abandonment requires nonuse plus intent; repairs can rebut presumption)
E. Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cnty. Comm'rs, 76 P.3d 918 (Colo. 2003) (presumption of abandonment after 10 years nonuse and burden-shifting)
City & Cnty. of Denver v. Middle Park Water Conservancy Dist., 925 P.2d 283 (Colo. 1996) (administrative role of Division Engineer under the 1969 Act)
CF & I Steel Corp. v. Purgatoire River Water Conservancy Dist., 515 P.2d 456 (Colo. 1973) (insufficiency of speculative intent to retain water rights)