John C. Peterson v. Ground Water Commission of the State of Colorado; C. J. Kuiper, Colorado State Engineer and Executive Director of the Ground Water Commission of the State of Colorado
No. 27746
Supreme Court of Colorado
June 5, 1978
Rehearing denied June 19, 1978
(579 P.2d 629)
Therefore, even if the representation of multiple clients before grand juries were a matter for legislative control, and even if grand juries were administrative agencies to which legislative power could appropriately be delegated, the delegation effected by section 16-5-204(4)(d) would still be a blatant violation of well-established constitutional principles governing delegation of legislative powers. Elizondo v. State, supra.
I am authorized to state that MR. JUSTICE GROVES joins in this dissent.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy, Edward G. Donovan, Solicitor General, Gregory J. Hobbs, Jr., First Assistant, Natural Resources Section, Loren L. Swick, Special Assistant, Natural Resources Section, John C. Ohrenschall, Assistant, Natural Resources Section, for defendants-appellees.
MR. JUSTICE ERICKSON delivered the opinion of the Court.
On November 25, 1975, John C. Peterson (plaintiff) filed an application with the Colorado Ground Water Commission (commission) seeking a permit to construct a well and to appropriate designated ground water from the Northern High Plains Designated Ground Water Basin in Yuma County. The commission considered the application under its three-mile test to determine whether unappropriated water was available. The application was denied on the grounds that the plaintiff‘s three-mile circle was over-appropriated and that the proposed well would unreasonably impair existing water rights. The district court sustained the commission‘s denial after a trial de novo held pursuant to statute.
On appeal, three questions must be addressed: First, did the trial court err in refusing to enter a default judgment against irrigators who were personally served but failed to appear? Secondly, may the commission assume, for the purpose of evaluating applications, that the full amount of water claimed under conditional permits has been validly appropriated? And, finally, was the trial court‘s judgment supported by sufficient evidence?
I.
The plaintiff personally served notice of his appeal upon all irrigators within his three-mile circle. Only a few of the irrigators responded with an answer or appeared at trial. The plaintiff sought a default judgment against the non-appearing irrigators on the theory that the irrigators were the real parties in interest. The trial court denied the plaintiff‘s motion.
The rights of existing appropriators are clearly implicated in any decision to issue a conditional permit to appropriate designated ground water. The Act, therefore, requires that an applicant cause his application to be published and permits prior appropriators to file objections to the proposed appropriation.
Notwithstanding the statutory requirement that “all parties interested” be served if an appeal is taken, a default judgment cannot be entered in favor of the applicant if the irrigators fail to answer. Prior appropriators are entitled to protection against unreasonable impairment of their rights under the Act, regardless of their decision to make an objection or not. If no objections are filed, the applicant cannot receive a permit on the theory that existing appropriators have concluded that their rights would not be injured by the proposed appropriation. Irrigators are entitled to rely upon the commission‘s fulfillment of its duty to determine, even in the absence of an objection, whether the proposed well will unreasonably impair existing rights.
II.
We accepted the plaintiff‘s argument in Thompson v. Colorado Ground Water Commission, 194 Colo. 489, 575 P.2d 372 (1978), and held that water claimed under conditional permits cannot be considered as “existing claims” to the detriment of new applications if not perfected by beneficial use or unless the conditional permit is being perfected in the statutory process. The commission‘s contention that the priority lists prepared pursuant to
Our decision in Thompson, however, was “not intended to affect valid water rights which are presently represented by conditional permits.” In that case, we declared:
“The ‘quantity of existing claims’ which must be considered by the commission is the sum of all water rights which have been appropriated and
those water rights which are in the process of being appropriated under conditional permits. The legislative intent evidenced in the Colorado Ground Water Management Act is that the issuance of final permits, which requires proof and verification of the extent of beneficial use, would serve a function equivalent to the final surface decree and establish senior rights. But to compute the ‘quantity of existing claims’ only on the basis of rights represented by final permits would ignore the right that holders of conditional permits have to perfect their appropriations to the full extent of their conditional permits. These rights in the process of being appropriated, therefore, must be considered by the commission in their calculation of the ‘quantity of existing claims.‘”
A conditional permit does not entitle its holder to apply only a portion of the water available under the permit to beneficial use and retain the ability to later expand his use to the full extent originally allowed. The Act requires that the holder of a conditional permit place the water to beneficial use within a time period certain.
The legislature intended that an appropriator within the context of designated ground water would submit proof of well completion and of beneficial use and receive a final permit to the extent of his beneficial use within one year.
Only “valid rights which are presently represented by conditional permits” and claims in the process of being appropriated may be considered in determining the “quantity of existing claims.” The commission‘s policy of considering conditional permits as if they were valid rights, regardless of beneficial use, may overstate the extent of existing appropriations and result in the denial of an application which should be granted and is, therefore, disapproved. Thompson v. Colorado Ground Water Commission, supra.
III.
The commission determines whether to issue a conditional permit by comparing the amount of water available for appropriation within an applicant‘s circle with the level of existing appropriation. If the proposed well will cause the total amount of water within the circle to be depleted more than forty percent within twenty-five years, the permit is denied. Unfortunately, the evaluation process is not as simple as might be supposed. Expert testimony introduced at trial by both the plaintiff and the commission establishes that the inquiry is quite complex and involves numerous factors. The legislature recognized the difficult factual questions involved in the designated ground water context and, therefore, required the commission to consider:
“[T]he area and geologic conditions, the average annual yield and recharge rate of the appropriate water supply, the priority and quantity of existing claims of all persons to use the water, the proposed method of use, and all other matters appropriate to such questions.”
The evidence in this case consisted primarily of testimony concerning well hydrographs. A well hydrograph reflects the actual change in water level of an observation well as determined from data compiled by the United States Geological Survey. The well data for several years is charted to produce a graph commonly referred to as a hydrograph. All expert witnesses agreed at the trial that hydrographs provide the best indication of what is actually occurring in a particular area of the aquifer.
The plaintiff introduced into evidence eight hydrographs of wells within a four-mile circle of the plaintiff‘s proposed well. Four of the eight wells were within the plaintiff‘s three-mile circle. A composite hydrograph of the eight wells, which approximated the hydrograph of the observation well nearest the plaintiff‘s proposed well, reflected the approximate decline in water level in the area of the proposed well from 1968 to 1977.
The first factor determined by the commission in applying the three-mile test is the average saturated thickness of the three-mile circle. The
The commission‘s experts disagreed with the conclusion of the plaintiff‘s expert concerning the predictions based upon the composite hydrograph. They testified that the previous ten years’ experience was not a true indication of the present or future rate of decline. It was their contention that the rate of decline would accelerate and cause the predictive hydrograph to slope downward to reflect an increase in the depletion rate with the passage of time. The projected hydrograph, therefore, would not be a straight line, but would be a curved line which would intersect the forty percent depletion line within the relevant twenty-five year-period.
Several reasons were given by the commission‘s experts to justify their assertion that the rate of decline in the water level would accelerate. First, the number of wells has increased since 1968. As a result, the greater number of wells will cause a greater decline than experienced in earlier years. Secondly, the extent of use may increase depending upon the type of crop cultivated. Thirdly, less water is contained at increased depths of the aquifer because of greater cementation. And, finally, changes in precipitation patterns may result in a decreased rate of recharge.
The plaintiff‘s expert expressed a contrary opinion concerning the future rate of decline. His testimony was that the decrease in the water level would not accelerate because the better, coarser materials are contained in the lower portions of the aquifer, and the actual quantity of water used would decrease as more irrigators shift from flood irrigation to sprinkler systems.
The commission introduced a series of twenty-eight hydrographs of wells located in Kit Carson County which reflected twelve years of experience with the Ogallala formation. The hydrographs indicated that the rate of depletion had accelerated substantially between 1973 and 1976. While the hydrograph evidence was not conclusive as to future experience to be expected in Kit Carson County, not to mention the plaintiff‘s circle in Yuma County, the evidence was properly admitted and was relevent. Since the Ogallala formation is an inter-connected, water-bearing formation, evidence of water conditions beyond the applicant‘s three-mile
The trial court, as the trier of fact, found that unappropriated water did not exist and that the applicant‘s proposed appropriation would unreasonably impair existing rights in the plaintiff‘s circle. In Adler v. Adler, 167 Colo. 145, 445 P.2d 906 (1968), we reviewed the standard of appellate review of a trial court‘s findings and said:
“We have repeatedly held that in such circumstances the finding of the trial court, if supported by the evidence, will not be disturbed by this Court even though we might have reached a different conclusion had we been the trier of the facts. Moreover, it is also our duty in such cases to search the record for evidence most favorable to the judgment of the trial court.”
The sufficiency, probative effect, and weight of the evidence, and the inferences and conclusions to be drawn therefrom, will not be disturbed unless so clearly erroneous as to find no support in the record. Dominion Insurance Company Limited v. Hart, 178 Colo. 451, 498 P.2d 1138 (1972).
Viewing the evidence in the light most favorable to the trial court‘s judgment, we find that sufficient evidence exists in the record to support the trial court‘s conclusion that unappropriated water does not exist. Although the commission and the trial court erred in considering conditional permits as though they represented valid rights, regardless of beneficial use, the trial court‘s findings of fact reflect that the court was satisfied that, at present rates of use, forty percent of the designated ground water within the plaintiff‘s circle would be depleted within twenty-five years. Therefore, the error which occurred did not constitute reversible error.
Accordingly, the judgment is affirmed.
MR. JUSTICE GROVES specially concurring.
MR. JUSTICE GROVES specially concurring:
I concur completely in this opinion except for the reservation that I made when I concurred in the result of Thompson v. Colorado Ground Water Commission, 194 Colo. 489, 575 P.2d 372 (1978).