*1 Colorado, DEPARTMENT OF STATE RESOURCES, DIVISION
NATURAL RESOURCES, STATE EN
OF WATER
GINEER, al., Appellants and et Cross-
Appellees, WATER
SOUTHWESTERN COLORADO DISTRICT, al., et
CONSERVATION
Appellees Cross-Appellants, Conservancy
Northern Colorado
District, al., Appellees. et
No. 79SA38. Colorado, Court of
Supreme
En Banc.
July 1983.
As Denial Rehearings Modified on
Nov. *2 MacFarlane, Atty. Gen.,
J.D. Richard F. Gen., Atty. Mary J. Hennessey, Deputy Gen., Montgom- Dennis M. Mullarkey, Sol. Paddock, Gen., ery, A. Asst. Attys. William Denver, cross-appellee appellant Colo., Resources, Natural Dept, State Resources, Engineer. Div. of Water State Williamson, Howard, Stephen Judy T. S. Louisville, cross-appel- appellants Associates, Asso- Bluepond Stonybrook lees Trust, Trust, ciates, Wet Rock Taskmaster Associates, Enterprises, Dexter Trout Creek Associates, Enterprises, Tabernash Amity P.C., Honaker, Longmont, for Jimmie Joe Associates, Asso- New Aries New Colorado Elk Mead- cross-appellee Big Ventures, appellant Ven- ciates, Markline Consumer Ventures, As- ows Ass’n. tures, Paradox Mesa Trident Ventures, En- Kadota sociates, Elk Creek P.C., Dickson, Saunders, Ross & Snyder, Associates, Starglaze East Park terprises, Denver, appellants Saunders, Glenn G. Associates, Harlan- Pinerose Enterprises, *3 Johnston, Jr., AZL Bob cross-appellees and Bismuth Associates. Irrigation Resources, Inc., Bessemer Dist., Co., Cimarron Water Ditch Cherokee Brown, F. Welborn, & Robert Dufford Co., Fountain, Cattle Coppa City of Corp., Denver, Robb, ap- Welborn, for William C. Co., Coors Adolph Development Sweetwater I CF & Steel and pellants cross-appellees Allabashi, Medical Co., American Carolyn Co., Open Circle Trujillo Creek Cattle Corp., Bear Center, County Airport, Arapahoe N Ranch. Co., Brannan and Sand Development Creek Harring, Calkins, Kramer, & Grimshaw Burns, Cherry Hills Coun- Gravel, Daniel F. Denver, Schroeder, appellants for B. Wayne Farms, Lester A. Club, Turf Denver try Aztec, Pacific cross-appellees and Colorado Hansen, Dixon, Dixon, Dixon Bruce Joann Energy. Colorado Pacific & Valley Water Sanitation Cherry East Hewlett-Packard, John Dist., Guy, Alfreda Owen, Kenneth J. Holme Roberts & Loveland, Co., Loveland City of Madden Kulasza, B. Burke, M. Steven Kathleen Co., Louko- Leonard Ready Mix Concrete Denver, and Richardson, appellant for Loukonen, Lyons, W. nen, Town Reino Group. Nedlog Technology cross-appellee Co,, Mellema, Pen- Orr Construction Everet Woodruff, Moses, Harrison & Wittemyer, Homeowners, Por- ta, Inc., Pine Area Perry Harrison, P.C., Moses, David L. Raphael J. Medical Presbyterian Hosp., ter Memorial Beaton, J. Montgomery, Timothy James R. Inc., Farms, Smoky Center, Turf Richlawn Boulder, cross-appellees appellants for and Co., Land Cherry Creek Hills Land South Arvada, Trust, Amax, Inc., Banker’s City Stonehocker, Medical Co., Swedish Walter Boulder, Elec. Associ- Colorado-Ute City of Thomas, Water Center, Willows B. Joseph ation, Inc., Denver Southeast Suburban Rockies, Woodside, Ltd., Dist., YMCA Park, Dist., Douglas Water and Sanitation Jr., Proper- Young, T. Southwest Edward Ltd., Heights, of Federal Genessee City Moun- ties, Copper and Copper Mountain Dist., Ditch Highland and Water Sanitation Dist., Mile Nine tain Water & Sanitation Dist., Co., and Inverness Water Sanitation Stone, Jaffe, Dean A. David Ranch, Peter Co., Lindner, Mis- D. Marathon Oil Robert Thompson. L. Co., Water County Adams Viejo sion South Walker, Williams, Michael L. D. Wayne West, Inc., Dist., Golf Host and Sanitation Denver, McGee, Anne R. Teigen, Henry C. Dist., and Sanitation Thunderbird Water and City cross-appellee appellant for North, Trinidad, Union City of Trailwood (Board of Water Com- Denver County of Oil Co. missioners). Carlson, Hart, Charles Holland John U. & Miller, M. Stutz, Steven Hannon, Dyer & Jr., H. Elliott, John Ferguson, A.B. M. and cross- Hannon, Denver, appellants for cross-ap- Land, Denver, for appellants Wheatridge, Town appellees City Atlantic Corp., Rib Ranch pellees Adams Breckenridge. Inc., Co., Properties, Blackland Richfield Re- Natural Justice Land & Dept, Inc., Oil Chevron U.S.A. Chevron Shale Gelin, Hill, B. Div., Jacques R. John sources Falck, Metropolitan J. Rathbone Goldsmith and cross- D.C., appellant Washington, Co., Inc., Dist., Nu- Knapp, Koppers Robert of America. appellee United States Ott, Jr., H. Development Corp., Roy West appel- Greeley, for Ass’n, Carpenter, Donald A. Rio Water Users Stearns- Grande Oil, Paradise Club, cross-appellee lant and City Roger Corp., Valley Country Inc. Development, and Land Westminster. Corp., Frank E.
Maynes, Shipps, velopment Royal Bradford & Farms, Crest Jersey Duncan, Durango, appel- Inc., College, Sara Wheaton Maynes, Keystone, a div. of cross-appellant Colo- lee Southwestern Co., a corp., The Ralston-Purina Missouri Water Conservation Dist. rado Co., a Jersey New Zinc div. of GW Natural Group, Lazy Ranch, Resources EH Lincoln Woods, Beise, & Kev- Fairfield Charles J. Dist., Estates, Metropolitan Park West LPE Pratt, Denver, Holme, in B. Howard Inc., Board of the Annuity Baptist Southern cross-appellant appellee Southeastern Convention, Property Lincoln Co. Conservancy Colorado Water Dist. P.C., Balcomb, Balcomb, & Delaney Scott O’Donnell, & J. Kelly, Timothy Stansfield Prescott, Springs, H. Glenwood Pamela Denver, Flanagan, for Public Service Co. Riv- appellees cross-appellants Schmidt, Dist., er Water Conservation Glen Moreland, Boulder, Robert F. for Vidler Schmidt, Schmidt, Jo Benton Betty Jack E. Co. Tunnel Water *4 Co., Hastings Land Livestock Merrill Holme, Owen, & E. Por- Roberts Glenn Co., Wurtsmith, Ben Creek Stone zak, Denver, Terracor. for Vail, Ltd., Eagle-Vail Mountain Grouse McMartin, Burke, Dist., Fitzgerald, Loser & Metropolitan at Beaver Benchmark Creek, P.C., Dist., Phillips, Englewood, C. for Metropolitan Avon Fred Herbert Green, Co., Metropolitan June Creek Ranch Crested South Recreation Suburban Dist., Water and Leonard Butte Sanitation and Park Dist.
Horn. Geddes, Paxton, MacDougall, Geddes & P.C., M.E. MacDougall, Springs, Colorado Hamburg, Springs,
Donald H. Glenwood Lassman, Rock, Bruce B. Castle for Town River Water for Colorado Conservation of Castle Rock. Dist. Geddes, Paxton, Lawrence, MacDougall, & R. Law- Geddes
Steinmark Kim & rence, Greeley, P.C., appellee for M.E. cross-appel- MacDougall, Springs, Colorado High Sons, lant Plains Water Users Ass’n. for F.B. Rooke & Chess-Shoemaker Ranches, Inc., Frank, J. Dilley, Hazel J. Davis, Stubbs, Sayre, Graham & M. John Dilley W. Arthur and Laurin Dilley, d/b/a Trout, Denver, V. appellees Robert for Co., A.W. John E. and M. Dilley & Mable Northern Conservancy Colorado Water Like, Wilson, Jim and Ann C. Roy and Dist., Subdistrict, Municipal Northern Colo- Canterbury. Beneta Dist., Water Conservancy rado E.I. duPont Shenk, Jr., & Goluba, Goluba W. Nicholas Co., Co., Ensign & DeNemours Bickford J. Springs, Glenwood for Golden Bair. Develop- Water Colorado Protective and Ass’n, Purgatoire ment River Con- Cope, Water Musick Joseph Boulder, <& Cope, A. Dist., servancy Oxley. John T. for City Northglenn, of Colo. Williams, Holmes, Turner Lettunich, & Mattlage, Anthony Maus & Karl P. W. Williams, Junction, Grand Mattlage, Vanderbloemen, for George John A. R. Steam- Webster, Elizabeth M. Webster. Springs, Routt, for of appellees County boat Jr., Cope Musick, John D. Musick & Boul- Colo. der, Colo., of Aspen, for Board City Fischer, Brown, Gunn, & Huddleson Pitkin, County Comm’rs County Fischer, H. Ward Fort Col- Steven B. Ray, Colo. lins, for appellees County Water Jackson Wadleigh, Junta, N. La Ralph for The Dist., Conservancy La Water Cache Poudre Co., Irrigating Holbrook Mut. The Las Ani- Assoc., Collins, Colo., City Users Fort mas Consol. Co. Canal Yampa Dist., Upper Conservancy Water Assoc., Thompson River Murr, Water Users Walsenburg, K. for Floyd Town Brighton, Colo. City LaVeta, Colo. Howard, Greer, & Gary Woodruff,
Sherman L. Wen- Moses, Wittemyer, Harrison & Busch, Denver, for dy King, J. James M. P.C., Moses, Boulder, William Raphael J. for appellees Elysian Coventry c/o De- Corp., P. McKinnel. County for McClung, Fairplay, Stovall, Eads, Marshall County for
Robert G. Kiowa, Park, Colo. Colo. P.C., Hamano, Rexford L. Mitchell & Akolt, Dick, A. Akolt, Dick & Robert Ford,
Mitchell, Avondale Water Rocky for Denver, Akolt, Farmers John P. III Dist., Mesa Water Charles St. & Sanitation Irrigation & Co. Reservoir Assoc., Sanitation City Water & Colorado Lamar, Amity Shinn, Mutual Carl M. Metropolitan City, Dist. a/k/a Canals Co., Irrigation District 67 Irrigation Dist., Dist., & Creek Water Sanitation Salt Assoc. Dist., Metropolitan Greenhorn West Pueblo Association, Inc., Arkansas Mountain Water Aron, Jr., for Town of Greeley, J. Thomas Valley Lower Arkansas Valley Ditch Ass’n Fairplay, Governments, County Board of Council of Robbins, Friedman, Rob- David W. Hill & Otero, County Commissioners of Denver, (W.O. bins, Wells for Water Our Ford, Colo., Colo., Rocky Town City W.). Colo., Cheraw, Valley Water West Grand Co., Co., Valley Water Water South Swink Montrose, Way- Mathis, M. Stephen Co., Co., Fort Water Eureka Water Bent’s Phillips. land Co., Co., Valley Hilltop Water Patterson Banta, P.C., Paul Banta, Hoyt, Malone & Co., Co., Water West Hol- Water East End Linton, Creek Englewood, Cherry A. Ass’n, Co., Fayette brook Water Dist. School # Co., Beehive Water South Side Water *5 Co., Co., Schlegel Riverside Water Water Bohlender, Greeley, City for E. William Co., Valley Hancock Water Newdale-Grand City & Bd. Greeley, Water Sewer Co., Co., Water Tucker Water Vroman Greeley. Colo., Farms, Swink, Town of Town of J. Owen, Kenneth Holme Roberts & Manzanola, Colo., Center Water Holbrook Alkire, Burke, G. Michael F. Marilyn Co., Ass’n., Grazing Pipeline Timberlake Denver, Re- for Western Water Browning, Feedlots, Co., Wilhelm Inc. Techtrack, Leaf sources, New Phillips Berkowitz, Denver, Lutz, for Lutz J.E. & Anderson, Brush H. Nursery, Catherine Isbill, L. H.G. Eleanor Isbill. Eagle River Co. Creek and Dufford, & D.J. Duf- Waldeck Williams Kramer, Calkins, Harring, & Grimshaw Junction, ford, Williams, I. Grand Robert Gallogly, Schroeder, L. Wayne B. James Scott, Junction, City Marie for of Grand Denver, Water & Sanitation Arapahoe for Scudder, Lorraine Charles Eliza- Harney, Dist., Dist., Water & Sanitation Bancroft Difani, Scudder, Holly beth A. Scudder Ltd., Box Elder Water & Bellview Green Scudder, Miller, Carolyn Jean B. Richard Dist., Metropolitan Pines Castle Sanitation Scudder. Dist., Dist., Plaza Water Silver Greenwood George McClary, A. Donald F. Epperson, Dist., Pine & Heights Water Sanitation Zorn, Douglas Vannoy, R. Fort Edward L. Farm, Homes Land Country Tree Meadow Co., Morgan, Bijou Irrigation Bijou Irri- for Co., Lake Water & Sanitation Columbine Co., Dist., Irrigation gation Riverside River- Dist., Dist., Du- Vail Intermountain Water Dist., Co., Ft. Irrigation side Jackson Lake Water & Sani- rango Corp., Purgatory Ski Co., Morgan Irrigation Reservoir and Wel- Co., Dist., Spady Ft. Canal Lyon tation Co., Snyder don Ditch Deuel and Valley Bros., Ranch Canyon River Co. Co., Co., Snyder-Smith Ditch Johnson- Ditch Co., Co., Ditch Lower Edwards Tremont Bell, Patterson, Anthony Gary & Criswell Co., Mutual Platte and Beaver Ditch Union Co., Inv. Titan Road I Land Englewood, for Co., Ditch Tetsel Ditch Co. Hurst, Hurst, Primm F. Sheila K. Harold Safranek, Rossi, Frank Safra- Owen, Olga J. Holme Roberts & Kenneth Donald Safranek, Safranek, nek, Alan Burke, Denver, J. Browning, Michael'F. for Robert Brush Rosann Safranek. Eagle Creek and River Co. Williamson, Cope Stephen
Musick & T. Aurora, Robert L. Tibbals Horn, Ander- Boulder, for Development Johnson, Buffalo Park Co. son & Johnson, Louis Springs, City for of Colorado Springs, City Gorsuch, Kirgis, Campbell, Walker & Gro- of Aurora. ver, Crouch, Keith M. Berge, Bradford C. Denver, for Corp., Henry, Cockrell, Castle Oaks F. Burr Quinn Creighton, & Ben- Betts, jamin Denver, Charles L. Craig, B. Henderson. for The Consolidat- ed Mut. Douglas Water County School Mattlage, Lettunich, &Maus P. Karl RE-1, Dist. Lucas Wilson. Mattlage, Springs, Steamboat for Steam- Hugh Warder, R. boat Lake Glenwood Springs, Water Dist. for Ronald Frank Kirby, Satterfield. Baker, Salida, Kenneth A. Upper for Ar- Petrock, Broadhurst & P.C., kansas Water Ken- Conservancy Dist. Broadhurst, Denver, neth L. City Blackburn, Wade, Wade & Oakley Las Thornton by its Utilities Bd. Animas, Camilli, C. George Neil J. Foundation, Mountain Legal States Kea Davidson, Inc., Hasty Water Company, Bardeen, Mellor, III, Denver, H. William Inc., Association, McClave Water May Val- for Mountain Legal States Foundation. ley Association, Cass, Water Inc., Emery Cass, Bernice County Bent Farm Bureau. Welborn, Brown, Dufford & Robert F. Welborn, Robb, William C. Debra Lap- R. Graves and McGill, Magill, Nicholas Steam- pin, Denver, for Committee to Defend Your Springs, boat for Routt County Cattlemen’s Private Water. Ass’n, Ass’n, Elk River Citizen’s Forrest Warren, Carver, M.W. May, William B. Colo., George Vail, Rosenberg, County Raymond Gray, Sandelin, E. John Iva Cath- Colorado, Associates, Eagle, Inc., Vail Sandelin, erine Warrick, Richard P. Flor- Beaver Metropolitan Creek Dist. ence E. Warrick. Offices, Dominick Law David D. Domin- Kutak, Huie, Rock & James E. Thompson, ick, Denver, Perry Park and San- Denver, for B. Coughlin. Edward itation Dist. Johnson, DiCola, McLachlan Larry & Hartert, Mincer, Mincer & Neil S. Law- *6 Stutler, Lamar, Ranch, for John Mincer, Smartt M. rence Michael E. Glen- Doyle, Inc., Harley Koeller, J. Wesley Splitter, Colo., Springs, wood for Nick Strubi Alfred Buffalo Mut. Irr. Co. Oil Union Go. of California. Anderson, Denver,
Britt Hart, C. Henry Carlson, for Holland & John Charles U. Clay Kimbrough. Elliott, Land, M. H. L. John Lawrence Jr., Denver, Brown, Hooper, for Ruth H. Gelhausen, P.C., Andersen & S. Ford An- Twin Lakes Reservoir Canal Co. dersen, Lamar, Reyher, for Herb d/b/a Reyher Montrose, Enterprises, Inc. John A. for Hughes, Colorado- Montrose, Ass’n, Ute Electric Inc. Colo.
Maynes, Bradford & Shipps, Frank E. Lockhead, P.C., Leavenworth, Patrick & Maynes, Durango, for La Plata Water Con- Leavenworth, Patrick, E. Dist., Loyal Kevin L. servancy Dist., Pine River Irr. Dolores Springs, Eagle, Glenwood for Town Colo. Dist., Water Conservancy Mancos Water Conservancy Dist., Miguel San Water Con- Boulder, Village & for Vail Cope, Musick Dist., servancy Summit Irr. and Reservoir West Water Dist. & Sanitation Co., Co., F I Schmitt, & Scott & John Rob- Associates, P.C., Klingsmith & P.C. ert Taylor, K. Isgar, Arthur Charles M. Gunnison, Upper for Klingsmith, Gunnison Rogers, Alexander, Ives, Noland Rodger Authority, Water Protection a Colorado Gilliland, Tom Charles M. McAfee. corp., Willey; Dr. Robert B. Dr. Ruth L.
Maynes, & Shipps, Bradford Frank E. Ranches, Inc., a Willey, Soderquist Colorado Maynes, Durango, Yates, McDaniel Sons, Lazzeri, & L.W. Frank Jim corp., B. Meaker & McDaniel, Butte, McDaniel Gerald B. Durango, John R. Colo- Long, Town Crested Florida Water Conservancy rado, Berg; Dist. a Alvin Municipal corp., 1300 Nemanic; M. in Joseph designated ground water basins all seven Berg,
Vera
John W.
McNeill;
in the State of Colorado.
water divisions
Nemanic,
T.
Mildred
Lyle
part,
part,
in
in
We affirm
reverse
Ass’n,
McNeill,
Homeowners’
Riverbend
respective
remand the cases to the
divisions
Inc., a
Riverbend
corp.,
Colorado
Subdivi-
filed,
directions.
they
in which
were
Hilt;
sion,
Hilt, Cranor, Inc.,
E.L.
V. Pauline
a
corp.,
Corporation,
Fletcher
a Colorado
I. PROCEDURAL HISTORY
End
a Colorado
corp.,
Colorado
Lands
separate
Late
four
in December
Orme,
B.
corp.,
Buffington, Esten
Robert
filed
applications
of claimants
groups
Inc.,
Ranches,
corp.,
Butte
a Colorado
Rock
of conditional water
determinations-
Colorado, Municipal
a
Town of Lake City,
tributary
ground
Rocky
Moun-
corp.,
Corporation
or all of
seven
water2 in some
Colorado’s
Gothic, a
Laboratory
tain
Col-
Biological
objectors ap-
water divisions. Numerous
Ranch, a
P & Vader
Partner-
corp.,
orado
J
opposition
filed statements of
peared and
Vader;
Vader;
H.
ship, Gertrude
Paul
1979 certain
applications.
January
Vader;
Vader,
Anne
Jean Lee
Mark
Marie
Qriginal pro-
objectors brought
Vader;
Vader;
Vader,
Ina
Harry
Fay
Jack
21 re-
ceeding
this court under C.A.R.
McLain;
McLain,
Phelps;
Louise
Duane
be consolidated
questing that
cases
Nicolas;
Phelps, August
Donna P.
Octave
single
under
assigned to
Nicolas; Paul Nicolas.
vested in this court
superintending
control
VI,
by Colo. Const.
Art.
cl.
§
LOHR, Justice.
of law basic
purpose
resolving questions
judgment
This
appeal
is an
from the
applications.
of all
disposition
special
this
appointed
why
a rule
show cause
We issued
questions
court
of law common
decide
later made
not be
granted,
relief should
applications
numerous
determinations
Southeastern
rule
absolute
Huston,
v.
District
of conditional water
Conservancy
Water
(1979).
593 P.2d
ground water1 outside the boundaries
Colo.
later,
ground
applications
the removal
1. As
some of the
that will ensue from
discussed
appoint-
affects the flow of
water until that removal
involve
water. Our
determining
however,
judge,
is critical in
wheth
ment of the
was
natural stream
is
or whether
the need to
fundamental
er
occasioned
questions concerning
resolve
delayed
so
the claims to nontribu-
effect on the stream
nontributary.
tary ground
District 10
is in effect
water.
Southeastern Colorado
Barnett,
Huston,
Conservancy
198 Colo.
v.
Water Users Ass’n v.
District
Lundvall,
Kuiper
(1979).
(1979);
Q2. By authority what can such the trial committee waters divided claims into
be appropriated? eight classes a representative and chose Q3. Can claim non-tributary waters from each. The classes are summa- outside
the boundaries of designated ground
rized as follows:
*8
Colorado,
attorney
attorney general
3. The trial committee
consisted
State
claimants,
groups
for each of the four
one
attorney.
an assistant United States
attorney
division,
from each water
an assistant
report
procedure
a
from
trial
is
This review
is
receiving
After
situated.
indicating
37-90-115,
that several of
committee
C.R.S.
prescribed
applications
require
could
consideration
The
(1982Supp.).4
appro-
issues,
legal
additional
is also based on
priate such water
Colo.
a
“Request
submitted
Clarifica-
judi-
XVI,
5 and
Const. Art.
§§
permission
tion” to obtain
from this court
recognition
appropriations
cial
subor-
supplemental
determine certain
Right De-
be
the Water
obtained under
law.
questions
granted
dinate
We
Administration Act of
termination and
request and
the court
answer
authorized
1969, article 92 of title
C.R.S.1973.
trial
questions
such
in its discretion. The
Q3:
appropriation
of'
ar-
court then considered oral and written
ground water
boundaries of
outside
gument by
parties
and answered
can
designated ground
a
water basin
original
questions posed
five
court in
by this
having no
persons
accomplished by
Conservancy
Southeastern Colorado Water
surface,
interest
in the
but
property
Huston, supra. The
is
following
District v.
landowner
only with the consent
trial
rul-
summary of the
court’s written
physical
necessary
to construct
ings
questions:
on those
works.
Ql: Nontributary
waters are
Q4:
ground water outside
Nontributary
appropriation.
ground water basins can be
designated
Q2:
authority
appropriation
the use
oth
appropriated
persons
designat-
water outside a
long
as the
er than
claimant so
ed
37-90-
basin section
under
speculative
claim is
(1982Supp.),
pro-
which
C.R.S.1973
cases, notably
guidelines
prior
our
permits by
vides
issuance of weíl
Water Conservation
Colorado River
state
engineer,
with review of
Tunnel Water
District
Vidler
engineer’s
to be
sec-
action
under
413, 594
(1979);
P.2d
Bun
(1982
tion
C.R.S.1973
Repl.
ger
Valley Water
10),
Uncompahgre
Vol.
part
the State Adminis-
Ass’n,
vide the
nontri-
judge.
obtaining rights
the
We
the
to
special
authority
claims before
Q4Q3,
Q5
to
then consider the answers
and
ba-
designated
water outside
butary
appropriate
extent
it
to
we deem
of
sins,
right
we
that the constitutional
hold
guidance
proceedings on
provide
for further
adjudication proce-
the
appropriation and
next
the
the various claims. We
address
to
Act do
extend
dures of the 1969
not
court’s
of certain claims for
trial
dismissal
take this
ground water. We
nontributary
Finally,
water.
the
review
law
review the
of water
history
occasion to
rulings
trial court’s additional
that dust
present
the
development in Colorado and
land
are
control and
reclamation
not benefi-
and
embodied in the 1965
legislative scheme
with
the class VII claims
respect
cial uses
to
understanding
a full
promote
1969 Acts to
of Colorado Pacific and
United
Q1
to
and
of the reasons for our answers
rights
no
States has
reserved
based Q2.
on reservations of federal lands.
Landowner
1. Federal/State/Private
Q1
Q2
A. Answers to
and
Relationships
Q2, the
answering Q1
special
and
the other western states
Colorado and
judge
held that
a
authority,
develop
system
derive their
appropriation, regardless
water is
government,
of water
from the federal
law
a
of whether such water is located within
lands
substantially all
which once owned
designated ground water basin established
states.
now
the boundaries of those
within
Manage-
under
Colorado Ground
century,
In the latter half of
nineteenth
37,
of title
ment
article 90
C.R.S.1973
Congress
various
the United
enacted
States
(the
(1982 Supp.)
Act).
1965
All the claims
encour-
for the
public
purpose
land laws
special
before the
relate to
frontier.
aging settlement of
western
outside
court
designated
areas
basins. The
forms,
com-
many
These
but their
laws took
right
appropriate
held that the
nontribu-
objective
promote development
was to
mon
tary ground water outside
such basins
of the
and mineral resources
agricultural
implemented by application
can be
for a
lands to
public
domain
by granting
west
well permit
engineer
from the state
under
discover valuable minerals
those who should
Act
section 37-90-137 of the 1965
and
vast
should
and to
who
settle
others
adjudication of rights to such water under
induce-
Encouraged by these
country.7
new
procedures
in the
Act.
set forth
1969
ments,
pioneers occupied
and other
miners
While the court
based the
explicitly
right
hun-
parts of the arid lands west
appropriate nontributary ground water on
the for-
longitude
before
dredth meridian
statutory
authority,
concerning
law policy
mulation of federal
expressed
that the
opinion
also
constitu-
and
mines
Many
in water.
tional
to appropriate water under
streams,
farms
from natural
were remote
XVI,
Colo. Const.
5 and 6
Art.
includes
§§
quickly
this
land
and
new
waters,
alike,
“the settlers
all
despite
riparian
realized that the
doctrine
reference in those sections to
the humid
Although
waters of
stream.”
had served well in
“natural
(1976));
Principal
early
among
321 to 329
§§
federal
amended at 43 U.S.C.
statutes
public
disposition
large
providing
lands were the
land
homestead
various
statutes
e.g.,
laws,
20, 1862,
preemption
May
railroads, e.g.,
Act of
grants
building
aid in the
75,
(codified
120,
ch.
12 Stat.
at 43
1862,
392
amended
1,
July
Act of
ch.
the Union Pacific
(repealed
(1976))
161
§§
U.S.C.
to 263
history
(since repealed).
12
For
Stat. 489
Policy
Management
Federal Land
Act of
building
grants to
aid in the
federal land
1976,
94-579,
Pub.L. No.
90 Stat. 2743-2794
railroad
transcontinental
concurrent
(codified as amended at 43 U.S.C.
§§
development
land west
the hundredth
(1976
laws,
Supp.
1978)));
mining
&
II
generally
miners,
see
meridian
settlers
starting
July
with the
ch.
Act of
States,
Sheep
Leo
v. United
440 U.S.
Co.
(codified
14 Stat. 251
as amended
30 U.S.C.
1403, 1405-1409,
670-677,
59 L.Ed.2d
99 S.Ct.
(1976));
the Desert Land Act of
§§
3, 1877,
(codified
March
ch.
19 Stat.
regions
of the East
would
work in the
Gallagher,
U.S.
20 Wall.
*11
arid
of the
lands
West.”8 California v.
452 (1875);
Peterson,
L.Ed.
Atchison v.
87
States,
645, 653,
438
United
98 S.Ct.
U.S.
507,
507,
20
22
(1874);
U.S.
Wall.
L.Ed. 414
2985, 2990,
(1978);
57
gen
L.Ed.2d 1018
see
United
City
County
States v.
and
of Den
erally
Oregon
California
Power
Bea
Co. v.
ver, supra. Then,
provid
in series of acts
Co.,
142,
ver
295
Portland Cement
55
U.S.
ing
disposition
parts
of
the public
of
725, 79
(1935) (cited
S.Ct.
L.Ed. 1356
herein
domain, Congress
recogni
accorded formal
as California Oregon
Co.);
Power
United
acquired through
tion to water
local
rights
Denver,
City
County
States v.
and
of
656
“rejected
laws and customs and
the alterna
(Colo.1982);
P.2d 1
v.
Hand
Coffin
Left
general
tive of a
federal water law.” Unit
Co.,
Ditch
6
(1882).
by
Colo. 443
Spurred
Denver,
ed
v. City
County
States
and
of
domestic,
the need to obtain water for
irri
7;
656
supra,
July 26,
P.2d at
see Act of
gation
uses, the
mining
and
settlers
did
1866,
262, 9, 14
251,
(codified
ch.
Stat.
253
§
await federal
but
leadership,
instead devel
(1976));9
9,
at 30 U.S.C.
51
of July
Act
§
oped
laws,
own
their
customs and judicial
1870,
235,
17,
217,
(codi
ch.
16 Stat.
218
§
recognizing
decisions
priority
appropria
30
52 (1976));10
fied at
U.S.C. §
Desert
tion,
linked to
use
beneficial
of the
107,
3, 1877,
Act of
Land
March
ch.
19 Stat.
as the
rights
basis
vital
obtaining
to this
(codified
377
as amended at 43 U.S.C.
States,
resource. See California v. United
(1976));
Kirk,
321
329
v.
§§
Jennison
supra;
Co.;
California
Power
Jen
Oregon
supra.
Kirk,
453,
nison v.
98
the future for
States, supra,
653-663,
use
lands with-
United
at
438 U.S.
public
specific
drawn from the
City
domain
2990-2995,
States v.
United
S.Ct.
purposes.
federal
Denver,
County
supra,
face waters was the
The doctrine
early development.
given
to be
extensive
the constitution are
words of
the source of
appropriation
ex rel.
priority
meaning, e.g., People
their natural
of Colorado
rights to water in the streams
Hinderlider,
v.
98 Colo.
Co.
Park Reservoir
constitu-
our state
was established before
505,
ex rel.
(1936);
See
People
57 P.2d
starting
adopted,
tion
date
was
“from
80,
(1885), we
1309
Act
to “integrate
1969
was
appropria-
scope
water court and the
an adjudi-
tion, use, and
administration
under-
cation must be read
with the
together
defi-
to a
stream with
nitions
critical terms employed in those
the use
surface water in
a way
such
as to
statutes.
maximize the beneficial use of all of the
Jurisdiction over adjudication of water
waters
this state.”
Section
rights is established in the
water court
(1982
C.R.S.1973
Supp.). As we have
each water division under section 37-92-
recently indicated, however, the 1969 Act is
203(1), C.R.S.1973:
applicable only to water in or
There is
established
each water divi-
streams and does not apply
the position
sion
judge
ground water.19 State ex rel. Danielson v.
district courts of all counties situated en-
Vickroy,
see
supra;
Danielson
Ag.,
v. Kerbs
tirely or partly within the division. Said
Inc.,
(Colo.1982).
this conclusion becomes clear upon careful
judge
jurisdic-
have exclusive
examination
1969 Act.
tion of
division,
within
matters
no
other
designat-
than the one
proceedings
prescribed by section 37-
ed
a water judge shall act with respect
92-302 of the 1969 Act for
adjudication
to water matters in that division. Water
rights are special proceedings, and
matters shall
only
include
those matters
scope governed
their
by statute. Gardner
which
this article
law
other
shall
State,
200 Colo.
P.2d
specify to be heard
81(a);
see C.R.C.P.
cf. Colorado River
the district courts.
Water Conservation
v. Rocky
District
The last sentence of this
clearly
Mountain
Power
174 Colo.
486 P.2d
us
refers
to other sections of
(1971),
denied,
Act
cert.
405 U.S.
definition
those “water matters”
(1972)
S.Ct.
(water
L.Ed.2d 465
jurisdiction
properly subject
adjudications
adjudica
under predecessor
water court.20
tion statute
special statutory proceed
were
ings);
Irrigation
Orchard City
District v.
(1982
37-92-302(l)(a),
Section
C.R.S.1973
Whitten,
(1961)
Supp.) prescribes
types
P.2d
of claims that
(to same
effect as Colorado
be filed in the water court:
River
Conservation
District
Mountain
Rocky
person
Any
who desires a determination
Co.).
Power
To determine what claims are
of water
conditional water
*15
to the
system
administrative
right
priority
and the amount and
there-
adjudication procedures
of the
of,
1969
including a determination that a con-
statutory provisions
jurisdiction
for the
of
right
ditional water
has become a water
governed by
jurisdiction.
channels are
same rules
of the
to the exercise
Thus,
water court’s
appropriation
validity
as surface streams. These
to
two
action
determine the
early
regulations promulgated by
latter cases indicate an
utary underground
awareness
trib-
rules and
the state
imper-
engineer
but
waters
show an
Act
under
1969
is
the ex-
within
understanding
jurisdiction
judge
fect
of the interrelation of sur-
of the
clusive
water
even
underground
though
specified
face streams and
waters.
not
in that act
a water
Kuiper
matter.
v. Well Owners Conservation
Ass’n,
119,
apply
(1971).
19. Act
1969
does not
to
176
right completion reason of the re- appropriation, Vickroy a determination with ing in ex rel. Danielson v. State right, change ap- of a water spect to a has supra, jurisdic that a water no augmentation, quad- proval plan of a involving designated tion over matters or finding diligence, rennial of reasonable Accord, Irrigation Pioneer ground water. or ex- approval proposed existing of a (Colo. P.2d Danielson, v. 842 Districts 37-80-120 change of water under section v. 1983); Commission see Ground Water with the water shall file Shanks, (Colo.1983); P.2d see also applica- clerk in a verified quadruplicate Co., Broyles Lyon Ft. 638 P.2d v. Canal supporting tion forth facts setting (Colo.1981).23 ruling .... sought, adjudi- that the 1969 Act The conclusion here, right” As it is a “water or a relevant apply to nontribu- procedures do not cation to right” water that is be de- “conditional water also consistent with tary ground precise terms have defini- termined. These Coit, that supra, our in Whitten v. holding tions, 37-92-103(12) and set forth in section could water nontributary ground to C.E.S.1973, (6), respectively, as follows: Adjudi- not the Water adjudicated under to right” right “Water means a use —27, C.R.S. cation Act 148-9-1 priority por- with its a certain accordance predecessor which was the of the tion of waters of the state reason Coit, Act. conclusion in Whitten Our the appropriation (Em- of the same. act, the 1943 supra, reviewing after phasis added.) adjudication the water plan entire “[t]he right” right means “Conditional concept act of ‘rivers and is based perfect right a water with a certain ” Colo, streams,’ natural priority with upon completion reason- to the applies equal P.2d at force diligence appropriation upon able 1969 Act. which is to be right such based. Contrary plain meaning Thus, and conditional water state,” defining scope statutory provisions rights relate “waters 37-92-103(13) jurisdiction, parties some term defined in section the water court’s these words: present argue action jurisdiction adjudicate rights court has state” all
“Waters of the means surface desig- in or water outside of underground basins, all primarily natural streams within nated on Perdue relying Colorado, except [designated Ft. 519 P.2d Lyon Canal 37-90-103(6) defined in section upheld case we ].21 a con- judgment judge granting of a water Reading statutory provisions together these surface ditional decree leads to the conclusion that the inescapably that, determining lake water in a proceedings au- determination between the private agreement reason of a 37-92-302(l)(a) thorized do *16 earli- parties, superior the decree was to an nontributary ground extend in to claimants. We er decree awarded to other water.22 also C.R. See section court (1982 rejected argument is that water Supp.). implicit S.1973 This result C.R.S.1973, joint 103(6), as amended Colo.Sess. 21.The ventures Pacific ar- and Colorado - gue designated exception ground 1983, -, 37-90-103(6) that ch. at Laws 1399, 23, 1983). (House May water from the of “waters of the approved definition Bill No. nontributary ground implies state” that water designated ground is that not water is included accompanying text. note 24 infra See 22. seriously within that definition. This misreads expressly state” is statute. “Waters v. rel. Danielson held that State ex 23. We have water, exception tributary limited to and the supra, Vickroy, applied prospectively is to be “designated ground appropriate only water” Shanks, only. Water Commission v. Ground because in some water is included supra. part that definition but is not tó be considered of “waters of the state.” See section 37-90-
13H
held,
jurisdiction
without elabo-
not
apparently
lacked
within a designated
ration, that
water not within
nontributary
basin, where
jurisdiction
the water court’s
ground
designated
the definition of
water is
to issue that
was not questioned.
decree
In
within the
“water
included
term
matters”
v.
Corp.,
Stonewall Estates
CF & I Steel
under
1969 Act.
Perdue v. Ft.
Since
(1979),
197 Colo.
592 P.2d
we held
Lyon
nontributary
Canal Co. involved
sur-
void a
decree
nontributary
water court
to
only,
interpret
face
we decline
its
ground water
the published
because
resume
holding
extending
nontributary
upon
of the application
which the decree
ground water. Whether we would follow was based failed to reflect that the applica-
in
adjudi-
Perdue
the future in
applying
tion related
water.
In
procedures
cation
of the 1969 Act to nontri-
Stonewall
we
that
specifically
Estates
noted
butary surface
an issue
water is
that we
no
taken
appeal
ruling
had been
from the
need
address today.24
that
judge
jurisdiction
the water
had
over
making
the rule absolute in the
nontributary waters. See also District 10
case,
present
Lyon
we cited Perdue v. Ft.
Barnett,
Water Users Ass’n
198 Colo.
Co. for
proposition
spe-
Canal
(1979);
Kuiper,
this
pre-
to
was enacted
address
Law,
statute26
Act
pose
repealing
the 1953
Ground
and
from artesian wells
vention
waste
addressing
first
the sub-
for the
time
and
information from
soil strata
preservation
to
drilling
protect
ject of limitation
1887, Act of
well bores. Colo.Sess.Laws
areas.
supplies
water
critical
ground
4, 1887,
as-
general
52-53. The
April
pp.
289,
1957, ch.
863-873.
pp.
Colo.Sess.Laws
and
statute
in 1953
repealed that
sembly
authorizing adju-
no provisions
It contained
artesian
concerning
it
act
replaced
with an
administration of
in non-
or
dication
water, adopted “to
underground
wells and
Coit,
v.
Whitten
ground
underground
the
protect
and conserve
supra, but introduced
requirement
regulating
the state by
resources of
engi-
permit
a
from the
obtained
so
construction of wells
as to assure
drilling
well or
as a condition to
a new
neer
made, maintained, operated
are
they
well,
existing
from an
increasing
supply
a
which
prevent
and used in manner
will
289,
5,
1957,
p.
ch.
869.
Colo.Sess.Laws
§
permit
and
and which will
pollution
waste
the 1957
repealed
1965 Act
in turn
The
under-
the maximum beneficial
use of
regu-
a
and established
detailed
legislation
1953,
water.”
ch.
ground
Colo.Sess.Laws
nontributary
scheme for removal
latory
246,
1,
re-
p.
legislation
647. The 1953
§
ground water ba-
designated
water within
licensing of well drillers. Colo.Sess.
quired
Daniel-
generally
ex rel.
1957,
sins.27 See
State
1953,
246,
4,
648.
p.
Laws
ch.
§
42,
early
century
general
of some
of the
note
infra. For an
discussion
26. Near
turn
McHendrie,
involved,
assembly adopted
autho-
a number
statutes
the considerations
see
drilling
Water,
Rocky
rizing
funding
particular
Underground
and
Law of
13
irrigation
purposes including
pre-
legislature
(1940).
wells for various
has
1
Mtn.L.Rev.
See, e.g.,
exploration
minerals.
Colo.
and
procedure,
no
other than
scribed
4-6,
1895,
pp.
See also
Sess.Laws
chs.
29-35.
process
permit
in section
well
1935,
80,
242-243,
pp.
ch.
ground
Colo.Sess.Laws
nontributary
determination
to
limiting
low
statute
the uses
water from
ground
designated
basins.
water outside
to
manu-
volume artesian wells
facturing,
domestic and
note that
facet of
We
one
acquifers
excepting a
but
number of
problem
of “devel-
doctrine
—the
application
much of the state from
and
oped
treatment
water” —has received extensive
repealed
That
was
in 1953.
statute.
statute
explained in
in our cases. That doctrine is
1953,
246,
17, p.
ch.
653.
§
Colo.Sess.Laws
Corp.
Development
Schubert
v.
Sweetwater
379,
Ranches,
Inc.,
215
535 P.2d
188 Colo.
are
that wells were drilled for
27. We
aware
(1975), as follows:
nontributary ground
prior
withdrawal
long
person who
law that the
It has
been the
see,
Act,
e.g.,
Department
to the 1965
“developed”
produces
otherwise
which
Resources,
Resources
of Natural
Ground Water
the surface or be
would
reach
Aquifers
Basin
Denver
Bedrock
any stream, may appropriate
water if
(1976),
80-99
that water courts have issued
developer places
to a
use
it
beneficial
water, see,
e.g.,
decrees for
Whit-
prior
appropriator uses
other
time
Coit, supra.
ten v.
The record does not reflect
Valley Irrigation
Buckers
it. Platte
v.
Co.
relating
the numbers
of these wells
decrees
Co.,
77,
(1898).
334
also
25
53 P.
See
Colo.
designated
ba-
to areas outside
Co.,
Irrigation
179
Denver v.
Ditch
Fulton
sins,
par-,
representations in
but
on
based
Nix,
(1972); Dalpez v.
P.2d 144
Colo.
506
say they
appears
ties’ briefs it
safe to
are sub-
Ripley
(1935);
176
45 P.2d
Colo.
questions
stantial. The
of the nature of the
W.
v. Park Center L. &
40 Colo.
rights resulting
development,
such
from
Thus,
prior
P. 75
protections
persons
who
be accorded
prior right
person
“devel-
could obtain a
wells, relying
have obtained
such
water from
oped” water.
decree,
judicial
custom administra-
local
Colo,
at
See Cresson
at
535 P.2d
acquiescence,
37-
tive
and the effect of section
Mining Milling
v.
&
Co.
Gold
Consolidated
upon
rights,
90-137
are
us.
those
not before
Whitten,
(1959);
P.2d
Undoubtedly
law
the common
and the statutes
Anderson,
Development
Leadville Mine
Co.
provide
will
a reser-
in effect from time to time
91 Colo.
17 P.2d
Comrie
principles adequate
voir of
these
resolve
Sweet,
(1924); cf.
1313
Vickroy,supra,
son v.
and
collect-
372 (1978);
the cases
575 P.2d
Fundingsland v.
7
opinion,
ed in n. of that
627
at 757.
P.2d
Commission,
Water
Colorado Ground
171
(1970).
Any
ground water man-
party, including
or
article or
decision
districts,
affected or
visions of this
agement
adversely
engineer under section
act of the state
aggrieved by
action of
appeal to the
take an
engineer
37-90-11033
water commission or
state
riod;
injury
p.
and no material
vested
ch.
§
31. Colo.Sess.Laws
of said
from the issuance
would result
pertinent
37-90-137(4) provides in
32. Section
engineer may adopt rules
permit. The state
part:
in,
regulations
but not as
to assist
considering
permit
to,
per-
shall be
granting
prerequisite
whether
[I]n
or denial
issued,
underlying
only
quantity
of water
for the adminis-
wells and
mits
construct
applicant
underground
the land
owned
water.
of this
tration
consent,
area, by their
to be
owners of the
empowers
unappropriated;
C.R.S.1973
served is considered to be
33.Section
require
flowing
engineer
wells to
all
aquifer is
life of
one
the state
minimum useful
valves,
require
wells to
equipped
all
years, assuming
there is no
hundred
prevent
recharge
so as to
pe-
and maintained
said
be constructed
substantial artificial
within
State,
county
district court in the
wherein the
supra (applications
for determina-
or wells involved are situat-
tion
abandonment of water
rights are
ed.
within the water court’s jurisdiction); Dis-
Barnett,
re-
concerning
1983 Revision
silent
trict Water Users
supra
Ass’n
view of actions
engineer
under
(water
jurisdiction
court’s
to determine
*20
37-90-137, providing
section
for
or
issuance
whether water is tributary was assumed in
of
permits.
denial well
legisla-
This recent
jurisdictional
a case where the
issue was not
tion was
after
trial
en-
enacted
court
raised); Kuiper v. Well Owners Conserva-
judgment
tered
and so was not considered
Ass’n,
(action
tion
supra
to determine valid-
by
judge.
water
The effect of
of state
ity
engineer’s rules and regulations
procedures
1983 Revision
of
review
administration
respect
with
to
under the
engineer
state
action under section 37-90-
1969 Act is
jurisdiction).
within water court
137 was not
or argued
briefed
before this
a procedure
Such
will permit this matter of
Accordingly,
court.
we believe it prudent
central
importance to the identification of
to express no opinion
question
on the
subject
adjudication
to
and adminis-
review of
engineer
state
sec-
action under
tration under the 1969
by
Act
be resolved
tion 37-90-137 subsequent
to the effective
the water
in
judges
hearing
all
which
date
1983 Revision.
interested parties will have notice and an
An
question
additional
with respect
opportunity to participate.35 See section
to water court review
engineer
of state
believe, however,
37-92-302. We do not
action on well permit applications may arise
that such a proceeding provides a basis for
in connection with proceedings in water
the water
engi-
court
review the state
court to determine whether water is tribu
neer’s action on an
a well
application for
tary
nontributary.
that,
or
by
We believe
permit
relating to nontributary
ground
necessary
Act,
implication under the 1969
37-90-137(4).
water under section
A hold-
the water court can
a proceeding
entertain
to the
ing
contrary
proce-
would allow this
to establish whether water outside the
dure to swallow the
so
estab-
clearly
rule
designated
boundaries of
ground
ba
37-90-115,
by
prior
lished
section
to the
sins is
so
tributary,
that
be
Revision,
that administrative review of
by
obtained
appropriation
by
and confirmed
engineer
respect
state
action with
well
adjudication
under the 1969
or nontri
butary,
proceed
so that
24r-4-
permit
permits
the well
should
under section
criteria
37-90-137(4)
apply.34 Cf.
106.36
Gardner
waste,
wells,
inspect
sought
through
to order cessation of
water basin must be
first
pending
defects,
channels,
judicial
appro-
well use
correction of
to com-
administrative
and
as
enjoin
illegal opening
prescribed
mence actions to
priate,
questions
or
for resolution of
arising
excavation of wells or
withdrawal
or use
under the
P.2d
[1965 Act].”
therefrom,
take action to enforce
possibility
respect
with
to de-
conflicts
compliance
regulations,
controls,
or-
under
the well
terminations
of tributariness
ground
ders
commission.
permit procedures and the 1969 Act is a
by
might
that
well benefit
attention
from
supra.
assembly.
34. See note
general
recognize
potential
unnecessary
present proceeding
35. We
be-
conflict
36. It
37-92-305(6),
tween water court determinations
effect
tributari-
to determine the
of section
proce
upon
pre-1983
ness and determinations made
en-
state
C.R.S.1973
Revision
gineer
engineer
under section
on
37-90-137
reviewed
dure for review
action
24-4-106, pri-
permits
tap
applications
a district court under section
well
or to the 1983 Revision. We reserve for anoth-
We note the tension between
water.
day
question
adjudicating
any
er
how
such conflict
the function of the water
wells,
Compare
State ex rel.
see
involving
sec
should
resolved.
claims
Vickroy, supra,
37-92-302(2)
Danielson v.
and the
in which we held
tions
appropriate
policy,
procedures
engineer
that “it is
action
a matter of
review of state
intent,
legislative
prior
prescribed
and is consistent with
re-
in section
quire
Revision,
opinion
sought
express
but
no
that
relief
which involves
Kuiper,
taking
designated ground
subject.
Bohn See
water in a
195 Colo.
A number
permits
for issuance of well
provisions
Plympton,
Parker v.
85 Colo.
out
nontributary ground
to extract
Second,
impor-
and more
P. 1030
Act
basins under the 1965
designated
side
that, given the state’s
tantly, we believe
with or constrained
are inconsistent
development
control over
of water
plenary
rights in such water
property
landowners’
fee
law,
property concept
the traditional
proponents
lands. The
underlying their
ap-
ownership is of limited usefulness
argue
this view
this water was
nontributary ground water
plied to
realty
“severed” from the
at the time the
to advance
serves to mislead rather than
the lands to
government patented
federal
pri-
understanding
considering public
private
argument
owners. This
is answered
unique
of this
re-
vate
to utilization
our
of the federal
previous discussion
source.
lands,
public
scheme for transfer of
domain
*21
Coit,
v.
we held that a district
broad au
In Whitten
whereby
granted
the states were
nonnaviga-
to
for the use of
thority
provide
to non-
adjudicating priorities
court decree
ble waters within their borders. Also rele
proce-
under the
tributary ground water
vant
the conclusion that
the United
to
Act of
Adjudication
the Water
dures of
convey
ground
States did not
jurisdiction
void for lack of
be-
1943 was
with the land is “the established rule that
Act,
applies
the 1969
cause that
like
grants
favorably
land
are construed
to the
ques-
to
water. While
only
Government,
except
that nothing passes
nontribu-
a landowner’s interest in
tion of
conveyed
language,
what
is
in clear
property
his
was not
tary
underlying
they
that if there are doubts
are resolved
us,
approval
we
with
the fol-
before
cited
Government,
against
for the
it.” Unit
from an article William
lowing passage
ed
v. Union Pacific Railroad
States
in 31
Mountain Law Review
Kelly
Rocky
R.
687,
1 L.Ed.2d
U.S.
77 S.Ct.
(1959):
(1957)
in
v.
(quoted
approval
with
Watt
the water
-
landowner has
property
-,
Nuclear, Inc.,
Western
U.S.
right
It
which
in his soil.
is a vested
-,
2218, 2231, 76
L.Ed.2d
S.Ct.
legisla-
mere
away by
cannot be taken
(1983)).
the reasonable
subject only
tion.
It is
to
Proponents
private ownership
of the
the
is
ground
If the
use doctrine.
Coit,
ory
argue
supra,
also
that Whitten v.
to a natural
motion so as to be
they
dictates the result for which
contend.37
table,
stream, or
of the stream water
part
First,
We do not
reasons.
agree
two
always
subject
priorities
it has
been
to
language
upon
of Whitten v. Coit
which
on the natural stream. But
appropriation
private ownership
nontributary
case for
tributary to the natural
unless it
is
ground
predicated
water is
was not neces
stream,
the law of
decision,
it is not
sary
and we are
not bound
See,
v.
e.g.,
appropriation.
it.
Radke
Union Pacific
(1978) (we
permit
a
a
such
was
P.2d 402
reversed
conditional
decree unless
denial of
section,
justified
right
granted
engi-
and in case a
under said
decree
after the state
granted
is
permit;
final decree or conditional decree
no issue
raised
neer denied a well
was
court,
engineer shall
issue
possible
the state
applicability
as to the
37-
section
permit.
said
90-115).
37-92-305(6) provides:
Section
application
the case of an
determina-
ownership proponents
private
37. Most of the
right
tion of a water
or a conditional water
37-90-137(4)
supporta-
concede that section
right,
respect
a determination with
to a
regulation
property us-
ble as a reasonable
change
approval
plan
of a water
of a
private
or
age, analogous
zoning laws. The
augmentation,
requires
however,
implications
construc-
ownership question,
which
has
well,
judge,
legislation
tion
permissible
of a
the referee or the water
for the extent
be,
respect
as the case
shall consider
the find-
water.
briefed,
admirably
ings
engineer,
pursuant
fully
of the state
made
The issue has been
necessary
granted
a full
to address it as
which
or denied
and we elect
permit,
may grant
development
answers
the well
a conditional
Q2.
Q1
Colo,
When
elected to
land
recog-
nature of the
that should be
*22
from water
separately
resource,
and to allow the
in
expressed disapproval
nized
this
states “to legislate
respect
in
of waters and
of the doctrine of
of such
ownership
waters
rights
deem
they
pub-
owner,
wise in the
by
expressly
surface
re-
Co.,
Oregon
California
interest,”
lic
Power
served for future determination the nature
163,
731,
295
at
U.S.
55
at
it made no
rights
S.Ct.
to be
in nontribu-
recognized
distinction between tributary and nontribu-
tary water.40 We note that other states
supplemental questions
upon
public
(except navigable
38. One of the
that we
waters
waters)
lands
appro-
authorized the trial court to consider was:
were to remain ... free for the
held,
priation
public,”
and use of the
that court
Is the owner in fee of the surface land also
literally
was not intended to be taken
“[i]t
such
non-tributary ground
the owner of the
upon
must be
waters
surface of
lying
by
capacity
under the land
virtue of his
subject
(Emphasis
earth to be
to such use.”
in
as an owner or is such water to be claimed
and decreed in accordance with the doctrine
27,
original.)
with scarce water
City
v.
732;
Valley
Town of Chino
ownership theory
with re
private
absolute
Grimes,
Town of Chino
Prescott,
Knight
supra.
v.
water.
supra;
spect
Prescott,
v.
supra;
Baker
Valley City
v.
1965
action reflected in the
legislative
Foods, Inc.,
575,
Ore-Ida
Idaho
513 P.2d
95
37-90-137(4)
fully
sanc-
Act and section
Dority,
ex rel. Bliss v.
State
(1973);
627
55
long-continuing policy
of Con-
tioned
(1950), appeal
dis
N.M.
225 P.2d
develop
the states to
their
gress to allow
missed,
71 S.Ct.
95 L.Ed.
U.S.
law,
and is not constrained
own water
Hoisveen,
(1951); Baeth v.
157 N.W.2d
de-
ownership
private
claimed
Grimes,
(N.D.1968); Knight
80 S.D.
patents.
under federal
rived
cf. Williams
Because
adjudication procedures in
legal questions,
these
to answer
decline
1969 Act do
apply
in the
impossi
them
abstract because
applications
all of the
foreseeing
every
bility
providing for
determinations of
in such water filed
possible type
arrangement
ap
between
in the water court and
consolidated for
plicants
appli
and landowners or between
purposes
present
case must be dis-
general
cants and
of the water.
users
See
however,
missed. Leave
granted,
should be
Gates, - U.S. -, -,
ly, Illinois v.
to amend those
to seek
applications
a deter-
2317, 2325,
tributary ground WATER CLAIMS statutory means only basins and the trial court’s We now consider to such water obtaining rights available for tributary for applications dismissal of those from the permit for a well application is Because appealed. that are ground water 37-90-137. under section engineer for nontribu- we conclude that the claims his answer to for judge applied The trial water must be dismissed tary ground Q5 tributary court, class VII claims for jurisdiction lack of in the such claims for remanding water in for grounds not consider the other need rul in Division 7. This proceedings further by special relied on their dismissal confusion on remand because ing may cause However, for since claims judge. Q5 only relates to in the correct tributary water were filed clarify procedures so we elect to trial forum, review the required we are a determination of required securing them. dismissing court’s reasons for water. tributary ground I, classes claims from representative 37-92-302(2) provides Section III and VII seek determination on an water court shall not enter a decision water as well as to nontri- tributary ground of a water application for determination class VII claims butary ground water. The of a well right requiring the construction Of water were not dismissed. tributary applica supplements until the claimant classes, joint only two remaining well, tion with a to construct is permit Associates, applicant Bluepond venture under section engineer sued the state comprising claims class seventy-two for all denial or of or evidence of its I, of its the trial court’s dismissal appeals grant or engineer failure of the state By water. reason applications months. We do deny permit within six procedure employed require appli not read this statute to appli- all of the classifying permit prior filing cant to the well obtain choosing eight groups cations into court. The claim application in water from representative review claim only protect ant file in the water court each, the record whether it is not clear from application his while an priority date water were in- applications the state pending construct a well is before the other classes and cluded within some of merely pro engineer. The water court the trial court’s inadvertently dismissed in entering hibited from a final decision claims. To ruling representative on the application engineer’s before the state in- resulting possible from prejudice avoid fails to decision is rendered or that official claims, of such our dis- advertent dismissal grant permit within six months deny a I for tribu- position applications of the class after This construc application is made. appli- well to all other applies tary 37-92-302(2) tion of section is consistent that were involving tributary cations requires with section which appealed the trial court and dismissed findings the water court to consider the the claimants. *25 by engineer made the state in that official’s requests I claimant decrees The class grant deny permit.43 decision to or the well a natu- storage water where deprived underground water court is not Accordingly, the terminal moraine jurisdiction occurring glacial VII claims for rally over the class requiring mentioned, be- and section As earlier there is a tension prior judge before to consider such decisions tween section it read involving Revision, right engi- entering prescribing a decree for a water review of 36, supra. by permit well. See neer well 24-4- diversion note decisions under section creates an underground storage dam. Each mation in standard application forms. Sub directly flowing area lies under a surface (2) of section 37-92-302 states that river or stream. The claimant proposes the application legal shall contain “a de presently withdraw the water in these held scription of the diversion or proposed diver reservoirs, underground release it into the sion, a description of the source streams, overlying and obtain storage de- water, the date of the initiation of the permitting crees it to refill these reservoirs appropriation or proposed appropriation, from the capacity surface streams to the claimed, the amount of water and the use created by pumping. special the initial proposed use of the water.” Our review water judge dismissed all with- applications representative of the class I application First, grounds. class I on two judge shows that it contains all the basic informa stated that the methods proposed by the required by tion statute. Dismissal of the claimant were infeasible and would neces- class I general claims based on the informa sarily affect the surface stream flow and tion contained in the representative applica existing Second, decreed appropriations.44 tion argument by and oral the claimant the judge found that the representative ap- penalizes it for following statutory applica plication requests quantities vast of water procedures. tion The record before us does for beneficial uses stated in the broadest not contain sufficient information to sup that, therefore, terms and the claims were port the trial court’s ruling that the class I merely speculative pur- and made for the See, claims are infeasible and speculative. pose profit. Barnes, e.g., Hatfield 115 Colo. claims, ruling on the class I special (1946) (motion P.2d 552 summary judg water judge only considered the representa- ment should be denied if a issue genuine tive application, argument, oral legal briefs fact cf. apparent); Bunger Uncom exhibits, and treated the proceeding Ass’n, pahgre Valley supra Water Users one in the nature of a motion to dismiss or (based on reference depositions, facts for summary judgment. The trial court supporting specu dismissal of the claims as declined to “Hypothetical consider Fact Sit- lative summary judgment on motion for uations and/or Offers of Proof” filed undisputed”). were “clear and We reverse applicant class I when members of the trial the trial court’s of these claims dismissal committee challenged that document with a appropriate and remand them the motion to strike. The court did not hold an further proceedings. divisions for evidentiary hearing on the class I represent- ative applications claim or the other in that IV. MISCELLANEOUS RULINGS class to determine whether the method for A. Dust Control and Land Reclamation implementing proposed storage right as Beneficial Uses was feasible and to determine with more specificity the exact uses for the water. claimants, asserting The class VII We believe approach that the taken tributary to withdraw both and non- trial court was incorrect and unfairly places tributary ground challenge rul applicant a burden on the not contemplated concerning ing special judge statutory adjudication scheme for their that neither dust control applications rights to tributary ground water. is a beneficial use. nor land reclamation fact his conclusion on the 37-92-302 of the 1969 Act based
Section
sets
involved an
procedure
forth the
that no
cases have
applying
for a de-
these
appropriation
purposes
termination of
of water for
therefore,
requires
that,
the inclusion of
such beneficial uses
certain infor-
supplemental questions
impoundment
44. One of the
that we
created
of water behind
authorized the
naturally occurring glacial
to consider
terminal mo-
was:
raine?
Can a decree be obtained for a
to store
underground
reservoir
*26
appropriation
include the
disagree
We
also
approved.
have never been
pre-
manner
con-
in the
that dust
state of Colorado
judge’s
with the
conclusion
not beneficial
flows
reclamation are
of such minimum
trol and land
scribed
law
and reverse this
and
a matter of law
levels for
points
uses as
specific
between
trial court’s decision.
re-
aspect of the
lakes as are
on natural streams
environ-
the natural
quired
preserve
claims for
applicants’
to the
respect
With
degree.
to a reasonable
ment
im-
water,
and statutes
the cases
tributary
ap-
right
the constitutional
plementing
has rec
addition,
assembly
general
In
the framework
supply
such water
propriate
land
nature of both
the beneficial
ognized
which uses are “beneficial.”
determining
statu
in other
and dust control
reclamation
rec-
specifically
Constitution
Colorado
mining
engaged
Those
enactments.
tory
uses that
of beneficial
ognizes
types
three
to reclaim
statutes
are
various
required
appropriation
support
will
activity.
such
affected
adversely
land
manufac-
domestic,
agricultural
water:
Act,
Mined
Reclamation
Land
Colorado
See
XVI,
Art.
6. How-
turing.
Const.
§
Colo.
-125,
(1982
34-32-101 to
C.R.S.1973
sections
ever,
appropria-
have held that
our cases
Mining Rec
Coal
Surface
Supp.); Colorado
are not limited to
tions of
-137,
34-33-101
lamation
sections
given in the constitution.
examples
those
also
(1982 Supp.);45 see
Surface
C.R.S.1973
Sheriff,
of Denver v.
City
County
In
Act of
Reclamation
Mining Control
(1939), we stated:
B. Federal Reserved even if permit applications claims well with engineer the state under section 37-90-137 appeals por United States that have not finally upon. been acted tion of the trial court’s decision stating government the federal rights has no part judgment That of the trial court’s water underlying lands reserved to it from holding that dust control and land reclama- the public ruling domain. This spe tion are not beneficial uses as a matter of cial water is not binding because Finally, disapprove law is reversed. we issue of rights federal reserved water was regard trial to fed- expressions court’s not before the trial court. We have since eral reserved water rights. addressed the question of the nature and respective are remanded to the The cases extent of federal reserved United they in which were filed for water divisions Denver, City States v. County supra. further consistent with the proceedings case, In that contrary opinion expressed opinion. views in this special water judge, recognized the ex FOR REHEARING: ON PETITIONS istence of federal reserved in certain rehearing requested have parties Certain explained circumstances and their nature legislation passed by effect of argue disapprove incidents. We therefore Assembly subsequent the General the opinion expressed by case. We opinion issuance of our in this
judge on this issue. remand, but, requests decline those di- appli- to consider the judges rect the water V. CONCLUSION AND DISPOSITION legisla- of those cability, validity and effect judgment of the trial court is af- their on our impact tive enactments and part part. firmed in and reversed in We applica- previous determination affirm part of the trial court judgment ground water should tions for dismissing applications certain for nontribu- be dismissed. tary water but do so on the opinion the announcement of our After that the water court does jurisdic- not have were petitions rehearing and while tion applications. over such Accordingly, passed legislature the Colorado pending, all applications such must be dismissed. the Governor Bill No. Senate Dismissal of these claims is preju- without on October signed legislation the new dice, and the claimants file applications provides: 1983. That act permits engineer well with the state under section THE ADJUDICATION 37-90-137 and have leave to CONCERNING GROUND applications request amend the OF NONTRIBUTARY WATER OUTSIDE OF DESIGNATED tions 37-92-302 to 37-92-305. pro- Such GROUND WATER BASINS. ceedings may be commenced at time *28 include a determination of the Be it enacted Assembly General right existing to such water for and fu- State Colorado: ture uses. determination shall be in Such 87-92-203(1), SECTION 1. (4) (5) accordance with subsections Statutes, Revised is amended to read: this section. pending Claims as of judges jurisdic- 37-92-203. Water — effective date of this act which have been (1) tion. There is established in each published pursuant to section 37-92-302 water division the position judge of water in the resume republished. need not be of the district courts of all counties situ- entirely partly ated within the division. Safety gen- SECTION 3. clause. The Said district collectively courts acting finds, determines, eral assembly hereby through the judge have exclusive necessary declares that this act is jurisdiction of water matters within the preservation the immediate public division, and no judge other than the one health, peace, safety. designated as a shall act Shortly passage after Bill Senate No. respect to water matters in that 439, the two houses of the Assem- General division. Water matters shall include bly adopted the following joint resolution: only those matters which this article and Be It Resolved the House of Repre- any other law shall specify to be heard sentatives of Fifty-fourth General of the district courts. Assembly Colorado, of the State of WATER MATTERS INCLUDE DETER- concurring Senate herein: MINATIONS OF RIGHTS TO NONTRI- That hereby the General Assembly BUTARY GROUND WATER OUTSIDE finds and declares that its intention in OF DESIGNATED GROUND WATER enacting Bill Senate No. enacted at BASINS. JUDGMENTS AND DE- Regular the First Fifty- Session of the CREES ENTERED PRIOR THE TO EF- fourth General was that Assembly, its FECTIVE DATE OF THIS SUBSEC- provisions were procedural only, and that (1), AMENDED, TION AS IN ACCORD- provisions of section ANCE WITH THE OF PROCEDURES Statutes, Colorado Revised shall continue SECTIONS 37-92-302 TO 37-92-305 to control the granting permits WITH RESPECT TO SUCH GROUND ground water outside of WATER SHALL BE GIVEN FULL EF- designated ground water basins. FECT AND ENFORCED ACCORDING House Joint Resolution No. 1038 TO THE TERMS OF SUCH DECREES.1 SECTION 2. Colorado Re- We develop- took notice of these new Statutes, vised as amended by House Bill ments on motions of parties some of the No. enacted at the First Regular this proceeding. petitions In filed after Session of the Fifty-fourth General As- Bill adopted, parties Senate No. 439 was sembly approved by the Governor on have taken various positions concerning 23, 1983, May is amended BY THE AD- validity legislation and effect of the new A DITION OF NEW SUBSECTION to requested and have that we permit briefing read: believe, and argument on the issues. We
37-90-137. Permits however, to construct wells that these will be questions better outside designated fees—permit postured for appellate resolution after trial areas — no given opportunity courts have been —evidence—time (6) Rights limitation. to nontributary consider them as they apply particular ground water Therefore, outside of designated cases. deny peti- we elect to ground water basins may be determined rehearing they tions for to the extent in accordance with the procedures sec- are legislation. based on new Capital existing letters indicate new material added to statutes. response to other matters raised in the petitions for rehearing, we have modified opinion,
our appear and it will in the official
reporter as modified. Except
changes reflected in this opinion peti- rehearing modifications,
tions for and in the petitions for rehearing are denied.
We also our modify judgment and di-
rections to the water by reversing courts
that part of the trial court judgment dis-
missing the applications for
ground water, remanding those applications
to the respective divisions, and di-
recting the water judges to consider wheth-
er applications those dismissed, should be
retained for further proceedings, in light legal principles set forth in our opinion
and of Senate Bill No. 439 and House Joint
Resolution No. 1038. Colorado,
The PEOPLE of the State of
Plaintiff-Appellee,
Anthony ULIBARRI, J.
Defendant-Appellant.
No. 82CA0276.
Colorado Court of Appeals,
Div. III.
July 1983.
Rehearing Aug. Denied Woodard, Gen., Atty.
Duane Charles B. Howe, Gen., Cantrick, Joel Deputy Atty. W. Gen., Bahr, Atty. Marie Yolk Asst. Sol. Gen., Denver, plaintiff-appellee.