*1 lawful, entry we have held that the officers’ initial the sub- Since warrant, appellee, pursuant arrest of the was also lawful. sequent Thus, been suppressed. statements should not have appellee’s trial order both
Accordingly, appellee’s court’s suppressing home, reversed, statements and the evidence seized at his cause proceedings for further consonant with the views expressed is remanded this opinion.
No. 27459 Thompson Gordon L. v. Colorado Ground Water Commission
(575 372) P.2d 23, January Rehearing February Decided 1978. denied 1978. *3 Woolf, Marvin B. for plaintiff-appellant. MacFarlane,
J. D. General, Attorney Dubofsky, Deputy, Jean E. Donovan, Edward General, Robbins, G. Sоlicitor David First W. Assistant, Natural Section, Assistant, Resources Wright, Special Ben L. Swick, Loren L. Assistant, Special Section, Natural John C. Resources Section, Ohrenschall, Assistant, for defendant- Resources Natural appellee. P..C., Brown, Woodruff, David M.
Moses, Harrison and Wittemyer, curiae, Woodruff, R. amicus Dr. Foster Sims. N. Charles Jr., curiae, Dudden, P.C., Schoon, for amicus L. Peter E. & Padley Inc., Ferrell, Elevator, Haynes, Ray- Grover A. Delbert Dirks, Dudden D. Weis, Kenneth Korte, Schliep, Dana G. Corporation, NEBCO mond Willmon. Stanley Banc.
En of the Court. opinion ERICKSON delivered MR. JUSTICE 13, 1974, filed an Thompson (plaintiff) ap- Gordon L. February On (commission) with the Colorado Ground Water Commission plication designated ground a well and to seeking appropriate to construct High Designated Plains Ground Water Basin water from Northern denied the on the basis County. Yuma The commission unreasonably impair existing water would proposed appropriation decision, the commission used its three-mile test as rights. reaching In availability unappro- to determine the modified its state-line granted hearing before plaintiff requested water. The priated commission, on plaintiffs application which sustained the denial of *4 7, 1975. July the decision to the dis- appealed thereafter
The plaintiff County pursuant and a trial de novo was held court in and for Yuma trict Expert C.R.S. 1973. witnesses on appeared Section statute. 1976, 14, On plaintiff April both the and the commission. behalf of judgment denying application unap- entered a because district court was not available when the was considered application propriated district court guidelines. subsequently under the commission’s The judgment findings of fact and denied the amended its to include additional 29, was then plaintiffs July appeal a new trial on 1976. This motion for perfected. (1) grounds reversal that: the state-line alleges
The plaintiff provisions rule the commission in violation of the policy adopted by is a Code; (2) statutory the state-line contravenes policy the Administrative of Colo- concerning the use and conservation provisions and constitutional waters; the actual (3) quantity the commission failed to determine rado (4) the failed existing rights; statutory to consider fac- prior basis; (5) test on a in the three-mile local evidence of water use tors the plaintiffs in areas distant from proposed well loca- aquifer admitted, (6) the commission used a improperly 25-year tion applicatiоn date of the in its life as of the three-mile test. aquifer We re- proceedings remand for not inconsistent with this opinion. verse
I.
allegation
first
of error is that
plaintiffs
the state-line policy
in
adopted by
a rule
violation of the
of the
provisions
is
rejected
argument
Administrative Code. We
this
directed at
when
in Fundingsland
commission’s three-mile test
v. Colorado Ground
Commission,
487,
(1970):
Water
171 Colo.
II. Both the district court and the commission their respective based decisions on the test commission’s three-mile as modified its state-line We held that three-mile evidenced a method policy. test reasonable administering ground Fundingsland v. Colorado Ground Commission, supra. test requires three-mile that a circle with a radius of three miles proposed be drawn around the point diversion. Calculations are then to determine the volume made of water available for within appropriation the circle. This takes into all of specified by test account the factors stat- 37-90-107(5), Section Additionally, ute. C.R.S. 1973. the commission circle, aquifer considers saturated thickness of the in the three-mile circle, yield number of wells in the and the of the wells within the circle. adding total from circle is appropriation within the determined well yield rights. Finally, Fundingsland of all as noted in v. Commission, Colorado Ground Water supra:
“A rate of is determined which would in a 40% pumping result If period years. of the available water in that area over a circle, being within pumping exceeded wells rate is a a new application may then the to drill well be denied.” case, 24% of plaintiffs test was conducted in the When the three-mile the three- resulted in the modification of circle fell in Nebraska. That Schroeder, Dewayne R. a policy. the commission’s state-line mile test commission, explained staff member of the engineer resource Schroeder testified that when a circle ex- to the court. policy the state-line state, only the saturated thickness of the adjoining into an Colorado tends utilizing in calculations is used three-mile test of the formation portion within the circle. The amount of water contained determine the volume multiplied by in the entire circle is then subject to appropriation of water in Colorado to the amount of water produce the circlе percentage Finally, the number appropriators. Colorado appropriated which can rights calculated to de- of Colorado wells and the total of their is quantity excess water exists un- existing appropriation. termine the level of Unless modified, is denied. der three-mile test as ignored policy, If the commission had the state-line granted. would have been While plaintiffs application concedes that the circle was portion plaintiffs overappropriated the Colorado under whole, test, circle, and with cogni- three-mile when considered as Nebraska, development overappropriated. zance of the in was not plaintiff contends that the commission’s refusal to consider the saturated of the entire circle and the number of wells in Ne- thickness engineer’s in and the duty braska is violation of the state waters are conserved and made available for insure that Colorado use 37-81-102, 37-90-136, argu- Sections C.R.S. 1973. This Colorado citizens. Ogallala fact that the formation undisputed slopes ment rests toward Nebraska. The northeasterly plaintiff flows direction also Ogallala being that the formation is thicker in Nebraska and is asserts water, it charged with water which flows from Colorado. Colorado is ar- is, therefore, gued, leaving the state to the detriment of Colorado residents contrary statutory provisions. further contends that policy right the state-line denies his constitutional to divert unappropriated Const., XVI, Art. 6. An water. Colo. Sec. amicus curiae brief asserts denies their policy applicants equal protec- state-line Const., tion of the laws. U. S. Amend. XIV. agreement
We are in with the district court’s conclusion that legislatively delegated the state-line a matter within the properly Management powers of the cоmmission. The Colorado Ground Act, seq., charges section et C.R.S. against duties. It protect appropriators
various must senior unreasonable injury, designated ground foster the full development economic resources, designated ground and conserve water resources. Sections 37- 90-102, 111, conjunction with the policy, C.R.S. 1973. state-line test, in a implements legislative three-mile these directives reasonable and consistent manner. *6 testimony
Expert supported position ov line, at the state erappropriation aquifer with the intent to stabilize Colorado, or reverse the flow to the benеfit of aquifer would in seriously jure rights vested Colorado far west of the ignite state line and could de Nebraska, aquifer structive race with an adjoining state. Evi portion ground dence that a of Colorado’s water naturally flows into states, adjoining when considered in the context of the commission’s over ground all does not policy, establish a breach of statutory duty by its determination.
Furthermore, the plaintiffs right to divert unappropriated water is not violated if unappropriated does not exist under the commission’s Commission, three-mile test. Fundingsland v. Colorado Ground Water supra.
Finally, protection argument the equal is completely without merit. The same formula and factors were considered in this case as prop- would erly be before the commission or court if the circle were entirely within Colorado. only difference is that in figures this case the were reduced proportionately to insure that the commission did not exceed jurisdic- illegally tion and authorize the appropriation ground of Nebraska water.
III. In determining whether a well will proposed unreasonably injure rights existing of appropriators, the commission is required to consider the “quantity of existing 37-90-107(5), claims.” Seсtion C.R.S. 1973. The challenge does not the duty of the protect commission to valid rights, senior but does take issue with the manner in which the commission determines the of “quantity existing claims.” He “existing asserts that the protected by claims” the commission are inflated and unenforceable under Colorado water law. of “quantity existing claims” which must be considered by
the commission, is the sum all rights of water which have been appropri ated and those rights which are in the process being of appropriated under conditional permits. legislative intent evidenced in the Colorado Ground Water Management Act is that the issuance of final permits, which requires proof and use, verification of the extent of beneficial would serve a function equivalent to the final surface water decree and establish rights. senior But to compute “quantity existing claims” only on the rights basis of represented by final permits ignore would rights holders of conditional have to perfect appropriations their full extent rights of their permits. conditional These in the process being therefore, appropriated, must be considered their calculations of the claims.” The “quantity plaintiffs arguments directed, are the procedure contemplated by legislature, not at but rather at the commission’s failure to issue final and its assumption that all valid water to the full permits represent extent the permit. Mercer, A. the chief water section of the Leonard state office, engineer’s testified before the commission that the usual claim for exaggerated tract irrigation of a standard 160-acre 21% because sprinklers which in a irrigators employ pivot-point operate most circular that, manner, irrigating 126 of the 160 acres claimed. He stated only *7 going I thing “This is that is on that wish the commission deeply a would factor, is change. safety It a but it also a is phoney appropriation right.” A which appropriation figure second factor inflates the commission’s is the (2 thirty feet) allocating of inches acre for each 1/2 fact, when, irrigated normally only acre in these acres consume sixteen to eighteen inches. following findings
The district court made which fact are sup- ported by the record: acreage
“The Court finds that the amount of claimed to well and granted construct a in heretofore is permits rarely conditional of acreage the amount actually irrigated.
“The Court further finds that date trial the issues in this as of the case no independent investigation any had regulatory been made agency as to the amount of to a beneficial use actually placed water under any of the permits, conditional time no final permits and as of that had been issued.
“The Court further prior finds that in instances claimants all had claimed least at two one acre feet permitted by half Commis- sion. average The evidence further that the annual application discloses the area involved has been approximately eighteen year.” inches per
The commission justify present policy seeks to argu- two First, it ments. required contends that it is by statute to consider the quan- tity permits, regardless claims under conditional of the actual use, extent of they beneficial because valid represent rights which be can exercised to their full extent. policy guidelines, The commission’s there- fore, that, require that the three-mile “with assumption test made for the purpose analysis, rights this being fully all are ex- appropriate ercised.” Secondly, the commission asserts list it has priority pre- that the pared, 37-90-109, 1973, pursuant to section C.R.S. equivalent is- suance of finаl permits making has the effect of the listed conditional permits final and enforceable. issued,
If final permits
37-90-108,
had
pursuant
been
to section
(1976
C.R.S. 1973
Supp.),
guideline
no error would be found
the policy
issued,
directive. Final permits, however, have not been
and conditional
permits do not permit
rights
their
water
and later ex
sleep
holders
on
pand their use to the full
See
their
Colorado River
permits.
extent of
Conservation
Reservoir
Canal
District
Twin Lakes
v.
Company,
561,
171
(1970).
Colo.
Regardless of the
in a
the amount of
quantity specified
actually applied
to beneficial use defines the full extеnt of the water
right.
Company,
Green v.
Ditch
150 Colo.
The commission cannot conditional permits as they are enforceable “existing legisla claims” without implementing tive scheme which includes issuance of final Such permits. practice First, has two effects. it prоtection leg does afford contemplated by islature to who are appropriators proceeding according to direc statutory tive to the full amount of water place under their conditional permits to But, beneficial use. it secondly, who appropriators have placed use, lesser of water quantity to beneficial and who are not proceeding with diligence due the full place of water under their quantity use, beneficial to sleep on water which are not validly ap *8 propriated under Colorado law. Green v. Ditch Company, Chaffeе supra. argument commission’s second testimony is based the of C. upon J. Kuiper, engineer the state and executive director of the commission. Kuiper testified that the priority prepared list the commission has the by “stature of a final permit,” and that the issuance of final was no more than a “ministerial act” by virtue of the commission action on the priority lists.
To determine merit, whether this “equivalency” argument has the fi- nal permit provision of the Colorado Ground Management Act must be compared with the priority procedure list followed by the commis- legislature sion. The specified the fоllowing requirements the issuance of final permits:
“37-90-108. Final permit— evidence use— limitations. of beneficial (1) After having received a permit conditional to appropriate designated water, ground the applicant proceed diligence shall with due to construct the well or other works necessary apply to the water to a beneficial use. shall, The applicant well, completion of the furnish the commission information as to the maximum gallons sustained rate in pumping per minute, commission, measured by such procedure prescribed by as the such rate to be by cеrtified drilling licensed water well or contractor pump contractor, installation by three disinterested persons, or as author- ized by the commission. The applicant shall also furnish commission with such eviaence by prescribed form commission as will demonstrate that the water to put has been use.
beneficial “(2) the water investigation due commission finds after If terms of has use and that other the conditional put been to beneficial with, the shall order the state permit complied have been ground to designated use water at the engineer permit to issue final (1) by procedure prеscribed in subsection of this sec- rate determined as containing such limitations and conditions the commission tion and necessary prevent waste protection ap- shall deem and for the of other propriators.
“(3) designated water shall permit appropriate A conditional at the of one expire expiration year and be no force or effect from issuance, (1) under date of set unless conditions forth subsection time, this been with within or complied section have unless extended shown, unless, cause period upon good commission for a certain or aftеr the (4) conditions set forth under subsection of this section are com- with, plied the commission that the finds conditional should remain in force and effect.
“(4) The that a procedural requirement statement shall beneficial use be filed shall to all wherein the apply put to beneficial use since If pertaining June 1969. information of the completion (1) received, well as been required subsection this section evi- has but dence has been placed that water beneficial use has not been received of the date of the expiration permit, the commission so shall notify give certified mail. The notice shall applicant the applicant to submit that the opportunity proof put water was to beneficial use date, but, prior inadvertence, neglect, due to expiration excusable or mistake, the failed on to submit the evidence applicant proof time. The must be within twenty days received of the receipt (Emphasis added.) notice . . .” applicant. engineer the procedure state described followed by the commis-
sion in the preparation priority only lists. rec- Basically, *9 engineer’s ords of the state office were used. The information contained therein accepted being was correct without any A protest verification. hearing and procedure provided permit to persons interested chal- lenge however, particular rights. Not few surprisingly, rights were challenged.
The commission never undertook an independent investigation to de- termine whether the amount of water claimed had ever been put to benefi- Indeed, cial use. engineer frankly state that admitted he not de- could any overstated, termine whether of the claims had been no because independent investigation given made. A had been for reason the commis- sion’s failure investigation to make such was the asserted lack of funds and personnel. and the statutory permit procedure final comparison
A in the of their preparation the commission by followed procedure priority lists are not priority equiva the commission’s that clearly establishes lists the holder of a requires statute that permit The final permits. final lent to commission with evidence of beneficial use provide permit conditional investigation in an to confirm that use be engage that (1976 Section C.R.S. 1973 can issue. permit a final fore Watеr Conservation District River v. Twin Colorado See Supp.); supra. procedure places This Company, and Canal Reservoir Lakes that he has made a valid appropria appropriator prove on the burden The commission’s list priority proce with Colorado law. tion consistent burden shifting proof potential protes effect of dure has had the statutory from its excusing duty. the commission tants and of however, engage the commission a confirma intended that legislature, meaningful be a issuance of final permits and that the investigation tory action. legislative scheme fоr the ad is essential
The final issued, are rights. Once final ministration of combining the quan can be determined claims” “quantity rights repre final with the tity quantity evidenced statutory that will re permits engaged process sented final then can the commission permit. Only sult in the issuance of a within water exists certainty unappropriated conclude whether given legislative The commission’s failure to follow the three-mile circle. Management contained within the Colorado Ground Water Act directives right plaintiff statutory have had the effect of his to di may denying designated ground vert water. unappropriated
IV. under thе When the commission considers an three-mile test, average particu- it determines the of saturated thickness for the depth circle, assigns lar but basin-wide values for the other test factors. The introduced evidence in of his contention local values support recharge, irrigation recharge were dif- specific yield, precipitation position It was his routinely ferent from those used commission. used, larger appropriable if been volume of the local values had the three-mile water would have resulted from test. upon
The commission’s the three-mile test was based аdoption of effect the area significant that a well would have its most conclusion test would be con- Optimally, contained within the three-mile circle. however, Administratively, expensive ducted with values. it would local investigations de- time-consuming to undertake for the commission Moreover, of these factors are for these factors. some termine local values basis, an justify which would the use of constant on a basin-wide relatively *10 research. average value without further
Nonetheless, applicants seeking appropriate designated ground permitted must be to submit evidence that local values general substitutеd for the more basin Such evidence should be values. and, if be persuasive, incorporated must be into the When considered test. evidence, reviewing such the applicant presents body an must find make challenged as to factor. district ings of fact each The court failed to make necessary findings in this case.
V. contends by admitting that district court erred in concerning water conditions areas far removed from his three- evidence challenged mile within circle. evidence established that other areas aquifer experienced the same drastic declines in the water fоrmation had inter-connected, Ogallala water-bearing levels. formation is an Since formation, challenged no error resulted from the evi admission dence.
VI. Assembly rejected pure appropriation The General doctrine as to ground water. It declared while the appropriation doctrine should be it recognized, must be modified “full economic development of ground designated water resources.” Section C.R.S. 1973. The commission’s no than policy permitting more 40% within 25 years, adopted in contemplated effected modification legislature. The permits the еconomic development this essen- tially through regulated mining affording nonrenewable resource while protection reasonable to senior appropriators. recognized ground We nature unique in resources
Fundingsland Commission, v. Colorado Ground supra: “Underground require management water basins different is from the management underground tributary surface streams and waters such waters, regulation streams. In the case of latter seasonal of diversion junior appropriators effectively can protect interests of more senior long appropriators range no harm can come of overappropriations subject since the recharge. underground streams are to seasonal dealt subject 148-18-1 is not replenishment same en- ready joyed by tributary ground surface streams and is possible water. It water to be withdrawn from the aquifer a rate excess of the annual recharge creating mining what is called a condition. Unless the rate of pumping regulated, mining lowering must result in ultimately the water balance below the may level from which water be with- economically drawn. through Due the slow rate at which underground waters flow and into aquifer, may many years it before a reasonable water level may be to mined aquifer. restored
“It policies is clear that protecting senior appropriators maintaining reasonable water pumping levels set forth
501 management which takes into account the require water act underground case all aquifer. In this long pumping effects of intermittent range and the district court were the commission testifying before experts of the High in the Northern Plains condition exists mining that a agreement has determined that Basin. The commission Ground Water Designated mining be al- that the ground requires the water resource usе of proper However, depletion, allowable rate the maximum lowed to continue. of wells, to drill new permits at considering applications least when for added.) years. in 25 . . .” (Emphasis at 40% depletion has been set but chal- validity policy, of the commission’s the plaintiff accepts ap- lenges in which it has been administered. The commission the manner of each new and application, as of the date the formula plies 40%/25-year commission consider asserts that the should not of 1967. as remaining until 1992 and determine whether the only years the number greater depletion would than 40% level of result present appropriation disagree. aquifer of the 1967 level. We Assembly, ap-
The General confronted with the task of the adapting mining situation, doctrine the propriation pro- to a directed against injury tect senior while at the same appropriators unreasonable time permitting ground full economic of Colorado’s water development 37-90-102, l(l)(a), Sections The com- resources. 37-90-11 C.R.S. 1973. ap- test as of the date of each practice applying mission’s three-mile with viable in manner consistent plication prolongs aquifer’s life a legislature’s directives. plaintiffs would were the adopt
Two results follow First, man- necessary properly be position. computations would age suggested by the manner ground Colorado’s water resources in And, secondly, nightmare. result administrative plaintiff would in an which is plaintiffs position would inconsistent implement policy legislature’s intent.
The commission to recognize protect prior appropria- is directed and ground ground tions of water water pumping and to maintain reasonable legislature levels. Section did not intend that C.R.S. 1973. The Nonetheless, ground all be ac- depleted resources would 1992. us to ceptance plaintiffs argument interpret would cause statute ground so all basins to be dried designated up as to depletion could the rate of placed to find that no constraints recognized We long depletion as no more than a 40% occurred 1992. v. Ground legislative different intent in Colorado Fundingsland Commission, we stated that “the maximum allowable supra, wherein considering applications rate of at when depletion, least wells, (Emphasis 40% in 25 years.” drill has set at new been added.) find that the
We application three-mile test new as of date each applicatiоn protects prior appropriations, levels, maintains pumping reasonable full economic devel opment these water resources in orderly an manner. com present practice legislative mission’s consistent with the expressed intent Management in the Colorado Ground Water Act will not be disturbed by this court.
This opinion is not intended to affect valid which are *12 presently represented by permits. commission’s failure to in accordance with the proceed legislature’s mandate will not be permitted adversely existing affect appropriations. The commission and the state engineer are directed statutе to issue final by implementing the 37-90-108, procedures provided (1976 in section C.R.S. 1973 Supp.). Fi- issued, nal when will permits, protect based the extent (1976 of beneficial use. Section Supp.). C.R.S. reversed, Accordingly, judgment and the cause is remanded to the trial court with findings directions to enter as fact directed this opinion and for not proceedings inconsistent with this opinion.
MR. JUSTICE GROVES concurs in the result.
MR. JUSTICE GROVES concurring in the result: My concern with opinion this relates to part the contents of III thereof. Insofar this portion relates to conditional permits presently is- sued, it is completely emasculated the next to last paragraph opinion. I do not necessarily subscribe to the last sentence of III part por- tion the opinion.