Mike & Jim Kruse P'ship v. Cotten (In re Application for Water Rights of the Mike & Jim Kruse P‘’ship in Saguache Cnty.)
| Decision Date | 25 January 2021 |
| Docket Number | Supreme Court Case No. 20SA32 |
| Citation | 479 P.3d 893 |
| Parties | In the MATTER OF the Application for WATER RIGHTS OF the MIKE AND JIM KRUSE PARTNERSHIP IN SAGUACHE COUNTY. Mike and Jim Kruse Partnership, Applicant-Appellee, v. Craig W. Cotten, Division Engineer, Water Division 3; and Kevin G. Rein, State Engineer, Opposer-Appellants, and The United States of America Fish and Wildlife Service and The Rio Grande Canal Water Users Association, Opposer-Appellees, and Concerning S&T Farms, LLC, Intervenor-Appellee. |
| Court | Colorado Supreme Court |
Attorneys for Applicant-Appellee: Porzak Browning & Bushong LLP, Steven J. Bushong, Cassidy L. Woodard, Boulder, Colorado
Attorneys for Opposer-Appellants: Philip J., Weiser, Attorney General, Philip E. Lopez, Senior Assistant Attorney General, Marc D. Sarmiento, Assistant Attorney General, Denver, Colorado
Attorneys for Intervenor-Appellee: Petros & White, LLC, David S. Hayes, Denver, Colorado
Attorneys for Amicus Curiae The Rio Grande Canal Water Users Association: Carlson, Hammond & Paddock, LLC, William A. Paddock, Mason H. Brown, Katrina B. Fiscella, Denver, Colorado
No appearance on behalf of: The United States of America Fish and Wildlife Service.
En Banc
¶1 Water cases frequently call on courts to interpret decisions from bygone eras. By placing a 1933 decree center stage, this case is no exception: Shortly before the decree at issue here took effect, Franklin Delano Roosevelt became president of the United States, proclaiming a "new deal" in part to combat the ravages of the Great Depression, and war-weary Americans debated how much to worry about a political upstart named Adolf Hitler becoming chancellor of Germany. All the while, farmers in the San Luis Valley sought the right amount of water to till their lands.
¶2 Those farmers, at least in the pocket of the Valley we'll discuss, tapped sources that first flowed from the Continental Divide in the San Juan Mountains to the land below. The ditches they deployed for irrigation became fodder for a dispute that reemerges now, the better part of a century later.
¶3 This direct appeal from the District Court for Water Division 3 (the "water court") requires us to decide whether certain creek water is a decreed source for a ditch and whether the water court below improperly consulted extrinsic evidence when it answered that question. The water court conducted a four-day trial with thousands of pages of exhibits and clashing experts to decide the meaning of a decree finalized in April 1933. Grasping for guidance, the water court seized upon a 1936 photograph and declared the decree ambiguous. Then, to cure the ambiguity, the court consulted additional evidence extrinsic to the original proceedings. Ultimately, it found that the water is decreed to the ditch.
¶4 We reverse. A conflict exists in our case law as to which materials a court may rely on when deciding whether a decree is ambiguous. Some cases say that a court may look beyond the four corners of a decree only when the words on the page are ambiguous. Other cases state that courts may review the statements of claim and transcripts of testimony from the original proceedings to expose latent ambiguities in facially unambiguous decrees. Still others suggest that courts may look at an even greater range of materials from the proceedings that produced the decree. While future litigation may require us to reconcile these cases, we leave that problem for another day. Each method leads to the same result here: The creek water at issue is not decreed to the ditch. And, since the photograph was extrinsic to the proceedings that birthed the decree, the water court erred by relying on it to characterize the decree as ambiguous. Under any of the three interpretive approaches, evidence extrinsic to the underlying proceedings is admissible only after a finding of ambiguity, not to create the ambiguity.
¶5 The parties dispute whether water from La Garita Creek (the "Creek") that passes through a siphon under a canal is a decreed source for the Rocky Hill Seepage and Overflow Ditch (the "Ditch"). If it is, then the Mike & Jim Kruse Partnership (the "Partnership"), a part-owner of the Ditch, has a right to some of that water.
¶6 The Creek starts in the mountains on the west side of the San Luis Valley and flows east onto the plain. The Creek deposits sediment, and, historically, this sediment piled up, causing the Creek to continually change course and to split into distributaries. Since 1884, the east-flowing Creek has intersected perpendicularly with the north-running Rio Grande Canal (the "Canal").
¶7 To keep Creek water from spilling into the Canal, the Creek was channelized for about a mile west of the Canal and a siphon (the "Siphon") was installed below the Canal to funnel the Creek underneath it and into another channel that continues eastward. The water court found that the Siphon has existed since 1914 and possibly earlier.1 The picture below (an exhibit at trial) shows the Siphon, where it empties into the eastern channel:
¶8 The parties disagree about the identity of the eastern channel that starts at the mouth of the Siphon. The Division and State Engineers (the "Engineers") say that it is the continuation of the Creek's channelized bed. The Partnership says that the channel is the Ditch's second branch. Whatever it is, this eastern channel now runs directly into the Ditch, and the water court found that the channel isn't hydrologically connected to a stretch of the Creek that occasionally restarts some three-and-a-half miles east of the Canal.
¶9 On the map below (another trial exhibit), the solid green line depicts the Ditch's current location, although this image reflects the Partnership's position that the segment east of where the Creek intersects the Canal is part of the Ditch:
¶10 When the Canal was built, seven decreed diversions existed downstream of the Canal on this part of the Creek. In 1926, the Saguache County District Court granted petitions to move several of these diversion points to the west of the Canal. Those transfers left only three decreed appropriations from the Creek immediately east of the Canal: McLeod Ditches 3, 4, and 5. Today, those three ditches divert water from the contested channel east of the Siphon, and they have appropriation dates of 1878, 1880, and 1880, respectively.
¶11 In 1933, the court conducted a general adjudication of water rights in the vicinity of the Canal. Several parties filed competing claims for various ditches, and, after a day of testimony, they informed the court that they had settled. They had executed a contract (the "Contract") that combined several ditches to create the Ditch and that resolved their competing claims to the Ditch's water. They offered the court a stipulated decree, which became the 1933 decree (the "Decree") that controls here.2
¶12 The Decree does not mention the Creek or the Siphon; instead, it describes the source of the Ditch as "waste, seepage and spring waters, which are independent of and non-tributary to any natural running stream or water course, and are not capable of being used upon the lands where the waters first arise." The Decree traces the Ditch's layout and locates its three "headgates," which, in this context, refer to termini of the Ditch rather than typical headgates that divert water off a source. It also specifies that the Ditch is entitled to 44.6 cubic feet of water per second with a priority date of November 17, 1891. The Decree assigns the Ditch "Priority No. 1 on its source of supply."
¶13 At the time of the Decree, farmers in this area practiced "sub-irrigation," meaning that they saturated the land so that the groundwater would rise to their crops' roots. Today, however, most of the region's irrigation happens through center-pivot sprinklers, a more water-efficient method. The water court found that this switch has reduced seepage into the Ditch, so that it now depends on Siphon water for most of its supply.
Siphon water generally consists of water that has returned to the Creek after use by upstream irrigators, but sometimes it includes untouched Creek water and snowmelt.
¶14 At least from 1975 to 2016, the water commissioner administered the water exiting the Siphon by giving the first 3.77 cubic feet per second to McLeod Ditches 3, 4, and 5 (the three remaining appropriations diverting downstream of the Siphon and with the Creek as their decreed source). The commissioner allowed the balance of the Siphon water to flow down the eastern channel that either connects to the Ditch or is itself part of the Ditch. Thus, the owners of the Ditch have had unfettered access to Siphon water, minus the McLeod diversions, for more than forty years.
¶15 In 2016, the U.S. Fish and Wildlife Service ("FWS") placed a call on the Creek, as it owns another ditch with a headgate on the disconnected stretch of the Creek that restarts much farther east. Soon after that call, the Division Engineer told the owners of the Ditch, including the Partnership, that they have no right to the water exiting the Siphon because the Decree names only "waste, seepage and spring waters" as sources. When the owners refused to stop taking Siphon water, the Division Engineer had a gate installed to block the Siphon and to redirect the Creek into the Canal. The Division Engineer then tried, but failed, to maneuver the water from the Canal and through other ditches to FWS's ditch.
¶16 The Partnership then filed an application asking the water court to interpret the Decree to include the water that once flowed through the Siphon as a source for the Ditch, with a priority second only to McLeod Ditches 3, 4, and 5.
¶17 At first, the water court ruled that "[t]he [Decree] is clear on its face that [the Creek] is not a source of water for the [D]itch." The court "agree[d] with the Engineers that the [D]ecree would likely...
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