917 P.2d 1242 (Colo. 1996), 95SA245, People ex rel. Simpson v. Highland Irr. Co.

Docket Nº:95SA245.
Citation:917 P.2d 1242
Opinion Judge:Justice HOBBS Justice.
Party Name:The PEOPLE of the State of Colorado, ex rel. Hal D. SIMPSON, State Engineer; and Steven J. Witte, Division Engineer for Water Division 2, Plaintiffs-Appellees, v. The HIGHLAND IRRIGATION COMPANY, a mutual ditch company; and The Nine Mile Canal Company, a mutual ditch company, Defendants-Appellants.
Attorney:Gale A. Norton, Attorney General, Stephen E. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Wendy C. Weiss, First Assistant Attorney General, Natural Resources Section, Denver, for Plaintiffs-Appellees. Grimshaw & Harring, P.C., Wayne B. Schroeder, Denver, for...
Case Date:June 03, 1996
Court:Supreme Court of Colorado
 
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917 P.2d 1242 (Colo. 1996)

The PEOPLE of the State of Colorado, ex rel. Hal D. SIMPSON, State Engineer; and Steven J. Witte, Division Engineer for Water Division 2, Plaintiffs-Appellees,

v.

The HIGHLAND IRRIGATION COMPANY, a mutual ditch company; and The Nine Mile Canal Company, a mutual ditch company, Defendants-Appellants.

No. 95SA245.

Supreme Court of Colorado, En Banc

June 3, 1996

As Modified on Denial of Rehearing June 17, 1996.

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Gale A. Norton, Attorney General, Stephen E. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Wendy C. Weiss, First Assistant Attorney General, Natural Resources Section, Denver, for Plaintiffs-Appellees.

Grimshaw & Harring, P.C., Wayne B. Schroeder, Denver, for Defendants-Appellants.

David L. Harrison, Amelia S. Whiting, Boulder, for Amicus Curiae Lower Arkansas Water Management Association.

Holland & Hart, Anne J. Castle, Denver, for Amicus Curiae Continental Grain Company d/b/a Colorado Beef.

Shinn Lawyers, Carl M. Shinn, Donald L. Steerman, Lamar, for Amicus Curiae District 67 Irrigating Canals Association.

Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Jennifer L. Gimbel, Deputy Attorney General, Natural Resources Section, Denver, for Amicus Curiae Colorado Water Conservation Board.

Fairfield and Woods, P.C., Howard Holme, Stephen L. Leonhardt, Denver, for Amicus Curiae Southeastern Colorado Water Conservancy District.

Lefferdink & Bullock, John S. Lefferdink, Lamar, for Amicus Curiae Fort Lyon Canal Company.

Michael T. Mitchell, Parker, for Amicus Curiae Arkansas Valley Ditch Association.

OPINION

Justice HOBBS Justice.

This appeal is from a judgment of the District Court for Water Division 2 enjoining appellants, two upstream mutual ditch companies holding junior priorities, The Highland Irrigation Company (Highland) and The Nine Mile Canal Company (Nine Mile), from any continued violation of diversion curtailment orders issued by the Division Engineer (Engineer). The curtailment orders were issued under section 37-92-502, 15 C.R.S. (1990), to enforce a call by owners of senior priorities downstream of John Martin Reservoir on the Arkansas River. In our previous decision, Colorado ex rel. Simpson v. Highland Irrigation Co., 893 P.2d 122 (Colo.1995), we reversed the water court's determination that Highland and Nine Mile lacked standing to pursue an affirmative defense to the Engineer's enforcement orders posited on the Arkansas River Compact, chapter 155, 63 Stat. 145 (1949), section 37-69-101, 15 C.R.S. (1990), (the Compact). On remand, that defense was examined and rejected by the water court. The court ruled in favor of the state appellees, the Division and State Engineers. Pursuant to section 37-92-503, 15 C.R.S. (1990), the water court entered a judgment which included an injunction against further violation of the Engineer's orders and an award of costs and reasonable attorneys fees against Highland and Nine Mile. We affirm the judgment.

I.

Pertinent facts of this case are set forth in our prior opinion, Colorado ex rel. Simpson v. Highland Irrigation Co., 893 P.2d 122 (Colo.1995), which we now summarize and supplement from the record before us. Under the Compact, John Martin Reservoir is operated by the Corps of Engineers, with the Arkansas River Compact Administration (ARCA) playing the key role in prescribing procedures for Compact administration and the management of John Martin Reservoir for the benefit of Colorado, Kansas and, through them, water users of both states. ARCA is composed of three members from each state. As to all decisions and matters of administration, each state has one vote and both states must agree. With regard to the Colorado ARCA members, Article VIII C provides that one member shall be a resident and water right owner in water districts 14 or 17 (upstream from the reservoir), one member shall be a resident and water right owner in water district 67 (downstream), and

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the third Colorado member shall be the director of the Colorado Water Conservation Board.

Under Article VIII G(1) of the Compact, ARCA is directed to

co-operate with the chief official of each state charged with the administration of water rights and with federal agencies in the systematic determination and correlation of the facts as to the flow and diversion of the waters of the Arkansas river and as to the operation and siltation of John Martin Reservoir and other related structures.

Article VIII H additionally provides that enforcement of the Compact will be accomplished primarily through the state agencies and officials charged with the administration of water rights within each state.

In 1980, ARCA adopted an Operating Plan, revised in 1984, designed to provide greater reliability in the use of John Martin Reservoir waters for the benefit of Colorado and Kansas water users. Under the Operating Plan, waters accruing to the reservoir's conservation pool during the "period of winter storage" between November 1 and March 31 of each year are re-allocated commencing the first week of April 1 to individual storage accounts in the reservoir, forty percent to Kansas, sixty percent to Colorado.

Colorado's sixty percent portion of the accrued conservation water is transferred into nine accounts, in percentages proportionately allotted to each of the nine downstream ditch companies, Kansas v. Colorado, 514 U.S. 675, ----, 115 S.Ct. 1733, 1744, 131 L.Ed.2d 759 (1995), for retention in the reservoir and use on demand of the Colorado water users downstream of the reservoir in water district 67. Under the Operating Plan, this transfer parallels in amount and duration those releases from the reservoir contemplated by the Compact. During the period of transfer into the accounts, the Colorado priority system is suspended in favor of water users upstream of the reservoir, with regard to water users below the reservoir. The Compact contains a no-call provision in favor of priorities upstream of John Martin Reservoir until ARCA determines that the conservation pool water will be exhausted within two weeks. Notice must be given within the two-week period of a day certain when priority administration of Colorado water rights will resume.

Prior to adoption of the Operating Plan, exhaustion of the conservation pool through physical releases from storage had occurred during April. Under the Operating Plan, when the water of the conservation pool is fully placed into the individual accounts at the beginning of the irrigation season, the conservation pool is deemed to have been exhausted, whether or not actual releases have been made from the reservoir, and the no-call provision abates in favor of priority administration within Colorado by the Engineer. The primary effects of the Operating Plan are to provide Colorado and Kansas each with a secure percentage of the conservation pool water and to alleviate pre-existing conditions which encouraged a race to empty the conservation pool by the water users of both states. ARCA determined that John Martin Reservoir water is more efficiently managed for ultimate beneficial use through this procedure.

Under the circumstances of this case, transfer of conservation water into the accounts had begun on April 1 of 1993 and was completed on April 25. On April 26, 1993, three downstream ditch companies with senior rights were calling for irrigation water. In order to enforce the call, oral and written curtailment orders were issued to Highland and Nine Mile on April 26-27, 1993, but were ignored by Highland and, four days later, by Nine Mile. The Lamar, Keesee, and Amity companies properly placed the call under Colorado priority administration, since they held water rights senior to Highland's 1909 right and Nine Mile's 1887 and 1930 rights.

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Highland had two senior water rights totaling 24 cubic feet per second, as to which the curtailment orders were not applied.

Highland and Nine Mile continued thereafter during the 1993 irrigation season to divert from the Purgatoire River, tributary to the Arkansas River upstream of John Martin Reservoir, in violation of the Engineer's orders.

The Division and State Engineers brought an action under section 37-92-503, 15 C.R.S. (1990), in the water court to enforce the curtailment orders. The water court determined that Highland and Nine Mile failed to prove that "throughout the irrigation season they are curtailed more frequently under the Operating Plan than they would be without it and that they are likely to be curtailed less frequently in the future if the Operating Plan is declared invalid."

Implementation of the Operating Plan has not been to the detriment of Highland and Nine Mile. Duane Helton, expert for the state, testified that the diversions of Highland and Nine Mile had materially increased after implementation of the Operating Plan: during the pre-Operating Plan period, Highland's average yearly summer storage period diversions were 6,059 acre-feet; during the post-Operating Plan period, Highland's diversions averaged 8,944 acre-feet. Nine Mile's average yearly summer storage period diversions were 3,884 acre-feet during the pre-Operating Plan period, but during the post-Operating Plan period, Nine Mile averaged 5,533 acre-feet. 2

Highland and Nine Mile request that we strike down the Operating Plan or, alternatively, effectuate a revision of its terms to incorporate their view of the Compact's no-call provision. They assert that the Compact supersedes the operation of Colorado's priority system as to the holders of priorities downstream of John Martin Reservoir while any unreleased transferred water remains in the individual accounts.

The State...

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