Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 93SC740

Decision Date19 June 1995
Docket NumberNo. 93SC740,93SC740
Citation901 P.2d 1251
PartiesASPEN WILDERNESS WORKSHOP, INC., a Colorado non-profit corporation, Petitioner, v. The COLORADO WATER CONSERVATION BOARD, an agency of the State of Colorado; Robert Tyler Martineau, Leo M. Eisel, David L. Harrison, Robert A. Jackson, James S. Lochhead, David E. Meyring, Janice C. Sheftel, David H. Smith, and Raymond B. Wright, individual members of the Colorado Water Conservation Board; and Aspen Skiing Company, Inc., Respondents.
CourtColorado Supreme Court

Maynes, Bradford, Shipps & Sheftel, Frank E. "Sam" Maynes, Thomas H. Shipps, Durango, for amicus curiae Southwestern Water Conservation District.

Hobbs, Trout & Raley, P.C., Gregory J. Hobbs, Jr., Bennett W. Raley, Denver, for amicus curiae Northern Colorado Water Conservancy District and its Municipal Subdistrict.

Fairfield and Woods, P.C., Howard Holme, Stephen H. Leonhardt, Brent A. Waite, Denver, for amicus curiae Southeastern Colorado Water Conservancy District.

Kenneth A. Baker, P.C., Kenneth A. Baker, Salida, for amicus curiae Upper Arkansas Water Conservancy District.

Anderson, Gianunzio, Dude, Pifher & Lebel, P.C., Mark T. Pifher, Colorado Springs, for amicus curiae City of Colorado Springs.

Marjorie A. Miller, Grand Junction, for amicus curiae High Country Citizens' Alliance, Inc.

No appearance on behalf of respondents Robert Tyler Martineau, Leo M. Eisel, David L. Harrison, Robert A. Jackson, James S. Lochhead, David E. Meyring, Janice C. Sheftel, David H. Smith, and Raymond B. Wright, individual members of the Colorado Water Conservation Board.

Harding & Ogborn, Kevin M. Ward, Jane E. Lien, Denver, Sierra Club Legal Defense Fund, Lori Potter, Denver, for petitioner.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Patricia S. Bangert, Deputy Attorney General, Jennifer L. Gimbel, First Assistant Attorney General, Steven O. Sims, Assistant Attorney General, Natural Resources Section, Denver, for respondent Colorado Water Conservation Board.

Arnold & Porter, David S. Neslin, Lewis A. Steverson, Denver, for respondent Aspen Skiing Company, Inc.

Justice SCOTT delivered the Opinion of the Court.

Justice MULLARKEY dissents, and Chief Justice VOLLACK joins in the dissent. 1

We granted certiorari before judgment of the court of appeals in Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, No. 92-CV-6091 (Denver Dist.Ct., July 2, 1993), pursuant to C.A.R. 50 to review the judgment of the Denver District Court. 2 On cross motions for summary judgment, the district court ruled that respondent Colorado Water Conservation Board ("Conservation Board" or "Board") had the implied or incidental authority not to fully enforce its water rights under a decree of the water court. The June 5, 1980 decree of the water court established the Board's instream flow water right on Snowmass Creek of 12 cubic feet per second (cfs), an amount that court held to be the minimum stream flow necessary to preserve the natural environment. Petitioner, Aspen Wilderness Workshop, Inc. ("Aspen Workshop"), asks that we determine "whether the Colorado Water Conservation Board has the authority to redetermine and administratively reduce a decreed instream flow right." Because we conclude that the Board has a statutory duty pursuant to section 37-92-102(3) of the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to -602, 15 C.R.S. (1990 & 1994 Supp.), to appropriate water in a quantity that represents the "minimum stream flow" necessary to preserve the natural environment, and because, by its clear, unambiguous terms the 1980 water decree includes a determination that the full 12 cfs constitutes the minimum stream flow necessary to preserve the natural environment, we hold that the Board must implement the terms of the 1980 decree unless and until that decree is modified by order of the issuing water court. Accordingly, we reverse the ruling of the Denver District Court and remand this case with directions.

I
A

In January, 1976, the Board determined that continuous flows of a minimum of 12 cfs of water year-round on Snowmass Creek were necessary to meet the statutory standards of preserving the natural environment to a reasonable degree. 3 Consistent with that determination, on January 16 the Board initiated an appropriation and first applied the water to beneficial use. On April 23, 1976, the Board made application in the water court, Water Division No. 5, to perfect its claim of the right to appropriate 12 cfs on Snowmass Creek. The Board's application set forth the source of water as "Snowmass Creek from Snowmass Lake to its confluence with the Roaring Fork River in Pitkin County, a distance of approximately 17 miles." The Board identified its proposed use of the water as: "The appropriation by the State of Colorado of such minimum flows as are required to preserve the natural environment to a reasonable degree." In addition, the Board stated the appropriation was made under the provisions of section 37-92-102.

On July 16, 1976, the Colorado River Water Conservation District ("Conservation District") filed a statement of opposition to the application and the subject appropriation proposed by the Board. The Conservation District challenged the application asserting, among other objections, that the "amount of water claimed is in excess of minimum natural flows" and that "the quantities of water claimed ... are unreasonable [and] unnecessary for the stated purposes."

On March 11, 1980, the water court referee and the division engineer met in conference, pursuant to section 37-92-302(4), 15 C.R.S. (1990), and determined that sufficient "water is available for appropriation" under the provisions of sections 37-92-102(3). 4 On December 28, 1979, the statement of opposition was withdrawn by the Conservation District and the Board's application was again referred to the water referee by the water judge.

On March 21, 1980, the water court referee issued a Ruling of Referee only after "having made such investigations as are necessary to determine whether or not the statements in the application are true." Concluding the representations of the Board were true, the referee ruled that

the application should be granted and that 12.0 cubic feet of water per second of time are hereby awarded for the purpose of maintaining a minimum stream flow as required to preserve the natural environment to a reasonable degree on Snowmass Creek ... absolutely and unconditionally; subject, however, to all earlier priority rights of others....

The referee's ruling was not questioned by any party, including the Board. On June 5, 1980, the water judge made the referee's ruling a decree of the water court.

B

In 1991, because of additional development in the Aspen area, the 1976 appropriation which was the subject of the June 1980 decree was questioned by Pitkin County officials, including the Aspen/Pitkin County Planning Office ("Planning Office"). In September 1991, the Planning Office staff contacted the Division of Wildlife ("Division"), seeking information regarding the Division's experience in dealing with instream flow issues as they related to snowmaking as well as the Division's definition of a "survival flow." 5 In response to that inquiry, a Division instream flow coordinator conducted an on-site investigation of the water flow within Snowmass Creek.

The Division instream flow coordinator informed the Conservation Board of his investigation and made recommendations to the Board regarding Snowmass Creek. 6 The instream flow coordinator expressed concern that the 12 cfs appropriation was too high during certain periods of the year and too low during other periods and suggested the possibility of a computational error in the original data used to establish the 12 cfs instream flow figure in the Board's application and the subsequent June 5, 1980 water decree. On behalf of the Conservation Board, Dan Merriman, Section Chief of the Water Rights Investigations Section of the Conservation Board, issued a memorandum dated February 24, 1992, to Board members and interested parties stating:

Due to the interest expressed by all parties over the resource values of Snowmass Creek, the Board's responsibility to appropriate minimum stream flows to preserve the natural environment to a reasonable degree, and the recent availability of data which was not available when the Board's original appropriation was made, I have requested the Division of Wildlife to prepare a recommendation for winter low-flow conditions on Snowmass Creek for the Board's consideration.

When the Division completed its investigation and analysis regarding the instream water flow on Snowmass Creek, it concluded that the original 1976 appropriation and the June 1980 decree were based on a computational error, and that the original data yielded different results when evaluated using up-to-date criteria.

At its March 1992 meeting, the Board determined that the new information now available warranted a re-examination of its Snowmass Creek instream flow water rights. Consistent with that determination, at its May, July, and September 1992 monthly meetings, the Board received public comment concerning its Snowmass Creek water rights. Based on fieldwork performed in the Fall of 1991 and the Spring of 1992, the Division recommended that rather than maintaining the original year-round appropriation of 12 cfs for the entire length of Snowmass Creek, that the creek be divided into three sections with each section possessing individual summer and winter instream flow requirements. On April 1, 1992, the Division proposed the following changes:

Snowmass Lake to West Snowmass Creek (4.9 miles)

SUMMER: Reduce instream flow from 12 cfs to 9 cfs.

WINTER: Reduce instream flow from 12 cfs to 4 cfs.

West Snowmass...

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