Bar 70 Enterprises, Inc. v. Tosco Corp., 5
| Decision Date | 08 July 1985 |
| Docket Number | No. 83SA365,A,No. 5,5,83SA365 |
| Citation | 703 P.2d 1297 |
| Parties | BAR 70 ENTERPRISES, INC., Entrant-Appellant, v. TOSCO CORPORATION, Applicant-Appellee, and Division Engineer For Water Divisionppellee. |
| Court | Colorado Supreme Court |
Musick and Cope, Joseph A. Cope, Robert C. Kerr, Boulder, for entrant-appellant.
Mosley, Wells & Spence, H. Michael Spence, Jacques S. Ruda, Denver, for applicant-appellee.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., William A. Paddock, David Ladd, Asst. Attys. Gen., Denver, for appellee.
Appellant Bar 70 Enterprises, Inc. (Bar 70) appeals from the judgment and decree of the water judge for Water Division No. 5 granting the application of appellee Tosco Corporation (Tosco) for determination of a conditional water right to divert 200 cubic feet of water per second (200 c.f.s.) from the White River by means of a pumping pipeline with appropriation dates of September 30, 1976, for the first 100 c.f.s. of water and December 11, 1979, for the second 100 c.f.s. of water. Challenging only that part of the judgment and decree with respect to the second 100 c.f.s. of water, Bar 70 specifically contends that the water judge misinterpreted a stipulation between Tosco and Bar 70 as an admission that a 1976 field trip conducted by Tosco's employees satisfied the overt acts requirement as the "first step" in initiating an appropriation. Tosco controverts this contention and asserts that Bar 70 lacks standing to appeal because its participation in the proceedings before the water judge was not based on the filing of a statement of opposition to Tosco's application but only the filing of an entry of appearance. The division engineer, who was designated as an appellee pursuant to C.A.R. 1(e), 1 contends that, regardless of Bar 70's standing, the division engineer does have standing to appeal by virtue of his statutory responsibility to represent the public interest in the administration of water resources in the state. We conclude that both Bar 70 and the division engineer have standing to challenge the judgment and decree and that Tosco's 1976 field trip was insufficient to satisfy the overt acts requirement for a conditional water right. We accordingly reverse that part of the judgment and decree granting the conditional decree for the second 100 c.f.s. of water.
A summary of the facts leading up to the judgment and decree provides the foundation for our resolution of the issues raised on this appeal. Tosco owns and plans to develop several oil shale-containing properties in the Piceance Basin on the western slope of Colorado. Because extraction and exploitation of oil shale require significant amounts of water, Tosco has obtained several conditional water right decrees in the nearby White River Basin. Relying on a consultant's 1974 report, Tosco determined in 1976 that its water needs in the Piceance Basin could best be met by consolidating its White River water rights into an integrated system. This consolidation, according to the consultant's report, could be achieved by construction of a proposed reservoir, the Miller Creek Reservoir, for which Tosco held conditional storage decrees. Although the report discussed alternative proposals to meet Tosco's water needs in the Piceance Basin, each proposal required the development of a pumping pipeline from the White River to the proposed Miller Creek Reservoir to augment estimated flows to the proposed Miller Creek Reservoir from Miller Creek. If the reservoir were to be supplied with an adequate amount of water, the pipeline, according to the report, would require a capacity of 100 c.f.s. Pursuant to the report's recommendation, Tosco paid the Colorado White River Conservation District to conduct a five-year gauging study of Miller Creek for the purpose of determining how much water would likely be available from the creek, since this would determine the amount of additional water needed from the White River and the capacity of the proposed pumping pipeline.
Tosco commissioned a follow-up report to the consultant's 1974 report in order to assess the likely yield from its White River water rights. This subsequent report was issued in May 1976 and showed that, due to a lack of storage capacity in the Piceance Basin, Tosco would need greater storage capacity in the White River Basin than previously anticipated. Because all of Tosco's alternative water supply projects involved the proposed Miller Creek Reservoir, the significance of the 1976 report was that the pumping pipeline to the reservoir would require a substantial but undetermined enlargement of pipeline capacity beyond 100 c.f.s.
In September 1976 several Tosco employees, including a geologist, a civil engineer, and an environmentalist, conducted a reconnaissance to determine the best sites for increased storage capacity in the White River Basin and also to explore alternative diversion points for the Miller Creek Reservoir. These employees walked most of the route of the proposed Miller Creek Pumping Pipeline, took photographs, and recorded various sorts of data, but they did not stake or survey the route or locate United States Geological Survey monuments. Because the site of the pump station for the proposed reservoir was to be located on private property and because Tosco was unable to obtain permission from the owner to enter the property, the field crew was able to get no closer than approximately one-half mile from this site.
In June 1979 Tosco's consultants prepared a map delineating the contours of an expanded Miller Creek Reservoir that would hold approximately 45,000 acre feet, twice the amount initially recommended in the 1974 report. After reviewing further studies conducted in the fall of 1979, Tosco on December 28, 1979, filed in the water court for Water Division 5 an application for determination of a conditional water right to divert 200 c.f.s. of water from the White River through the proposed Miller Creek Pumping Pipeline to the proposed Miller Creek Reservoir. The application stated that the appropriation was initiated on May 29, 1974, by "field investigation and location of point of diversion and by pipeline study and definition." On January 12, 1980, the water judge referred Tosco's application to the water referee pursuant to section 37-92-203(7), 15 C.R.S. (1973 & 1984 Supp.).
On February 29, 1980, Dry Creek Land and Livestock filed a statement of opposition, alleging that Tosco's application would injure its absolute and conditional water rights and that Tosco had not alleged or undertaken the "first step" necessary to initiate an appropriation. The referee, pursuant to section 37-92-302(4), 15 C.R.S. (1984 Supp.), conferred with the division engineer for Division 5 and, after determining that the statement of opposition raised matters of law that required a hearing, rereferred the case to the water judge on May 31, 1980. § 37-92-303(2), 15 C.R.S. (1984 Supp.). 2 Pursuant to the then existing version of section 37-92-304(3), 15 C.R.S. (1973), which permitted participation by all persons interested in the water matter pending before the water judge, Bar 70 filed an entry of appearance on March 9, 1981.
At a pretrial hearing on October 28, 1982, Tosco, as applicant, and Dry Creek Land and Livestock, and Bar 70, as objectors, filed a joint pretrial statement. The pretrial statement identified both Dry Creek Land and Livestock and Bar 70 as "the owners of absolute and conditional water rights on the White River" and contained the following stipulation:
Applicant and Objectors will stipulate that the correct appropriation date for the first 100 c.f.s. of water claimed in [Tosco's application] will be September 30, 1976 rather than May 29, 1974 as claimed in the application. Applicant and Objectors have not agreed to any other stipulations.
The joint pretrial statement listed the following disputed issues of fact: whether Tosco, as a matter of law, initiated the appropriation of the second 100 c.f.s. of water; the date and method by which Tosco initiated the appropriation of the second 100 c.f.s. of water; and whether Tosco formed and openly manifested the intent to appropriate the second 100 c.f.s. of water claimed in its application. It was further stated in the pretrial data certificate that "[s]ubstantially all disputes, except the date of appropriation of the second 100 c.f.s. claimed in [Tosco's application], have been resolved."
The case was tried on November 30, 1982. Tosco, which did not object or seek to limit Bar 70's participation in the trial, presented evidence of its previously described activities in connection with the proposed Miller Creek Reservoir and Pumping Pipeline. Counsel for Bar 70, who also represented Dry Creek Land and Livestock, cross-examined each of Tosco's witnesses and urged the water judge to deny the application. On April 11, 1983, the water judge entered a decree granting Tosco's application for a conditional water right to divert 200 c.f.s. of water by means of the Miller Creek Pumping Pipeline for "industrial, mining, retorting, refining, dust control, reclamation, domestic, municipal, recreational and irrigation" purposes. The water judge reasoned in pertinent part as follows:
[U]nder the facts of this case, when coupled with the stipulation agreed to by the Opponent, the Applicant's work was sufficient to satisfy the physical acts of appropriation upon the ground as of September 30, 1976, for appropriation of 100 cfs and the joinder of those facts with the intent to divert 200 cfs formed by Applicant on December 11, 1979, entitle the Applicant to a conditional decree for 200 cfs of water with appropriation dates for 100 cfs of water on September 30, 1976, and 100 cfs of water on December 11, 1979.
Bar 70 filed a motion for a new trial which was denied, and Dry Creek thereafter...
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