BOARD OF COUNTY COM'RS v. Park County

• Decision Date: 08 April 2002
• Docket Number: No. 01SA56.,01SA56.
• Citation: 45 P.3d 693
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PARK and James B. Gardner and Amanda Woodbury, Plaintiffs-Appellants, v. PARK COUNTY SPORTSMEN'S RANCH, LLP, a limited liability partnership, Defendant-Appellee.
• Court: Colorado Supreme Court

45 P.3d 693

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PARK and James B. Gardner and Amanda Woodbury, Plaintiffs-Appellants, v. PARK COUNTY SPORTSMEN'S RANCH, LLP, a limited liability partnership, Defendant-Appellee.

No. 01SA56.

Supreme Court of Colorado, En Banc.

April 8, 2002.

Bernard, Lyons, Gaddis & Kahn, P.C., Jeffrey J. Kahn, Steven P. Jeffers, Longmont, Colorado, Attorneys for Plaintiff-Appellant Board of County Commissioners of the County of Park.

Felt, Monson & Culichia, LLC, James W. Culichia, James G. Felt, Colorado Springs, Colorado, Attorneys for Plaintiffs-Appellants James B. Gardner and Amanda Woodbury.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Attorney for Plaintiffs-Appellants Board of County Commissioners of the County of Park and James B. Gardner and Amanda Woodbury.

Bennington, Johnson & Reeve, P.C., Kenneth J. Burke, Denver, Colorado, Attorneys for Defendant-Appellee Park County Sportsmen's Ranch, LLP.

Timothy R. Buchanan, P.C., Timothy R. Buchanan, Arvada, Colorado, Attorney for Amicus Curiae Fort Morgan Reservoir and Irrigation Company and the North Sterling Irrigation District. Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Denver, Colorado, Attorneys for Amicus Curiae Rio Grande Water Conservation District.

Carlson, Hammond & Paddock, LLC, William A. Paddock, Denver, Colorado, Attorneys for Amicus Curiae Rio Grande Water Conservation District.

Carlson, Hammond & Paddock, LLC, Mary Mead Hammond, Denver, Colorado, Attorneys for the Irrigationists Association.

Trout, Witwer & Freeman, P.C., Robert V. Trout, Adam T. Reeves, Denver, Colorado, Attorneys for Amicus Curiae Northern Colorado Water Conservancy District.

Grimshaw & Harring, P.C., Wayne B. Schroeder, Jody Harper Alderman, Julie K. Blakely, Denver, Colorado, Attorneys for Amicus Curiae Douglas County Water Resource Authority.

Justice HOBBS delivered the Opinion of the Court.

In this appeal from a judgment of the District Court for Water Division No. 1 (Water Court), Plaintiffs-Appellants, the Park County Board of County Commissioners, James B. Gardner, and Amanda Woodbury (Landowners) claimed in a declaratory judgment action that the applicant for a conditional water right, Park County Sportsmen's Ranch, LLP (PCSR) has "no right to occupy the space beneath the lands of the Plaintiffs to store water or other substances on or below the surface of the lands. Any such placement or storage of water on or below the surface constitutes a trespass for which the Defendant may be liable for damages." For this proposition, the Landowners rely upon the common-law property doctrine "Cujus est solum ejus est usque ad coelum et ad inferos"¹ (cujus doctrine). The Landowners also contend that Article XVI, sections 14 and 15, section 37-87-101(1), and other statutes require PCSR to obtain consent or condemn property interests and pay just compensation to them in connection with its conjunctive use project² even though PCSR does not propose to drill into or locate any of its project's facilities on or within the Landowners' properties.

The Water Court determined that: (1) artificial recharge activities involving the movement of underground water into, from, or through aquifers underlying surface lands of the Landowners would not constitute a trespass; and (2) PCSR's proposed project would not require the Landowners' consent or condemnation and the payment of just compensation under the provisions of Article XVI, sections 14 and 15, section 37-87-101(1), or the other statutes the Landowners invoke, because the project did not involve the construction of any facilities on or in the Landowners' properties. We agree with the Water Court and uphold its judgment.

I.

The Landowners and PCSR own property in South Park, Colorado, a high mountain valley approximately seventy-five miles southwest of Denver. PCSR filed with the Water Court an application for a conditional water rights decree and plan for augmentation and exchange involving extraction from and recharge of water into the South Park formation for augmentation, storage, and beneficial use. The South Park formation is a natural geological structure containing aquifers PCSR intends to utilize in connection with its project.

PCSR owns 2,307 acres of land in South Park. As part of its conditional water rights application and plan for augmentation and exchange, PCSR claimed the right to occupy saturated and unsaturated portions of the South Park formation for water extraction, augmentation, and storage as part of a water project it calls the South Park Conjunctive Use Project intended for City of Aurora municipal use. Project features would include twenty-six wells to withdraw water from the South Park formation and six surface reservoirs for artificially recharging the aquifers. PCSR's application did not propose to locate any of the project's recharge and extraction features on the Landowners' properties.

We have previously determined that the aquifers of the South Platte formation are tributary to the natural stream and projects affecting them are subject to Colorado's prior appropriation law. See Park County Sportsmen's Ranch v. Bargas, 986 P.2d 262, 275 (Colo.1999)

. PCSR's Water Court application sought a decree for aquifer water extraction, recharge, augmentation, exchange, and storage activities, identifying two "Reservoir Zones" within the South Platte formation in connection with its claimed "conditional underground storage rights," each zone having a volume of 70,000 acre-feet of water for a total of 140,000 acre-feet extending under approximately 115 square miles of land.

The Landowners objected to PCSR's Water Court application. They also filed a complaint for declaratory relief in the Park County District Court seeking a determination that the placement or storage of water above or below the surface of their lands, absent their consent, would constitute a trespass.

On June 14, 1999, PCSR filed a motion to transfer venue of the declaratory judgment action to the Water Court, which the Park County District Court granted.³ After the change of venue, PCSR answered that its project did not require the Landowners' consent. The Landowners filed a motion for summary judgment in the declaratory judgment action, which the Water Court denied on August 25, 2000.

The Water Court found that PCSR's project did not include the construction of any facilities on or in the Landowners' properties and the Landowners had not alleged that the use, benefit, and enjoyment of their properties would be invaded or compromised in any way. The Water Court determined as a matter of law that PCSR's project did not require the Landowners' consent or condemnation and payment of just compensation. The Water Court ruled that: (1) the property rights of the Landowners do not include ownership of waters tributary to a natural stream; (2) natural streams crossing the property of another may be utilized, without consent, for the transportation of water by a lawful appropriator; (3) natural stream water includes the water in the aquifers; (4) water is treated differently from a property owner's traditional rights in the land estate; (5) Colorado's eminent domain law applies only if the holder of the water use right constructs facilities on or in a non-consenting landowner's property; (6) Colorado law encourages rather than restrains the efficient utilization of the state's scarce water resources; (7) the General Assembly intended to authorize artificial recharge of natural subsurface formations and conjunctive use of ground water placed therein, as part of its maximum utilization goal for beneficial use of water; and (8) the movement of underground water into, from, or through land underlying another's property, resulting from artificial recharge into an aquifer by the holder of a decreed water right, does not constitute a trespass. At the Landowners' request, the Water Court entered judgment in favor of PCSR so that the Landowners could appeal the court's declaratory judgment ruling to us.

In PCSR's water decree application proceeding, the Water Court denied PCSR's application for a conditional decree on June 1, 2001. The Water Court determined among its findings and conclusions that: (1) PCSR's ground water model was not sufficiently reliable to permit a reasonably accurate determination of the timing, amount, and location of stream depletions or to determine the rate of aquifer recharge resulting from PCSR's recharge facilities; (2) PCSR's surface flow model was insufficiently reliable to determine stream flow or legal availability of water for PCSR's project and the model's results overestimated streams flows available to PCSR; and (3) PCSR had failed to meet its burden to quantify injurious depletions in time, place, and location in connection with its augmentation plan. The Water Court characterized PCSR's project application as "a scheme to augment out-of-priority depletions with additional out-of-priority pumping" that would "exacerbate depletions to the aquifer and the river system."

PCSR is presently in the process of appealing to this Court the Water Court's dismissal of its decree application.⁴ As a result of the dismissal and appeal, the Landowners suggest that the Water Court's judgment in the declaratory judgment case before us may be moot or not ripe for decision. We do not agree; however, our decision herein does not address the merits of PCSR's application or the Water Court's rulings in that case. Rather, we address the threshold issues litigated by the Landowners and PCSR in the declaratory judgment action: whether artificial recharge and storage of water that enters portions of the aquifer beneath the surface of a person's property would constitute a trespass and whether PCSR must obtain an easement or condemn and pay just compensation to landowners in connection with its proposed conjunctive use project.

II.

The Water Court determined...