Buffalo Park Dev. V. Mountain Mut. Reserv., No. 06SA373.

• Decision Date: 03 November 2008
• Docket Number: No. 06SA373.
• Citation: 195 P.3d 674
• Parties: Concerning the Application for Water Rights in the South Platte River or its Tributaries in Jefferson, Douglas, Arapahoe and Park Counties and the City and County of Denver. BUFFALO PARK DEVELOPMENT COMPANY, a Colorado corporation; Colorado Mountain Properties, Inc., a Colorado Corporation; and Evergreen Memorial Park, Inc., a Colorado corporation, Applicants-Appellants: v. MOUNTAIN MUTUAL RESERVOIR COMPANY, a Colorado non-profit corporation; and North Fork Associates, LLC, Applicants-Appellees, and Bear Mountain Homeowners Association; Brook Forest Water District; Colorado Water Conservation Board; City and County of Denver, Acting by and Through its Board of Water Commissioners; City of Englewood; Evergreen Metropolitan District; Vista Exline; Farmers Reservoir and Irrigation Company; Foothills Metropolitan Recreation and Park District; Genesee Water and Sanitation District; Jefferson County Open Space Department; Henry L. Kerschbaum; City of Lakewood; Jeremiah P. Lee; Ronald P. Lewis; Charles J. Maas; Town of Morrison; Ben Napheys; Larry J. Plume; Red Rocks Country Club; South Evergreen Water District; Theodore M. Zorich; and the Colorado Department of Water Resources, State and Division Engineers, Applicants-Appellees.
• Court: Colorado Supreme Court

195 P.3d 674

Concerning the Application for Water Rights in the South Platte River or its Tributaries in Jefferson, Douglas, Arapahoe and Park Counties and the City and County of Denver BUFFALO PARK DEVELOPMENT COMPANY, a Colorado corporation; Colorado Mountain Properties, Inc., a Colorado Corporation; and Evergreen Memorial Park, Inc., a Colorado corporation, Applicants-Appellants: v. MOUNTAIN MUTUAL RESERVOIR COMPANY, a Colorado non-profit corporation; and North Fork Associates, LLC, Applicants-Appellees, and Bear Mountain Homeowners Association; Brook Forest Water District; Colorado Water Conservation Board; City and County of Denver, Acting by and Through its Board of Water Commissioners; City of Englewood; Evergreen Metropolitan District; Vista Exline; Farmers Reservoir and Irrigation Company; Foothills Metropolitan Recreation and Park District; Genesee Water and Sanitation District; Jefferson County Open Space Department; Henry L. Kerschbaum; City of Lakewood; Jeremiah P. Lee; Ronald P. Lewis; Charles J. Maas; Town of Morrison; Ben Napheys; Larry J. Plume; Red Rocks Country Club; South Evergreen Water District; Theodore M. Zorich; and the Colorado Department of Water Resources, State and Division Engineers, Applicants-Appellees.

No. 06SA373.

Supreme Court of Colorado, En Banc.

November 3, 2008.

As Modified on Denial of Rehearing November 24, 2008.

Tienken & Hill, LLP, Alan G. Hill, Louisville, Attorneys for Applicant-Appellants.

Vranesh and Raisch, LLP, Michael D. Shimmin, Boulder, Attorneys for Opposers-Appellees.

David C. Lindholm, Boulder, Attorneys for Mountain Mutual Reservoir Company, and North Fork Associates.

Charles J. Maas, Evergreen, Ben Napheys III, Fort Ludlow, Henry L. Kerschbaum, Evergreen, Jeremiah P. Lee III, Evergreen, Vista Exline, Golden, Larry J. Plume, Evergreen, Opposers-Appellees, pro se.

Justice HOBBS delivered the Opinion of the Court.

This water case is now in its 15th year. It was filed in 1994 with an application for conditional water rights and an augmentation plan for 205 wells to be constructed in five Jefferson County mountain subdivisions in the Turkey Creek and Bear Creek sub-basins of the South Platte River Basin.

From the outset of the case, the owners of existing small capacity wells in the vicinity of three of the subdivisions, Mountain Park Homes, Bear Mountain Vista, and Cragmont subdivisions, asserted: (1) no unappropriated ground water remained available for appropriation by means of the newly-proposed subdivision wells, and (2) the proposed augmentation plan was fatally defective because it provided augmentation water only for surface water users and, thus, failed to prevent injury to the ground water users located between the newly-proposed wells and the surface waters of Turkey Creek and Bear Creek.

The District Court for Water Division No. 1 ("water court") tried the case in three evidentiary segments over the course of three years, on July 19-23, 1999, January 24-26, 2000, and August 28-30, 2002. On August 4, 2006, after entering a delay reduction order against the Applicants in the case, the water court issued its Order and Judgment approving the application for two of the five subdivisions, Buffalo Meadows and Homestead, and dismissing the application for the other three subdivisions, Mountain Park Homes, Bear Mountain Vista, and Cragmont.

On October 16, 2006, after a round of proposed adjustments to prior decree drafts, the water court issued its decree making the augmentation plan effective for two of the subdivisions, Buffalo Meadows and Homestead subdivisions, and disapproving the plan as to the other three subdivisions. The case then became final for purposes of appeal.

In this appeal Buffalo Park Development Company ("Buffalo Park") contends that, even if the water court were correct in finding that no unappropriated ground water was available for three of the subdivisions, it did not afford the developer an adequate opportunity to propose terms and conditions for an augmentation plan to protect the existing ground water users. It also contests the standing of the Bear Mountain Homeowners Association ("Bear Mountain Homeowners") to assert injury on behalf of its members.¹

We reject these contentions. Based on the evidence in the record, we uphold the water court's findings of fact and conclusions of law that Buffalo Park did not meet its burden of proof. Buffalo Park did not prove: (1) the existence of available unappropriated water for the conditional ground water rights it claimed for the Mountain Park Homes, Bear Mountain Vista, and Cragmont subdivisions, or, in the alternative, (2) a non-injurious augmentation plan sufficient to protect the vested ground water rights of small domestic well owners who divert from the aquifers between the proposed three subdivisions and the surface waters of Bear Creek and Turkey Creek.

Prior to the trial of this case, we had entered our decision in Shirola v. Turkey Cañon Ranch Ltd. Liab. Co., 937 P.2d 739 (Colo.1997), in which we remanded the case to the water court. We held that the lowering of ground water levels was evidence of injury to existing small capacity ground water users and the developer failed to propose a plan to add augmentation water to the aquifer to prevent injury caused by its proposed new water use. Thus, the issues the opposers raise in the case now before us concerning Buffalo Park's augmentation plan were known to Buffalo Park and should have been anticipated by Buffalo Park in its trial preparation.

We find that, even though Buffalo Park had ample opportunity throughout the water court proceedings to introduce evidence and propose terms and conditions for an augmentation plan protective of the existing ground water users, it failed to do so. Buffalo Park complains on appeal that the water court did not afford it an adequate opportunity to propose additional protective augmentation plan terms and conditions and, if given another opportunity, it "may propose localized replacement of water, either by piping water, or other methods to augment or replace the 10 percent depletion described in the proposed decree." Buffalo Park did not make this proposal before the final decree. Yet, it nonetheless contends we must now order the water court to reopen its 15 year-old proceedings. We decline to do so, and uphold the water court's judgment.

I.

In its 1994 application, Buffalo Park claimed conditional ground water rights with an appropriation date of September 12, 1994, for 205 new wells for five subdivisions. It also proposed an augmentation plan utilizing surface water sources to provide replacement water into Turkey Creek and Bear Creek to protect against injury to surface water users, but included no provision for augmentation of the ground water aquifers between the new wells and the surface streams to protect the ground water users.

Numerous owners of decreed surface water rights in Turkey Creek, Bear Creek, and the South Platte River filed statements of opposition in the case. The following individuals filed statements of opposition opposing the Cragmont conditional ground water appropriations, on the basis of alleged impacts to small capacity wells: Diana L. Blake; George E. Gaul; Jeremiah P. Lee, III; Larry J. Plume; Henry L. Kerschbaum; Ben Napheys, III; and, through intervention motion granted by the water court, Vista Exline and Charles J. Maas.

Following the close of the statement of opposition period, the Bear Mountain Homeowners moved to intervene in opposition to the Bear Mountain Vista and Mountain Park Home conditional ground water appropriations, on the basis that its members in the affected area owned vested ground water rights that could be injured. The water court granted the motion and allowed Bear Mountain Homeowners to file its statement of opposition.² During pre-trial proceedings, Bear Mountain Homeowners filed its disclosure statement listing Bruce Kroeker as its expert ground water witness. Buffalo Park's disclosure statement listed Curtis Wells as its ground water expert witness.

At trial, Buffalo Park attempted to have Wells testify as an expert on the issue of whether unappropriated ground water was available for the Buffalo Park conditional ground water appropriations. Because Buffalo Park failed to make required pre-trial disclosures, the water court precluded Wells from testifying. Counsel for Buffalo Park, two of the opposers' counsel, and the court engaged in the following dialogue concerning the Bear Mountain and Cragmont subdivisions:

Q. (MR. HILL) Mr. Wells, you're aware it's an issue in this case as to whether there is unappropriated groundwater available to supply the 10 wells on Bear Mountain Vista and 100 wells on Cragmont. Based on your table and research that you did and the opinions you've developed, is it your opinion to a reasonable degree of geological certainty that there is appropriate groundwater available in each of the two subdivisions for the plan that is proposed for the decree in this case?

MR. SHIMMIN: Objection, Your Honor—

MR. KRASSA: Objection.

MR. SHIMMIN: There is no such opinion contained in his disclosure.

THE COURT: Sustained.

(Emphasis added).

At trial, Homeowners' expert witness, Mr. Kroeker, delivered his opinion that there was no unappropriated ground water available for Buffalo Park's conditional appropriations. He relied on evidence of substantially falling water levels in existing wells that, in several instances, required the re-drilling of wells to a significantly greater depth. He also testified that injury would occur to the vested water rights of existing homeowners in the Bear Mountain area because Buffalo Park's augmentation plan did not provide the replacements necessary to protect existing users from depletions to the aquifer caused by Buffalo Park's ground water withdrawals:

A. (MR. KROEKER) What my opinion is, and in BM-59 says, that the water levels are falling, it's an...