E. Cherry Creek Valley Water v. Greeley Irrigation Co.
| Decision Date | 11 May 2015 |
| Docket Number | Supreme Court Case No. 14SA179 |
| Citation | 348 P.3d 434 |
| Parties | Concerning the Application for Water Rights of EAST CHERRY CREEK VALLEY WATER AND SANITATION DISTRICT and Colorado Water Network, Inc. in Adams, Arapahoe, Denver, Douglas, Elbert, Larimer, Morgan, and Weld Counties East Cherry Creek Valley Water and Sanitation District and Colorado Water Network, Inc., Applicant–Appellant/Cross–Appellees v. GREELEY IRRIGATION COMPANY, City of Greeley, Central Colorado Water Conservancy District, Groundwater Management Subdistrict of the Central Colorado Water Conservancy, Well Augmentation Subdistrict of the Central Colorado Water Conservancy District, Cache la Poudre Water Users Association, Lower Latham Reservoir Company, and Ogilvy Irrigating and Land Company, Opposer–Appellants v. Dick Wolfe, P.E. State Engineer, and David L. Nettles, P.E. Division Engineer, Water Division 1; and City of Aurora, Cross–Appellants City of Englewood, Centennial Water and Sanitation District, City of Boulder, City of Thornton, Colorado Division of Wildlife, Equus Farms, Inc., Irrigationists Association Water District, Northern Colorado Water Conservancy District, and Public Service Company of Colorado, Opposer–Appellees. |
| Court | Colorado Supreme Court |
Attorneys for Applicant East Cherry Creek Valley Water and Sanitation District: Ryley Carlock & Applewhite, Brian M. Nazarenus, Susan M. Ryan, Denver, Colorado
Attorneys for the Applicant Colorado Water Network, Inc.: Law Office of Tod J. Smith, LLC, Tod J. Smith, Boulder, Colorado
Attorneys for Opposers Greeley Irrigation Company: Dietze and Davis, P.C., Star L. Waring, Gabriella Stockmayer, Mark Detsky, Boulder, Colorado
Attorneys for Opposers City of Greeley, Acting by and through its Water and Sewer Board: Trout, Raley, Montano, Witwer and Freeman, P.C., James S. Witwer, Douglas M. Sinor, Denver, Colorado, Greeley City Attorney's Office, Andrew B. Nicewicz, Greeley, Colorado
Attorneys for Opposers Central Colorado Water Conservancy District, Groundwater Management Subdistrict of the Central Colorado Water Conservancy District, and Well Augmentation Subdistrict of the Central Colorado Water Conservancy District: Lawrence Jones Custer Grasmick, LLP, Bradley C. Grasmick, Johnstown, Colorado
Attorneys for Opposers Cache La Poudre Water Users Association, Lower Latham Reservoir Company, and the Ogilvy Irrigating and Land Company: Fischer, Brown, Bartlett & Gunn, P.C., Daniel K. Brown, Donald. E. Frick, Fort Collins, Colorado
Attorneys for Opposers City of Aurora: Brownstein Hyatt Farber Schreck, LLP, Steven O. Sims, John A. Helfrich, Dulcinea Z. Hanuschak, Denver, Colorado
Attorneys for Opposers Centennial Water and Sanitation District: Buchanan and Sperling, P.C., Veronica A. Sperling, John D. Buchanan, Arvada, Colorado
Attorneys for Opposers Colorado State Engineer and Division Engineer for Water Division 1: Cynthia H. Coffman, Attorney General, Chad M. Wallace, Senior Assistant Attorney General, Denver, Colorado
Attorneys for Amicus Curiae the City of Loveland: Ryley Carlock & Applewhite, Brian M. Nazarenus, Susan M. Ryan, Denver, Colorado
Attorneys for Amicus Curiae the City of Thornton: Thornton City Attorney's Office, Margaret A. Emerich, City Attorney, Joanne Herlihy, Assistant City Attorney, Thornton, Colorado
No appearance by or on behalf of City of Boulder, Colorado Division of Wildlife, Equus Farms, Inc., Irrigationists Association Water District, Northern Colorado Water Conservancy District, and Public Service Company of Colorado.
En Banc
¶ 1 This appeal concerns a change of water right case filed by applicants East Cherry Creek Valley Water and Sanitation District and Colorado Water Network, Inc. (collectively “East Cherry Creek Valley”). East Cherry Creek Valley submitted an application for a change of water right involving shares it owns in the Greeley Irrigation Company (“GIC”) for use in its water system. A prior change case, the Poudre Prairie Decree,1 employed a ditch-wide analysis for calculating the amount of historical consumptive use ascribable to each GIC share. Subsequent decrees involving a change of water right in connection with GIC shares have relied upon the ditch-wide historical consumptive use determination made in the Poudre Prairie Decree. In this case, East Cherry Creek Valley's application asserts its ability to use the same Poudre Prairie pro-rata allocation of consumptive use water to its shares as occurred for previously changed shares in the ditch system.
¶ 2 Accordingly, East Cherry Creek Valley filed a motion under C.R.C.P. 56(h) seeking three water court rulings: (1) that the earlier ditch-wide quantification in the Poudre Prairie Decree precluded requantification of East Cherry Creek Valley's water right after entry of that decree in 1998; (2) that East Cherry Creek Valley did not have the burden to establish claim preclusion through a showing of no changed circumstances; and (3) that the court should not allow evidence at trial regarding changed circumstances. The water court denied the motion.
¶ 3 East Cherry Creek Valley then sought an order from the water court entering the denial of its Rule 56(h) motion as a final judgment pursuant to C.R.C.P. 54(b). The State and Division Engineers (“the Engineers”) opposed this motion. The water court granted East Cherry Creek Valley's 54(b) motion and certified its Rule 56(h) order as a final judgment. East Cherry Creek Valley presented three issues on appeal. The Engineers cross-appealed with two issues and asked for dismissal of Cherry Creek Valley's appeal, arguing that the water court's order did not constitute a final judgment on any claim for relief in the underlying change case.2
¶ 4 We agree with the Engineers. We hold that this appeal is not properly before us under C.R.C.P. 54(b) because the trial court did not enter a final judgment on any claim for relief in this litigation. Here, East Cherry Creek Valley's application pleads one claim for relief: that the water court issue a change decree granting its change of water right application from irrigation use to domestic, municipal, augmentation, and exchange uses in connection with the 5.472 GIC shares it owns. Accordingly, we reverse the trial court's certification order, dismiss the appeal, and return this case for further proceedings consistent with this opinion.
¶ 5 On February 6, 2013, East Cherry Creek Valley filed an amended application with the water court for Division 1 seeking a change decree from the water court changing the place and type of use of in connection with 5.472 shares in the GIC, represented by Stock Certificate Nos. 3330 and 3370, for its water supply project. See First Amended Application for Change of Water Rights, 06CW40, Weld County District Court, Water Division 1 (Feb. 6, 2013). Previously, the water court quantified and decreed the historical consumptive use yield of all 519.7 GIC shares in Case No. 96CW658 (the “Poudre Prairie Decree”). In that case, the water court found that the years 1950 to 1979 constituted a representative historical period of time for purposes of determining the historical beneficial consumptive irrigation use made of GIC shares under their attendant adjudicated water rights' priorities. Using this representative period, the court determined the yield per GIC share to be 10.31 acre-feet annually. Entered June 15, 1998, the Poudre Prairie Decree recited that the ditch-wide quantification of GIC shares could be relied upon in future change of water right applications absent “a showing of subsequent events which were not addressed by this court herein and which are germane to the question of injury.”
¶ 6 Various water rights owners have since relied on the Poudre Prairie ditch-wide quantification in their change of water right applications, and the water court has allowed these applicants to predicate their applications on an amount of 10.31 acre-feet annually being available to each share.3 Contesting East Cherry Creek Valley's reliance on the ditch-wide quantification in this case, the Engineers raised the issue of changed circumstances since entry of the 1998 decree. East Cherry Creek Valley sought preclusion of that factor from litigation. Filed prior to any pre-trial deadlines, its C.R.C.P. 56(h) motion requested that the water court clarify whether the 1998 ditch-wide historical use quantification was entitled to preclusive effect and, if not, which party had the burden of proving changed circumstances.
¶ 7 In its January 28, 2014 order, the water court ruled on East Cherry Creek Valley's motion for determination of questions of law. The order addressed the scope of reliance on previously decreed ditch-wide historical consumptive use determinations and which party bears the burden of proving changed circumstances in view of our decision in Williams v. Midway Ranches Property Owners Ass'n, 938 P.2d 515 (Colo.1997). The water court concluded that, “if subsequent events exist that were not previously addressed by the court and said events are germane to the issue of injury,” then the historical consumptive use quantification from the Poudre Prairie Decree would be subject to requantification. Based on this conclusion, the water court limited the preclusive effect of the Poudre Prairie Decree to the period before entry of that decree on June 15, 1998. Additionally, the water court determined that East Cherry Creek Valley had the “initial burden of showing that no events have occurred since the Poudre Prairie decree was entered that would result in injury to other water users.”
¶ 8 Following entry of the order on the motion for determination of law, East Cherry Creek Valley moved for the certification of that order as final and appealable pursuant to Colorado Rule of Civil Procedure 54(b). The Engineers opposed certification of the order. After full briefing on the motion, the water court certified the Rule 56(h) or...
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