City of Grand Junction v. City and County of Denver, 97SA93

• Decision Date: 15 June 1998
• Docket Number: No. 97SA93,97SA93
• Citation: 960 P.2d 675
• Parties: 98 CJ C.A.R. 3004 The CITY OF GRAND JUNCTION, Objector-Appellant, v. The CITY AND COUNTY OF DENVER, acting by and through its board of water commissioners, Applicant-Appellee. and Orlyn G. Bell, Division Engineer, Water Division 5, Appellee pursuant to C.A.R. 1(e).
• Court: Colorado Supreme Court

Page 675

960 P.2d 675

98 CJ C.A.R. 3004

The CITY OF GRAND JUNCTION, Objector-Appellant, v. The CITY AND COUNTY OF DENVER, acting by and through its board of water commissioners, Applicant-Appellee and Orlyn G. Bell, Division Engineer, Water Division 5, Appellee pursuant to C.A.R. 1(e).

No. 97SA93.

Supreme Court of Colorado,

En Banc.

June 15, 1998.

Rehearing Denied July 15, 1998.

As Corrected Sept. 18, 1998.

Grimshaw & Harring, P.C., Wayne B. Schroeder, Jody Harper Alderman, Denver, Daniel E. Wilson, City Attorney, City of Grand Junction, Grand Junction, for Objector-Appellant.

Patricia L. Wells, Michael L. Walker, Casey S. Funk, Amy M. Cavanaugh, Denver, for Applicant-Appellee.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Deputy Attorney General, Joseph C. Smith, Jr., Deputy Attorney General, Wendy C. Weiss, First Assistant Attorney General, Natural Resources

Section, Denver, for State and Division Engineers.

Justice MARTINEZ delivered the Opinion of the Court.

The City of Grand Junction appeals a judgment and decree of the District Court, Water Division 5 (the "Water Court"), granting the City and County of Denver's application for refill rights with respect to Dillon Reservoir. Grand Junction contends that the Water Court lacked subject matter jurisdiction to adjudicate Denver's application because the application concerns matters over which the United States District Court for the District of Colorado (the "Federal Court") retains exclusive jurisdiction. We hold that the Water Court possessed at least concurrent jurisdiction over the subject matter of Denver's application. Accordingly, we affirm the Water Court's judgment and decree.

I.

This controversy centers around water rights to the Blue River, a tributary of the Colorado River, located on the western slope of the Continental Divide. In 1963, Denver began storing water in Dillon Reservoir as part of the Blue River Diversion Project. This project is a water storage and diversion project at the confluence of the Blue, Ten Mile and Snake Rivers in Summit County. Water diverted at Dillon Reservoir is transported eastward under the Continental Divide through the Roberts Tunnel. Denver stores water at Dillon Reservoir under a June 24, 1946 priority for municipal use in the Denver metropolitan area. Denver's storage right was adjudicated in 1955 as part of the Blue River Decree. As will be discussed more thoroughly in Part III of this opinion, ¹ the Federal Court issued the Blue River Decree to resolve a complex water dispute involving substantial litigation and multiple parties and claims.

Dillon Reservoir achieved its first fill in 1965. From that point until 1985, Denver was allowed to maintain the reservoir at a specified "gauge height," or constant elevation, without regard to losses from evaporation or seepage. For practical purposes, this amounted to a refill of the reservoir. Denver exercised this refill whenever reservoir capacity and water supply were available. Between 1985 and 1987, the Division Engineer determined that accounting should be done for evaporation losses. He also determined that Denver should be charged against its first fill, under the 1946 priority, for water passing through the reservoir but not held. Pursuant to its historic use of Dillon Reservoir for flood control, Denver bypasses through the reservoir a certain amount of water that is capable of being stored under the reservoir's 1946 priority. Under the Division Engineer's determination, this bypassed water would count against the 1946 priority. Thus, Dillon Reservoir could achieve a "paper fill" without being physically full.

In order to protect its historic use of the reservoir, Denver filed an application in the Water Court in 1987 to confirm a priority to refill Dillon Reservoir after the reservoir's first fill and if space is available in the reservoir. ² Denver's claim includes the right to deplete streamflows by storage of water in order to replenish evaporation and seepage losses. Although Denver initially claimed a 1965 appropriation date for this refill right, Denver ultimately stipulated to an appropriation date of January 1, 1985.

Denver's application claims a maximum of 175,000 acre feet ("A.F.") in any single administrative year, including 13,524 A.F. absolute and 161,476 A.F. conditional. The application prompted numerous statements of opposition. Several objectors ultimately withdrew their statements and stipulated to the entry of a decree with conditions. Grand Junction, which has rights to Colorado River water under a 1947 priority, was the only objector that participated actively at trial.

At trial, Grand Junction asserted, inter alia, that Denver's application concerned matters which were the subject of the Blue River Decree. In the Blue River Decree, the Federal Court retained "continuing jurisdiction for the purpose of effectuating the objectives" of the decree. Grand Junction contended that, pursuant to this decree, the Federal Court retains exclusive jurisdiction over Denver's application for a refill right, and therefore, the Water Court should not have adjudicated Denver's claim. Grand Junction also maintained that Denver's claimed refill right conflicts with the terms of the Blue River Decree itself because the Blue River Decree restricts Dillon Reservoir to only one fill each year.

The Water Court rejected all of Grand Junction's arguments. The court held that the Blue River Decree "did not enjoin Denver from seeking a new appropriation under a different priority date at some later date. It resolved the water claims before it at the time." Further, the Water Court found that the Blue River Decree did not limit Dillon Reservoir to one fill per year. Thus, the Water Court concluded that it had "at least concurrent jurisdiction with the Federal District Court over the subject-matter of this action." The Water Court subsequently granted Denver's application for a refill right with a 1987 priority date in the amount discussed above.

Pursuant to section 13-4-102(1)(d), 5 C.R.S. (1997), and C.A.R. 1, Grand Junction appeals the Water Court's judgment. ³ Once again, Grand Junction asserts that the Water Court lacked subject matter jurisdiction over Denver's claim. We affirm the judgment of the Water Court.

II.

We first address Grand Junction's assertion that we lack appellate jurisdiction over this matter because the Water Court did not issue a final judgment. Grand Junction's claim stems from the fact that the Water Court, in addition to finding that Denver's refill right did not conflict with the provisions of the Blue River Decree, supplied a signature line at the end of its decree for the Federal Court. The Federal Court's signature would reflect its agreement that the Water Court's decree does not adversely affect the objectives of the Blue River Decree.

The Water Court supplied this signature line as a result of a stipulated agreement among Denver and the objectors (save Grand Junction) which required the Water Court's decree to be submitted to the Federal Court for this verification. Grand Junction contends that the provision of this signature line renders the Water Court's decree merely interlocutory because "it leaves something further to be done before the rights of the parties are determined." Thus, Grand Junction maintains that, pursuant to C.A.R. 1, we lack appellate jurisdiction.

As a general matter, an appeal may be taken only from a final judgment of a district, probate or juvenile court. See C.A.R. 1(a)(1). An appellate court does not review interlocutory orders absent specific authorization by statute or rule. See Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254, 258 (Colo.1991). The final judgment requirement is reflected in C.A.R. 1(a)(1) and applies generally, "save in the exceptional circumstances mentioned in (a)(2), (3), and (4)." Vandy's, Inc. v. Nelson, 130 Colo. 51, 53, 273 P.2d 633, 634 (1954); see also Mission Viejo, 818 P.2d at 258; Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 143 Colo. 590, 593, 355 P.2d 83, 85 (1960).

C.A.R. 1(a)(2) provides that an appeal to an appellate court may be taken from, inter alia, "[a] judgment or decree, or any portion thereof, in a proceeding concerning water rights." The appeal from the Water Court in this case, therefore, qualifies under C.A.R. 1(a)(2) as an "exceptional circumstance" to which the requirements of C.A.R. 1(a)(1) do not apply. Hence, our jurisdiction over this case does not depend upon whether the Water Court's judgment constitutes a "final judgment" within the meaning of C.A.R. 1(a)(1).

With regard to water matters, we have declined to exercise appellate jurisdiction where a water court's decree did not determine all claims presented. See Mission Viejo, 818 P.2d at 258; Northern Colo. Irrigation Co. v. City & County of Denver, 86 Colo. 54, 57-58, 278 P. 592, 593 (1929). Thus, "when a case involves multiple claims for relief or multiple parties, a judgment resolving fewer than all the claims or the rights of fewer than all the parties" cannot be the subject of appellate review absent special certification by the trial court. Mission Viejo, 818 P.2d at 258 (requiring certification of trial court's order pursuant to C.R.C.P. 54(b)).

Accordingly, we lack appellate jurisdiction over this matter if the Water Court's judgment failed to resolve all the claims before it. Grand Junction, however, does not assert that the Water Court's judgment leaves any claims unresolved, nor does the record support such an assertion. The only claim at issue in the proceeding below was Denver's application for the Dillon Reservoir refill right, and the only objector in the proceeding was Grand Junction. The Water Court granted Denver's claim after rejecting Grand Junction's objections.

We also reject Grand Junction's contention that the Water Court's provision of a signature...