Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist.
| Decision Date | 23 March 1987 |
| Docket Number | No. 85SA214,85SA214 |
| Citation | 734 P.2d 627 |
| Parties | CLOSED BASIN LANDOWNERS ASSOCIATION, Plaintiff-Appellant, and A.Z.L. Resources, Inc., Plaintiff-Intervenor and Co-Appellant, v. RIO GRANDE WATER CONSERVATION DISTRICT, Defendant and Appellee, and Colorado Water Conservation Board and the United States of America, Defendant-Intervenors and Appellees, and Steve Vandiver, as Division Engineer, Appellee, and Ray G. Slane, Estate of Allen Beard, Gaines W. Schults and K.C. Land & Cattle Company, a Colorado corporation, Non-participating Appellees. |
| Court | Colorado Supreme Court |
Law Office of Robert F.T. Krassa, Robert F.T. Krassa, Pueblo, for Closed Basin Landowners Assn.
Saunders, Snyder, Ross & Dickson P.C., Melvin B. Sabey, Denver, for A.Z.L. Resources, Inc.
Hill & Robbins, David W. Robbins, Dennis M. Montgomery, Denver, for Rio Grande Water Conservation Dist.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Wendy C. Weiss, First Asst. Atty. Gen., Denver, for the Colorado Water Conservation Bd.
Laura Frossard, Robert L. Klarquist, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., John R. Hill, Dept. of Justice, Denver, for the U.S.
The plaintiffs, Closed Basin Landowners Association (Landowners) and A.Z.L. Resources, Inc. (AZL), appeal after summary judgment was entered against them by the water court for Division No. 3 on their collateral challenge to a decree adjudicating a conditional water right to the defendant, Rio Grande Water Conservation District (Rio Grande). We affirm.
On December 22, 1972, Rio Grande filed an application in Case No. W-3038 for a conditional water right to develop the "Closed Basin Project" in Saguache and Alamosa Counties, Colorado. The Closed Basin Project, first envisioned over fifty years ago, is a mammoth undertaking designed to withdraw water from the unconfined aquifer of the Closed Basin in southern Colorado, and to deliver that water to the Rio Grande River. Normally, water that flows into the Closed Basin from precipitation and irrigation diverted from the Rio Grande is trapped by a natural hydraulic barrier at the southern boundary of the Basin. The water collects in the sump area of the Basin, and much of the water is lost to evaporation and evapotranspiration. The goal of the Closed Basin project is to lower the water table in the sump area by approximately two feet through the construction and operation of over one-hundred shallow wells, and to reduce water losses to evaporation and evapotranspiration. Water salvaged from the sump area is to be delivered to the Rio Grande River to help meet Colorado's obligations to New Mexico and Texas under the Rio Grande Compact. See Rio Grande Compact, P.L. No. 96, 53 Stat. 785 (1939); § 37-66-101, 15 C.R.S. (1973). The Closed Basin Project is a federal reclamation project authorized by Congress. Act of Oct. 3, 1980, P.L. No. 92-514, 86 Stat. 964, as amended, Act of Oct. 3, 1980, P.L. No. 96-375, sec. 6, 94 Stat. 1505, 1507.
Rio Grande's application for a conditional water right stated that the legal description of each point of diversion was "the entire area of Tract A, ... which makes up stages one and two of the project, and the entire area of Tract B, ... which makes up stages three, four and five of the project." The application further stated:
The salvage of waters is to be accomplished by the construction and operation of approximately 80 shallow wells in Tract A and approximately 70 shallow wells in Tract B which will withdraw waters from the shallow or unconfined aquifer and will be so spaced within their respective tracts as to lower the entire water table within the tracts so as to preclude substantial loss of water through surface evaporation or evapotranspiration.
The application contained a legal description of Tracts A and B by section, township, and range, but did not specify the location of the wells. The application claimed an appropriation by diversion of a total amount of "277 cubic feet [of water] per second of time," but did not specify the amount of water to be diverted from each well. Tracts A and B contain over 100,000 acres, and enclose approximately 170 square miles of land.
On January 11, 1973, the water clerk for Division No. 3 prepared a resume of water applications filed in December 1972, and published the resume in newspapers of general circulation in Saguache and Alamosa Counties, Colorado. Although the application alleged that the claimed water was "not tributary to any stream," the resume did not state whether or not the water was tributary. Aside from that omission, the resume contained the information set forth above from Rio Grande's application. Eleven statements of opposition and four entries of appearance were filed.
On November 9, 1977, a hearing was held before a water referee on Rio Grande's application. After the hearing, the referee referred the application to the water judge in an order which stated:
At the hearing ... it developed that some unspecified number of the proposed wells would be located on private lands. The Referee determined that owners of lands on which wells were proposed to be located should have notice of this fact, and required applicant to provide the names and addresses of owners of lands affected.... [I]t appears that 63 of the 126 proposed wells are projected to be located on privately owned lands.
The referee proposed that Rio Grande either (1) provide special notice to landowners in the Closed Basin, or (2) amend its application to specify the location of the proposed wells. Rio Grande objected to further notice, and asserted in a memorandum to the court:
The concept of the Closed Basin Project ... is not that of a series of independent diversions through individual wells acting as separate points of diversion. It is a single appropriation, because it depends upon a lowering of the water table under substantially the entire project area, accomplished through the strategic location of wells for the withdrawal of water to achieve the desired pattern of lowered water table. For the same reason, the point of diversion is the entire project area, not the individual well sites. The well locations shown on the project maps and used for the purpose of obtaining the well permits are schematic only. The exact location of the actual wells to be constructed for the first phase of the project is only now being determined in the course of completing the final plan report.... In all probability, most will not actually be constructed at the locations now identified by the well permits.
The water court found that the original resume publication provided proper and sufficient notice to interested parties, and returned the matter to the referee with directions to rule on the application. The referee considered Rio Grande's application, and issued his report on August 23, 1979 approving a conditional water right in favor of Rio Grande. The water court accepted the referee's report with some modifications, and entered a decree on April 21, 1980 granting Rio Grande's application. The water court found that the unconfined aquifer of the Closed Basin, together with its inflow tributaries, constituted a natural surface stream system subject to appropriation, and granted Rio Grande the conditional right to withdraw a maximum total amount of 117,000 acre feet of water per year through the operation of approximately 129 shallow wells within Tracts A and B. The decree was not appealed.
On March 24, 1982, Landowners 1 and four other plaintiffs filed the instant action seeking a determination that the decree entered in Case No. W-3038 is void. The plaintiffs asserted that the notice given in Case No. W-3038 violated section 37-92-302, 15 C.R.S. (1973 & 1986 Supp.), and the fourteenth amendment to the United States Constitution because the published resume failed to specify the location of the proposed wells. The complaint alleged damage as a result of Rio Grande's priority over subsequent water rights and the state engineer's denial of well permits to members of Landowners and other plaintiffs.
On May 13, 1982, the Colorado Water Conservation Board moved to intervene as a defendant, and filed a motion to dismiss the complaint. On May 20, 1982, the water court entered an order allowing the Colorado Water Conservation Board to intervene.
On May 28, 1982, AZL filed a petition to correct or set aside the decree in Case No. W-3038. AZL later abandoned its petition, and moved to intervene as a plaintiff in Landowners' action on September 16, 1982. 2 The court granted AZL's motion on the same day and allowed AZL to adopt Landowners' complaint.
On June 28, 1982, the United States moved to intervene as a defendant, and filed a motion to dismiss the complaint. The court granted the motion to intervene on September 16, 1982, and allowed the plaintiffs leave to amend its complaint to add a second claim for relief. The second claim for relief alleged that the decree was void because Rio Grande's application failed to state the amount of water withdrawn from each proposed well.
On October 26, 1982, the water court denied the motions to dismiss and granted plaintiffs and plaintiff-intervenor leave to file a second amended complaint setting forth all claims they wished to assert. Plaintiffs and plaintiff-intervenor declined to amend the complaint, and defendant and defendant-intervenors filed timely answers to the first amended complaint.
On April 9, 1984, the defendant and defendant-intervenors filed a motion for summary judgment. Briefs were filed, and the court entered a written order granting the motion on November 29, 1984. Landowners and AZL now appeal the water court's entry of summary judgment pursuant to Colo. Const. art. VI, § 2(2) and section 13-4-102(1)(d), 6 C.R.S. (1973).
On appeal, Landowners and AZL assert four grounds for reversal of the water court's entry of summary...
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