Concerning The Application for Water Rights of The City v. The FARMERS RESERVOIR, 09SA269.

Citation239 P.3d 1270
Decision Date27 September 2010
Docket NumberNo. 09SA269.,09SA269.
PartiesConcerning the Application for Water Rights of the City and County of Broomfield. The CITY AND COUNTY OF BROOMFIELD, a county and Colorado municipal corporation, Applicant-Appellee v. The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Colorado corporation, Opposer-Appellant and Brighton Ditch Company, City of Aurora, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water & Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir and Ditch Company, Northern Colorado Water Conservancy District, Platte Valley Irrigation Company, South Adams Water and Sanitation District, and City of Boulder, Opposers-Appellees and John W. Suthers, Attorney General, State of Colorado, Intervenor-Appellee and James R. Hall, Division Engineer, Water Division 1, Appellee Pursuant to C.A.R. 1(e).
CourtSupreme Court of Colorado

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Harvey W. Curtis & Associates, Harvey W. Curtis, David L. Kueter, Sheela S. Stack, Englewood, Colorado, Attorneys for Applicant-Appellee City and County of Broomfield, a county and Colorado municipal corporation.

Law Office of Akolt and Akolt, LLC, John P. Akolt, III, John C. Akolt, II, Brighton, Colorado, Attorneys for Opposer-Appellant Farmers Reservoir and Irrigation Company, a Colorado corporation.

John W. Suthers, Attorney General, Chad M. Wallace, Assistant Attorney General, Autumn L. Bernhardt, Assistant Attorney General, Federal, Interstate, and Reserved Water Rights, Natural Resources and Environment Section, Denver, Colorado, Attorneys for Intervenor-Appellee John W. Suthers, Attorney General, State of Colorado.

No appearance on or behalf of Opposers-Appellees Brighton Ditch Company, City of Aurora, Central Colorado Water Conservancy District, City of Englewood, City of Thornton, City of Westminster, East Cherry Creek Valley Water and Sanitation District, Public Service Company of Colorado, United Water & Sanitation District, Lupton Bottom Ditch Company, Lupton Meadows Ditch, New Coal Ridge Ditch Company, New Consolidated Lower Boulder Reservoir and Ditch Company, Northern Colorado Water Conservancy District, Platte Valley Irrigation Company, South Adams Water and Sanitation District, and City of Boulder; and Appellee Pursuant to C.A.R. 1(e), James E. Hall, Division Engineer, Water Division 1.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, we review the water court's award of costs against Farmers Reservoir and Irrigation Company (FRICO) for the trial concerning the City and County of Broomfield's (Broomfield) application for a change in the use of water rights. See City & Cnty. of Broomfield v. Farmers Reservoir & Irrigation Co., 235 P.3d 296, 298-99 (Colo.2010). Pursuant to Rule 54(d) of the Colorado Rules of Civil Procedure, a court may award costs to a prevailing party, but the court may not award costs against the State of Colorado, its officers or its agencies, unless provided by law. Under our precedent, this exemption from the award of costs applies to municipalities and municipal corporations. FRICO, which is a mutual ditch company, contends that it is exempt from paying costs under C.R.C.P. 54(d) because a substantial number of its shareholders are municipalities and municipal corporations. We hold that mutual ditch companies are not subdivisions of the state and therefore that a water court has discretion to award costs against a mutual ditch company, such as FRICO.

FRICO also challenges Rule 54(d) on grounds that it violates due process and equal protection guarantees contained in Amendment XIV to the United States Constitution and article II, sections 6 and 25 of the Colorado Constitution. We review whether Rule 54(d) infringes upon a fundamental constitutional right or creates a suspect class. As we explain, the right to oppose a water application is not a fundamental right under the Colorado Constitution. Instead, it is a statutory right under the Water Right Determination and Administration Act of 1969. Additionally, classifying litigants on the basis of whether they are governmental or non-governmental entities is not a suspect classification under the Equal Protection Clause. Because the award of costs against a non-governmental entity neither impacts a fundamental constitutional right nor implicates a suspect class, we review whether Rule 54(d) is rationally related to a legitimate state interest. Applying this standard, the exemption of the government from costs in litigation is rationally related to the goal of protecting the public treasury. Accordingly, we affirm the trial court's award of costs against FRICO.

II. Facts and Proceedings

Broomfield and Pulte Homes Corporation (“Pulte”) filed an application to change the use of certain water rights. Pulte later conveyed its interest in the water rights and withdrew as an applicant. FRICO, United Water and Sanitation District (“United”), and other parties opposed Broomfield's application.

The water court scheduled a trial to determine whether Broomfield's proposed changes to the use of water rights would injuriously affect the water rights of others. Before trial, Broomfield entered into stipulations with all parties that opposed its application except FRICO and United. The water court then held trial for two days to resolve the factual and legal issues raised by FRICO. Six witnesses, including two experts, testified for Broomfield. Broomfield submitted approximately one hundred exhibits to support its application for a change of use. FRICO submitted one exhibit as evidence but called no witnesses in opposition. The water court found that Broomfield's proposed change of water rights would not injuriously affect the water rights of others.

After trial, Broomfield submitted to the water court a bill of costs, which listed and described the costs that Broomfield incurred as a result of the trial and requested the court award these costs against FRICO. FRICO responded by requesting a hearing to address the following questions: (1) whether Broomfield's alleged costs were reasonable; (2) whether a mutual ditch company is exempt from costs under Rule 54(d); and (3) whether Rule 54(d) violates the due process and equal protection guarantees contained in the United States and Colorado Constitutions because it awards costs against non-public water rights holders but not against the government. 1 FRICO did not allege that Rule 54(d) violates the First Amendment to the United States Constitution. Because FRICO asserted constitutional challenges to Rule 54(d), the Attorney General filed a motion to intervene in the case, which the court granted.

The water court ruled as a matter of law that FRICO did not qualify for the exemption from costs under Rule 54(d). The court reasoned that, because FRICO is a mutual ditch company, it is not an officer or agent of the state even though it may have municipal shareholders. 2 The water court also rejected FRICO's claims that Rule 54(d) violates due process and equal protection guarantees of the United States and Colorado Constitutions.

The water court held a hearing on the reasonableness of Broomfield's alleged costs and, based on the evidence presented, awarded $33,825.79 in costs in favor of Broomfield and against FRICO. FRICO appealed directly to this court challenging the water court's award of costs. In this appeal, FRICO does not dispute that $33,825.79 is a reasonable award or that Broomfield is the prevailing party. 3

III. Analysis

Although not explicitly stated, we construe FRICO's briefs as raising four separate issues for our review: (1) whether FRICO is exempt from costs under C.R.C.P. 54(d) because a substantial number of its shareholders are municipalities and municipal corporations; (2) whether Rule 54(d) infringes upon the right of access to courts under the Petition Clause of the First Amendment to the United States Constitution; (3) whether Rule 54(d) infringes upon the right of access to courts under the Due Process Clause of the United States and Colorado Constitutions and under article II, section 6 of the Colorado Constitution; and (4) whether Rule 54(d) violates the right of equal protection of the law under the Fourteenth Amendment to the United States Constitution and under article II, section 25 of the Colorado Constitution. We address each issue in turn.

A. Exemption from Costs Under Rule 54(d)

We begin by considering whether FRICO, as a mutual ditch company, is exempt from costs under C.R.C.P. 54(d) because a substantial number of its shareholders are exempt from costs under that rule. To determine whether the water court has discretion to award costs against a mutual ditch company, we examine the language of Rule 54(d). 4

We review the trial court's interpretation of a rule of civil procedure de novo because it presents a question of law. See People v. Shell, 148 P.3d 162, 178 (Colo.2006); Leaffer v. Zarlengo, 44 P.3d 1072, 1078 n. 6 (Colo.2002); see also Isis Litigation, L.L.C. v. Svensk Filmindustri, 170 P.3d 742, 744 (Colo.App.2007). We interpret a rule of procedure according to its commonly understood and accepted meaning. Leaffer, 44 P.3d at 1078. Words and provisions should not be added to a rule, and the inclusion of certain terms in a rule implies the exclusion of others. Shell, 148 P.3d at 178.

By its terms, Rule 54(d) permits a court to award costs to a prevailing party. However, the water court may not award costs against the State of Colorado, its officers, or its agencies, unless permitted by law. The rule states in relevant part:

Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the...

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