FWS Land and Cattle Co. v. State, Div. of Wildlife

• Decision Date: 16 July 1990
• Docket Number: No. 89SA109,A,No. 6,6,89SA109
• Citation: 795 P.2d 837
• Parties: FWS LAND AND CATTLE COMPANY, Appellant, v. STATE of Colorado, DIVISION OF WILDLIFE, Humbert Ranches, Inc., and Edward W. Blank, Division Engineer for Water Divisionppellees.
• Court: Colorado Supreme Court

Page 837

795 P.2d 837

FWS LAND AND CATTLE COMPANY, Appellant, v. STATE of Colorado, DIVISION OF WILDLIFE, Humbert Ranches Inc., and Edward W. Blank, Division Engineer for Water Division No. 6, Appellees.

No. 89SA109.

Supreme Court of Colorado En Banc.

July 16, 1990.

Rehearing Denied Sept. 4, 1990.

Kevin L. Patrick, P.C., Kevin L. Patrick, Rhonda J. Bazil, Aspen, for appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David F. Steinhoff, Asst. Atty. Gen., Denver, for appellee State, Div. of Wildlife.

Peggy M. Ventura, First Asst. Atty. Gen., Denver, for appellee Edward W. Blank, Div. Engineer for Water Div. No. 6.

Humbert Ranches, Inc. not appearing.

Justice ERICKSON delivered the Opinion of the Court.

The appellant, FWS Land and Cattle Company, applied for a conditional direct flow right and a conditional storage right in two interconnected lakes that were located on land owned by both FWS and the State of Colorado through the Colorado Division of Wildlife (DOW) and the State Board of Land Commissioners. DOW filed a motion for summary judgment in the water court for Water Division No. 6 which was granted. The water court dismissed FWS's claim for a conditional storage right on the grounds that FWS could not establish that its application met the requirements for the issuance of a conditional decree. On appeal, FWS contends that DOW lacked standing to object to the application, that the water court erred in holding that an applicant must establish its right to use land underlying a reservoir in order to obtain a conditional storage right, and that summary judgment in favor of DOW should not have been granted because of genuine issues of disputed fact. We affirm.

I.

FWS sought a conditional storage right for 1910 acre-feet in the South and East Delaney Lakes, which are located in Jackson County near Walden, Colorado. The lakes together cover a surface area of approximately 217 acres and are connected by a culvert. The only decreed water right to the lakes is owned by FWS and entitles FWS to use the lakes to the extent of five feet above the outlet pipe, amounting to 934.7 acre-feet per year of water, for irrigation purposes. The water right, which was purchased by FWS in 1985, was decreed in 1939 with a 1922 priority date.

FWS owns a small portion of land underlying the south lake and the state owns the remaining land on which the lakes are located. ¹ One section is owned by the State Board of Land Commissioners and was acquired by Colorado from the United States upon Colorado's admission into the Union in 1876. ² DOW has now acquired the remaining land underlying the lakes from the Bureau of Land Management and from private landowners. The lakes and the surrounding lands have been used by DOW as a fishery and for recreational purposes since the 1940's. Because of the lakes' value for fishing and recreation, the two lakes and DOW's surrounding land holdings have been declared a state recreational area known as the "Delaney Butte Lakes State Wildlife Area." In 1971, DOW obtained conservation easements from FWS's predecessor in interest as the owner of the only decreed water right in the lakes. ³

In its application, FWS presented two claims for conditional water rights. The first claim was for a 20 c.f.s. direct flow right to be diverted from the Roaring Fork River, a tributary of the North Platte River. The water would be delivered to the East and South Delaney Lakes for storage and subsequently used for hydroelectric power generation, fishing, recreation and piscatorial purposes. FWS's second claim was for a conditional storage right in the lakes together with the right to fill and refill the reservoir. The water stored in the lake would be used on FWS's land for hydroelectric power generation, as well as for fishing, recreational and piscatorial purposes. The proposed outlet works for the storage right were to be located solely on FWS's land and would release water from the south lake into a pipeline to be transported to FWS's hydroelectric facility.

FWS moved for partial summary judgment alleging that DOW lacked standing to object to the application and that DOW did not assert injury to a legally cognizable interest. DOW moved for summary judgment as to the claim for the conditional storage right on the grounds that FWS did not have and could not obtain authority to use the state lands underlying the lakes to increase the effective storage capacity of the reservoir. Because FWS could not establish its right to use the state lands for the storage project, the state argued that FWS did not meet the standards for issuance of a conditional water right set forth in section 37-92-305(9)(b), 15 C.R.S. (1989 Supp.).

In granting DOW's motion for summary judgment and dismissing FWS's claim for a storage right without prejudice, the water court held that FWS could not meet the requirements for a conditional storage right at that time. The water court found, based on undisputed facts, that FWS did not have complete ownership of the reservoir bed nor permission to use the state lands for expanded storage purposes. In addition, the water court concluded that the relief requested by FWS exceeded the jurisdiction of the water court and that FWS would have to bring an action in the district court to establish its right to use the state lands.

FWS requested the water court to stay the proceeding and to certify the order granting DOW's motion for summary judgment as a final judgment pursuant to C.R.C.P. 54(b). The water court granted FWS's motion and FWS appealed.

II.

The water court correctly held that DOW had standing to object to FWS's application. The requirements for standing to object to an application for a water right are set forth in section 37-92-302(1)(b), 15 C.R.S. (1989 Supp.) which provides in part:

Any person, including the state engineer, who wishes to oppose the application may file with the water clerk in quadruplicate a verified statement of opposition setting forth facts as to why the application should not be granted or why it should be granted only in part or on certain conditions. Such statement of opposition may be filed on behalf of all owners of water rights who by affixing their signatures to such statement of opposition, in person or by attorney, consent to being included in such statement and who may be detrimentally affected by granting of the application.

The term "person" includes the state. Section 37-92-103(8), 15 C.R.S. (1973).

The Water Right Determination and Administration Act of 1969, sections 37-92-101 to -602, 15 C.R.S. (1973 & 1989 Supp.), establishes liberal standing requirements for those who wish to object to applications for water rights. See Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 165, 557 P.2d 389, 392 (1976). Under the 1969 Act, ownership of a decreed water right is not a necessary requirement for standing. Id.

Here, DOW's ownership of the land underlying the lakes as well as DOW's use of the water prior to FWS's application confers standing upon DOW to object to the application.

III.

FWS claims that the water court erred by requiring a showing of land ownership as a prerequisite to obtaining a decree for a conditional water right. Section 37-92-305(9)(b) provides:

No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.

A conditional water right is defined as "a right to perfect a water right with a certain priority upon the completion with reasonable diligence of the appropriation upon which such water right is to be based." Section 37-92-103(6), 15 C.R.S. (1973). The purpose of a conditional water decree is to allow an appropriation of water to relate back to the time of the first step in securing that appropriation. Rocky Mountain Power Co. v. Colorado River Water Conservation Dist., 646 P.2d 383, 387 (Colo.1982).

Formerly, a conditional decree could be issued on a showing of an intent to appropriate and the performance of overt acts in furtherance of that intent. See Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co., 197 Colo. 413, 416, 594 P.2d 566, 568 (1979). However, following the enactment of section 37-92-305(9)(b), an applicant seeking a conditional decree must prove by a preponderance of the evidence that the appropriation will be completed with diligence before a conditional decree may be issued. Section 37-92-305(9)(b); Southeastern Colorado Water Conservancy Dist. v. City of Florence, 688 P.2d 715, 718 & n. 7 (Colo.1984). The statute precludes a "wait and see" approach to the issuance of a conditional decree. City of Florence, 688 P.2d at 718. The General Assembly by enacting section 37-92-305(9)(b) intended to reduce speculation associated with conditional decrees and to increase the certainty of the administration of water rights in Colorado.

The broad language of section...