High Plains a & M v. Se Colorado Water Con., 04SA266.
| Decision Date | 12 September 2005 |
| Docket Number | No. 04SA267.,No. 04SA266.,04SA266.,04SA267. |
| Citation | 120 P.3d 710 |
| Parties | Applicant-Appellant: HIGH PLAINS A & M, LLC, a Colorado limited liability company, v. Objectors-Appellees: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT; Lower Arkansas Valley Water Conservancy District; District 67 Irrigating Canals Association and its members, the Amity Mutual Irrigation Company, the Fort Bent Canal and Irrigation Company, Keesee Ditch, Buffalo Mutual Irrigation Company, X Y and Graham Canals, Manval Canal and Irrigation Company, and the Hyde Mutual Ditch Company; Carl M. Shinn; Mary Jane Shinn; Wendy S. Shinn; Board of Water Works of Pueblo, Colorado; Colorado Springs Utilities; Lake Henry Reservoir Company; Lake Meredith Reservoir Company; Colorado Canal Company; Harold D. (Hal) Simpson, State Engineer; Steven J. Witte, Division Engineer for Water Division 2; Colorado Water Conservation Board; Arkansas Valley Ditch Association and its individual members, Bessemer Irrigating Ditch, Oxford Farmers Ditch Company, High Line Canal Company, Rocky Ford Ditch Company (Board of Water Works of Pueblo, Colorado named separately above); Catlin Canal Company, individually and as a member of the Arkansas Valley Ditch Association; City of Aurora; Bent County Board of County Commissioners; Bourne Limited Partnership; Stanley V. Cline, individually, and as Personal Representative of the Estate of Bonnie Cline and the Estate of Joe Cline; Clover Meadow Lateral Ditch Company; City of Colorado Springs; Colorado Water Protective and Development Association; Columbine Lateral Ditch Co. and members; Consolidated Ditch Lateral Inc. and members; Contibeef LLC, d/b/a Colorado Beef; Rex Davis; Alberta Davis; Enterprise Lateral, an unincorporated association; the Fort Lyon Canal Company; James A. Gruenloh; Holbrook Mutual Irrigating Company; Lyle T. Japhet, as trustee for the Lyle T. Japhet Trust; Willard Kasza; Andrew Kern Drainage Ditch, Priority Number 65; City of Lamar; Lower Arkansas Water Management Association; Robert C. Lubbers; Raymond D. Mauch; May Valley Water Association; Donald Martin McBee; Donald Marvin McBee; McClave Lateral, an unincorporated association; Board of County Commissioners of the County of Otero; Public Service Company of Colorado d/b/a Xcel Energy; Pueblo, a municipal corporation; Smith Mutual Ditch Company; St. Charles Mesa Water District; Sunflower Lateral, an unincorporated association; Timberlake Grazing Association, Inc.; United States of America; Upper Arkansas Water Conservancy District; and Valley Water Protection Association, LLC and individual members. Applicants/Appellants: HIGH PLAINS A & M, LLC, a Colorado limited liability company; and Wollert Enterprises, Inc., a Colorado corporation, v. Objectors/Appellees: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT; Lower Arkansas Valley Water Conservancy District; District 67 Irrigating Canals Association and its members, the Amity Mutual Irrigation Company, the Fort Bent Canal and Irrigation Company, Keesee Ditch, Buffalo Mutual Irrigation Company, X Y and Graham Canals, Manval Canal and Irrigation Company, and the Hyde Mutual Ditch Company; Carl M. Shinn; Mary Jane Shinn; Wendy S. Shinn; Board of Water Works of Pueblo, Colorado; Colorado Springs Utilities; Lake Henry Reservoir Company; Lake Meredith Reservoir Company; Colorado Canal Company; Harold D. (Hal) Simpson, State Engineer; Steven J. Witte, Division Engineer for Water Division 2; Colorado Water Conservation Board; Arkansas Valley Ditch Association and its individual members, Bessemer Irrigating Ditch, Oxford Farmers Ditch Company, High Line Canal Company, Rocky Ford Ditch Company (Board of Water Works of Pueblo, Colorado named separately above); Catlin Canal Company, individually and as a member of the Arkansas Valley Ditch Association; Arbor Lateral Company; City of Aurora; Bent Conservation District; Bent County Board of County Commissioners; Bourne Limited Partnership; Stanley V. Cline, individually, and as Personal Representative of the Estate of Bonnie Cline and the Estate of Joe Cline; Clover Meadow Lateral Ditch Company; City of Colorado Springs; Colorado State Division of Wildlife and Wildlife Commission; Colorado Water Protective and Development Association; Columbine Lateral Ditch Co. and members; Consolidated Ditch Lateral Inc. and members; Contibeef LLC, d/b/a Colorado Beef; Rex Davis; Alberta Davis; Don Downing; Bonnie J. Earl, as trustee for the Earl Living Trust; Enterprise Lateral, an unincorporated association; the Fort Lyon Canal Company; Hans Friederichs, Jr. and Joleyne White-Heckman Friederichs, as members and representatives of the Stony Point Lateral, an unincorporated association; James A. Gruenloh; Burt Heckman, individually, as partner with Fred Heckman, as a member and representative of the McClave Lateral, an unincorporated association and as owner of the A. Reyher Seep One Ditch; Ruth Hency; Dale Hency; Holbrook Mutual Irrigating Company; Lyle T. Japhet, as trustee for the Lyle T. Japhet Trust; Willard Kasza; Andrew Kern Drainage Ditch, Priority Number 65; City of Lamar; Lower Arkansas Valley Watershed Association of Conservation Districts; Lower Arkansas Water Management Association; Robert C. Lubbers; Raymond D. Mauch; May Valley Water Association; Donald Martin McBee; Donald Marvin McBee; McClave Lateral, an unincorporated association; McClave Water Association; Kent and Peg Miller, as Personal Representatives for headgates 91, 95, 112 of the Fort Lyon Canal; Board of County Commissioners of the County of Otero; Prowers County Board of Commissioners; Public Service Company of Colorado, d/b/a Xcel Energy; Pueblo, a municipal corporation; Reed & Ullom, a general partnership; Lorraine Schleining; Stoney Point Lateral, an unincorporated association; Smith Mutual Ditch Company; St. Charles Mesa Water District; Sunflower Lateral, an unincorporated association; Timberlake Grazing Association, Inc.; United States of America; Upper Arkansas Water Conservancy District; Valley Water Protection Association, LLC and individual members; Lance O. Verhoeff; Verhoeff Farms, Inc.; the Wheatridge Mutual Lateral Ditch Company; Wiley Drainage District; Wiley School District Re-13JT; and Mike Wyckoff as Personal Representative for headgates 101, 112, of Fort Lyon Canal. |
| Court | Colorado Supreme Court |
Harvey W. Curtis & Associates, Harvey W. Curtis, David L. Kueter, Patricia A. Madsen, Sheela S. Stack, Englewood, for Applicants/Appellants for case numbers 04SA266 and 04SA267.
Burns, Figa & Will, P.C., Stephen H. Leonhardt, Scott A. Clark, Alix L. Joseph, Englewood, for Objector/Appellee Southeastern Colorado Water Conservancy District.
Lefferdink Law Office, LLC, John S. Lefferdink, Lamar, for Objector/Appellee The Fort Lyon Canal Company.
Carlson, Hammond & Paddock, LLC, William A. Paddock, Mary Mead Hammond, Beth Ann J. Parsons, Denver, for Objectors/Appellees Board of Water Works, Pueblo, Colorado, Colorado Springs Utilities, Lake Henry Reservoir Company, Lake Meredith Reservoir Company, Colorado Canal Company.
Mark A. MacDonnell, Las Animas, for Objector/Appellee Bent County Board of Commissioners and Bent Conservation District.
Shinn, Steerman & Shinn, Donald L. Steerman, Lamar, for Objectors/Appellees District 67 Irrigating Canals Association, Amity Mutual Irrigation Company, Carl M. Shinn, Mary Jane Shinn and Wendy S. Shinn.
Trout, Raley, Montaño, Witwer & Freeman, PC, Robert V. Trout, Douglas M. Sinor, Denver, for Objector/Appellee Northern Colorado Water Conservancy District.
Mendenhall & Malouf, R.L.L.P., H. Barton Mendenhall, Rocky Ford, for Objector/Appellee
Lower Arkansas Water Conservancy District.
Trout, Raley, Montaño, Witwer & Freeman, P.C., Peter D. Nichols, Robert V. Trout, Denver for Objector?Appellee Lower Arkansas Water Conservancy District.
John W. Suthers, Attorney General, Alexandra L. Davis, Assistant Attorney General, Natural Resources and Environment Section, Denver, for Objectors/Appellees Colorado Water Conservancy Board, State and District Engineers.
Fischer, Brown & Gunn, P.C., Brent Bartlett, William H. Brown, Fort Collins, for Amici Curiae Cache La Poudre Water Users Association, Thompson Water Users Association, and Northern Colorado Water Conservancy District.
Duncan, Ostrander & Dingess, P.C., John M. Dingess, Austin Hamre, T. Daniel Platt (Special Counsel), Denver, for Amicus Curiae the City of Aurora, acting by and through its Utility Enterprise.
Applicants High Plains A & M, LLC and Wollert Enterprises, Inc. (collectively, "High Plains") appeal the water court's dismissal of their applications for change of water rights. High Plains applied to change water rights historically used for irrigation to any one of over fifty proposed uses in any of twenty-eight Colorado counties. The water court found the change application "so expansive and nebulous" that there was no way to determine whether vested water rights would be injured by the change or to determine if there would actually be a new beneficial use made of the water. The court found that the proposed changes were "such a deviation from the original right" that they effectively requested a new water right. As such, the court found that the applications violated Colorado's anti-speculation doctrine, and granted the objectors' motion for summary judgment.
The water court decision and the briefs and arguments of the parties focused on the application of the anti-speculation doctrine to change applications. Reviewing our cases and the applicable statutes, we determine that the anti-speculation doctrine is rooted in the requirement that an appropriation of Colorado's water resource must be for an actual beneficial use.
We hold that, in defining "[c]hange of water right" to include "a change in the type, place, or time of use" and "a change in the point of diversion" in section 37-92-103(5),...
To continue reading
Request your trial
-
Archuleta v. Gomez
...by making an actual beneficial use of a portion of the public's unappropriated water resource. High Plains A & M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710, 717 (Colo.2005); see also Chatfield E. Well Co., Ltd. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260, 1268 (Colo.1998)......
-
In the Matter of The Application For Water Rights of The King Consol. Ditch Co. v. King Consol. Ditch Co.
...new priority assignment is implicated by an application for a change of a water right, see generally High Plains A & M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710 (Colo.2005), or an approval of an augmentation plan, see generally Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d ......
-
Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc. (In re Busk-Ivanhoe, Inc.)
...and changes from direct flow to storage and subsequent application and vice versa. See§ 37-92-103(5) ; High Plains A&M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710, 718 (Colo.), as modified on denial of reh'g(Oct. 11, 2005). Permanent changes to a water right must be decreed thro......
-
Reservoir v. Metro Wastewater Reclamation Dist.
...as curbs the appropriation of water not needed for actual beneficial use. See High Plains A & M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710, 713 (Colo.2005). In 1907, irrigation expert Elwood Mead warned of the danger of recognizing water rights in excess of the actual need of t......
-
Section 404 Regulation of Irrigation Ditches in Colorado
...and proportional interest in the ditch and related water works. High Plains A and M, LLC v. Southeastern Colo. Water Conservancy Dist., 120 P.3d 710, 723 (Colo. 2005); Nelson v. Lake Canal Co. of Colo., 644 P.2d 55, 57-88 (Colo.App. 1981). 4. Vranesh, supra note 1. 5. See 33 C.F.R. pt. 323.......
-
Water Law Basics for Real Estate Practitioners
...Ass'n v. Simpson, 990 P.2d 46, 54-55 (Colo. 1999). [35] See High Plains A & M, LLC v. Southeastern Colorado Water Conservancy Dist., 120 P.3d 710, 721-22 (Colo. 2005) (noting that three of four of Colorado's major rivers are over-appropriated). [36] See Southeastern Colorado Water Conservan......