IN RE WATER RIGHTS OF COLUMBINE ASSOC.

• Citation: 993 P.2d 483
• Decision Date: 14 February 2000
• Docket Number: No. 98SA449.,98SA449.
• Parties: In the Matter of the Application for WATER RIGHTS OF COLUMBINE ASSOCIATES and the City of Aurora, in Park County, Park County Water Preservation Coalition, Appellant, v. Columbine Associates, The City of Aurora, The City of Thornton, The Board of Commissioners of Park County, The Upper South Platte Water Conservancy District, Appellees, and State Engineer Harold D. Simpson, and Division Engineer Richard L. Stenzel, Appellees pursuant to C.A.R. 1(e).
• Court: Supreme Court of Colorado

993 P.2d 483

In the Matter of the Application for WATER RIGHTS OF COLUMBINE ASSOCIATES and the City of Aurora, in Park County,

Park County Water Preservation Coalition, Appellant, v. Columbine Associates, The City of Aurora, The City of Thornton, The Board of Commissioners of Park County, The Upper South Platte Water Conservancy District, Appellees, and State Engineer Harold D. Simpson, and Division Engineer Richard L. Stenzel, Appellees pursuant to C.A.R. 1(e).

No. 98SA449.

Supreme Court of Colorado, En Banc.

February 14, 2000.

Felt, Houghton & Monson, LLC, James G. Felt, James W. Culichia, Colorado Springs, Colorado, Attorneys for Appellant.

Bernard, Lyons & Gaddis, P.C., Jeffrey J. Kahn, Steven P. Jeffers, Longmont, Colorado, Attorneys for Appellees, Board of Commissioners of Park County and Upper South Platte Water Conservancy District.

Evan D. Ela, Margaret Emerich, Steven L. Snyder, Thornton, Colorado, Attorneys for the City of Thornton.

Duncan, Ostranter & Dingess, P.C., John M. Dingess, Lynn B. Obernyer, Ronald E. vonLembke, Stephanie J. Neitzel, Denver, Colorado, Attorneys for the City of Aurora.

No appearance by or on behalf of Columbine Associates.

Justice SCOTT delivered the Opinion of the Court.

The Park County Water Preservation Coalition ("Park County Coalition") appeals a sexennial finding of reasonable diligence in the development of conditional water rights decreed by the District Court for Water Division 1 ("water court"). The water court ruled that the City of Aurora ("Aurora") demonstrated reasonable diligence in the development of the subject water rights. Aurora owns the conditional water rights at issue in this case and intends to perfect those rights at some point in the future by using the water for the Columbine Reservoir Storage Project. Park County Coalition claims that the water court lacked jurisdiction to grant the conditional water rights decree because the applicant had no intent to divert water and had not made an appropriation of the water rights as defined by section 37-92-103(3), 10 C.R.S. (1999). Park County Coalition also asserts that the water court did not have jurisdiction to support its decree because the resume notice was inadequate as a matter of law.¹ We conclude that subject-matter jurisdiction properly vested in the water court in accordance with the timely filing of the application and the publication of the resume notice. We further conclude that the water court was correct in ruling that the resume notice was sufficient to provide notice to potential objectors. In addition, we hold that Park County Coalition was precluded by the statute of limitations from protesting the 83CW360 application. Hence, we affirm the ruling of the water court and uphold its decree of conditional water rights in this case.

I.

A. The 83CW360 Decree

On December 30, 1983, Columbine Associates ("Columbine") filed an application for direct flow and water storage rights, including a refill right for the structure named Columbine Reservoir and Dams ("Columbine Reservoir") with an initial appropriation date of August 27, 1982. Resume notice of the application was published by the water court clerk in the January 26, 1984 editions of The Flume and the South Park Times newspapers in accordance with section 37-92-302(3), 10 C.R.S. (1999). The resume notice identified the name and address of the applicant Columbine, the location and point of diversion, and the proposed structures. The application and resume provided descriptions of the proposed uses to which the Columbine Reservoir conditional water rights were to be applied. The resume, as did the application, stated that the application was for "Direct Flow and Water Storage Right, Including Refill Right. In the Matter of the Application for Water Rights of Columbine Associates, In Park County."

In response to the published resume, the City of Denver ("Denver") opposed the Columbine application alleging in part that the application was speculative in nature because Columbine had no end user for the water on the date of the application and therefore had not demonstrated the requisite intent to make a valid appropriation.

On September 6, 1988, Columbine and Aurora moved to amend the application by adding Aurora as a co-applicant to the original application, without the need of republication. On September 8, 1988, the Referee granted the motion to amend the application without republication and allowed Aurora to be added as a co-applicant. On September 9, 1988, Denver opposed the joint Motion to Amend and moved to dismiss the underlying application on the grounds that Columbine failed to comply with section 37-92-302(2), in that "the use and proposed use of the water" was not contemplated until Columbine and Aurora entered into a contract. Denver also alleged that Columbine failed to demonstrate the requisite intent as required by Colorado River Water Conservation District v. Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979). On October 3, 1988, Columbine sold the 83CW360 application to Aurora. On July 14, 1989, the Referee issued a decree granting a storage and direct flow water right to Columbine and Aurora with an appropriation date of December 30, 1983. On July 18, 1989, Denver filed its Protest to the Ruling of the Referee, stating in part that the ruling was not in accordance with law and that the earliest appropriation date that Columbine could claim was October 3, 1988, when Columbine entered into the agreement with Aurora for use of the subject rights. On or about December 19, 1989, Columbine and Aurora and Denver stipulated that a decree may be entered based on the Referee's ruling provided that the appropriation date was October 3, 1988, rather than December 30, 1983, as reflected in the Referee's ruling. On August 23, 1990, the water court granted a conditional storage and direct flow water right to Columbine and Aurora with an appropriation date of October 3, 1988.

B. The 96CW190 Decree

During the six-year period from August 23, 1990 through August 28, 1996, Aurora performed numerous activities in its plan for its project. In addition, it made a number of expenditures toward the completion of the appropriation and the application of the conditionally decreed water rights to beneficial use. Aurora conducted site-specific work toward the development of the subject water rights; completed an engineering pre-feasibility study; purchased other water rights; and performed an engineering analysis, application, and decree for diversion and storage of other water rights in Columbine Reservoir; and attempted to purchase other water rights for storage in the Columbine Reservoir. It also performed work on other portions of its water supply system necessary for the successful operation of Columbine Reservoir, including system-wide water acquisition and development planning, studies and research for more efficient use of Aurora's water supplies; maintenance of existing facilities; work on the Sand Creek Treatment Plant; research with regard to endangered species in the South Platte recharge project; participation in the Metropolitan Water Providers with regard to Two Forks Reservoir; replacement of a portion of the Aurora aqueduct; completion of the Aurora Reservoir Watershed Management Plan; Rampart Reservoir improvements; and participation in multiple water court cases for the purpose of protecting the subject water rights.

Aurora filed an application for a sexennial finding of reasonable diligence on August 29, 1996, for the conditional 83CW360 decree. On May 27, 1997, Park County Coalition filed a Statement of Opposition and a Motion to Vacate the Water Right, claiming that the underlying decree was void because it was issued without proper notice and because the water court lacked subject-matter jurisdiction. Park County Coalition asserted that because Columbine had no end user for the water, it could not have had an intent to appropriate. It further claimed that published notice of the resume was inadequate to inform potential objectors of the nature, scope, and impact of the proposed diversions and that if Aurora had been named as a co-applicant at the time of the original application, residents of Park County would have opposed the original application.

On July 7, 1997, the water court denied the Motion to Vacate the Water Right, concluding that the resume notice was sufficient to place all interested parties and residents of Park County on notice that local water rights were to be changed to a variety of new uses, including municipal uses. It further ruled that there was sufficient compliance with section 37-92-302 to put all parties on inquiry notice and, therefore, there had been compliance with the statutory mandates regarding pleading and notice under section 38-41-115, 10 C.R.S. (1999).

On November 13, 1997, the case proceeded to trial before the water court on the issue of Aurora's diligence. On September 10, 1998, the water court found that Aurora had a legitimate plan to put the subject conditional water rights to beneficial use, intended to develop and beneficially use all the subject conditional water rights listed herein, and had the capability to place the water to beneficial use within a reasonable period of time. The water court found that Aurora's plan was economically feasible and that it had the economic and other resources necessary to put its plan into action and see it through to completion. The water court also made findings that during the diligence period, Aurora had performed project-specific work toward development of the subject water rights and application of those rights to beneficial use and performed work on other parts of its integrated water supply system necessary for the successful operation of the subject water rights or in furtherance of those rights. Further, the water court concluded that Aurora protected the subject water rights by participating in litigation...