In the Matter of Application for Water Rights of Park County Sportsmen's Ranch, LLP, Case No. 01SA412 (CO 2/14/2005)
| Decision Date | 14 February 2005 |
| Docket Number | Case No. 01SA412. |
| Parties | IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF PARK COUNTY SPORTSMEN'S RANCH. CITY OF AURORA, a municipal corporation of the counties of Adams, Arapahoe and Douglas, acting by and through its Utility Enterprise; PARK COUNTY SPORTSMEN'S RANCH, L.L.P., a limited liability partnership; and KENNETH J. BURKE, former counsel for Park County Sportsmen's Ranch, LLP, Applicants-Appellants v. COLORADO STATE ENGINEER, HAROLD D. SIMPSON, Division Engineer for Water Division No. 1; COLORADO WATER CONSERVATION BOARD; COLORADO STATE DIVISION OF WILDLIFE; CITY OF THORNTON; CITY OF ENGLEWOOD; CITY AND COUNTY OF DENVER; COUNTY OF PARK; CENTER OF COLORADO WATER CONSERVANCY DISTRICT; ELKHORN RANCH HOME OWNERS ASSOCIATION; UPPER SOUTH PLATTE WATER CONSERVANCY DISTRICT; BOARD OF COMMISSIONERS OF COUNTY OF PARK; PARK COUNTY WATER PRESERVATION COALITION; UNITED STATES OF AMERICA; CENTENNIAL WATER and SANITATION DISTRICT; UNION PACIFIC RESOURCES COMPANY; THE FRIEDA WAHL TRUST; STEVE BARGAS; KIMBERLY BARGAS; FRIDA BARGAS; H.D. and MARY CATHERINE COLEMAN; JAMES T. BENES; JAMES T. BENES, JR.; CASSANDRA L. BENES TRUST; TARRYALL LAND and CATTLE LLC; MAGNESS LAND HOLDINGS, LLC; ESTATE OF BOB MAGNESS; PERSONAL REPRESENTATIVE OF THE ESTATE OF BOB MAGNESS; TOWN OF FAIRPLAY; JIM CAMPBELL; JAMES CAMPBELL; RUTH BARTLE; INDIAN MOUNTAIN CORPORATION; JILL E. BOICE; BOB BURCH; ROBERT W. HECKENDORF; MICHAEL and VICKI LOTHROP; RICHARD A. GRENFELL; DAVID WILSON; DARRELL JOHNS; DAVID JOHNS; JOHN JOHNS; JOSEPH G. and JOYCE C. MINKE; JAMES E. COPANOS; CENTRAL COLORADO CATTLEMEN'S ASSOCIATION; GREGORY SNAPP; ROY G. DOERR; ERIK TAYLOR; WILDWOOD RECREATIONAL VILLAGE ASSOC.; MARK and CAROL CARRINGTON; HANSLUDWIG KOMMERT; and STEPHEN R. CLINE, Objectors-Appellees. |
| Court | Colorado Supreme Court |
Appeal from the District Court, Water Division 1, Case No. 96CW14, Honorable Jonathan Hays, Judge.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND CASE REMANDED.
MODIFIED OPINION. MARKED REVISIONS SHOWN.
No. 01SA412, In re Application for Water Rights of Park County Sportsmen's Ranch, LLP — Water Law, Salvaged Water, Plan for Augmentation, Evidence, CRE 702, Admissibility of Scientific Evidence, C.R.C.P. 41(b)(1), Standard of Dismissal, Retained Jurisdiction, Attorney Fees, Substantially Groundless or Frivolous Claims, Underground Storage of Water, Agency, Vicarious Liability, Joinder, C.R.C.P. 20, C.R.C.P. 21, Costs, C.R.C.P. 54(d), CRE 1006, Bill of Costs
Park County Sportsmen's Ranch, LLP (PCSR), acting for itself and as an agent for the City of Aurora, filed an application for determination of conditional underground and surface water rights and for approval of an augmentation plan. Numerous parties (Opposers) filed statements of opposition, arguing that PCSR's proposed decree would injure senior water interests because PCSR's augmentation plan could not adequately quantify or replace depletions to overlying tributaries resulting from groundwater pumping.
To support the adequacy of its application and its augmentation plan, PCSR developed groundwater and surface water models to predict the effect of groundwater pumping on overlying tributaries. After PCSR presented its case-in-chief, Opposers moved for dismissal of PCSR's application pursuant to C.R.C.P. 41(b)(1).
In an order granting Opposers' motion, the water court dismissed PCSR's augmentation plan and application, and awarded attorney fees and costs to Opposers. Additionally, the water court determined that Aurora was vicariously liable for PCSR's action, and joined Aurora as a party for purposes of determining the amount of attorney fees to award.
The Supreme Court affirms in part, reverses in part, and remands. As a preliminary matter, the Court holds that because PCSR failed to prove the timing of depletions and failed to present evidence of return flows, PCSR must replace 100 percent of its withdrawals.
The Court then addresses the dismissal of PCSR's application. First, the water court did not abuse its discretion in excluding PCSR's rebuttal evidence or in finding that PCSR's groundwater and surface water models failed to produce sufficiently reliable results to permit a reasonably accurate determination of the timing, amount, and location of stream depletions or the legal availability of replacement water. In the absence of sufficient proof, the water court correctly held that it could not determine the issue of injury with respect to PCSR's augmentation plan. Accordingly, the water court applied the proper standard of review pursuant to C.R.C.P. 41(b)(1) in dismissing PCSR's augmentation plan. Moreover, because the water court lacked sufficient proof to determine the issue of injury, the water court did not have a duty to reconsider injury in retained jurisdiction.
Finally, without a decreed augmentation plan, PCSR failed to produce evidence at trial sufficient to support a decree for any of its remaining claimed surface appropriations. In conclusion, the Court affirms the dismissal of PCSR's application and augmentation plan.
With respect to the water court's award of attorney fees, the Court reverses the award in its entirety as an abuse of discretion, except for those fees that Opposers incurred in defending PCSR's claims for precipitation and irrigation run-off, which were frivolous from inception. The Court remands to the water court for a determination of these amounts. Additionally, Aurora is vicariously liable for attorney fees because PCSR, as Aurora's agent, pursued a frivolous claim. Joinder of Aurora was proper pursuant to C.R.C.P. 20 and 21.
Lastly, the water court did not abuse its discretion in awarding costs to Opposers for expert witness services or for deposition, expert witness, and in-house attorney fees.
Duncan, Ostrander & Dingess, P.C., John M. Dingess, Linda D. Obernyer, James Birch (Special Counsel), Denver, Colorado, Attorneys for Applicant-Appellant City of Aurora acting by and through its Utility Enterprise.
Porzak Browning & Bushong, Glenn E. Porzak, Steven J. Bushong, Kevin J. Kinnear, Boulder, Colorado, Gary L. Crandell, P.C., Gary L. Crandell, Denver, Colorado, Attorneys for Applicant-Appellant Park County Sportsmen's Ranch, L.L.P.
White and Steele, PC, John M. Lebsack, Jennifer L. Tryjan, David Jaffee, Suzanna Wasito, Denver, Colorado, Attorneys for Applicant-Appellant Kenneth J. Burke, former counsel for Park County Sportsmen's Ranch, LLP.
John W. Suthers, Acting Attorney General, Steven O. Sims, Assistant Attorney General, Susan J. Schneider, Assistant Attorney General, Natural Resources and Environment Section, Denver, Colorado, Attorneys for Objectors-Appellees Colorado state engineer, Harold D. Simpson, Division Engineer for Water Division No. 1; Colorado Water Conservation Board; and Colorado State Division of Wildlife.
Margaret A. Emerich, City Attorney, Dennis A. Hanson, Assistant City Attorney, Thornton, Colorado, Attorneys for Objector-Appellee City of Thornton.
Berg Hill Greenleaf & Ruscitti LLP, David G. Hill, Melissa M. Heidman, William I. Krasniewicz, Boulder, Colorado, Attorneys for Objector-Appellee City of Englewood.
Denver Water Department, Patricia L. Wells, Michael L. Walker, Mary B. Rastall, Anne E. Winans, Casey S. Funk, Henry C. Teigen, Denver, Colorado, Attorneys for Objector-Appellee City and County of Denver, acting by and through its Board of Water Commissioners.
Bernard, Lyons, Gaddis & Kahn, P.C., Jeffrey J. Kahn, Steven P. Jeffers, Madoline E.S. Wallace, Longmont, Colorado, Attorneys for Objectors-Appellees Board of Commissioners of County of Park and The Upper South Platte Water Conservancy District.
Felt, Monson & Culichia, LLC, James G. Felt, James W. Culichia, Colorado Springs, Colorado, Attorneys for Objector-Appellee Center of Colorado Water Conservancy District.
Vranesh & Raisch, LLP, Michael D. Shimmin, Lisa C. Ledet, Boulder, Colorado, Attorneys for Objectors-Appellees Park County Water Preservation Coalition, and H. D. and Mary Catherine Coleman.
US Department of Interior, Robert D. Comer, Special Assistant US Attorney, Thomas R. Graf, Special Assistant US Attorney, Office of Regional Solicitor, Lakewood, Colorado, Attorneys for Objector-Appellee United States of America.
Gilbert Y. Marchand, Jr., P.C., Gilbert Y. Marchand, Jr., Boulder, Colorado, Moses, Wittemyer, Harrison and Woodruff, P.C., Veronica A. Sperling, Boulder, Colorado Attorneys for Objector-Appellee Centennial Water and Sanitation District.
Welborn Sullivan Meck & Tooley P.C., Stephen J. Sullivan, Molly Sommerville, Denver, Colorado, Attorneys for Union Pacific Resources Company n/k/a Anadako Petroleum Corporation.
Gilbert Y. Marchand, Jr., P.C., Gilbert Y. Marchand, Jr., Boulder, Colorado, Attorneys for Objectors-Appellees James T. Benes, James T. Benes, Jr., and Cassandra L. Benes Trust, and Tarryall Land and Cattle, LLC.
Tienken & Hill, L.L.P., Alan G. Hill, Louisville, Colorado, Attorneys for Objectors-Appellees The Frieda Wahl Trust, Steve Bargas, Kimberly Bargas and Frida Bargas.
Robert E. Schween, P.C., Robert E. Schween, Aurora, Colorado, Attorneys for Objector-Appellee Magness Land Holdings, LLC.
Petrock & Fendel, P.C., Frederick A. Fendel, Carmen S. Hall, Denver, Colorado, Attorneys for Objectors-Appellees Town of Fairplay, James Campbell, and Indian Mountain Corporation.
The Law Offices of Bennett S. Aisenberg, P.C., Bennett S. Aisenberg, H. Paul Himes, Jr., Denver, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.
No appearance by or on behalf of: County of Park; Elkhorn Ranch Home Owners Association; Estate of Bob Magness; Personal Representative of the Estate of Bob Magness; Jim Campbell; Jill E. Boice; Ruth Bartle; Bob Burch;Robert W. Heckendorf; Michael and Vicki Lothrop; Richard A. Grenfell; David A. Wilson; Darrell Johns; David Johns; John Johns; Joseph G. and Joyce C. Minke; James E. Copanos; Central Colorado...
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