In the Matter of The Application For Water Rights of The King Consol. Ditch Co. v. King Consol. Ditch Co.

• Court: Colorado Supreme Court
• Writing for the Court: Justice HOBBS delivered the Opinion of the Court.
• Citation: In the Matter of The Application For Water Rights of The King Consol. Ditch Co. v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011)
• Decision Date: 14 March 2011
• Docket Number: No. 09SA374.,09SA374.
• Parties: In the matter of the Application for Water Rights Of the King Consolidated Ditch Company, Morrison Consolidated Ditch Company, Los Pinos Ditch Company, Thompson–Epperson Ditch Company, Pine River Canal, Sullivan Ditch Company, Bear Creek and Pine River Ditch (Remmow Land Co., LP; Robert Williams d/b/a Williams Ranch; Jarrett F. Cook; and Robert S. Dulin and Susan W. Dulin), and Spring Creek Ditch Company in the Pine River Drainage in La Plata County.The SOUTHERN UTE INDIAN TRIBE, Appellantv.KING CONSOLIDATED DITCH COMPANY; Morrison Consolidated Ditch Company; Los Pinos Ditch Company; Thompson–Epperson Ditch Company; Pine River Canal; Sullivan Ditch Company; Bear Creek and Pine River Ditch (Remmow Land Co., LP; Robert Williams d/b/a Williams Ranch; Jarrett F. Cook; and Robert S. Dulin and Susan W. Dulin); and Spring Creek Ditch Company, Appellees.

250 P.3d 1226

In the matter of the Application for Water Rights Of the King Consolidated Ditch Company, Morrison Consolidated Ditch Company, Los Pinos Ditch Company, Thompson–Epperson Ditch Company, Pine River Canal, Sullivan Ditch Company, Bear Creek and Pine River Ditch (Remmow Land Co., LP; Robert Williams d/b/a Williams Ranch; Jarrett F. Cook; and Robert S. Dulin and Susan W. Dulin), and Spring Creek Ditch Company in the Pine River Drainage in La Plata County.The SOUTHERN UTE INDIAN TRIBE, Appellant

v.KING CONSOLIDATED DITCH COMPANY; Morrison Consolidated Ditch Company; Los Pinos Ditch Company; Thompson–Epperson Ditch Company; Pine River Canal; Sullivan Ditch Company; Bear Creek and Pine River Ditch (Remmow Land Co., LP; Robert Williams d/b/a Williams Ranch; Jarrett F. Cook; and Robert S. Dulin and Susan W. Dulin); and Spring Creek Ditch Company, Appellees.

No. 09SA374.

Supreme Court of Colorado, En Banc.

March 14, 2011.

Maynes Bradford Shipps & Sheftel, LLP, Janice Sheftel, Katherine A. Burke, Adam T. Reeves, Durango, Colorado, Attorneys for Appellant.Miller, Agro, & Robbins, L.L.C., Nancy Agro, Durango, Colorado, The Craig Law Firm P.C., Geoffrey M. Craig, Durango, Colorado, Attorneys for Appellees.Justice HOBBS delivered the Opinion of the Court.

In this appeal from a judgment of the District Court for Water Division No. 7, the Southern Ute Tribe (“the Tribe”) seeks to set aside the judgment on three grounds: (1) this case involves a declaratory judgment action requiring personal service on the Tribe and other affected parties pursuant to C.R.C.P. 19 and 4, and publication of resume notice pursuant to section 37–92–302(3)(a), C.R.S. (2010) was insufficient; (2) if the applicants (“the Ditch Companies”) properly filed this case as an application for a determination of a water right under section 37–92–302(1)(a), the lack of verification of the application when it was filed prevented the court from proceeding; and (3) the water court abused its discretion by denying the Tribe's motion to intervene pursuant to section 37–92–304(3), C.R.S. (2010) and in disallowing its late-filed statement of opposition.¹

The Ditch Companies filed an application in this case for a water court determination that two previously adjudicated decrees included priorities for year-round stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use. Resume notice and newspaper publication occurred. One of the Ditch Companies belatedly verified the application. The Tribe did not file a statement of opposition to the application within the time period specified by section 37–92–302(1)(b) and (c). No statements of opposition were filed by any other party. The water court considered and denied the Tribe's motion to intervene and disallowed its untimely statement of opposition. The water court then proceeded to consider the case and entered its written judgment that the previously adjudicated decrees had awarded the Ditch Companies priority dates for year-round stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use.

We hold that the application in this case is for a determination of a water right under section 37–92–302(1)(a) and the water court properly proceeded in compliance with the resume notice procedures of section 37–92–302(3); the belated verification of the application related back to the original application; and the water court did not abuse its discretion in denying the Tribe's motion to intervene and disallowing its untimely filed statement of opposition.

I.

This case centers on various water rights in the Pine River drainage of Colorado that the La Plata County District Court adjudicated pursuant to a general adjudication in 1934 and a supplemental adjudication in 1966 (“the Initial Decrees”).² Paragraph 8 of the 1934 decree included the right to use water for “domestic purposes, incidental to the appropriation and use for agricultural purposes.” In the 1966 decree, paragraph 9 of the preamble clarified this language to include the right to use water for “ domestic and stockwater purposes, incidental to the appropriation and use for agricultural purposes.” (Emphasis added).

Between 2001 and 2005, seven of the eight Ditch Companies, who hold some of the initially decreed Pine River rights, separately filed applications in the water court for wintertime stock watering rights from the Pine River (the “Winter Applications”).³ The Tribe, another holder of some of the initially decreed Pine River rights, filed statements of opposition to the Winter Applications.

In its written consultation report filed with the water court pursuant to section 37–92–302(4), the Division Engineer took the position that the Ditch Companies' already held the right to make wintertime stockwater use under the priorities of the Initial Decrees and had historically exercised that right. The Division Engineer's written report recommended that the water court enter an order or decree so finding in each of the Ditch Companies' cases, and then dismiss the Winter Applications. The report reads, in part:

It is believed that all of the ditches that have applied for these non-irrigation season water rights have probably had winter diversions incidental to agricultural practices which date back to the early appropriations of water for the ditches ...

Therefore, as long as the non-irrigation season uses of domestic and stockwater is not expanded beyond the historic practices, and the primary use of the water in these ditches is still for irrigation of agricultural lands, it is not believed a new water right is needed for these purposes....

It would be beneficial to have court recognition of the non-irrigation uses of domestic and stockwater historically used by these ditches, either by Order of the court or by decrees entered in each individual case.... If the court is in agreement, an Order could be issued recognizing these uses as being allowed in the 1934 and 1966 adjudications based on historic practices, and the applications in these cases could be dismissed.

The Ditch Companies entered into settlement discussions with the Tribe to dispose of the Winter Applications in accordance with the Division Engineer's consultation report, but settlement was not achieved. Counsel for the Ditch Companies then informed counsel for the Tribe that the Ditch Companies would file a separate, consolidated application to confirm that their wintertime stock watering use had been adjudicated in the Initial Decrees.

On March 25, 2009, the Ditch Companies filed with the clerk of the water court an application for a determination of water rights, asking the water court to confirm that the Initial Decrees had adjudicated priorities for stock watering rights decreed to their diversion structures, including wintertime use. That same day, the Ditch Companies notified the Tribe of the consolidated application via e-mail.

The application is entitled “Application For Determination of Water Rights (Surface),” follows the standard form for such an application adopted by the water judges pursuant to section 37–92–302(2)(a), and requests the water court to “issue an order interpreting Case Numbers 1248 and 1248–B to include year-round stockwatering and domestic uses incidental to agricultural purposes.”

On March 26, 2009, the Ditch Companies made a motion to vacate the trial dates for the Winter Applications and hold those cases in abeyance. The Ditch Companies served the motion on counsel for the Tribe. The motion recites that the Ditch Companies

filed Case Number 2009CW22 requesting the Court to confirm that Case Numbers 1248 and 1248–B adjudicated stockwater and domestic use incidental to agricultural uses. If the Court makes an affirmative determination, the applicants will not need an additional water right unless supplemental water is necessary.

On March 30, 2009, the Tribe filed a written consent to the motion, and the water court stayed all seven Winter Applications pending the outcome of the consolidated application.

In early April 2009, the water clerk prepared and published notice of the Ditch Companies' application in the monthly resume of water right applications in the Durango Herald newspaper. On May 27, 2009, one of the Ditch Companies filed a verification of the application.

On June 30, 2009, the Tribe filed simultaneous motions to intervene in this case and oppose the application. The Tribe contended that the application had been improperly filed as a request for a determination of water rights rather than as a declaratory judgment action that requires personal service under C.R.C.P. 19 and 4. The Tribe also asserted that the water court lacked authority to proceed with the application because it was not verified when filed.

The water court concluded that the late-filed verification “related back” to the filing of the application, disallowed Tribe's statement of opposition as untimely filed, and exercised its discretion to deny the intervention motion. The water court's written order recites, in part:

C.R.S. 37–92–304(3) enumerates the specific grounds required to intervene in a Water Court proceeding. In addition to paying the appropriate fee, the proposed Intervenor must show “mistake, inadvertence, surprise, or excusable neglect,” or that its proposed intervention is “to support a referee's ruling.”

Here, the Opposer has not alleged or proven that [sic] any of these criteria in its Motion to Intervene. This is not surprising since allegations of mistake, surprise or inadvertence would be factually unfounded. The Opposer had actual notice of this Application, in addition to the resume notice published in the Durango Herald and this Court's website sufficient to trigger an inquiry of the extent of the subject decree....

The case is in its final stages and would be completed fairly soon. The ...