Jackson v. State of Colorado

• Decision Date: 03 October 1968
• Docket Number: Civ. A. No. C-871.
• Citation: 294 F. Supp. 1065
• Parties: Winton JACKSON, Plaintiff, v. STATE OF COLORADO, Ground Water Commission of the State of Colorado, A. Ralph Owens, individually and as State Engineer of the State of Colorado, and North Kiowa Bijou Management District, Defendants.
• Court: U.S. District Court — District of Colorado

294 F. Supp. 1065

Winton JACKSON, Plaintiff, v. STATE OF COLORADO, Ground Water Commission of the State of Colorado, A. Ralph Owens, individually and as State Engineer of the State of Colorado, and North Kiowa Bijou Management District, Defendants.

Civ. A. No. C-871.

United States District Court D. Colorado.

October 3, 1968.

COPYRIGHT MATERIAL OMITTED

Saunders, Dickson, Snyder & Ross, by John M. Dickson, Denver, Colo., for plaintiff.

Duke W. Dunbar, Atty. Gen., for the State of Colorado, Frank E. Hickey, Deputy Atty. Gen., and Ben L. Wright, Jr., Special Asst. Atty. Gen., Denver, Colo., for defendants State of Colorado, Ground Water Commission of the State of Colorado, and A. Ralph Owens, individually and as State Engineer of the State of Colorado.

George A. Epperson, Donald F. McClary and Stanley I. Rosener, Fort Morgan, Colo., for defendant North Kiowa Bijou Management District.

Before HICKEY, Circuit Judge, and ARRAJ and PAYNE, Judges.

ARRAJ, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff has invoked the jurisdiction of a three-judge court under 28 U.S.C. §§ 2281 and 2284 seeking a permanent injunction restraining an action by an administrative board, acting under a Colorado state statute, contending that the statute and regulation promulgated thereunder are unconstitutional in that they violate the provisions of the Fourteenth Amendment by permitting the taking of plaintiff's property without just compensation and without due process of law.

Defendant North Kiowa Bijou Management District has moved to dismiss the action on the grounds that plaintiff failed to exhaust his administrative remedies and consequently failed to bring himself within the jurisdiction of this Court.

The other defendants have moved to dismiss the action on the following grounds:

1. Article III, Section 2, of the Constitution of the United States, does not give this Court jurisdiction over a suit by a citizen of one state against another sovereign state. The Eleventh Amendment to the Constitution of the United States by its terms prohibits such suit.

2. The complaint fails to state a cause of action against the State of Colorado, Ground Water Commission of the State of Colorado, or A. Ralph Owens, either individually or as State Engineer of the State of Colorado.

3. Plaintiff has failed to join indispensable parties.

Movants have filed briefs supporting their motions and plaintiff has filed a brief responding to the briefs of all defendants. In plaintiff's brief he states that he is not seeking relief against the state of Colorado and therefore has no objection to its being dismissed as a party.

We will deal with the pending motions in two parts. The first part will determine the question whether plaintiff has failed to bring himself within the jurisdiction of this Court for failure to exhaust his administrative remedies. The second part decides whether the Eleventh Amendment bars this action and whether all the water users within the water district in question are indispensable parties. Initially, however, we will briefly discuss the statute in question.

In 1965, the Colorado legislature passed the "Colorado Ground Water Management Act" (hereinafter referred to as the Act) in an attempt to permit the full development of ground water sources, protect owners of surface water rights and alleviate the growing friction between the surface water appropriators and the well owners. Colo.Rev.Stat.Ann. § 148-18-1 (Supp. 1965). The Act separates certain water which it terms as "designated ground water" from the system of appropriation for surface waters, and it creates a permit system for the allocation and use of ground waters within the designated ground water basins. Colo.Rev.Stat.Ann. §§ 148-18-1 to 38 (Supp. 1965). Appropriators of the designated ground waters are required to obtain a permit for their appropriations and the Act establishes a system of prior appropriation, similar in operation to the system regulating surface water rights, to regulate the water rights of the ground water users. Colo.Rev.Stat.Ann. §§ 148-18-6 to 8 (Supp. 1965).

The administration and enforcement of the Act is placed in the hands of an administrative commission, the state engineer and locally formed ground water management districts. No discussion of the state engineer's powers is necessary as they are not pertinent to the issues herein presented. The commission is empowered to designate the ground water basins and to supervise and control the administration of all ground water so designated. It also grants or denies petitions for the formation of management districts within each ground water basin. The management district, on the other hand, is a corporate government subdivision of the State of Colorado which is formed for the purpose of assisting the commission on all matters affecting the district area, which include enforcing commission regulations, providing data on underground aquifers within the area, determining if commission regulations are suitable for the area, and helping conserve the ground water for maximum beneficial use. The management district has general authority to regulate the use, control and conservation within the district and specific authority, inter alia, to prohibit the use of ground water outside the boundaries of the district where such use would materially affect the rights of other permit owners within the district. Colo. Rev.Stat.Ann. §§ 148-18-10, -23, -29 (Supp. 1965).

With respect to issuing permits and promulgating regulations the Act makes available to affected water users the procedures providing for notice, hearing and review of the commission and the management district measures. Sections 29 and 30 of the Act provide that the proposed controls, regulations, or conservation measures of the management districts are subject to review and final approval by the ground water commission if objection is made within thirty days after the publication of the corrective measure. Colo.Rev.Stat.Ann. 148-18-29, -30 (Supp. 1965). The consequence of lodging a timely objection to a management district's proposed measure is to defer finality of the administrative process and allow for change and correction within the administrative agency should such be needed. Section 14 provides that any person dissatisfied with any decision of the commission may take an appeal to the appropriate district court and those proceedings shall be de novo. Colo.Rev.Stat.Ann. § 148-18-14 (Supp. 1965). Should a person take a timely appeal even after the commission's review and approval of a management district's proposed corrective measure, the measure would remain inoperative and without legal effect until the court should approve it. Reflection upon this elaborate reviewing scheme makes it clear that the legislature intended to allow for the full development of issues and interests and their cautious scrutiny by both the agency and state judiciary before a decision or regulation would become operative upon persons having such a vital interest affected as the use and appropriation of water.

I.

Plaintiff is an owner of a conditional permit to drill a water well within the North Kiowa Bijou Management District, Kiowa-Bijou Ground Water Basin. He is also an owner of an option to acquire certain other appropriations of well water within the North Kiowa Bijou Management District. He intends to use the water yielded by the wells for municipal purposes in the Denver metropolitan area outside the boundaries of the North Kiowa Management District.

At some time prior to the commencement of this suit, the North Kiowa Management District adopted the following regulation:

it is prohibited to use or transport ground water obtained within the District outside the boundaries of the District.

Plaintiff contends specifically that the regulation and Act deprive him of vested property rights without just compensation in violation of the due process clause of the Fourteenth Amendment and Section 14 of Article II of the Constitution of the State of Colorado. He also claims that the regulation and Act have a retrospective effect upon plaintiff's water rights in violation of Section 11 of Article II and Section 12 of Article XV of the Constitution of the State of Colorado. Finally, he claims that the Act violates Articles III and V, Section 1 of the Constitution of the State of Colorado in that it vests legislative power in the Management District without any standards to guide the exercise of this power. Plaintiff premises his claims on the fact that the regulation prohibits exportation even where such does not injure senior appropriators and that his project would not materially affect the permit rights of the other water users within the District.

Plaintiff's challenge, however, is premature because he has failed to exhaust his administrative remedies. Prior to the commencement of this suit, plaintiff had invoked the review procedures of the Act by filing a timely objection to the District's proposed regulation prohibiting the export of ground water outside the District. The commission had resolved to hold a hearing to review the issues raised by plaintiff. This action, however, was filed prior to the date set for hearing and the pleadings reflect that no hearing was held, nor any final determination reached with respect to the proposed correction measure prior to the commencement of the suit.

In concluding that plaintiff's challenge is premature, we adhere to the general rule that in deference to the expertise of administrative agencies and in an attempt to avoid premature review of incomplete regulations and orders, no person is entitled to judicial relief for threatening injury until he has exhausted his prescribed administrative remedies. FCC v. Schreiber, 381 U.S. 279, 296-297, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1964); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Myers v. Bethlehem...