Jaeger v. Colorado Ground Water Com'n, 85SA287
| Decision Date | 09 November 1987 |
| Docket Number | No. 85SA287,85SA287 |
| Citation | 746 P.2d 515 |
| Parties | William Q. JAEGER d/b/a Cornhusker Farms, Plaintiff-Appellant, v. COLORADO GROUND WATER COMMISSION, and Northern Trust Company, as Trustee Under the Will of Charles H. Krause, Anne Seyfried and Thelma Vonhazmburg; Lost Creek Ground Water Management District, for Itself and on Behalf of Richard Andrews; Daryl Arnold; Mr. and Mrs. Leslie M. Bartlett; Conrad Bauer; Rodney W. Baumgartner; Alan D. Berryman; Merl Dunham; Al Hofferber; Johnson Enterprises; Victor R. Klein; Blanch M. Preston; Ronald Schlagel; Catherin Schlagel; Abbott Farms, Inc.; Andreas Arnusch; Franz Arnusch; Hans Arnusch; Nikolaus Arnusch; Mr. and Mrs. William Asher; Charley Baumgartner; Dave Baumgartner; Earl Baumgartner; Leonard Baumgartner; Ruben Baumgartner; Terry E. Baumgartner; Frieda Becker; Harry E. Becker; Dayton G. Bell; Forrest M. Bell; William H. Bell; William C. Busch; George H. Busch; J.H. Casper; Rodney A. Cuykendall; Alfred R. Cuykendall; George Dalrymple; John E. Epple; Russell C. Epple; Elmer G. Foss; George G. Glenn; Maurice Gorges; Francis A. Gnadt; Marvin L. Helzer; Harold Huwa; Herman Huwa; Richard F. Huwa; Jim Ishida; James R. Jakel; Johnie Jakel; Dale A. Johnson; August Kitzman; Kauffman Bros.; Bruce Kauffman; Raymond Kauffman; Elmer Kauffman; E. Leonard Keller; Thomas J. Klausner; Edward H.D. Kotz; Glenn H. Lewton; Harold L. Lewton; John Mitzel; Richard Parker; John H. Reid; Ivan Robertson; Anna Robertson; Roggen Lions Club; Courtland Rybicka; Sargent Farms, Inc.; Clem J. Schrant; Joel Schoeneman; Gerald E. Sigg; Isabel Sirios; Donald L. Sloan; Paul Smith; Southeast Weld Soil Conservation District; Raymond Trupp; Donald H. Vogel; Jacob Vogel; Leo Mark Vrbas; Leo R. Vrbas; Homer H. Warren; Dennis Weichel; Edward N. Weickum; Edwin L. Weickum; Andy Zimbelman; Donald J. Zimbelman; Jack W. Zimbelman; John Zimbelman, Jr.; Kenneth L. Zimbelman; Ted Zimbelman; Leon Zimbelman, as Objectors, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Saunders, Snyder, Ross & Dickson, P.C., Melvin B. Sabey, John M. Dickson, William B. Tourtillott, Jr., Denver, for plaintiff-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Wendy C. Weiss, First Asst. Atty. Gen., Natural Resources Section, Denver, for defendant-appellee Colo. Ground Water Com'n.
Moses, Wittemyer, Harrison and Woodruff, P.C., Raphael J. Moses, David M. Brown, Veronica A. Perling, Boulder, Robert W. Giacomini, Sterling, for defendants-appellees other than Colo. Ground Water Com'n, Alan D. Berryman and Victor R. Klein.
Alan D. Berryman, pro se.
Victor R. Klein, pro se.
This is an appeal from a judgment of the Weld County District Court affirming a decision of the Colorado Ground Water Commission ("Commission") that denied six applications for conditional permits to appropriate ground water in the Lost Creek Designated Ground Water Basin. We agree with the district court that an intent to appropriate designated ground water for beneficial use, not for speculation, must be established before such an application can be granted, and that the Commission properly applied that standard in denying the applications. We therefore affirm the judgment.
On December 12, 1978, William Q. Jaeger, d.b.a. Cornhusker Farms ("Cornhusker Farms" or "applicant"), filed eleven applications with the Commission for permits to construct wells, install pumps, and use ground water from the Lost Creek Designated Ground Water Basin in Weld County. Five of the applications were later withdrawn by the applicant, and the six remaining applications were given a preliminary evaluation by the Commission, as required by section 37-90-107(2), 15 C.R.S. (1973). It appeared to the Commission that the applications could be given favorable consideration under existing policies, so public notice of the applications was provided by publication in the Keene Valley Sun. See §§ 37-90-107(2), -112(1), 15 C.R.S. (1973). Objections were filed, and hearings on the applications were held before a Commission hearing officer. See §§ 37-90-107(4), -113, 15 C.R.S. (1973).
On October 31, 1979, the hearing officer issued an Administrative Hearing Report, Findings, and Recommendations, which recommended to the Commission that the six applications be granted and that a system for monitoring the wells be required. The report included the following finding:
It is found that there is water to appropriate and that an appropriation in the amount of 6,600 acre-feet will not unreasonably impair existing water rights or create unreasonable waste. 1
The hearing officer also found that "[t]he application for well permits clearly shows an intent by Cornhusker Farms to take the water and put it to beneficial use."
The Commission considered the hearing officer's recommendations at its regularly scheduled meeting on February 8, 1980, and voted 7-2 to deny the applications. Written decisions denying the six applications were issued by the Commission on March 5, 1980.
Cornhusker Farms filed a complaint seeking judicial review of the Commission's decisions by the Weld County District Court and also asking for other relief against the Commission and seven of its individual members. 2 The Commission's decisions did not include "a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record," as required by section 24-4-105(14), 10 C.R.S. (1982). For this reason, the Commission filed a motion to remand the case to the Commission for further consideration and for the entry of decisions containing findings of fact and conclusions of law. The court then issued a remand order, upon stipulation of the parties, requiring the Commission to enter a decision based on the existing record and in compliance with section 24-4-105(14) and (15), 10 C.R.S. (1982). 3
In accordance with the district court's order, the Commission issued its revised decision on November 19, 1982, in which it again denied the applications. In its findings of fact the Commission adopted the hearing officer's findings that "[t]here are 6,600 acre-feet of water available to appropriate annually and an annual appropriation of 6,600 acre-feet would not unreasonably impair existing water rights or create unreasonable waste."
The Commission also stated in its findings that William Q. Jaeger "testified, and the commission so finds, that the applicant hopes to sell the water in the future, but presently has no contractual commitment/s/ for the purchase of the water for a beneficial use." The Commission stated as a conclusion of law that Applying the anti-speculation doctrine of Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979), the Commission concluded that "[t]he evidence presented falls short of what is needed to indicate an intent to appropriate." The Commission also concluded that "[i]t is inconsistent with the policy of full economic development of the state's designated ground water resources ... to issue conditional permits for speculative future uses," and denied the permits.
Cornhusker Farms amended its original complaint and sought review of the Commission's decision in the Weld County District Court. The court determined that the Commission was correct in applying the Vidler doctrine to applications to appropriate ground water in designated ground water basins, and affirmed the Commission's decision. Cornhusker Farms then brought this appeal.
The central contention of Cornhusker Farms in this appeal is that the anti-speculation doctrine enunciated in Vidler is inapplicable to appropriations of ground water in designated ground water basins and that the criteria by which applications for such appropriations are to be evaluated are limited to those set forth in section 37-90-107(3) and (4), 15 C.R.S. (1973). The Commission and the district court rejected this contention, and so do we.
The doctrine of prior appropriation with respect to water in or tributary to natural streams is firmly entrenched in Colorado law. It predates the Colorado Constitution, and "has existed from the date of the earliest appropriations of water within the boundaries of the state." Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446-47 (1882). A fundamental principle included within the doctrine is that a valid appropriation of water requires an intent to appropriate, i.e., "a fixed purpose to pursue diligently a certain course of action to take and beneficially use water from a particular source." City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d 730, 745 (Colo.1985). Accord Water Supply & Storage Co. v. Curtis, 733 P.2d 680, 683-84 (Colo.1987); Fruitland Irrigation Co. v. Kruemling, 62 Colo. 160, 165-67, 162 P. 161, 163 (1916).
This court discussed the need for a non-speculative appropriative intent in Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co., 197 Colo. at 417-18, 594 P.2d at 568-69. In that case, the Colorado River Water Conservation District sought reversal of a conditional water storage decree granted to Vidler under the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to -602, 15 C.R.S. (1973 & 1986 Supp.). The district argued that Vidler lacked the intent to appropriate, for although it planned to use the water to meet the future anticipated needs of municipalities and others, it had no firm contractual commitment from any such entity for use of the water. This court agreed with the district:
Our constitution guarantees a right to appropriate, not a right to speculate. The right to appropriate is for use, not merely for profit. As we read our constitution and statutes, ...
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