Jim Hutton Educ. Found., Non-Profit Corp. v. Kev (In re Rein), Supreme Court Case No. 17SA5
| Decision Date | 21 May 2018 |
| Docket Number | Supreme Court Case No. 17SA5 |
| Parties | The JIM HUTTON EDUCATIONAL FOUNDATION, a Colorado non-profit corporation, Plaintiff-Appellant v. Kevin REIN, in his capacity as the Colorado State Engineer; David Nettles, in his capacity as Division Engineer in and for Water Division No. 1, State of Colorado; Colorado Division of Water Resources; and Colorado Division of Parks and Wildlife, Defendants-Appellees and Yuma County Water Authority Public Improvement District ; Colorado Ground Water Commission; and Marks Butte, East Cheyenne, Frenchman, Sandhills, Central Yuma, Plains, W-Y, and Arikaree Ground Water Management Districts, Defendants-Intervenors-Appellees and Republican River Water Conservation District ; City of Wray ; City of Holyoke; Harvey Colglazier; Lazier, Inc. ; Marjorie Colglazier Trust; Mariane U. Ortner; Timothy E. Ortner; Protect Our Local Community's Water, LLC; Saving Our Local Economy, LLC; the "North Well Owners"; Tri-State Generation and Transmission Association, Inc.; Dirks Farms Ltd; Julie Dirks; David L. Dirks; Don Andrews; Myrna Andrews; Nathan Andrews; Happy Creek, Inc.; J&D Cattle, LLC ; 4M Feeders, Inc.; May Brothers, Inc.; May Family Farms ; 4M Feeders, LLC; May Acres, Inc. ; Thomas R. May; James J. May ; Steven D. Kramer; Kent E. Ficken; Carlyle James as Trustee of the Chester James Trust; Colorado Agriculture Preservation Association; Colorado State Board of Land Commissioners; and the City of Burlington, Defendants-Well Owners-Appellees. |
| Court | Colorado Supreme Court |
Attorneys for Plaintiff-Appellant The Jim Hutton Educational Foundation, a Colorado non-profit corporation: Porzak Browning & Bushong LLP, Steven J. Bushong, Karen L. Henderson, Boulder, Colorado
Attorneys for Defendant-Intervenor-Appellee Yuma County Water Authority Public Improvement District: Brownstein Hyatt Farber and Schreck, LLP, Steven O. Sims, John A. Helfrich, Dulcinea Z. Hanuschak, Denver, Colorado
Attorneys for Defendant-Intervenor-Appellee Colorado Ground Water Commission: Cynthia H. Coffman, Attorney General, Chad M. Wallace, Senior Assistant Attorney General, Patrick E. Kowaleski, Senior Assistant Attorney General, Denver, Colorado
Attorneys for Defendants-Intervenors-Appellees Marks Butte, Frenchman, Sandhills, Central Yuma, Plains, and Arikaree Ground Water Management Districts: Vranesh and Raisch, LLP, Eugene J. Riordan, Leila C. Behnampour, Boulder, Colorado
Attorneys for Defendant-Well Owner-Appellee Republican River Water Conservation District: Hill & Robbins, P.C., David W. Robbins, Peter J. Ampe, Denver, Colorado
Attorneys for Defendant-Well Owner-Appellee "North Well Owners": Cline Williams Wright Johnson & Oldfather, L.L.P., Russell J. Sprague, Kimbra L. Killin, Fort Collins, Colorado
Attorneys for Defendant-Well Owner-Appellee Tri-State Generation and Transmission Association, Inc.: Vranesh and Raisch, LLP, Aaron S. Ladd, Justine C. Beckstrom, Boulder, Colorado, Tri-State Generation and Transmission Association, Inc., Roger T. Williams, Westminster, Colorado
Attorneys for Defendants-Well Owners-Appellees Don Andrews, Myrna Andrews, and Nathan Andrews: Vranesh and Raisch, LLP, Stuart B. Corbridge, Geoffrey M. Williamson, Boulder, Colorado
Attorneys for Defendants-Well Owners-Appellees Happy Creek, Inc.; J&D Cattle, LLC; 4M Feeders, Inc.; May Brothers, Inc.; May Family Farms; 4M Feeders, LLC; May Acres, Inc.; Thomas R. May ; and James J. May : Carlson, Hammond, and Paddock, LLC, William A. Paddock, Johanna Hamburger, Denver, Colorado
Attorneys for Defendant-Well Owner-Appellee Colorado Agriculture Preservation Association: Lawrence Jones Custer Grasmick LLP, Bradley C. Grasmick, Curran A. Trick, Johnstown, Colorado
Attorneys for Defendant-Well Owner-Appellee Colorado State Board of Land Commissioners: Cynthia H. Coffman, Attorney General, Virginia Sciabbarrasi, Assistant Attorney General, Denver, Colorado
Attorneys for Defendant-Well Owner-Appellee City of Burlington: Burns, Figa & Will, P.C., Stephen H. Leonhardt, Michael Y. Ley, Greenwood Village, Colorado
No appearance by or on behalf of Kevin Rein; David Nettles; Colorado Division of Water Resources; Colorado Division of Parks and Wildlife; East Cheyenne and W-Y Ground Water Management Districts; City of Wray; City of Holyoke; Harvey Colglazier; Lazier, Inc.; Marjorie Colglazier Trust; Mariane U. Ortner; Timothy E. Ortner; Protect Our Local Community's Water, LLC; Saving Our Local Economy, LLC; Dirks Farms Ltd; Julie Dirks; David L. Dirks; Steven D. Kramer ; Kent E. Ficken; or Carlyle James as Trustee of the Chester James Trust.
En Banc
¶ 1 The Jim Hutton Foundation ("Foundation") owns surface-water rights in the Republican River Basin. It believes that permitted groundwater wells that people have begun to install in the underlying groundwater basin—the Northern High Plains Basin ("NHP Basin")—are not in fact pumping designated groundwater, and are therefore injuring its senior surface-water rights. So the Foundation seeks legal redress, hoping to ultimately alter the groundwater basin's boundaries to exclude any improperly permitted designated-groundwater wells.
¶ 2 Our precedent provides that, to resolve such a dispute, the Colorado Groundwater Commission ("Commission") must first determine whether the water at issue is in fact designated groundwater. A recent legislative amendment to the statutory process to challenge the designation of a groundwater basin, however, prohibits any challenge that would alter a designated groundwater basin's boundaries to exclude a well that has already received a permit.
¶ 3 So instead, the Foundation filed this action in water court, arguing that the legislative amendment is unconstitutional as applied. Specifically, the Foundation claims that the amendment deprives surface-water users of the ability to petition the Commission to redraw the NHP Basin's boundaries to exclude permitted well users upon a showing that groundwater was improperly designated when the NHP Basin's designation became final. The water court dismissed this claim for lack of subject matter jurisdiction. It concluded that the Commission must first determine whether the water at issue is designated groundwater before subject matter jurisdiction will vest in the water court, meaning the Foundation's constitutional claim cannot become ripe until it satisfies the Commission that the water is not designated groundwater.
¶ 4 The Foundation appealed. We now affirm the water court and conclude that, because jurisdiction does not vest in the water court until the Commission first determines that the water at issue is not designated groundwater, the water court properly dismissed the claim.
¶ 5 The Foundation owns a ranch in Yuma County, Colorado, near the South Fork of the Republican River. It also owns four decreed water rights to divert surface water from the South Fork to irrigate the ranch. The Foundation leases its land and water rights to generate revenue. Recently, however, revenue from the water leases has decreased, and we must review some water-law history to explain why.
¶ 6 In 1942, the General Assembly ratified the Republican River Compact ("Compact"), which equitably divided the waters of the Republican River Basin between the states of Colorado, Kansas, and Nebraska. Ch. 123, sec. 1, 1943 Colo. Sess. Laws 362, 362–63.2 Under Article IV of the Compact, Colorado is allotted a total of 54,100 acre-feet of water annually from four sources, one being the South Fork of the Republican River. § 37-67-101, C.R.S. (2017).
¶ 7 Twenty-two years after the General Assembly ratified the Compact, it enacted the Colorado Ground Water Management Act ("Management Act") with the intent to develop Colorado's groundwater resources. Ch. 319, sec. 1, § 148-18-1, 1965 Colo. Sess. Laws 1246 (codified at §§ 37-90-101 to - 143, C.R.S. (2017) ).3 To that end, the Management Act created the Commission, which both establishes and administers the procedures for groundwater permitting and use, §§ 37-90-107 to - 114, C.R.S. (2017), and also determines designated groundwater basins, § 37-90-106(1)(a), C.R.S. (2017). "Designated groundwater," as defined in the Management Act, is "groundwater which in its natural course would not be available to and required for the fulfillment of decreed surface rights." § 37-90-103(6)(a), C.R.S. (2017).
¶ 8 Pursuant to its statutory authority to designate groundwater basins, the Commission issued an order designating the NHP Basin in 1966. In the order, the Commission found that six water-bearing geological formations, including the Ogallala-Alluvium formation, existed within the proposed boundaries of the NHP Basin. Water in the Ogallala-Alluvium formation, the Commission concluded, is groundwater that in its natural course would not be available to and required for the fulfillment of decreed surface rights, and is therefore designated groundwater under the Management Act. Having made these and other findings and conclusions—such as that surface-water rights within the NHP Basin are governed by the Compact and surface-water law—the Commission established the NHP Basin boundaries to correspond with those of the six underlying geological formations.
¶ 9 These boundaries also correspond with the Republican River Basin and its tributaries, including the South Fork. Around the time the General Assembly ratified the Compact, there were few irrigation wells in the Republican River Basin. But after the General Assembly enacted the Management Act, water users began to install wells in the NHP Basin, and the surface flows in the South Fork began to decline. In response to declining surface flows, and to ensure that Colorado does not exceed its annual water allotment under the Compact, the Colorado State Engineer curtailed surface-water use in the Republican River Basin. This curtailment affected the Foundation's...
To continue reading
Request your trial
-
Colo. Judicial Dep't v. Colo. Judicial Dep't Pers. Bd. of Review
...we review the district court's determination of subject matter jurisdiction de novo. Jim Hutton Educ. Found. v. Rein , 2018 CO 38M, ¶ 17, 418 P.3d 1156 ; Tulips Invs., LLC v. State ex rel. Suthers , 2015 CO 1, ¶ 11, 340 P.3d 1126. ¶ 11 Our resolution of that issue in this case turns on inte......
-
Colo. Judicial Dep't v. Colo. Judicial Dep't Pers. Bd. of Review
...Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 11, 340 P.3d 1126, 1131; accord Jim Hutton Educ. Found. v. Rein, 2018 CO 38M, ¶ 17, 418 P.3d 1156, 1161. determination of jurisdiction in this case hinges on our interpretation of the Personnel Rules, which our court promulgated. We review c......