Kobobel v. State

• Decision Date: 25 April 2011
• Docket Number: No. 10SA92.,10SA92.
• Citation: 249 P.3d 1127
• Parties: Elmer A. KOBOBEL, Mariam M. Kobobel, Larry A. Kobobel, Glen D. Kobobel, David A. Knievel, and Margery A. Knievel, Plaintiffs–Appellants,v.STATE of Colorado, DEPARTMENT OF NATURAL RESOURCES, Division of Water Resources; Dick Wolfe, P.E., in his capacity as the Colorado State Engineer; and James R. Hall, in his capacity as Division Engineer of Water Division No. 1, Defendants–Appellees.
• Court: Colorado Supreme Court

249 P.3d 1127

Elmer A. KOBOBEL, Mariam M. Kobobel, Larry A. Kobobel, Glen D. Kobobel, David A. Knievel, and Margery A. Knievel, Plaintiffs–Appellants,

v.STATE of Colorado, DEPARTMENT OF NATURAL RESOURCES, Division of Water Resources; Dick Wolfe, P.E., in his capacity as the Colorado State Engineer; and James R. Hall, in his capacity as Division Engineer of Water Division No. 1, Defendants–Appellees.

No. 10SA92.

Supreme Court of Colorado, En Banc.

March 28, 2011.Rehearing Denied April 25, 2011.

Anderson and Chapin, P.C., Robert B. Chapin, Brush, Colorado, Hanson Bridgett LLP, Lyman D. Bedford, Larkspur, California, Attorneys for Plaintiffs–Appellants.John W. Suthers, Attorney General, Patrick L. Sayas, Assistant Attorney General, General Tort Unit, Civil Litigation and Employment Law Section, Denver, Colorado, Attorneys for Defendants–Appellees.Justice MÁRQUEZ delivered the Opinion of the Court.

This appeal is from an order of the District Court for Water Division 1 (“water court”) dismissing the claims of Elmer A. Kobobel, Mariam M. Kobobel, Larry A. Kobobel, Glen D. Kobobel, David A. Knievel, and Margery A. Knievel (“well owners”) against the State of Colorado, Department of Natural Resources, Division of Water Resources; Dick Wolfe, P.E., in his capacity as the Colorado State Engineer; and James R. Hall, P.E., in his capacity as Division Engineer of Water Division No. 1 (“State”).

In 2006, the State issued cease and desist orders prohibiting the well owners from pumping water from their irrigation wells until the water court entered a decreed plan for augmentation. The well owners have complied with the cease and desist orders, but contend that the State's action has rendered their farming operations essentially worthless, thus entitling them to compensation for the unconstitutional taking of their vested property rights. We affirm the water court's judgment dismissing the well owners' claims.

As a threshold matter, we hold that the well owners' claims are water matters within the exclusive jurisdiction of the water court because the claim is predicated upon the well owners' right to use the water in their decreed wells. We further hold that the State's order curtailing the well owners' use of the water in their wells did not constitute a taking in violation of article II, section 15 of the Colorado Constitution or the Fifth and Fourteenth Amendments to the U.S. Constitution. The well owners' takings argument misconceives the scope of their water rights. The well owners neither hold title to the water in their wells, nor do they have an unlimited right to use water from their wells. What they possess is a legally vested priority date that entitles them to pump a certain amount of tributary groundwater from their wells for beneficial use. Under Colorado's prior appropriation doctrine, the well owners' vested priority date has always been subject to the rights of senior water rights holders and the amount of water available in the tributary system. Accordingly, the well owners hold no compensable right to use water outside the priority system or to cause injury to other vested water rights. Here, the State's cease and desist orders simply curtailed the well owners' out-of-priority diversions consistent with Colorado law. Because the well owners cannot show that the State infringed on a constitutionally protected property right, they are not entitled to just compensation for the “taking” of that alleged right. The water court therefore properly dismissed the complaint.

I. Facts and Procedural Background

The well owners own farmland and irrigation wells in Morgan County near the South Platte River. Collectively, they own thirteen decreed irrigation wells with dates of appropriation between March 1945 and December 1966.¹ In June 2006, the well owners received cease and desist letters from Water Division No. 1 of the Office of the State Engineer. The letters noted that the wells were part of the Central Colorado Water Conservancy District Well Augmentation Subdistrict (“Central WAS”) plan for augmentation in water court Case No. 03CW099. The letters informed the well owners that, pursuant to an order of the water court, “Central WAS wells may not pump until the court has entered a decreed plan for augmentation.” ² The cease and desist orders did not prevent Central WAS wells from pumping in accordance with other approved decreed plans for augmentation or substitute water supply plans. However, based on Division of Water Resources records, the well owners' wells were not members of any other approved plan. Consequently, the Division Engineer ordered the well owners to immediately cease and desist using their wells to divert water.

According to their complaint, the well owners have complied with the orders and have neither pumped water from the wells nor irrigated the farmlands associated with the wells. Their inability to use the irrigation wells has rendered their farms and farming improvements essentially useless. The well owners further assert that they have exhausted all of their administrative remedies, and that any efforts to obtain an augmentation or substitute water plan would be futile.

In June 2007, the well owners brought an inverse condemnation complaint against the State in Morgan County District Court. The district court dismissed the complaint because it concluded that the well owners' takings claims involved water matters over which the water court had exclusive jurisdiction. The court of appeals affirmed, holding that the well owners' claims concerned the right to use water, not the ownership of water rights, and therefore were water matters within the exclusive jurisdiction of the water court. Kobobel v. State, 215 P.3d 1218, 1220–21 (Colo.App.2009), cert. denied, No. 09SC506, 2009 WL 2916987 (Colo. Sept.14, 2009).

Consequently, the well owners brought this action in the water court. The well owners submitted to the jurisdiction of the water court but continued to assert that the district court has proper jurisdiction over their inverse condemnation claims.

In their complaint before the water court, the well owners did not seek approval of an augmentation plan or substitute water supply plan. Instead, they again asserted that the State's action amounted to an unconstitutional taking of vested property rights in their wells, water, farmlands, and improvements, in violation of article II, section 15 of the Colorado Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution. The well owners therefore sought just compensation for the damage to their property.

The water court dismissed the well owners' complaint under C.R.C.P. 12(b)(5). The court held that although the well owners owned the right to use the tributary groundwater decreed to their individual wells, this right was limited by the well owners' dates of priority: “While the Colorado Constitution protects [the well owners'] water rights and their attendant priority dates, [they] never had a right to use water outside the priority system or to cause injury to ... other vested water rights.”

The water court reasoned that, like all other well users in the state, to pump tributary groundwater using their decreed wells, the well owners must obtain plans for augmentation that replace out-of-priority depletions so as to prevent injury to other vested water rights. The court therefore concluded that the State's action of curtailing out-of-priority depletions caused by the pumping of their wells was not an unconstitutional taking of the well owners' property rights. The court observed that the well owners retained their water rights and priority dates and could resume irrigating their farms once they obtained a lawful augmentation plan or substitute water supply plan.

The well owners appeal the water court's order directly to this court pursuant to section 13–4–102(1)(d), C.R.S. (2010).³

II. The Water Court's Jurisdiction

The well owners contend that the district court is the proper forum for their complaint because their claims for inverse condemnation are not “water matters” within the water court's exclusive jurisdiction. We disagree. The well owners' takings claims center on the right to use water, and therefore are water matters within the exclusive jurisdiction of the water court.⁴

To determine whether a court has subject matter jurisdiction, we must examine the nature of the claim and the relief sought. Dallas Creek Water Co. v. Huey, 933 P.2d 27, 38 (Colo.1997); Great W. Sugar Co. v. Jackson Lake Reservoir & Irrigation Co., 681 P.2d 484, 494 (Colo.1984). The well owners argue that their claims for inverse condemnation are not “water matters” as defined by section 37–92–302(1)(a), C.R.S. (2010).⁵ They do not seek to restore the operational status of the wells, approval of an augmentation or substitute water plan, or injunctive or declaratory relief. They emphasize that the only relief they seek is just compensation for the loss of their farming operations, and that they are entitled to a jury determination on the amount to be awarded.⁶

As a rule, “[w]ater courts retain exclusive jurisdiction over all water matters.” In re Tonko, 154 P.3d 397, 404 (Colo.2007); see also § 37–92–203(1), C.R.S. (2010) (“no judge other than the one designated as a water judge shall act with respect to water matters in that division”). Water matters include “those matters which [the 1969 Water Right Determination and Administration Act] and any other law shall specify to be heard by the water judge of the district courts.” Id. (emphasis added); see also § 37–92–302(1)(a). A water judge is a district judge; the jurisdiction of a water court extends to ancillary claims that are interrelated with the use of water or that directly affect the outcome of water matters within the exclusive jurisdiction of the water court. See Crystal Lakes Water & Sewer Ass'n v. Backlund, 908 P.2d 534, 542–43 (Colo.1996); Oliver v. Dist. Court,...