Monaghan Farms, Inc. v. City and County of Denver By and Through Bd. of Water Com'rs, 1
| Decision Date | 19 February 1991 |
| Docket Number | No. 89SA51,No. 1,1,89SA51 |
| Citation | 807 P.2d 9 |
| Parties | Concerning the Application for Water Rights of Monaghan Farms, Inc. MONAGHAN FARMS, INC., Applicant-Appellee, v. The CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Objector-Appellant, and State Engineer and Division Engineer for Water Division; L.C. Fulenwider, Inc.; Van Schaack Holdings, Ltd.; H.C. Van Schaack, III; L.C. Fulenwider, Jr.; and L.C. Fulenwider, III, Appellees. |
| Court | Colorado Supreme Court |
Baker & Hostetler, Kenneth J. Burke, Denver, for applicant-appellee.
Wayne D. Williams, Michael L. Walker, Henry C. Teigen, Sara Duncan, Denver, for objector-appellant.
Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy C. Weiss, First Asst. Atty. Gen., Denver, for appellees State Engineer and Div. Engineer for Water Division No. 1.
Moses, Wittemyer, Harrison & Woodruff, P.C., Robert E.L. Beebe, Boulder, for appellees L.C. Fulenwider, Inc., Van Schaack Holdings, Ltd., H.C. Van Schaack, III, L.C. Fulenwider, Jr., and L.C. Fulenwider, III.
The appellant, the City and County of Denver, acting by and through its Board of Water Commissioners (Denver), appeals from an amended decree of the District Court, Water Division No. 1 (water court), that granted the application of appellee Monaghan Farms, Inc. (Monaghan Farms) for determination of rights to "not nontributary" 1 ground water from the portion of the Denver aquifer underlying Monaghan Farms' property. The original decree specified the annual amount of withdrawals as 2590.8 acre-feet, the yield estimated by Monaghan Farms in its application. The amended decree revised that amount upward by 151.2 acre-feet per year to conform to the state engineer's determination of the available water, under procedures prescribed in the original decree.
Denver challenges both the original and amended decrees because it contends that not nontributary ground water in the Denver aquifer must be treated as tributary water 2 and therefore is subject to the requirements of prior appropriation. Denver argues that the water court could determine only a conditional water right for this not nontributary ground water because it has not been put to beneficial use. See § 37-92-103(6), (12), 15 C.R.S. (1990) (). Denver also contends that the published resumes describing Monaghan Farms' original and amended applications for water rights were defective in several respects.
Monaghan Farms moved to dismiss Denver's appeal for lack of subject matter jurisdiction, and we reserved ruling on the motion until after oral argument. We now dismiss this appeal for lack of subject matter jurisdiction resulting from Denver's failure to protest the referee's ruling and appeal from the original decree. Because of the dismissal we do not address the issue of whether the law governing the appropriation of tributary water is applicable to waters in the Denver aquifer not within the definition of "nontributary ground water" under section 37-90-103(10.5), 15 C.R.S. (1990).
On May 30, 1985, Monaghan Farms applied for a decree determining rights to all the ground water in the Denver, Arapahoe and Laramie-Fox Hills aquifers beneath specified parcels of its property located in Adams County and outside the boundaries of any designated ground water basin. That application described the locations of wells proposed to be constructed to divert the water, the proposed well depths, the time that applications for well permits had been filed with the state engineer, the amount of ground water to be pumped annually, the proposed use of the water, and a description of the overlying land. The source of the ground water was specified to be nontributary ground water from the Denver, Arapahoe and Laramie-Fox Hills formations, and it was averred that the pumping of these wells would have de minimis impact on natural streams. The application also sought a determination that the rights to nontributary ground water sought to be adjudicated would not be subject to the requirements of section 37-92-301(4), 15 C.R.S. (1990), concerning periodic findings of reasonable diligence in applying water to beneficial use as necessary to maintain a conditional water right in effect. The water clerk published the resume of this application in May 1985. Thereafter, on December 30, 1985, upon the motion of Monaghan Farms, the water court trifurcated the application to create a separate application for each aquifer. 3
After Monaghan Farms' application was filed, the General Assembly adopted what is commonly known as Senate Bill 5, effective July 1, 1985. Ch. 285, 1985 Colo.Sess.Laws 1160-1169. Among its many provisions, that statute defined "nontributary ground water" 4 and set forth requirements for judicially approved plans for augmentation concerning wells to be completed in the Denver aquifer, among others, that would withdraw "ground water which is not nontributary ground water." Ch. 285, sec. 2, § 37-90-103(10.5), sec. 3, § 37-90-137(9)(c), 1985 Colo.Sess.Laws 1160, 1161, 1165-66. The legislation did not specifically address whether rights to such ground water should be determined subject to the same requirements for appropriation as tributary ground water, including the requirement that only a conditional water right subject to reasonable diligence requirements can be decreed unless and until the appropriation is completed by application of water to beneficial use.
On December 30, 1985, the same day that the water court granted trifurcation, Monaghan Farms submitted an amended application describing its request for determination of rights to Denver aquifer ground water. The application averred that the water is nontributary ground water as defined in section 37-90-103(10.5), 15 C.R.S. (1990), and estimated the amount of water to be produced annually as 2590.8 acre-feet. The application also included a request for a conditional water right in the event that the court determined that any portion of the ground water is not nontributary ground water as defined by section 37-90-103(10.5). This alternative request was set forth in paragraph 6 of the prayer for relief, which provides:
6. In the event that this Court determines that any portion of the subject ground water to be withdrawn by Applicant's wells is not "nontributary ground water" as defined in C.R.S. § 37-90-103(10.5),
(a) specifically determining the quantity of such water available and the extent of the depletive effect on the natural stream system from its withdrawal, as contemplated in C.R.S. § 37-90-137(9)(c);
(b) retaining jurisdiction to approve a plan for augmentation providing for the replacement of actual stream depletion to the extent necessary to prevent any injurious effect prior to the use of such ground water;
(c) determining that the appropriation for such water was initiated on May 30, 1985 based upon Applicant's intent and action, and granting conditional water rights for such water.
(Emphasis added.) The water clerk published a resume setting forth in full the relevant provisions of this application.
On February 24, 1986, Monaghan Farms amended its amended application. This amendment changed the caption of the case to read:
Amended Application for Nontributary Groundwater Rights in the Nontributary Denver Aquifer, or in the Alternative for Nontributary Groundwater Rights in the Nontributary Denver Aquifer and Quantification of Amount and Depletive Effects of Withdrawal of Not Nontributary Groundwater in the Denver Aquifer.
This amendment also revised Monaghan Farms' alternative prayer, applicable in the event the court should decide that any of the water to be withdrawn is not nontributary. Monaghan asked:
6. In the event that this Court determines that any portion of the subject ground water to be withdrawn by Applicant's wells is not "nontributary ground water" as defined in C.R.S. § 37-90-103(10.5):
a) determining the quantity of such water which may be withdrawn pursuant to § 37-90-137(4), C.R.S., and determining the extent of the depletive effects, if any, on the natural stream systems from its withdrawal, including the distances of such wells from points of contact of the natural stream systems and the Denver aquifer, all as contemplated by § 37-90-137(9)(c), C.R.S.;
b) retaining jurisdiction to approve a plan for augmentation prior to the use of such water providing for the replacement of depletions of the affected stream systems to the extent necessary to comply with the provisions of § 37-90-137(9)(c), C.R.S.;
c) adjudicating and confirming Applicant's right to use such ground water for the purposes described in paragraph 7 of the Amended Application [describing proposed uses of the water], including the right to reuse and successively use such water to extinction, subject to the required replacement of stream depletions referred to above pursuant to the augmentation plan to be applied for and approved under retained jurisdiction.
One effect of this amendment was to delete the alternative request for a determination of a conditional water right as set forth in the prior amended application and substitute the foregoing paragraph 6(c) requesting a decree without a reasonable diligence condition (absolute decree). The water clerk published a resume setting forth in full the relevant provisions of this amendment to the amendment.
The state engineer submitted his determination "as to the facts of such application" as required by section 37-92-302(2), 15 C.R.S. (1990). That determination stated that the ground water to be withdrawn would be not nontributary ground water. The state engineer also determined that the annual amount of water available for withdrawal from the Denver aquifer underlying the lands of Monaghan Farms is 2742 acre-feet per year, 151.2 acre-feet more than...
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