Municipal Subdistrict, Northern Colorado Water Conservancy Dist. v. Rifle Ski Corp., 84SA442
| Decision Date | 08 September 1986 |
| Docket Number | No. 84SA442,84SA442 |
| Citation | 726 P.2d 635 |
| Parties | MUNICIPAL SUBDISTRICT, NORTHERN COLORADO WATER CONSERVANCY DISTRICT, Protestant-Appellant, v. RIFLE SKI CORPORATION, Applicant-Appellee, and Orlyn J. Bell, Division Engineer, Appellee. |
| Court | Colorado Supreme Court |
Davis, Graham & Stubbs, John M. Sayre, Robert V. Trout, Bennett W. Raley, Denver, for protestant-appellant.
John W. Savage, Jr., Rifle, for applicant-appellee.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Jeffrey J. Kahn, Asst. Atty. Gen., Denver, for appellee.
This appeal centers upon the interpretation of the Water Right Determination and Administration Act of 1969 (1969 Act). Section 37-92-301(4), 15 C.R.S. (1973), of the 1969 Act requires the holder of a conditional water right to obtain quadrennial findings in the water court that the conditional right is being developed with reasonable diligence. The appellant-protestant, Municipal Subdistrict, Northern Colorado Water Conservancy District (Subdistrict), seeks reversal of a water court entered order pursuant to section 37-92-301(4), finding reasonable diligence in the development of a water appropriation proposed in a conditional decree owned by the Rifle Ski Corporation (RSC), appellee-applicant. We hold that the water court's finding of reasonable diligence is not supported by sufficient evidence and accordingly reverse the order of the water court and remand the case for dismissal of RSC's quadrennial application.
The District Court, Water Division 5, awarded RSC a conditional decree under the 1969 Act, section 37-92-302, 15 C.R.S. (1973 & 1985 Supp.), on November 9, 1971, to store 32,800 acre-feet of water in the proposed Webster Hill Reservoir (Reservoir) on the mainstream of the Colorado River near Rifle, Colorado. The conditional decree states that the Reservoir water is to be used for industrial, domestic, municipal, recreation, irrigation, and power pumping purposes. To maintain the priority date of the conditional decree, section 37-92-301(4) requires a quadrennial finding by a water court of reasonable diligence in the development of the conditional appropriation. RSC obtained water court quadrennial findings of reasonable diligence in the development of the Reservoir in 1973 and 1977. The present action was commenced in 1981 by the filing of an application in the water court for a finding of reasonable diligence in the development of the Reservoir project from July 1, 1977, to June 30, 1981. The Subdistrict filed a protest to the RSC application after a water referee issued a preliminary ruling.
RSC asserts that the following evidence presented to the water court supported a finding of reasonable diligence: (1) assignment of its conditional storage decree for the Reservoir project to the West Divide Water Conservancy District and the Colorado River Water Conservation District; (2) the drilling of four core holes by the Bureau of Reclamation on the site of the proposed Reservoir; (3) financing obtained in 1971 for the purchase of Reservoir property; and (4) inquiries made to the Bureau of Land Management (BLM) regarding a possible exchange of land owned by RSC for BLM lands.
On August 3, 1984, the Division 5 water court issued its order finding reasonable diligence for the period 1977 to 1981. The core drilling on the Reservoir site was the only factor specifically cited by the water court in support of its order. The court stated that the core drilling performed by the Bureau of Reclamation "represented actual good faith work on the overall facility necessary to consumate [sic] the ultimate goal of diversion of water" which supported a finding of reasonable diligence by RSC.
The Subdistrict now asserts that the evidence offered by RSC was insufficient as a matter of law to support a finding of reasonable diligence in completing the Webster Hill Reservoir appropriation proposed in RSC's 1971 conditional storage decree.
Section 37-92-302, 15 C.R.S. (1973 & 1985 Supp.), provides for an application for determination of a "conditional water right." The 1969 Act states that " '[c]onditional water right' means a right to perfect a water right with a certain priority upon the completion with reasonable diligence of the appropriation upon which such water right is to be based." § 37-92-103(6), 15 C.R.S. (1973). A conditional water decree requires an intent to appropriate and an overt, physical act constituting the first step toward diversion and application to a beneficial use. Rocky Mountain Power Co. v. White River Electric Association, 151 Colo. 45, 376 P.2d 158 (1962). See also Fort Lyon Canal Co. v. Amity Mutual Irrigation Co., 688 P.2d 1110 (Colo.1984) (). The purpose of a conditional decree is to allow the priority of an appropriation to relate back to the time of the first step toward that appropriation. Rocky Mountain Power Co. v. Colorado River Water Conservation District, 646 P.2d 383 (Colo.1982).
In order to maintain the original priority date established in the conditional decree, the 1969 Act requires quadrennial findings of reasonable diligence:
In every fourth calendar year after the calendar year in which a determination is made with respect to a conditional water right, the owner or user thereof, if he desires to maintain the same, shall obtain a finding ... of reasonable diligence in the development of the proposed appropriation, or said conditional water right shall be considered abandoned.
§ 37-92-301(4), 15 C.R.S. (1973). The owner of a conditional water decree must comply with the requirement of quadrennial findings of diligence in section 37-92-301(4) in order to maintain the priority date in the original decree. Town of DeBeque v. Enewold 199 Colo. 110, 606 P.2d 48 (1980). Failure to comply with the statutory requirements results in the "abandonment" of the conditional water right. Id. The 1969 Act provides that " '[a]bandonment of a conditional water right' means the termination of a conditional water right as a result of the failure to develop with reasonable diligence the proposed appropriation upon which such water right is to be based." § 37-92-103(1), 15 C.R.S. (1973).
We have previously held that an applicant has the burden of proving reasonable diligence by a preponderance of the evidence. Orchard Mesa Irrigation District v. City and County of Denver, 182 Colo. 59, 511 P.2d 25 (1973). A statutory diligence determination is made solely on the basis of factual issues as presented by the...
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