Simpson v. Bijou Irrigation Co.
| Decision Date | 30 April 2003 |
| Docket Number | No. 02SA377.,02SA377. |
| Citation | 69 P.3d 50 |
| Parties | In The Matter Of The Proposed Amended Rules And Regulations Governing The Diversion And Use Of Tributary Ground Water In The South Platte Basin, Colorado: Hal D. SIMPSON, State Engineer, Appellants, v. BIJOU IRRIGATION CO.; Bijou Irrigation District; Ducommun Business Trust; Farmers Highline Canal & Reservoir Company; City of Lafayette; Mountain Mutual Reservoir Co; City of Westminster; Varra Companies, Inc.; Sand Land Inc.; Pasquale Varra; Centennial Water and Sanitation District; City of Boulder; Center of Colorado Water Conservancy District; Peterson Ditch Co.; City of Brighton; City of Aurora; City of Englewood; Magness Land Holdings, LLC.; Magness Platteville, LLC; Kplattevill LLC; South Reservation Ditch Co.; Central Colorado Water Conservancy District and the Ground Water Management Subdistrict of the Central Water Conservancy District; Lower South Platte Water Conservancy District; City of Greeley; Fort Morgan Reservoir & Irrigation Co.; North Sterling Irrigation District; the Harmony Ditch Co.; Jackson Lake Reservoir and Irrigation Co.; Anderson Ditch Co.; Fort Morgan Water Co., Ltd; Liddle Ditch Co; City and County of Denver; Farmers Reservoir & Irrigation Co; Henrylyn Irrigation District; Groundwater Appropriators of the South Platte River Basin, Inc.; Riverside Irrigation District; Riverside Reservoir and Land Company; Lower Platte & Beaver Canal Company; Highland Ditch Company; Water Users Association of District No. 6; City of Sterling; Bruce Gerk and Donald Sellman Shareholders In Petersen Ditch Company and Julesburg Irrigation District; City of Thornton; City of Blackhawk, Appellees. |
| Court | Colorado Supreme Court |
Ken Salazar, Colorado Attorney General, Felicity Hannay, Deputy Attorney General, Steven O. Sims, Assistant Attorney General, Carol Angel, Assistant Attorney General, Alexandra Davis, Assistant Attorney General, Chad M. Wallace, Assistant Attorney General, Federal and Interstate Water Unit, Natural Resources and Environment Section, Denver, Colorado, for Appellant Hal D. Simpson.
Vranesh & Raisch, LLP, Michael D. Shimmin, Lisa C. Ledet, Boulder, Colorado, for Appellee Bijou Irrigation Company and Bijou Irrigation District.
White & Jankowski, LLP, David C. Taussig, William A. Hillhouse, II, David F. Jankowski, Denver, Colorado, for Appellee Ducommun Business Trust and City of Sterling.
Brice Steele, Brighton, Colorado, for Appellee Farmers' High Line Canal and Reservoir Company.
David C. Lindholm, Boulder, Colorado, for Appellee City of Lafayette & Mountain Mutual Reservoir Company.
Carlson, Hammond & Paddock, LLC, Mary Mead Hammond, Lee H. Johnson, Denver, Colorado, for Appellee City of Westminster.
Petrock & Fendel, PC, Frederick A. Fendel, III, Bill Downey, Denver, Colorado, for
Appellees Varra Companies, Inc., Sand Land, Inc., and Pasquale Varra.
Moses, Wittemyer, Harrison and Woodruff, PC, Veronica A. Sperling, Gabriel D. Carter, Boulder, Colorado, for Appellees Centennial Water and Sanitation District, and City of Boulder.
Felt, Monson & Culichia, LLC, James W. Culichia, James G. Felt, Colorado Springs, Colorado, for Appellee The Center of Colorado Water Conservancy District.
Fischer, Brown & Gunn, PC, William H. Brown, Fort Collins, Colorado, for Appellee The City of Brighton.
Duncan, Ostrander & Dingess, PC, John M. Dingess, James Birch, Denver, Colorado, for Appellee City of Aurora Acting by and through its Utility Enterprise.
Berg Hill Greenleaf & Ruscitti LLP, David G. Hill, Melissa M. Heidman, Boulder, Colorado, for Appellee City of Englewood.
Robert E. Schween, Littleton, Colorado, for Appellee Magness Land Holdings, LLC.
Lind Lawrence & Ottenhoff LLP, Kim Lawrence, Greeley, Colorado, for Appellees South Reservation Ditch Company; Central Colorado Water Conservancy District and The Ground Water Management Subdistrict of the Central Colorado Water Conservancy District; Lower South Plate Water Conservancy District.
Trout, Witwer & Freeman, PC, James S. Witwer, Douglas M. Sinor, Denver, Colorado, for Appellee City of Greeley Acting by and Through its Water and Sewer Board.
Timothy R. Buchanan, Arvada, Colorado, for Appellees Fort Morgan Reservoir & Irrigation Company; North Sterling Irrigation District; The Harmony Ditch Company; Jackson Lake Reservoir and Irrigation Co.; Anderson Ditch Company; Fort Morgan Water Company LTD; Liddle Ditch Company.
Michael L. Walker, Denver Water Board, Patricia L. Wells, Assistant Denver City Attorney, Denver, Colorado, for Appellee City and County of Denver.
John P. Akolt, III, Brighton, Colorado, for Appellee Farmers Reservoir & Irrigation Company.
Steve L. Janssen, Boulder, Colorado, for Appellee Henrylyn Irrigation District.
Hill & Robbins PC, David W. Robbins, David M. Montgomery, Avi S. Rocklin, Mark J. Wagner, Denver, Colorado, for Appellees Groundwater Appropriations of the South Platte River Basin Inc., Riverside Irrigation District; Riverside Reservoir and Land Company; Lower Platte & Beaver Canal Company.
Bernard, Gaddis Lyons, & Kahn P.C., Wendy S. Rudnik, Jeffery J. Kahn, Longmont, Colorado, for Appellees Highland Ditch Company; Water Users Association of District No. 6.
Bruce Gerk and Donald Spillman, Pro Se as Shareholders in Appellees Petersen Ditch Company and Julesburg Irrigation District, Denver, Colorado.
Dennis A. Hansen, Assistant City Attorney, Thornton, Colorado, for Appellee City of Thornton.
Harvey W. Curtis, David L. Kueter, Patricia A. Madsen, Denver, Colorado, for Appellee City of Blackhawk.
Merrill, Anderson, King & Harris, LLC, Paul G. Anderson, Colorado Springs, Colorado, for Amicus Curiae Arkansas Groundwater Users Association.
MacDougall Woldridge & Worley PC, Malcom E. MacDougall, Colorado Springs, Colorado, for Amicus Curiae Colorado Water Protective & Development Association.
Burns, Figa & Will PC, Lee E. Miller, Stephen H. Leonhardt, Englewood, Colorado, for Amicus Curiae Southeastern Colorado Water Conservancy District.
On May 31, 2002, the State Engineer filed with the water court his proposed "Amended Rules and Regulations Governing the Diversion and Use of Tributary Ground Water in the South Platte River Basin, Colorado." His stated intent for promulgating these rules was twofold: first, to provide for replacement of injurious out-of-priority groundwater depletions to prevent injury to senior water rights in Colorado in a manner that allows the continuance of existing uses and assures maximum beneficial use of the waters of the state; and second, to ensure that depletions which would diminish the surface flow of the South Platte River at the Interstate Station in violation of the South Platte River Compact are replaced. This case examines the extent of the statutory authority granted the State Engineer to promulgate and enforce these rules.
We affirm in part, reverse in part, and remand. First, although the State Engineer may promulgate rules for the South Platte River basin pursuant to his rulemaking power under section 37-92-501, 10 C.R.S. (2002) (1), we find that that power does not extend to State Engineer authorization of out-of-priority groundwater depletions requiring "replacement plans"2 that are not conditioned on an augmentation plan application having been filed in water court. We therefore affirm the trial court by holding that the State Engineer can approve temporary "replacement plans" only pursuant to the provisions set forth in sections 37-92-308(3), (4), (5), and (7). To the extent that the proposed rules exceed these provisions, we hold they are contrary to law.
Second, we recognize the State Engineer's separate basis of authority to promulgate rules and regulations necessary to enforce interstate compacts pursuant to section 37-80-104, 10 C.R.S. (2002) (3). We find that as a result of changed conditions that have occurred since the compact was created, the South Platte River Compact is deficient in establishing standards for administration within Colorado. We therefore reverse the trial court's holding that the compact is self-executing and administrable pursuant to its own terms such that no further regulations are necessary to ensure compliance. We further hold that in exercising his compact rule power the State Engineer is constrained by all of the statutory conditions imposed on his water rule power, including those set forth in section 37-92-308, 10 C.R.S. (2002).
Third, we affirm the trial court's holding that proposed rules cannot take effect until all protests have been filed pursuant to the requirements set forth in sections 37-92-501(3)(a) and 37-92-304, 10 C.R.S. (2002), and resolved by the water court. We recognize that, to the extent other portions of this opinion reverse the trial court, the question regarding the effective date of the rules has been mooted. Because the situation is one capable of repetition yet evading review, however, we find the issue warrants an exception to the mootness doctrine.
We remand with orders for the trial court to review any further proceedings in the matter of rules for the South Platte River basin in a manner consistent with this opinion.
On May 31, 2002, the State Engineer filed "Amended Rules and Regulations Governing the Diversion and Use of Tributary Ground Water in the South Platte River Basin, Colorado" with the Weld County Court in Water Division I. The proposed rules reorganized and partially repealed the extant rules for the South Platte River Basin which were adopted on March 15, 1974. The State Engineer asserted two independent bases for his authority to promulgate the proposed rules: the water rule power set forth in section 37-92-501(1), 10 C.R.S. (2002), and the compact rule power set...
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