State ex rel. Danielson v. Vickroy
| Decision Date | 27 April 1981 |
| Docket Number | No. 79SA421,79SA421 |
| Citation | 627 P.2d 752 |
| Parties | STATE of Colorado ex rel. Jeris A. DANIELSON, State Engineer, and North Kiowa Bijou Ground Water Management District, Plaintiffs-Appellees, v. Robert VICKROY, William E. Jones, and Harvey Kobebel, Defendants-Appellants. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Dennis M. Montgomery, Asst. Atty. Gen., Loren L. Swick, Sp. Asst. Atty. Gen., Denver, George A. Epperson, Donald F. McClary, Edward L. Zorn, Douglas R. Vannoy, Ft. Morgan, for plaintiffs-appellees.
David J. Miller, James A. Gustafson, Greeley, for defendants-appellants.
Robert Vickroy appeals from a judgment on the pleadings 1 entered by the Adams County District Court, enjoining him from taking ground water by means of a horizontal perforated well casing located on specified lands in Adams County. We affirm the judgment.
This case poses a jurisdictional question with respect to litigation involving a diversion of ground water within a designated ground water basin. Information with respect to a related case in the water court for water division 1 and a summary of the procedural history of the case before us are necessary to an understanding of the question which we must resolve.
Vickroy owns a direct-flow water right for 1.71 c. f. s. out of 10.71 c. f. s. decreed to Renner Ditch Number 1 for irrigation purposes with an appropriation date of June 1, 1888. The decree was issued August 5, 1922 by the Weld County District Court and establishes the point of diversion at a headgate on Kiowa Creek, a floodwater stream of broken surface flow, tributary to the South Platte River.
In 1974 Vickroy filed an application in the division 1 water court to change the point of diversion to a well to consist, in part, of perforated casing to be installed horizontally at a depth of twenty-two to twenty-five feet in the alluvial channel of Kiowa Creek at a location several miles downstream from the original point of diversion. See section 37-92-302(1)(a), C.R.S.1973. A statement of opposition was filed by North Kiowa-Bijou Management District (District), a ground water management district. 2 See section 37-92-302(1) (b), C.R.S.1973. The District challenged the jurisdiction of the water court to consider the application because the proposed well 3 is within the boundaries of a "ground water management district" and within a "designated ground water basin." See sections 37-90-103(7), (9). The District contended that the Ground Water Commission had exclusive jurisdiction to consider such an application. See sections 37-90-103(8), 107, C.R.S.1973.
The matter was referred to the water referee who held a hearing and found that the "Renner Ditch" and the new well are entirely within the boundaries of the District and that the well will divert "underground water." The referee concluded that the Ground Water Commission has no jurisdiction over the Renner Ditch right or any other surface water right within any ground water management district and that the water court has jurisdiction over all such rights, including the authority to approve the requested change of point of diversion. Thereafter, based upon the stipulation of the parties, and prior to deciding the other issues in the case, the referee re-referred the application for change of point of diversion to the water judge for review of the referee's ruling with respect to jurisdiction.
Before the referee's ruling came before the water judge for consideration, the case now on appeal was filed in the Adams County District Court by the State of Colorado ex rel. C. J. Kuiper, state engineer (state engineer), 4 and the District against Vickroy. 5 The complaint averred that Vickroy's well is within the boundaries of the Kiowa-Bijou designated ground water basin and of the District; that the well diverts "designated ground water;" and that Vickroy had not obtained the permit required for such diversion under the Colorado Ground Water Management Act, sections 37-90-101 to 141, C.R.S.1973. It was further averred that the state engineer had caused to be served upon Vickroy a copy of the state engineer's order requiring Vickroy to cease and desist from the appropriation of such water by means of the well and to show cause why that well should not be plugged and abandoned, and that Vickroy had violated that order and threatened to continue to violate the order. The plaintiffs sought injunctive relief prohibiting Vickroy from diverting designated ground water.
Vickroy filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, or, in the alternative, for a change of venue to the water court. He relied primarily upon the ruling of the water referee that exclusive jurisdiction to consider the change of point of diversion from the headgate on Kiowa Creek to the new well was in the water court. Accordingly, he urged that the Adams County District Court had no jurisdiction to proceed. Vickroy's motion to dismiss was denied. He elected to stand upon his motion and did not file a responsive pleading. Thereafter, the plaintiffs filed a motion for entry of judgment on the pleadings under C.R.C.P. 12(c). The trial court granted that motion and enjoined Vickroy permanently from taking ground water by means of any horizontal perforated well casing at the location in question. This appeal followed. 6
Vickroy founds his appeal on the contention that the water court has exclusive jurisdiction over water matters, including the requested change of point of diversion of the surface water right for Renner Ditch Number 1, and consequently that the Adams County District Court had no jurisdiction to issue the injunction. In the alternative, Vickroy contends that if the Adams County District Court has jurisdiction, its decree is void because it deprives Vickroy of his vested water right without due process of law contrary to the requirements of the United States and Colorado Constitutions. We conclude that neither of these contentions is meritorious.
A general description of systems established by the relevant statutes with respect to appropriation and administration of water will be of assistance in understanding the issues presented. Those statutes are the Colorado Ground Water Management Act, dealing with designated ground water, and the Water Right Determination and Administration Act of 1969, dealing with tributary waters which are "waters of the state."
The Colorado Ground Water Management Act (Management Act), sections 37-90-101 to 141, C.R.S.1973, was enacted in 1965 to establish a procedure for appropriation of designated ground water and for devoting it to beneficial use. It was designed to permit the full economic development of designated ground water resources. Section 37-90-102, C.R.S.1973; Larrick v. North Kiowa-Bijou Management District, 181 Colo. 395, 510 P.2d 323 (1973). Designated ground water, the definition of which is considered in more detail later, includes water not tributary to any stream, and other water not available for the fulfillment of decreed surface rights. Section 37-90-103(6), C.R.S.1973.
The Management Act creates a Ground Water Commission, (commission), section 37-90-104, C.R.S.1973, which has authority to determine designated ground water basins, section 37-90-106, C.R.S.1973. "Any person desiring to appropriate ground water for a beneficial use in a designated ground water basin shall make application to the commission ..." which shall grant or deny a conditional permit on the basis of prescribed procedures and criteria. Section 37-90-107, C.R.S.1973. The state engineer is ex officio the executive director of the commission, section 37-90-104(6), C.R.S.1973. He is empowered, among other things, "(t)o commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom...." Section 37-90-110(1)(e), C.R.S.1973.
The priority of claims for the appropriation of designated ground water is to be determined by the doctrine of prior appropriation, see sections 37-90-102, 109, C.R.S.1973; Colorado Ground Water Commission v. Dreiling, 198 Colo. 560, 606 P.2d 836 (1980), as modified to permit full economic development of the designated ground water resources. See section 37-90-102, C.R.S.1973; Thompson v. Colorado Ground Water Commission, 194 Colo. 489, 575 P.2d 372 (1978). The commission is charged with establishing priority dates for wells within designated ground water basins. Section 37-90-109, C.R.S.1973. It is also empowered to supervise and control the exercise and administration of all rights acquired to the use of designated ground water, including imposing limitations or prohibitions on withdrawal of water from wells as necessary to protect prior appropriators from unreasonable injury. Section 37-90-111, C.R.S.1973.
The Management Act also provides for formation of ground water management districts, with administrative and regulatory powers supplemental to and coordinated with those of the commission, within designated ground water basins. Sections 37-90-118 to 135, C.R.S.1973. Ground water management districts consult with the commission on all ground water matters affecting the districts and have authority to adopt controls, regulations or conservation measures, subject to approval by the commission, with respect to exercise of rights under final permits for the use of ground water within the district. Section 37-90-130(2), C.R.S.1973. The functions of the commission, the ground water management districts, and the state engineer under the Management Act are closely interrelated and require mutual consultation and cooperation. 7
The Water Right Determination and Administration Act of 1969, sections 37-92-101 to 602, C.R.S.1973 (the 1969 Act), provides the statutory framework for implementing the constitutional right to divert the...
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