U.S. v. Bell

Decision Date25 August 1986
Docket NumberNo. 84SA290,No. 5,No. 1,5,1,84SA290
Citation724 P.2d 631
PartiesUNITED STATES of America, Appellant, v. Orlyn BELL, Water DivisionEngineer; City and County of Denver; Public Service Company of Colorado; Colorado River Water Conservation District; John B. Scudder; Allen B. Phillips; Richard B. Farner; Frank Benton Land and Livestock Company; Southeastern Colorado Water Conservancy District; Twin Lakes Reservoir and Canal Company; Grand County Water & Sanitation District; City of Aspen; Mobil Oil Corporation; Water Supply & Storage Company; Joseph T. Zoline; Koppers Company, Inc.; Union Oil Company of California; Northern Colorado Water Conservancy District and Municipal Subdistrict; Frederick R. and Mary Benson Booth; Jack A. Oleson; and Exxon Corporation, Appellees.
CourtColorado Supreme Court

Thomas H. Pacheco, Robert R. Klarquist, Edward J. Shawaker, Land and Natural Resources Div. U.S. Dept. of Justice, Washington, D.C., John R. Hill, Jr., U.S. Dept. of Justice, Denver, F. Henry Habicht, Asst. Atty. Gen., Washington, D.C., for U.S. of America.

John U. Carlson, Law Office of John Carlson, Denver, for Twin Lakes Reservoir and Canal Co.

Glenn E. Porzak, Holme Roberts & Owen, Boulder, for Exxon Corp.

Duane Woodard, Colorado Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Paula C. Phillips, First Asst. Atty. Gen., Carol D. Angel, Asst. Atty. Gen., Denver, for the State of Colo. and Orlyn Bell, Div. Engineer, Water Div. No. 5.

Wayne D. Williams, Michael L. Walker, and Glenn G. Saunders, Jack F. Ross, Saunders, Snyder, Ross & Dickson, P.C., Denver, for the City and County of Denver acting by and through its Board of Water Com'rs.

John D. Musick, Robert C. Kerr, Robert Wigington, Musick & Cope, Boulder, for the City of Aspen.

Kenneth Balcomb, Delaney & Balcomb, P.C., Glenwood Springs, for John B. Scudder, Allen B. Phillips, Richard B. Farner, Frank Benton Land & Livestock Co., Mobil Oil Corp., Joseph T. Zoline, Koppers Co., Inc., Frederick R. and Mary Benson Booth, Jack A. Oleson, and Exxon Corp.

Ward H. Fischer, Fischer, Brown, Huddleson & Gunn, Fort Collins, for Water Supply and Storage Co.

Howard Holme, Kevin B. Pratt, Fairfield & Woods, Denver, for Southeastern Colorado Water Conservancy Dist.

Stanley W. Cazier, Baker, Cazier & McGowan, Granby, for Grand County Water and Sanitation Dist. No. 1.

Timothy J. Flanagan, Kelly, Stansfield & O'Donnell, Denver, for Public Service Co. of Colorado.

John M. Sayre, Robert V. Trout, Davis, Graham & Stubbs, Denver, for Northern Colorado Water Conservancy Dist. and Municipal Subdistrict, Northern Colorado Water Conservancy Dist.

Donald H. Hamburg, Glenwood Springs, for Colorado River Water Conservation Dist.

Charles N. Woodruff, James R. Montgomery, Moses, Wittemyer, Harrison and Woodruff, P.C., Boulder, for Union Oil Co. of California.

DUBOFSKY, Justice.

The United States of America appeals an order of the district court for Water Division No. 5 (water court), denying relation back of an amendment seeking reserved water rights from the Colorado River mainstem to the federal government's original application for reserved water rights in or on federal oil shale land. 1 The water court ruled that the amendment to the original application did not relate back to the time of filing because the United States had not fulfilled the notice requirements of C.R.C.P. 15(c). The court's order denied the United States' amended claim an antedated priority based on the land's reservation date and entered final judgment under C.R.C.P. 54(b) on the denial of relation back. We affirm the judgment of the water court.

I.

On December 31, 1971, the United States filed with the water court a statement of claim seeking confirmation of its right to the use of water on lands owned by the United States within Water Division No. 5. The United States claimed federal reserved water rights for numerous reserved federal lands, including Naval Oil Shale Reserves numbers 1 and 3 (NOSR-1 and NOSR-3) in the Colorado River and White River drainages in Garfield and Rio Blanco counties. NOSR-1 was reserved for the exclusive use of the United States by presidential order in 1916; NOSR-3 was reserved in 1924. The United States claimed a priority date 2 of 1916 for NOSR-1 and 1924 for NOSR-3. 3

The United States' 1971 application described the source of its claims for NOSR-1 and NOSR-3 as "[t]hose portions of the Colorado and White Rivers and water tributary thereto, which are located in or on the lands described [in NOSR-1 and NOSR-3], which are situated within Water Division No. 5." In January 1972 the water clerk published and distributed a resume describing the claimed rights' sources as required by the notice provision in section 37-92-302(3), 15 C.R.S. (1973). No portion of the mainstem of the Colorado River lies "in or on" NOSR-1 or NOSR-3. NOSR-3 is approximately one-half mile from the Colorado River mainstem. In addition, no portion of the White River mainstem lies "in or on" NOSR-1 or NOSR-3, and the record does not reveal its distance from either NOSR-1 or NOSR-3.

Various parties to the water court proceedings filed objections 4 to the NOSR application, and the court referred the United States' reserved water claims to a Master-Referee. At a pretrial conference on January 31, 1974, the Master-Referee delayed consideration of the reserved rights associated with the NOSRs. The United States presented no evidence concerning these claims, and the Master-Referee declined to rule on them in his order on August 6, 1976.

On January 31, 1983, more than eleven years after filing its original application, the United States filed a motion for leave to file an amended application and to publish a new description of its claims. In its amended claim, for which the United States claims priority dates of 1916 and 1924, the United States asserts that it should be allowed to divert 100 cubic feet per second of water 5 from the mainstem of the Colorado River at the Anvil Points Diversion, a diversion point not "in or on" NOSR-1 or NOSR-3.

On October 11, 1983, the water court granted the United States' motion to amend but denied the amendment's relation back to the 1971 application because of insufficient notice that the United States was claiming reserved rights in water from the Colorado River mainstem to parties with water rights that would be affected by the amendment. On March 22, 1984, in response to a motion filed by the City and County of Denver (Denver), the water court entered final judgment under C.R.C.P. 54(b) denying the United States' claim for an antedated water right 6 for water from the mainstem of the Colorado River to be used in the development of oil shale. The order allowed the United States to pursue the claims raised in the original application to water "in or on" NOSR-1 and NOSR-3 and the claim under the amended application for water rights from the mainstem of the Colorado River to be used in the development of oil shale based on a 1983 priority date. The United States appeals the order of the district court, asserting that use of the Colorado postponement doctrine to limit the United States' reserved water rights violates federal law, that a final judgment denying the United States' claim for Colorado mainstem rights with a reservation priority date is improper, and that the amended application should have related back to the priority date in the original claim, the dates that the NOSRs were reserved.

We determine that the water court correctly applied C.R.C.P. 15 in granting the United States' motion to amend and in denying the amendment's relation back to the date of the original application. We also agree with the water court that the United States may not assert a claim to mainstem Colorado River water for the NOSRs with a priority date based on the date of reservation of the NOSRs. The water court's denial of relation back to the original application and denial of a priority date based on the NOSRs' date of reservation had the effect of dismissing parties from the suit; therefore, the judgment was final under C.R.C.P. 54(b).

II.
A.

Because a water adjudication is a special statutory proceeding, we first consider the objectors' argument that C.R.C.P. 15 does not apply to special statutory proceedings and that therefore the United States' mainstem claim should be treated as a new claim, not as an amendment to the original claim. C.R.C.P. 81(a) provides that the rules of civil procedure "do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute." Proceedings under the Water Right Determination and Administration Act of 1969 (the Act), §§ 37-92-101 through -602, 15 C.R.S. (1973 & 1985 Supp.), are special statutory proceedings under C.R.C.P. 81(a). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980); Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972). Therefore, C.R.C.P. 15 applies to water court proceedings under the Act only to the extent that the rule is not inconsistent or in conflict with procedures under the Act.

C.R.C.P. 15(a) provides that after a responsive pleading is filed, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." C.R.C.P. 15(c), which governs the relation back of amendments, provides as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is...

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