Upper Black Squirrel Creek v. Goss

• Decision Date: 22 February 2000
• Docket Number: No. 99SA96.,99SA96.
• Parties: UPPER BLACK SQUIRREL CREEK GROUND WATER MANAGEMENT DISTRICT, Defendant-Appellant/Cross-Appellee, v. David GOSS, Plaintiff-Appellee/Cross-Appellant, v. Colorado Ground Water Commission and Cherokee Metropolitan District, Defendants-Appellees/Cross-Appellees.
• Court: Colorado Supreme Court

993 P.2d 1177

UPPER BLACK SQUIRREL CREEK GROUND WATER MANAGEMENT DISTRICT, Defendant-Appellant/Cross-Appellee, v. David GOSS, Plaintiff-Appellee/Cross-Appellant, v. Colorado Ground Water Commission and Cherokee Metropolitan District, Defendants-Appellees/Cross-Appellees.

No. 99SA96.

Supreme Court of Colorado, En Banc.

February 22, 2000.

Lind, Lawrence & Ottenhoff, LLP, Kim R. Lawrence, P. Andrew Jones, Greeley, Colorado Attorneys for Defendant-Appellant/Cross-Appellee.

Hill & Robbins, P.C., Dennis M. Montgomery, Denver, Colorado Attorneys for Plaintiff-Appellee/Cross-Appellant.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael McLachlan, Solicitor General, Edward R. Kowalski, Assistant Attorney General, Natural Resources and Environment Section Denver, Colorado Attorneys for Defendants-Appellees/Cross-Appellees.

White & Jankowski, LLP, Michael D. White, David C. Taussig, Denver, Colorado Attorneys for Amici Curiae for Eagle Peak Farms, Ltd. and Prospect Valley Farms, Ltd.

Justice HOBBS delivered the Opinion of the Court.

This appeal is from a declaratory judgment of the District Court for El Paso County entered by the designated ground water judge (Ground Water Judge). The suit arose when an individual well owner, David Goss (Goss), demanded that either the Colorado Ground Water Commission (Commission) or the Upper Black Squirrel Creek Ground Water Management District (Management District) issue an order curtailing ground water withdrawals by the Cherokee Metropolitan District (Cherokee District) from its junior well (Cherokee Well) allegedly causing injury to Goss's senior well (Goss Well) in the Upper Black Squirrel Creek Designated Ground Water Basin (Designated Basin).¹ Both the Commission and the Management District refused to take action on Goss's demand for enforcement of his priority, each claiming that the other agency had authority over the matter. The Ground Water Judge held that the Management District, not the Commission, had authority to issue or refuse to issue well withdrawal curtailment orders within Management District boundaries. We agree with the decision of the Ground Water Judge.

I.

The Goss Well operates under Well Permit No. 15389-F. The permit allows irrigation of forty acres, with an annual appropriation of 200 acre-feet of water. The allowable pumping rate is 200 gallons per minute. The Goss Well has a number two priority on the Commission's priority list for the Designated Basin. The Cherokee Well operates under Permit No. 29089-F for an annual appropriation of 2,171 acre-feet of water, with an allowable pumping rate of 1,346 gallons per minute. Pursuant to a stipulation reached in the settlement of litigation, the Cherokee Well is actually limited to a lesser annual appropriation than its well permit shows.

On July 28, 1997, Goss filed a written request with State Engineer Hal Simpson, in his capacity as Executive Director of the Commission,² for issuance of a summary order "requiring the cessation of pumping from all wells interfering with Mr. Goss's senior water rights in the Upper Black Squirrel Creek Designated Ground Water Basin." The Commission, through the Attorney General, responded on September 15, 1997 that Goss should direct his request to the Management District as it, not the Commission, had authority over his request.

In the meantime, on September 2, 1997, Goss had filed a written request with the Management District to enjoin the Cherokee Well and other unnamed wells from operating:

I hereby request that the District exercise its authority under Rule 15 of the District's rules and regulations, and all other pertinent sources of authority, to enjoin the operation of Cherokee Water District Well No. 6 and any other wells which may be impacting negatively Mr. Goss' rights. I further request that any hearing necessary to resolve this matter be held forthwith.

At its meeting of December 2, 1997, the Management District voted to deny Goss's request on the basis that it did not have authority over it. Goss then filed a complaint with the El Paso County District Court. He sought: (1) a writ of mandamus compelling either the Commission or the Management District to "order the cessation of withdrawal of water from Cherokee Well No. 6 and any other wells which may be causing material injury to Goss' senior water rights," (2) an injunction and award of damages against the Cherokee District, and (3) a declaratory judgment against the Commission, the Management District, the Cherokee District, and unknown well owners designated as Does 1-50 for determination of rights and obligations regarding enforcement of the Goss Well priority.

The Management District answered and filed a cross-claim against the Commission for declaratory judgment that the Commission, not the Management District, had authority over Goss's request for enforcement of his well's priority. The Commission took precisely the opposite position in its answer and motion to dismiss. The Cherokee District denied any interference with the Goss Well and moved for dismissal on the ground that Goss had failed to join indispensable parties, "namely the owners of all other prioritized water rights located within the basin."

In issuing his declaratory judgment that the Management District had authority over Goss's request to enforce the priority of his well, the Ground Water Judge reasoned:

[T]he General Assembly has unambiguously granted the district and not the commission with jurisdiction over this dispute.... The commission has authority concerning the regulation of use, control and conservation of nontributary ground water resources unless the permitted well is located within a district, in which case the district has authority.

(Emphasis added.)

The Ground Water Judge also determined that alleged injury to a senior appropriation in a designated ground water basin is a matter "best left initially to agency expertise and fact finding, given the district's jurisdiction over this matter." Consequently, the court held that an administrative remedy for alleged injury to a permitted well right resides in the Management District and must first be exhausted before recourse to the district court. The Ground Water Judge also held that a writ of mandamus did not lie against the Management District because the statute affords discretion in its administration of wells, rather than establishing a non-discretionary duty. We affirm the judgment of the district court.

II.

We hold that a Ground Water Management District has authority under sections 37-90-111(1)(a) and -130(2)(j), 10 C.R.S. (1999), to issue well curtailment orders to enforce priorities within its boundaries. The Management District's issuance of, or refusal to issue, such an order is subject to a written request for a mandatory hearing before the Management District, followed by its written decision, pursuant to section 37-90-131(1)(c), 10 C.R.S. (1999).

A. Differences Between Natural Stream and Ground Water Act Regulatory Regimes

In his demands to the Commission and the Management District for enforcement of the Goss Well priority, and in his second amended complaint in district court, Goss repeatedly alleged violations of his "[c]onstitutionally-guaranteed water rights" and alleged the responding agency had "a non-discretionary duty under the Constitution and statutes of the State of Colorado" to order cessation of water withdrawal by any wells "which may be causing material injury to Goss' senior water rights."

These contentions might be appropriate were we dealing with waters of the natural stream. Here, however, we deal with designated ground water, which is appropriated and administered differently. While we agree that Goss enjoys a vested right to withdraw designated ground water, in accordance with the terms of his permit, and has a senior priority to almost all other wells within the Designated Basin and the Management District, administration of his right stems not from the authority of the Colorado Constitution and its implementing provision, the Water Rights Determination and Administration Act (1969 Act), but rather from statutory enactments, namely the 1965 Ground Water Management Act and amendments thereto (1965 Act).

The ground water appropriation, injury, and enforcement provisions of the 1965 Act differ in important respects from those of the 1969 Act, which govern the waters of the natural stream. Because these differences bear upon resolution of the issue now before us, we briefly review how the General Assembly has chosen to address the appropriation and administration of designated ground water, in contrast to surface water and tributary ground water.³

All water within Colorado is a public resource. No person has ownership in this public water resource; rather, persons may obtain rights of use under applicable provisions of law. See Chatfield East Well Co. v. Chatfield East Property Owners Ass'n, 956 P.2d 1260, 1268 (Colo.1998)

. The administration of a person's water right depends upon the category of waters to which the use right attaches. See id. Colorado's authority to address the creation and administration of water rights derives from nineteenth-century congressional action. In the early days of western settlement, the United States Congress made all waters of the public domain available for disposition under the customs and laws of the States and Territories, subject to exercise of its commerce power, its power to reserve rights to unappropriated waters in priority for federal or Native American purposes, and the navigation servitude. See California v. United States, 438 U.S. 645, 657-58, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978); United States v. New Mexico, 438 U.S. 696, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978); United States v. City & County of Denver, 656 P.2d 1, 17 (Colo.1982).

This state's chosen water law doctrine stems from the experience of its people in settling a semi-arid...