Lerch, Michael

English

University of Denver

Water Law Review Volume 15 Issue 1 Article 23 9-1-2011 Upper Yampa Water Conservancy Dist. v. Dequine Family L.L.C. 249 P.3d 794 (Colo. 2011) Michael Lerch Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Michael Lerch, Court Report, Upper Yampa Water Conservancy Dist. v. Dequine Family L.L.C. 249 P.3d 794 (Colo. 2011), 15 U. Denv. Water L. Rev. 211 (2011). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTScourt's clerk and publication in a local newspaper satisfied this require-ment. Personal service was only required for water matters in limitedcircumstances where a specific party's ownership interest was subject totermination or abandonment. The court also noted that the statutory no-tice requirements applied equally to federally reserved rights, such as theTribe's, due to a waiver of sovereign immunity by the U.S. Government.Therefore, the court held the lesser notification standard of resume no-tice and publication in a newspaper was sufficient.On the second issue, the court looked at whether it was proper forthe water court to relate back the belated verification to the original waterrights determination resulting in a timely filed determination. TheC.R.C.P. allowed for amendments to pleadings that relate back to theoriginal pleading, so long as the interested parties have notice of theclaims from the original pleading. A court must construe the C.R.C.P.liberally to allow for amendment of pleadings with technical errors notsubstantially affecting other interested parties. Here, the Tribe had no-tice of the water rights determination through the resume notice andnewspaper publication. The court held that the technical error of initiallyomitting verification did not substantially affect the Tribe's rights.Lastly, the court turned to whether the water court abused its discre-tion by not allowing the Tribe to intervene after it missed the deadline tofile a statement of opposition. There was no right to intervention absentextraordinary circumstances. The water court did not find sufficient evi-dence of extraordinary circumstances to excuse the Tribe. In addition,the court agreed that allowing the Tribe to intervene would significantlyincrease the private and public time and resources committed to resolu-tion of the water rights determination, frustrating the intent of the Colo-rado legislature for expediency and finality. The court held that the watercourt did not abuse its discretion by denying the Tribe's motion to inter-vene, affirming the water court's ruling in a 4-3 decision.The dissent argued that the court was expanding the definition of "de-termination" to include water rights procedures not previously includedand that this was a declaratory review of a prior decree - not a waterrights determination. Thus, the lesser resume notice and newspaper pub-lication requirement was not applicable and C.R.C.P. required the ditchcompanies to serve all interested parties personally.MichaelL. DowneyUpper Yampa Water Conservancy Dist v. Dequine Family L.L.C.,249 P.3d 794 (Colo. 2011) (holding that the Upper Yampa Water Con-servancy District's application for a conditional water right failed todemonstrate sufficient need for additional water because existing con-tracts for stored water, absent any specific plan or demonstration of rea-sonably anticipated future need based on projected population growth,did not constitute a beneficial use).The Upper Yampa Water Conservancy District ("District") applied inWater Division No. 6 ("water court") for conditional water rights to fifty211Issue 1IWATER LA WREVIEWcubic feet per second of water in Morrison Creek, to be diverted intoStagecoach Reservoir ("Reservoir"). Landowners in the Morrison CreekBasin ("Opposers"), on whose property the District's physical diversionand conveyance facilities would be located, objected to the-District's pro-posed transfer and filed a motion for determination of the conditionaldecree as a matter of law. The water court held that direct flow and stor-age rights are not one in the same and cannot be combined to form asingle water right as a matter of law. Thus, a conditional right to directflow could not be put to beneficial use through storage.The District then amended its engineering report to reflect the watercourt's ruling on the theory that the District's needs could still be metthrough a conditional direct flow right without storage. The District pro-duced evidence at trial showing that it had contractual obligations withmultiple commercial and municipal users for storage and delivery of13,192 acre feet of water, and that it required 2,000 additional acre feetin its augmentation plan. An expert for the District determined that theadditional water would only increase the firm yield of the reservoir by2,615 acre feet, leaving the total reservoir yield significantly below themore than 15,000 acre feet the District was obligated to supply. The Dis-trict's representative admitted that the District had never released someof the contractually-obligated water and that 7,000 acre feet of the con-tract water was designated for Tri-State Generation and TransmissionAssociation, but was not being put to any beneficial use because there wasno existing or planned project for the water.The water court granted the Opposers' motion to dismiss, holdingthat the District did not establish any need for the additional water andtherefore had not satisfied the anti-speculation doctrine. The water courtfurther found that the District already had a sufficient supply of water tomeet its foreseeable future demands. The District appealed the watercourt's decision to prohibit a joint appropriation of direct and storageflow rights to the Supreme Court of Colorado ("Court").The District first argued that because the sales and transfers of ap-propriative water rights involved firm contractual commitments, theywere not speculative because they required yearly payments from the con-tractees and obligated the District to deliver the water when needed.Nonetheless, the Court found the District's contractual obligations tovarious municipal and commercial users insufficient to show an absenceof speculative sale or transfer. Consequently, the District lacked proof ofbeneficial use without any firm contract with a user who was committedto put the water to a beneficial use. Accordingly, the Court held that theDistrict failed to show it had made a "first step" toward appropriationthrough beneficial use.Next, the Court rejected the District's argument that governmentalagencies have wide flexibility and may acquire conditional decrees basedupon projections of future growth. The Court based its finding on exist-ing Colorado case law stating that a firm contractual commitment to ap-propriate waters must also have a specific plan for beneficial use of thewater, or be "consistent with reasonably anticipated requirements, based212 Volume 15COURT REPORTSon substantiated projections of future growth." Accordingly, the Courtheld that there is no immunity for municipalities and other governmentagencies from speculation challenges under a governmental planning "ex-ception."Finally, the Court held that the District's assignment of error by thewater court could be rejected as a matter of law. The court determinedthat not only did the District fail to assert any over-commitment (otherthan the 7,000 acre feet already under contract for some future deliverywith no plan for beneficial use), it also failed to show that any of the13,000 acre feet it had under contract was committed to a specific benefi-cial use or was necessary for the municipality's reasonably anticipatedpopulation growth. The Court rejected the District's argument that itsplanned water uses, or those of its contractees for water, were irrelevant.The Court concluded that the evidence was insufficient as a matter of lawto prove a need for additional rights or any recognizable legal demandsand, thus, it was unnecessary to make any decision regarding joint appro-priation of direct and storage flow rights.Accordingly, the Court affirmed the water court's ruling granting theOpposers' motion to dismiss.Michael LerchIDAHOClear Springs Foods, Inc. v. Spackman, 252 P.3d 71 (Idaho 2011)(holding that the Director's curtailment of junior groundwater userspumping volume, in favor of protecting the rights of senior surface waterusers, was a proper decision under Idaho law and within the Director'sdiscretion).This appeal dealt with seven issues arising from a Final Order issuedby the Director of the Idaho Department of Water Resources ("IDWR"),curtailing withdrawals from the Eastern Snake River Plain Aquifer ("Aq-uifer") by individual appropriators and groundwater districts (collectivelyknown as "junior groundwater users"). The Final Order was the result ofdelivery calls made to the IDWR by Clear Springs Food, Inc. and BlueLakes Trout Farm, Inc. (collectively known as"senior surface water us-ers") and was the culmination of IDWR administrative proceedings. Thejunior groundwater users filed an appeal to the Idaho Supreme Courtafter the District Court of the Fifth Judicial District affirmed the FinalOrder.Initially, the court rejected the junior groundwater users' first issue onappeal that the Swan Falls Agreement, made in 1984, precluded the sen-ior users' ability to make delivery calls so long as minimum flows weremaintained in the Snake River below the Murphy Gauge. The Swan Val-ley Agreement was a settlement between the Idaho Power Company andthe State of Idaho, which reduced minimum flows for hydroelectric pow-er generation on the Snake, thus leaving more water available for futureIssue 1I 213

Upper Yampa Water Conservancy Dist. v. Dequine Family L.L.C. 249 P.3d 794 (Colo. 2011)

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Upper Yampa Water Conservancy Dist. v. Dequine Family L.L.C. 249 P.3d 794 (Colo. 2011)

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