Shea, Mark

English

University of Denver

Water Law Review Volume 6 Issue 1 Article 55 9-1-2002 Double RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002) Mark Shea Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Mark Shea, Court Report, Double RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002), 6 U. Denv. Water L. Rev. 224 (2002). 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. WATER LAW REVIEWDouble RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002)(holding: (1) the water court may not cancel a conditional water rightwithout first providing notice of cancellation or expiration to theowner of the water right, even when the owner fails to file anapplication for a finding of due diligence; and (2) the water court'sfailure to give notice only extends for the time period in which thediligence application may be filed).The Water Division of the District Court of Colorado, Division 4cancelled Double RL's ("Ranch") conditional water right after it failedto file an application for a finding of reasonable diligence before thestatutory deadline. The Ranch made a motion to vacate the order,which the court denied. The Ranch appealed the water court'sdecision to the Colorado Supreme Court.In 1994, the Ranch received a decree for a conditional water right.While reviewing this water right in 2001, the Ranch learned that itsapplication for a finding of due diligence was past due. ColoradoRevised Statutes section 37-92-301 (4) (a) (I) requires that the owner ofa conditional water right file an application for a finding of reasonablediligence every six years from the date the water right is decreed. Ifthe owner fails to file the application, the court considers the waterright abandoned and will cancel it. Because the Ranch failed to filethe required diligence application in 2000, the water court cancelledthe Ranch's conditional water right in May 2001 without notice. InJune 2001, the Ranch moved that the water court vacate thecancellation of its conditional water right and allow it to file a belatedapplication. The Ranch argued this was necessary because the watercourt did not give notice of the cancellation. Colorado RevisedStatutes section 37-92-305(7) provides that the water court mustprovide notice of the pending cancellation to the owner of the rightbefore a conditional water right may be cancelled. Even though thewater court stated there was no evidence it sent notice of cancellationto the Ranch, the water court denied the motion. The Ranch arguedthe water court improperly considered the mandate of section301(4)(a)(I) while ignoring the notice of cancellation provision ofsection 305(7) and appealed the water court's decision to theColorado Supreme Court.The court turned to the history and legislative intent of the twosections in order to give them both a consistent effect. The ColoradoGeneral Assembly enacted section 301(4) (a) (I) in 1969 as part of theWater Right Determination and Administration Act. Reviewing thelanguage of the statute, the court found that the section requiresnotice that the water court intends to cancel the conditional waterright, not that an application for a finding of reasonable diligence isdue. Considering section 305(7), the court referred to the historicalbackground of the bill. Ultimately, the court found sufficient evidenceof the statute's intent to hold the water court may not cancel aVolume 6COURT REPORTSconditional water right and that a conditional water right does notexpire without first providing notice of cancellation or expirationunder section 305(7).Thus, even though the Ranch failed to file its application for afinding of reasonable diligence, the water court improperly canceledthe conditional water right by failing to provide the Ranch with therequired statutory notice that its conditional water right would expireor be cancelled. Therefore, the court reversed the judgment anddirected the water court to allow the Ranch to file an application forfinding of reasonable diligence.Mark SheaWest Elk Ranch v. United States, No. 02SA93, 2002 WL 31681910(Colo. Dec. 2, 2002) (holding a party cannot show they "can and will"put water to a beneficial use if they have not obtained, and there is noevidence the party will obtain, the required permits to use the UnitedStates National Forest).West Elk Ranch ("West Elk") sought a conditional water right to aspring adjacent to their property on the United States National Forestin the water court for Water Division No. 4. The United States ForestService ("USFS") denied West Elk's application for a Special UsePermit ("SUP") to capture water and divert it to their property.Therefore, the water court granted summary judgment to the USFSand denied the conditional water right request because West Elk didnot meet the conditional water right "can and will" requirement. WestElk appealed to the Colorado Supreme Court claiming they wouldeventually obtain an SUP, however, the court affirmed the lowercourt's decision.West Elk's predecessor in interest applied for a conditional waterright to use Bear Gulch Spring, located on the national forest, forstock watering and domestic use. The Department of Justice filed astatement of opposition to the petition because West Elk had notobtained an SUP and the USFS expressed concerns over the project'senvironmental effects. Ultimately, after filing SUP applications, theUSFS denied West Elk's application due to environmental concerns.The water court found that West Elk could not and would not put thewater to beneficial use without an SUP from the USFS; therefore, it didnot meet the conditional water right "can and will" requirement. Afterthe USFS filed a summary judgment motion, the court denied WestElk's application and granted summary judgment in favor of the USFS.On appeal, the supreme court first reviewed the definition ofconditional water rights. A conditional water right is perfected whenthe holder of a right with priority finalizes their appropriation withreasonable diligence. The application must establish that theapplicant has taken the "first step" towards perfecting his right andIssue 1

Double RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002)

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Double RL Co. v. Telluray Ranch Props., 54 P.3d 908 (Colo. 2002)

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