Downey, Michael L.

English

University of Denver

Water Law Review Volume 15 Issue 1 Article 22 9-1-2011 S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011) Michael L. Downey Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Michael L. Downey, Court Report, S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011), 15 U. Denv. Water L. Rev. 209 (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 REPORTSpower. The district court found that the District's withholding of theapproval was unreasonable because the District itself was unable to pro-vide water service. The district court held that it was within the Town'spolice powers to require the dedication of water rights as a condition ofsubdivision approval.The Colorado Court of Appeals upheld the district court's ruling.The appellate court concluded that the District's attempt to bar the Townfrom furnishing water service was an unreasonable exercise of their ap-proval power because it had neither the intent nor financial resources toprovide water service itself.The Colorado Supreme Court granted certiorari. The court beganwith an overview of the powers that the General Assembly conferred tospecial districts and statutory towns. Special districts have the power to"acquire water rights and construct and operate lines and facilities withinand without the district," while statutory towns have general police pow-ers. The court then discussed the two applicable sections of Coloradostatute that address the operation of water and sewer systems. Becausespecial districts are considered municipalities for the purposes of thestatute, the powers conferred apply to both the District and the Town.The statute prevents one municipality from providing water services inanother municipality without the approval of the other municipality.The District argued that it must approve the Town's furnishing of wa-ter services because their territories overlap. The Town argued that be-cause the District was unable to provide water services, the District couldnot prevent the Town from providing water services. The court looked atthe statute as a whole and determined that consistent with case law andthe legislative intent, the statute intended to promote rather than hinder,an essential service. Therefore, the approval power was not unlimitedand must be exercised reasonably. The court held that the District couldnot prevent the Town from exercising its police and land use powers topromote public health and to regulate the distribution and supply of wa-ter to its own residents within its own territory.The court affirmed the judgment of the court of appeals.J. Tobin WeinerS. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo.2011) (holding that a water rights determination can include reviews ofprior court decrees and the service requirements for such water rightsdeterminations are satisfied by resume notice and newspaper publica-tion).Between 2001 and 2006, seven of the eight ditch companies with wa-ter rights in the Pine River system ("ditch companies") filed applicationsfor winter stock watering rights. The Southern Ute Indian Tribe("Tribe"), another rights holder on the Pine River, filed statements ofopposition to each application. After consultation, the state DivisionEngineer determined that the applications were unnecessary because pri-2()9Issue 1IWATER LAW REVIEWor decrees in 1934 and 1966 allowed for incidental non-irrigation uses ofthe water, such as stock watering in winter.The parties entered into settlement negotiations in light of the Engi-neer's determination but failed to reach a settlement. In March 2009, theditch companies filed a consolidated application for a water rights deter-mination in the Water Court Division Seven ("water court"), asking thewater court to find that the prior decrees allowed winter stock watering.The court then gave notice of the application in a resume published in alocal newspaper. Two months later the ditch companies filed a verifica-tion of the application, which Colorado law required for a water rightsdetermination.In May 2009, the Tribe filed an untimely statement of opposition tothe application. The tribe therefore included a motion to intervene, ask-ing the court to excuse the untimely statement of opposition. In the fil-ing, the Tribe argued that the water rights determination was invalid be-cause of the failure to verify the application and because the applicationshould have been filed as an action for declaratory judgment. A declara-tory judgment action would have been subject to the Colorado Rules ofCivil Procedure (C.R.C.P.), which required personal service on affectedparties such as the Tribe. This differed from the rules for water rightsdeterminations, which merely require resume notice. The water courtheld the ditch companies timely filed their verification of the water rightsdetermination because the verification related back to the original filingin March 2009. The water court also denied the statement of oppositionfrom the Tribe as untimely and used its discretion to deny the motion tointervene because it would delay the proceedings and force the expendi-ture of unnecessary time and resources. The Tribe then appealed to theColorado Supreme Court ("court").On appeal, the court considered: 1) whether a water rights determina-tion included a review of prior decrees and whether resume notice andnewspaper publication was sufficient notification for interested parties; 2)whether the relation back doctrine can apply to a belated verification of awater rights determination; and 3) whether the water court abused its dis-cretion in denying the motion to intervene.First, the court looked at the plain language of the statute governingwater rights determinations and held that a determination was not limitedto a plan or change in plan. The court considered the definition of "de-termination" in the Webster's New International Dictionary and the stat-utory definition of "water right." Here, the ditch companies were takingaction so that the water court could determine whether prior decreedwater rights included winter stock watering. As such, the court couldproperly characterize the ditch companies' application as a water rightsdetermination.The court then turned to the question of notice requirements. TheC.R.C.P. required personal service on affected parties, however, the stat-utes provided less stringent notice requirements for matters of water. Byfiling a water rights determination, the ditch companies had to meet theless stringent statutory notice requirements. Resume notice by the water210 Volume 15COURT 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 1I

S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011)

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S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011)

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