Cherokee Metropolitan District v. Simpson

148 P.3d 142, 2006 WL 3392754
CourtSupreme Court of Colorado
DecidedNovember 27, 2006
DocketNo. 06SA95
StatusPublished
Cited by29 cases

This text of 148 P.3d 142 (Cherokee Metropolitan District v. Simpson) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherokee Metropolitan District v. Simpson, 148 P.3d 142, 2006 WL 3392754 (Colo. 2006).

Opinions

Justice HOBBS

delivered the Opinion of the Court.

In this appeal from a judgment of the court for Water Division No. 2,1 the parties contest the meaning of a stipulated decree provision contained in a conditional water rights diligence decree issued by the court on March 8, 1999. The parties to the agreement are Cherokee Metropolitan District (“Cherokee”), the Upper Black Squirrel Creek Ground Water Management District (“the Management District”), the State Engineer, the Division Engineer for Water Division No. 2, and the Colorado Ground Water Commission.

The stipulated decree provision concerns Cherokee’s use of two sets of wells in the Upper Black Squirrel Creek Designated Ground Water Basin (“the Designated Basin”) known as the Cherokee Wells 1-8 (“Wells No. 1-8”) in the northern part of the Designated Basin and the Sweetwater Wells in the southern part of the Designated Basin. Although the water involved is designated groundwater, the water judge retains jurisdiction over the conditional water rights proceedings in this case pursuant to our decision in Sweetwater Development Corp. v. Schubert Ranches, Inc., 188 Colo. 379, 384, 535 P.2d 215, 218-19 (1975)(holding that the water judge for Water Division No. 2 has continuing jurisdiction over conditional decree proceedings in this case, because the claim had been filed in an adjudication proceeding prior to creation of the Designated Basin and proof was introduced showing that the applicant was entitled to a conditional decree prior to the time of the designation and creation of the Designated Basin).

[145]*145The meaning of the stipulated decree provision is before us on appeal because the water judge denied Cherokee’s motion to enforce the meaning it ascribes to the parties’ 1999 agreement. The provision at issue states:

Cherokee shall use Cherokee Wells No. 1-8 only for supplying in-basin beneficial uses that discharge any unconsumed water back into the Upper Black Squirrel Designated Basin and for emergency and backup purposes. Emergency and backup use shall include the inability to get sufficient supply from the Cherokee owned Sweet-water wells.

Finding it to be ambiguous and hearing extrinsic evidence to assist in ascertaining the intent of the parties to the agreement, the water judge construed this stipulated decree provision to provide that Wells No. 1-8 may be used to supply water outside of the Designated Basin only for emergency and backup purposes when its Sweetwater Wells are unable to produce a sufficient supply of water to meet the commitments that existed at the time the parties entered into this stipulation. We agree, and affirm the water court’s judgment.

I.

Cherokee is a metropolitan district2 that currently supplies water to approximately 5,250 homes and 350 commercial businesses in an area east of Colorado Springs. The boundaries of this district include lands within the Designated Basin and lands outside of the Designated Basin. Cherokee’s water supply includes Wells No. 1-8 in the northern part of the Designated Basin and the Sweetwater Wells in the southern part of the Designated Basin.

The Colorado Ground Water Commission entered an order designating the Upper Black Squirrel Creek Basin on May 1, 1968. The Upper Black Squirrel Management District was created in 1979. The source of supply for Wells No. 1-8 and the Sweetwater conditional water rights is within the Designated Basin and the Management District.

The March 1999 decree of the water court contains a finding of due diligence for the ten Sweetwater conditional water rights Cherokee obtained from its predecessors-in-interest. The court incorporated the parties’ agreement into this diligence decree. The agreement defines how waters from Wells No. 1-8 and the Sweetwater Wells will be diverted and utilized for beneficial use as part of Cherokee’s water supply.

The diligence decree allows water from the Sweetwater Wells to be utilized within and outside of the Designated Basin. The decree limits diversions utilizing the ten conditional Sweetwater Well rights to 6,258 acre feet per year.

The decree limits Wells No. 1-8 to beneficial uses within the Designated Basin that discharge any unconsumed water back into the Designated Basin. The two exceptions to this in-basin restriction allow water from Wells No. 1-8 to be utilized outside the basin for “emergency and backup purposes” that “include the inability to get sufficient supply from the Cherokee owned Sweetwater wells.”

At the time the parties entered into the January 1999 stipulation that led to entry of the March 1999 diligence decree, Cherokee water supply commitments outside of the Designated Basin totaled no more than 2,683 acre feet per year delivered to an area known as Cimarron Hills. Cherokee expected the Sweetwater Wells to produce in excess of 6,000 acre feet per year; this is reflected in a decree condition that limits the ten conditional Sweetwater Well rights to no more than 6,258 acre feet of diversion per year. Wells No. 1-8 produce 1,886 acre feet of water per year.

Because of rapid growth occurring in Cherokee’s service area after the 1999 diligence decree was entered, current Cherokee commitments outside of the Designated Basin require a supply of up to 5,000 acre feet of water annually.

[146]*146The water court found that it is possible to obtain 3,407 acre feet per year from the existing Sweetwater Wells. Cherokee contended that the existing Sweetwater Wells can produce only 2,400 acre feet per year.3 Cherokee has concluded that it is not worthwhile to install the remaining three wells. Cherokee asserts that the groundwater resource is simply too unproductive at the site.

The combination of Cherokee’s increased customer base outside the Designated Basin and the disappointing productivity of the Sweetwater Wells has led Cherokee to assert that the 1999 agreement allows it to use Wells No. 1-8 as a primary source of supply outside the Designated Basin because the Sweetwater Wells have turned out to be insufficient to meet its customer demands. The Management District and the State Engineer contest Cherokee’s construction of the parties’ agreement.

To test its view of the agreement’s meaning, Cherokee filed its “Motion for Court Order Requiring the Colorado State Engineer to Abide by Previous Stipulation of the Parties” with the water court on April 1, 2005. Determining the agreement to be ambiguous and employing the aid of extrinsic evidence taken at a two-day trial at which the parties produced documentary and testimonial evidence, the water court construed the provision’s meaning adversely to Cherokee’s contention.

II.

The water judge construed the stipulated decree provision in this case to provide that Wells No. 1-8 may be used to supply water outside of the Designated Basin only for emergency and backup purposes when its Sweetwater Wells are unable to produce a sufficient supply of water to meet the commitments that existed at the time the parties entered into this stipulation. We agree, and affirm the water court’s judgment.

A.

Standard of Review

A court may adopt and incorporate a proposed stipulation into a decree. Colo. River Water Conservation Dist v. Bar Forty Seven Co., 195 Colo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Byers Peak v. BOCC
Colorado Court of Appeals, 2025
Brown v. Smith
Colorado Court of Appeals, 2024
Bonati v. KDSW
Colorado Court of Appeals, 2024
Free v. Kramer
D. Colorado, 2022
Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc.
2016 CO 75 (Supreme Court of Colorado, 2016)
Pinnacol Assurance v. Hoff
2016 CO 53 (Supreme Court of Colorado, 2016)
Tucker v. Town of Minturn
2015 CO 61 (Supreme Court of Colorado, 2015)
DeFazio v. Starwood Hotels & Resorts Worldwide, Inc.
554 F. App'x 692 (Tenth Circuit, 2014)
Town of Minturn v. Tucker
2013 CO 3 (Supreme Court of Colorado, 2013)
Harrison v. Simpson
2012 CO 35 (Supreme Court of Colorado, 2012)
Southern Ute Indian Tribe v. King Consolidated Ditch Co.
250 P.3d 1226 (Supreme Court of Colorado, 2011)
Lafarge North America, Inc. v. K.E.C.I. Colorado, Inc.
250 P.3d 682 (Colorado Court of Appeals, 2010)
Cotton Creek Circles, LLC v. Rio Grande Water Conservation District
218 P.3d 1098 (Supreme Court of Colorado, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
148 P.3d 142, 2006 WL 3392754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherokee-metropolitan-district-v-simpson-colo-2006.