City of Englewood v. Burlington Ditch, Reservoir & Land Co.

235 P.3d 1061, 2010 Colo. LEXIS 463, 2010 WL 2564606
CourtSupreme Court of Colorado
DecidedJune 21, 2010
DocketNo. 09SA75
StatusPublished
Cited by8 cases

This text of 235 P.3d 1061 (City of Englewood v. Burlington Ditch, Reservoir & Land Co.) 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
City of Englewood v. Burlington Ditch, Reservoir & Land Co., 235 P.3d 1061, 2010 Colo. LEXIS 463, 2010 WL 2564606 (Colo. 2010).

Opinion

Justice EID

delivered the Opinion of the Court.

This appeal involves a portion of a much larger case decided in the water court, Division 1, Case No. 02CW4O3. Opposer-Appel-lant City of Englewood argues that this court should reverse findings by the water court concerning a settlement agreement between various parties and the City and County of Denver. Englewood claims that the water court erred in interpreting the settlement agreement to be a valid no-call agreement. More specifically, Englewood argues that the agreement is an invalid subordination agreement that improperly expands Denver's water rights and violates the one-fill rule. Additionally, Englewood argues that the water court erred with respect to proof of injury by not allowing Englewood to rely on a presumption of injury, by prohibiting the introduction of certain evidence of injury at trial, by ignoring other evidence of injury in its ruling, and by determining that a stipulation at trial protected junior appropriators from injury.

We now affirm the judgment of the water court and hold that the settlement agreement is a valid no-call agreement. We also reject Englewood's additional claims.

I.

Farmers Reservoir and Irrigation Company ("FRICO"), Burlington Ditch, Reservoir and Land Company, and Henrylyn Irrigation District (collectively, "the Companies"), own several water rights diverted at the Burling, ton headgate of the South Platte River, including the most senior storage right on the river, consisting of reservoir priorities Nos. 1 and 2 for filling Barr and Oasis Reservoirs to 11,081 acre feet at a rate of 850 cubic feet per second ("cfs") with a priority date of November 20, 1885 (the "1885 Oasis storage right"). In addition, FRICO possesses a 1909 Barr Lake storage right, which is used to fill Barr Lake after the 1885 Oasis storage right has filled, and a 1909 Milton storage right, which is used to fill Milton Lake (the "©1909 storage rights").

The City and County of Denver, acting by and through its Board of Water Commissioners ("Denver"), possesses several water rights upstream of the Burlington headgate that are all junior to the 1885 Oasis storage right with priority dates of October 1, 1889, September 1, 1892, and May 1, 1899. These rights are also referred to as Denver's In-between water rights. Denver additionally [1065]*1065operates exchanges on the South Platte River that use reusable effluent as the substitute supply.

Englewood has two relevant water rights on the South Platte River that are junior to the rights of both the Companies and Denver: the Mclellan Reservoir right with a 1948 priority date, and an exchange right with appropriation dates in 1989 and 1990 allowing Englewood to exchange water diverted at the McBroom Ditch headgate on Bear Creek up to Chatfield Reservoir and then on to McLellan Reservoir.

Denver entered into a settlement agreement ("the Agreement") with the Companies on August 31, 1999 to resolve a variety of disputes. Among other things, the Agreement provided that (1) the Companies would accept Denver's reusable effluent as a substitute supply; (2) Denver would provide the Companies with 5,000 acre feet of reusable water every year; and (8) the Companies would not place a call under the 1885 Oasis storage right. Specifically, the no-call provision of the Agreement provided that:

Under this agreement, the Companies will divert under the 1885 Oasis storage right but will not place a call under the 1885 Oasis storage right,. FRICO may place a call under the 1909 Barr Lake storage right or the Milton storage right until such time as the 1885 Oasis storage right and the 1909 Barr Lake storage right have achieved a Paper Fill.

1999 Agreement, T4.1.1. Additionally, the Agreement provided that when the 1885 Oasis storage right is filling, Denver:

may divert In-between Water while the 1885 Oasis storage right is storing water. [Denver] and FRICO shall keep an accounting each year of the amount of In-between Water diverted by [Denver] in order to determine whether any Payback Water is due under paragraph 4.2. While the 1885 Oasis storage right is achieving a Paper Fill, [Denver] shall not, through its diversion of In-between Water, reduce the amount of water divertable for the 1885 storage decree below 150 cfs. For purposes of this paragraph 4.1, divertable water includes both water available at the Burlington-O'Brian Canal Ditch headgate and the amount of water Pumpable from the Metro Pumps.

1999 Agreement, T 4.1.

In 2002 and 2004, the Companies and others filed applications for changes of water rights, alternate points of diversion, an ap-propriative right of exchange, a new junior water right, and a plan for augmentation.1 In July 2002, Englewood filed its challenge to the Companies2 2002 application alleging harm from the Agreement between Denver and the Companies In February 2008, both Denver and Englewood filed motions for determinations of law regarding the Agreement pursuant to C.R.C.P. 56(h). On April 1, 2008, the water court issued an order regarding the Agreement, finding that: (1) the 1999 Agreement is a valid no-call agreement in which the Companies contracted [1066]*1066away their right to place an administrative call for water on the river under the 1885 Oasis storage right; (2) the Agreement did not constitute a change of water right or either a selective or general subordination agreement; (8) Englewood did not have a right to maintenance of stream conditions created by the placement of a call; (4) there is no legally cognizable claim of injury from a no-call agreement unless such an agreement violates public policy; and (5) Englewood's claims are not entitled to a presumption of injury, and Englewood has the burden of proof of injury. Because the water court was not able to determine whether the Agreement in practice violated public policy or the one-fill rule, a two-day trial on these issues was held in May 2008.

On September 5, 2008, the water court ruled in its Findings of Fact, Conclusions of Law and Order that Englewood failed to present evidence that the Agreement violates either public policy or the one-fill rule. Additionally, after not allowing in certain evidence allegedly establishing injury, the water court held that Englewood's evidence of injury was unconvincing. Englewood appealed these determinations by the water court, and we now affirm.3

IL.

We review the water court's legal conclusions de novo. Cotton Creek Circles, LLC v. Rio Grande Water Conservation Dist., 218 P.3d 1098, 1101 (Colo.2009). This includes the water court's determinations of questions of law in the April 1, 2008 Order regarding the 1999 Agreement. With respect to the water court's evidentiary rulings at trial, we review the decision to admit or deny evidence for abuse of discretion. See Water Rights of Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268, 273-74 (Colo.1985). Factual findings are binding on appeal "'unless they are so clearly erroneous as to find no support in the record." City of Black Hawk v. City of Central, 97 P.3d 951

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Bluebook (online)
235 P.3d 1061, 2010 Colo. LEXIS 463, 2010 WL 2564606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-englewood-v-burlington-ditch-reservoir-land-co-colo-2010.