Concerning Application for Water Rights of East Cherry Creek Valley Water v. Greeley Irrigation Co.

2015 CO 30, 348 P.3d 434, 2015 Colo. LEXIS 381, 2015 WL 2206550
CourtSupreme Court of Colorado
DecidedMay 11, 2015
DocketSupreme Court Case No. 14SA179
StatusPublished
Cited by5 cases

This text of 2015 CO 30 (Concerning Application for Water Rights of East Cherry Creek Valley Water v. Greeley Irrigation 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
Concerning Application for Water Rights of East Cherry Creek Valley Water v. Greeley Irrigation Co., 2015 CO 30, 348 P.3d 434, 2015 Colo. LEXIS 381, 2015 WL 2206550 (Colo. 2015).

Opinion

JUSTICE HOBBS

delivered the Opinion of the Court.

1 1 This appeal concerns a change of water right case filed by applicants East Cherry Creek Valley Water and Sanitation District and Colorado Water Network, Inc. (collectively "East Cherry Creek Valley"). East Cherry Creek Valley submitted an application for a change of water right involving shares it owns in the Greeley Irrigation Company ("GIC") for use in its water system. A prior change case, the Poudre Prairie [437]*437Decree1, employed a ditch-wide analysis for calculating the amount of historical consumptive use ascribable to each GIC share. Subsequent decrees involving a change of water right in connection with GIC shares have relied upon the ditch-wide historical consumptive use determination made in the Poudre Prairie Decree. In this case, East Cherry Creek Valley's application asserts its ability to use the same Poudre Prairie pro-rata allocation of consumptive use water to its shares as occurred for previously changed shares in the ditch system.

1 2 Accordingly, East Cherry Creek Valley filed a motion under C.R.C.P. 56(h) seeking three water court rulings: (1) that the earlier ditch-wide quantification in the Poudre Prairie Decree precluded requantification of East Cherry Creek Valley's water right after entry of that decree in 1998; (2) that East Cherry Creek Valley did not have the burden to establish claim preclusion through a showing of no changed cireumstances; and (8) that the court should not allow evidence at trial regarding changed cireumstances. The water court denied the motion.

T3 East Cherry Creek Valley then sought an order from the water court entering the denial of its Rule 56(h) motion as a final Judgment pursuant to C.R.C.P. 54(b). The State and Division Engineers ("the Engineers") opposed this motion. The water court granted East Cherry Creek Valley's 54(b) motion and certified its Rule 56(h) order as a final judgment. East Cherry Creek Valley presented three issues on appeal. . The Engineers cross-appealed with two issues and asked for dismissal of Cherry Creek Valley's appeal, arguing that the water ° court's order did not constitute a final judgment on any claim for relief in the underlying change case.2

14 We agree with the Engineers. We hold that this appeal is not properly before us under C.R.C.P. 54(b) because the trial court did not enter a final judgment on any claim for relief in this litigation. Here, East Cherry Creek Valley's application pleads one claim for relief: that the water court issue a change decree granting its change of water right application from irrigation use to domestic, municipal, augmentation, and exchange uses in connection with the 5.472 GIC shares it owns. Accordingly, we reverse the trial court's certification order, dismiss the appeal, and return this case for further proceedings consistent with this opinion.

I.

{5 On February 6, 2018, East Cherry Creck Valley filed an amended application with the water court for Division 1 seeking a change decree from the water court changing the place and type of use of in connection with 5.472 shares in the GIC, represented by Stock Certificate Nos. 3830 and 3370, for its water supply project. See First Amended Application for Change of Water Rights, O6CWA40, Weld County District Court, Water Division 1 (Feb. 6, 2018). Previously, the water court quantified and decreed the historical consumptive use yield of all 519.7 GIC shares in Case No. 96CW658 (the "Poudre Prairie Decree"). In that case, the water [438]*438court found that the years 1950 to 1979 constituted a representative historical period of time for purposes of determining the historical beneficial consumptive irrigation use made of GIC shares under their attendant adjudicated water rights' priorities. Using this representative period, the court determined the yield per GIC share to be 10.31 acre-feet annually. Entered June 15, 1998, the Poudre Prairie Decree recited that the ditch-wide quantification of GIC shares could be relied upon in future change of water right applications absent "a showing of subsequent events which were not addressed by this court herein and which are germane to the question of injury."

T6 Various water rights owners have since relied on the Poudre Prairie ditch-wide quantification in their change of water right applications, and the water court has allowed these applicants to predicate their applications on an amount of 10.31 acre-feet annually being available to each share.3 Contesting East Cherry Creek Valley's reliance on the ditch-wide quantification in this case, the Engineers raised the issue of changed cireum-stances since entry of the 1998 decree. East Cherry Creek Valley sought preclusion of that factor from litigation. Filed prior to any pre-trial deadlines, its C.R.C.P. 56(h) motion requested that the water court clarify whether the 1998 ditch-wide historical use quantification was entitled to preclusive effect and, if not, which party had the burden of proving changed circumstances.

{7 In its January 28, 2014 order, the water court ruled on East Cherry Creek Valley's motion for determination of questions of law. The order addressed the seope of reliance on previously decreed ditch-wide historical consumptive use determinations and which party bears the burden of proving changed civreum-stances in view of our decision in Williams v. Midway Ranches Property Owners Ass'n, 938 P.2d 515 (Colo.1997). The water court concluded that, "if subsequent events exist that were not previously addressed by the court and said events are germane to the issue of injury," then the historical consumptive use quantification from the Poudre Prairie Decree would be subject to requantification. Based on this conclusion, the water court limited the preclusive effect of the Pou-dre Prairie Decree to the period before entry of that decree on June 15, 1998. Additionally, the water court determined that East Cherry Creek Valley had the "initial burden of showing that no events have occurred since the Poudre Prairie decree was entered that would result in injury to other water users."

{8 Following entry of the order on the motion for determination of law, East Cherry Creek Valley moved for the certification of that order as final and appealable pursuant to Colorado Rule of Civil Procedure 54(b). The Engineers opposed certification of the order. After full briefing on the motion, the water court certified the Rule 56(h) order as final and appealable under Rule 54(b). In its certification order, the water court specifically cited the need for this court to clarify the seope of the preclusive effect of ditch-wide historical consumptive use quantifications and to resolve which party has the burden of proving changed cireumstances under Midway Ranches.

II.

T9 We hold that this appeal is not properly before us under C.R.C.P. 54(b) because the trial court did not enter a final judgment on any claim for relief in this litigation. Here, East Cherry Creek Valley's application pleads one claim for relief; that the water court issue a change decree granting its change of water right application from irrigation use to domestic, municipal, augmentation, and exchange uses in connection with the 5.472 GIC shares it owns.

A. C.R.C.P. 54(b) Jurisdiction

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2015 CO 30, 348 P.3d 434, 2015 Colo. LEXIS 381, 2015 WL 2206550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concerning-application-for-water-rights-of-east-cherry-creek-valley-water-colo-2015.