Farmers Water Development Co. v. Colorado Water Conservation Board

2015 CO 21, 346 P.3d 52, 2015 WL 1620214
CourtSupreme Court of Colorado
DecidedApril 6, 2015
DocketSupreme Court Case No. 13SA173
StatusPublished
Cited by4 cases

This text of 2015 CO 21 (Farmers Water Development Co. v. Colorado Water Conservation Board) 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
Farmers Water Development Co. v. Colorado Water Conservation Board, 2015 CO 21, 346 P.3d 52, 2015 WL 1620214 (Colo. 2015).

Opinion

JUSTICE EID

delivered the Opinion of the Court.

T1 The General Assembly has given the Colorado Water Conservation Board ("CWCB" or "Board") the "exclusive authority, on behalf of the people of the state of Colorado, to appropriate ... such waters of natural streams and lakes as the board determines may be required for minimum stream flows ... to preserve the natural environment to a reasonable degree." § 37-92-102(8), C.R.S. (2014) (emphasis added). «Pursuant to this authority, and after a notice and comment period as well as a hearing, the © CWCB voted to appropriate an instream flow right ("ISF") on the San Miguel River and to file a water application for water rights with the water court. As required by section 37-92-102(8)(c), C.R.S. (2014), the Board made three determinations regarding the San Miguel ISF appropriation: that the natural environment would be preserved to a reasonable degree by the water to be appropriated; that there was a natural environment that could be preserved with the CWCB's water right; and that such environment could exist without material injury to water rights. Farmers Water Development Company ("Farmers") opposed the proposed San Miguel ISF during the notice and comment process, but did not attend the hearing.

T 2 The CWCB then filed an application for water rights for the San Miguel ISF in District Court, Water Division 4, which Farmers opposed. On cross-motions for determination of a question of law under C.R.C.P. 56(h), the water court was asked to determine whether the CWCB's decision to appropriate an ISF is quasi-legislative or quasi-judicial in nature. Farmers argued that the decision was quasi-judicial, and that therefore the procedures followed by the CWCB did not meet the dictates of procedural due process. The water court disagreed, concluding that the CWCB was acting in a quasi-legislative capacity when it decided to appropriate the San Miguel ISF because, among other things, it was not adjudicating individual rights.

13 We now affirm the water court's order, and hold that when the CWCB decides to make an ISF appropriation, it acts in a quasi-legislative capacity. In determining whether a decision is quasi-legislative or quasi-judicial in nature, the "predominant consideration" is "the nature of the decision rendered by the governmental body." Cherry Hills Resort Dev. Co. v. City of Cherry Hills Vill., 757 P.2d 622, 627 (Colo.1988). In this case, we conclude that the CWCB's ISF appropriation is quasi-legislative because it is a policy decision to "preserve the natural environment" "on behalf of the people of the state of Colorado," § 37-92-1028), as opposed to an adjudication of the rights of any specific party, as is the case with quasi-judicial determinations. Accordingly, we af firm the decision of the water court.

1.

T4 The San Miguel River runs some seventy miles in southwestern Colorado from the San Juan Mountains near Telluride to its confluence with the Dolores River. In 2008, the U.S. Bureau of Land Management and the Colorado Division of Wildlife recommended that the CWCB seek an ISF appropriation in a seventeen-mile reach of the San Miguel River. These entities recommended the appropriation to preserve habitat for three "sensitive" fish species (flannelmouth sucker, bluehead sucker, and roundtail chub) and to preserve habitat for "globally imperiled riparian communities" within the reach. The CWCB provided public notice of this recommendation nine times between March 2008 and November 2010. The CWCB also held public meetings to discuss the recom[55]*55mendation in various San Miguel River Basin communities. Based on stakeholder requests, the CWCB postponed any decision regarding a San Miguel ISF until January 2011 to allow water users in the basin to adjudicate water rights for future needs. Farmers did not file for water rights during this postponement period.

15 The CWCB declared its intent to appropriate the San Miguel ISF at its January 2011 Board Meeting, provided email notice to the Water Division 4 instream flow subscription mailing list in February 2011, and announced such notice in its March 2011 Board Meeting agenda. The CWCB then set a hearing on the proposed appropriation in September 2011, assigned a hearing officer to manage the proceedings, and invited interested parties to submit comments, opinions, technical reports, and legal analyses. Farmers submitted a notice to contest the proposed instream flow on March 30, 2011. Farmers then filed a prehearing statement which included an alternative proposal, a technical analysis of the CWCB's contemplated appropriation, and a rebuttal statement with legal and factual arguments against the appropriation. However, Farmers did not participate in the September 2011 hearing.

I 6 At the close of the hearing, the CWCB voted to make the San Miguel ISF appropriation and file a water rights application with the water court. It also made the following three determinations regarding the appropriation, as required by section 37-92-102@8)(c):

the natural environment will be preserved to a reasonable degree by the water available for the appropriation to be made; that there is a natural environment that can be preserved to a reasonable degree with [(the CWCB's] water right herein, if granted; and that such environment can exist without material injury to water rights.

17 The CWCB filed its water court application in Water Division 4 in October 2011 and published notice in the Montrose Daily Press in November 2011. Farmers filed a statement of opposition, 'which it - later amended to include counterclaims challenging the constitutionality of the CWCB's ISF process. Farmers did not challenge the CWCB's three determinations. The CWCB filed a C.R.C.P. 56(h) motion for determination of a question of law on whether the Board's decision to make an ISF appropriation is quasi-legislative in nature. Farmers filed a response and its own C.R.C.P. 56(h) and summary judgment motions and counterclaims, arguing that because the CWCB's ISF determination is quasi-judicial in nature, its procedures were deficient under due process standards.

8 The water court found in the CWCB's favor, concluding that "the relevant factors weigh in favor of categorizing an ISF appropriation as a quasi-legislative proceeding" be'cause it is "not designed to determine the rights and duties of specific individuals, but [is] designed to enact a legislative policy of preserving instream flows in order to protect the environment." After the water court issued its order, Farmers stipulated to the entry of a decree, reserving the right to appeal the water court's judgement to this court.1

T9 Taking guidance from our Cherry Hills decision, we focus on the nature of the CWCB's decision to make an ISF appropriation. 757 P.2d at 627. In this case, we conclude that the CWCB's decision is quasi-legislative because it is a policy decision to "preserve the natural environment" "on be[56]*56half of the people of the state of Colorado," § 37-92-102(8), as opposed to an adjudication of the rights of any specific party, as is the case with quasi-judicial determinations. Accordingly, we affirm the decision of the water court.

IL.

A.

1 10 Section 87-92-102(8) vests the CWCB with the exclusive authority to appropriate minimum instream flow water rights:

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Bluebook (online)
2015 CO 21, 346 P.3d 52, 2015 WL 1620214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-water-development-co-v-colorado-water-conservation-board-colo-2015.