High Plains A & M, LLC v. Southeastern Colorado Water Conservancy District

120 P.3d 710, 2005 Colo. LEXIS 831, 2005 WL 2203149
CourtSupreme Court of Colorado
DecidedSeptember 12, 2005
DocketNos. 04SA266, 04SA267
StatusPublished
Cited by25 cases

This text of 120 P.3d 710 (High Plains A & M, LLC v. Southeastern Colorado Water Conservancy District) 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
High Plains A & M, LLC v. Southeastern Colorado Water Conservancy District, 120 P.3d 710, 2005 Colo. LEXIS 831, 2005 WL 2203149 (Colo. 2005).

Opinion

HOBBS, Justice.

Applicants High Plains A & M, LLC and Wollert Enterprises, Inc. (collectively, "High Plains") appeal the water court's dismissal of their applications for change of water rights. High Plains applied to change water rights historically used for irrigation to any one of over fifty proposed uses in any of twenty-eight Colorado counties. The water court found the change application "so expansive and nebulous" that there was no way to determine whether vested water rights would be injured by the change or to determine if there would actually be a new beneficial use made of the water. The court found that the proposed changes were "such a deviation from the original right" that they effectively requested a new water right. As such, the court found that the applications violated Colorado's anti-speculation doctrine, and granted the objectors' motion for summary judgment.

The water court decision and the briefs and arguments of the parties focused on the application of the anti-speculation doctrine to change applications. Reviewing our cases and the applicable statutes, we determine that the anti-speculation doctrine is rooted in the requirement that an appropriation of Colorado's water resource must be for an actual beneficial use.

We hold that, in defining "[clhange of water right" to include "a change in the type, place, or time of use" and "a change in the point of diversion" in section 37-92-103(5), C.R.S. (2005)(emphasis added), and in defining "appropriation" in section 37-92-1088)(a)(I) and (II), Colorado's Water Right Determination and Administration Act ("the 1969 Act") anticipates, as a basic predicate of an application for a decree changing the type and place of use, that the applicant will sufficiently demonstrate an actual beneficial use to be made at an identified location or locations under the change decree, if issued.

Accordingly, we affirm the water court's judgment dismissing High Plaing's change of water right applications, without prejudice to re-filing when a definite location or locations for beneficial use of the water can be identified in the applications and confirmed in the water court's proceedings.

I.

The Fort Lyon Canal Company (FLCC), a mutual ditch company in southeastern Colorado since 1897, operates an extensive system of canals and reservoirs with decreed Arkansas River direct flow and storage water rights for the benefit of its shareholders. FLCC's canals total approximately 150 miles irrigating nearly 98,000 acres of agricultural land located between La Junta and Lamar; aside from the Fort Lyon Canal, the longest in Colorado, the company has also developed an extensive reservoir system.1 FLCC is the largest ditch company in the Arkansas River Basin, with 98,989.41 outstanding shares.

High Plains is a private water investment company. It has purchased approximately 115 farms served by the Fort Lyon system, along with 20,000 FLCC shares. High [715]*715Plains also owns options to purchase over 8,000 additional shares, for a total ownership and control of almost 29,000 shares, or approximately thirty percent of all the outstanding FLCC shares.

On December 31, 2002 and March 28, 2008, High Plains filed two essentially identical change applications for different blocks of shares it has acquired. An independent shareholders group ("ISG") filed a third, virtually identical application. ISG consists of forty-five ranchers and farmers holding almost ten percent of FLCC shares. The water court consolidated the three applications. We address the ISG application in the companion case announced today, ISG, LLC v. Arkansas Valley Ditch Assoc., No. 04SA268, 120 P.3d 724, 2005 WL 22082834 (Colo. Sept.12, 2005).

The FLCC water rights sought to be changed have priority dates ranging from 1884 to 1969. The decreed points of diversion and storage include several reservoirs, supply ditches, and pipelines along the eastern stretches of the Arkansas River and its tributaries: the Fort Lyon Canal, the Fort Lyon Storage Canal, Horse Creek Reservoir, Horse Creek Supply Ditch, Adobe Creek Reservoir, Adobe Creek Supply Ditch, Thur-ston Reservoir, Thurston Pipeline, Pueblo Reservoir, John Martin Reservoir, and Queen Reservoir.

The applications propose several new points of diversion, including at headgates on the Holbrook and Colorado canals and "one or more alternate points of diversion" along the Arkansas River between its confluences with Adobe Creek and the Purgatoire River. The applications propose that water diverted at these new points may be stored in Hol-brook, Dye, Lake Meredith, Lake Henry, and Pueblo Reservoirs. The applications do not identify structures owned or slated for construction by High Plains that would transport the water from these diversion and storage points to particular new places of use.

The applications propose to change the place of use to any of twenty-eight counties where the water might be used:

[in addition to lands currently under the Fort Lyon Canal, the subject water rights, both for the previously decreed uses and for the proposed new uses, may be used on any lands that can be served by the subject water rights from the existing and decreed points of diversion and/or places of storage and/or from the proposed alternate points of diversion and/or places of storage listed hereinabove within the following Colorado counties ...: Otero, Bent, Prowers, Pueblo, Crowley, Kiowa, Custer, Fremont, Chaffee, Park, Teller, El Paso, Lincoln, Elbert, Douglas, Jefferson, Lake, Clear Creek, Gilpin, Denver, Arapahoe, Adams, Washington, Boulder, Broomfield, Larimer, Weld, and Morgan.

The change applications list an array of changed uses High Plains wants decreed:

[flrom irrigation and other presently decreed uses to: all beneficial uses, including but not limited to irrigation, municipal, domestic and household purposes, drinking, cooking, cleaning, showers, toilets, irrigation of yards, lawns, shrubbery, trees, pools, fountains, and landscapes, watering domestic animals; mechanical, manufacturing, and industrial, military, and governmental purposes; bottled water; generation of electric power and power generally; fire suppression and protection; sewage treatment; street sprinkling; irrigation of parks, grounds, golf courses, and open spaces; recreation, golf course hazards, ponds, fishing, and fish propagation; agricultural uses, livestock watering and aquiculture; land and reservoir evaporation; - maintenance, - preservation and conservation of wildlife, wildlife habitat, wildlife propagation, and wetlands; creating, maintaining and - enhancing aesthetic values; in-stream flow; erosion control, siltation control, and flood control; maintaining storage reserves; adjustment and regulation; augmentation; replacement; groundwater - recharge; exchange....

The applications state that "[alfter the change, the subject water rights will still be able to be utilized for agricultural and irrigation purposes ... on lands under the Fort Lyon Canal."

[716]*716The applications seek a decree for one-hundred percent consumptive use of the water derived from exercise of the changed water rights:

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Bluebook (online)
120 P.3d 710, 2005 Colo. LEXIS 831, 2005 WL 2203149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/high-plains-a-m-llc-v-southeastern-colorado-water-conservancy-district-colo-2005.