North Kiowa-Bijou Management District v. Ground Water Commission

505 P.2d 377, 180 Colo. 313, 1973 Colo. LEXIS 847
CourtSupreme Court of Colorado
DecidedJanuary 22, 1973
Docket25088
StatusPublished
Cited by14 cases

This text of 505 P.2d 377 (North Kiowa-Bijou Management District v. Ground Water Commission) 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
North Kiowa-Bijou Management District v. Ground Water Commission, 505 P.2d 377, 180 Colo. 313, 1973 Colo. LEXIS 847 (Colo. 1973).

Opinions

MR. CHIEF JUSTICE PRINGLE

delivered the opinion of the Court.

Winton Jackson entered into a contract to acquire certain lands in Adams County situated within the boundaries of the North Kiowa-Bijou Management District (hereinafter referred to as District), and formed pursuant to the Colorado Ground Water Management Act, 1965 Perm. Supp., C.R.S. 1963, 148-18-1 et seq. Jackson proposed to export ground water from irrigation wells on this land to users in the Denver Metropolitan area, outside of the designated ground water basin and outside of the District. Jackson filed with the [316]*316District a request for permission to export the water, the amount of water to be limited to the amount Jackson was entitled to consumptively use under the laws of appropriation. A hearing was held before the Board of Directors of the District on May 7, 1969, and the Board entered an order denying Jackson the right to export any water outside the boundaries of the District.

Jackson filed an objection to this decision with the Ground Water Commission (hereinafter referred to as the Commission). The District subsequently filed a motion with the Commission to dismiss the objection on the ground that the Commission had no jurisdiction to entertain the objection. Following oral argument on this issue, the Commission held that it had jurisdiction and ordered a de novo hearing on Jackson’s right to export water. Prior to this proposed hearing, on November 28, 1969, the District obtained an order in certiorari from the Morgan County District Court ordering the Commission to certify its record to the District Court and staying further proceedings before the Commission. Following a denial of a writ of prohibition by this Court regarding this action, Jackson was allowed to intervene in the District Court action between the District and the Commission. The Morgan County District Court found that the Commission did not have jurisdiction to review the District’s findings; the court permanently stayed further proceedings by the Commission in the matter. Subsequent to the District Court’s denial of a motion to amend the court’s order, Jackson timely filed an appeal to the Colorado Court of Appeals. Due to the nature of the alleged constitutional right to export water raised by Jackson, the appeal was transferred to the Colorado Supreme Court.

The Commission itself advises us in its brief that it now agrees with the holding of the trial court and states that it now admits it was in error in attempting to take jurisdiction of Jackson’s appeal from the order of the District.

Jackson, however, persists in his position and contends here that (1) at the time of this action, the Commission had jurisdiction to review the District’s order denying him the [317]*317right to export water; (2) Jackson’s right to export water beyond the boundaries of the District is constitutionally protected; (3) the Adams County District Court was the proper forum for appeal in certiorari rather than the Morgan County District Court, and (4) the question of jurisdiction should be determined with respect to the provisions of the Colorado Ground Water Management Act and not the Colorado Administrative Code, C.R.S. 1963, 3-16-1 et seq. We affirm the judgment of the trial court.

I.

As a threshold matter, we first consider Jackson’s last contention, namely, that the jurisdictional question should be determined with reference to the Colorado Ground Water Management Act rather than the provisions of the Administrative Code. We agree. As specifically provided in 1969 Perm. Supp., C.R.S. 1963, 3-16-6, of the Administrative Code, and as acknowledged by both the Management District and the Water Commission in their briefs, the Code has no applicability where a specific statutory provision relating to a specific agency provides a scheme for the administrative control of that agency. Such is the situation with the Ground Water Management Act (hereinafter referred to as “the Act”), which contains a comprehensive scheme for administering the provisions of that article.

II.

We move then to an examination of the provisions of the Act and the facts applicable here in order to determine the proper forum for the appeal from the District’s order in this case.

In 1965, the Colorado legislature passed the Act in an attempt to permit the full development of ground water sources and alleviate the growing friction between surface water appropriators and well owners. 1965 Perm. Supp., C.R.S. 1963, 148-18-1. The Act separates certain water which it terms as “designated ground water” from the system of appropriation for surface water systems, and it creates a permit system for the allocation and use of ground waters within designated ground water basins. 1965 Perm. Supp., [318]*318C.R.S. 1963, 148-18-1 to 148-18-38. Appropriators of the designated ground waters are required to obtain a permit for their appropriations and the Act establishes a system of prior appropriation, similar in operation to the system regulating surface water rights, to regulate the water rights of the ground water users. 1965 Perm. Supp., C.R.S. 1963, 148-18-6 to 148-18-8.

By the terms of the Act, its administration and enforcement are placed in the Ground Water Commission, the State Engineer, and locally formed ground water management districts. As provided by the Act, the Ground Water Commission, composed of twelve voting members, possesses the authority to create “designated ground water basins.” 1965 Perm. Supp., C.R.S. 1963, 148-18-5. Once a basin is so designated, the Act gives taxpaying electors in the designated area the right to create ground water management districts within the basin. Any district thus formed, if approved by the Commission, is a governmental subdivision of the State of Colorado, and a corporate body with the powers of a public or quasi-municipal corporation. 1965 Perm. Supp., C.R.S. 1963, 148-18-17. The Act further provides that the District, along with its powers to enforce Commission regulations, has general authority to regulate the use, control and conservation of ground waters within the district. To accomplish these purposes, the district board of directors has the power to impose upon water users within the district certain rules and regulations, subject to the approval of the Commission if timely objection is filed to such a rule by a water user within the district; among others, the district possesses the power to promulgate regulations relating to the limitation upon exportation of ground waters outside of the district, where such use “materially affects the rights acquired by permit by any owner or operator of land within said district.” 1965 Perm. Supp., C.R.S. 1963, 148-18-29(2)(g).

In 1966, the Kiowa-Bijou Creek drainage was determined by the Commission to be a “designated ground water basin.” The taxpaying electors within the basin subsequently created the North Kiowa-Bijou Management District which was [319]*319approved by the Commission. In pursuance of its general regulatory powers, the District adopted several regulations, one of which stated:

“11. The District shall prohibit, after affording an opportunity for hearing before the Board of the District and presentation of evidence, the use of ground water outside of the boundaries of the District, where such use materially affects the rights acquired by permit by any owner or operator of land within the District.”

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North Kiowa-Bijou Management District v. Ground Water Commission
505 P.2d 377 (Supreme Court of Colorado, 1973)

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Bluebook (online)
505 P.2d 377, 180 Colo. 313, 1973 Colo. LEXIS 847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-kiowa-bijou-management-district-v-ground-water-commission-colo-1973.