V Bar Ranch LLC v. Cotten

233 P.3d 1200, 2010 WL 2564608
CourtSupreme Court of Colorado
DecidedJune 21, 2010
DocketNo. 09SA191
StatusPublished
Cited by25 cases

This text of 233 P.3d 1200 (V Bar Ranch LLC v. Cotten) 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
V Bar Ranch LLC v. Cotten, 233 P.3d 1200, 2010 WL 2564608 (Colo. 2010).

Opinion

Justice MARTINEZ

delivered the Opinion of the Court.

I. Introduction

Plaintiff-Appellant V Bar Ranch LLC ("V Bar") has a decreed artesian confined-aquifer well that was originally drilled in 1946. At the time of drilling, the well was used to irrigate the Southwest Quarter of Section 3, Township 35 North, Range 9 East, N.M.P.M. ("Section 8"). In 1966, the predecessors in interest to V Bar (hereinafter referred to as "V Bar") began using the well to irrigate the Northwest Quarter of Section 8 in addition to the Southwest Quarter. In 1972, V Bar filed an application for adjudication of the well, and the well was decreed three years later and given an appropriation date of 1946. The decree was silent as to the location and number of acres that would be irrigated by the well. Water from the well was used to irrigate the Southwest and Northwest Quarters until the late-1970s. In 2005, a replacement well permit was issued which explicitly allowed irrigation of both Quarters. The next year, Defendant-Appellee George Gallegos filed a request with the State Engineer's office that V Bar's replacement well permit be revoked. Gallegos argued the State Engineer erred in issuing the replacement permit because it authorized V Bar to expand the use of the well which, when drilled, was only used to irrigate the Southwest Quarter of Section 8. The State Engineer agreed and modified the replacement permit to limit irrigation to the Southwest Quarter. On appeal, the water court affirmed.

We affirm the judgment of the water court and hold that the State Engineer has the authority to modify previously-issued well permits. Further, the scope of the water right at issue is defined by the beneficial use to which the water was put at the time of appropriation. Accordingly, the State Engineer did not err in modifying the replacement permit because, at the time of appropriation, only irrigation of the Southwest Quarter was contemplated. Finally, the doe-trine of equitable estoppel is inapplicable in this case.

II. Facts and Procedural History

In 1946, V Bar drilled a well on the Southwest Quarter of Section 3 ("Well No. 1"). At the time, state law did not require registration or permitting of wells. From 1946 through 1966, water from Well No. 1 was used to irrigate the Southwest Quarter of Section 3 exclusively. However, in 1966, V [1204]*1204Bar acquired the Northwest Quarter of Seetion 3 from the State of Colorado and began irrigating both the Southwest and Northwest Quarters with water from Well No. 1. In 1972, in accordance with newly enacted legislation, V Bar filed an application with the District Court for Water Division 3 ("water court") to adjudicate Well No 1. The application stated that Well No. 1 was located in the "Southwest 1/4 of the Southwest 1/4 of Section 3" with an appropriation date of May 1, 1946. The application did not set forth the location or number of acres to which the water would be applied, nor did it set forth a maximum volumetric limitation. Three years later, the water court entered a decree adjudicating the well and granting a 1946 appropriation date; however, as with the application, the decree did not set forth any acreage or volumetric limitations on the well.1

V Bar used Well No. 1 to irrigate both the Southwest and Northwest Quarters of Seetion 3 until 1978, when the well began pumping sand and reverted back to artesian flow. At some point around 1997, V Bar attempted to restore Well No. 1; however, when this proved unsuccessful, V Bar sought a permit for a replacement well. Upon review, in 2005, the State Engineer issued V Bar a replacement permit which allowed for the use of replacement water on both the Southwest and Northwest Quarters of Section 3. V Bar then drilled the replacement well and installed sprinkler systems on the Southwest and Northwest Quarters.

Thereafter, a neighboring landowner, Defendant-Appellee George Gallegos, filed a petition with the State Engineer's office seeking revocation of V Bar's replacement well permit. Gallegos asserted that the State Engineer erred in issuing the replacement permit because the permit authorized V Bar to increase its appropriation to the injury of other vested water rights in violation of seetion 37-90-187(1), C.R.S. (2009). Gallegos argued that V Bar unlawfully expanded the use of Well No. 1 when it acquired the Northwest Quarter of section 3 and began irrigating that parcel with water from the well without filing a permit application to increase or extend the water supply from the well as required by section 37-90-137(1).

After an adjudicatory hearing, a hearing officer issued an initial decision limiting use of the replacement well to irrigation of the Southwest Quarter of Section 3. The hearing officer found that, at the time of appropriation, Well No. 1 was used only to irrigate the Southwest Quarter of Section 8. The hearing officer additionally found that beginning in 1966, the use was expanded to include irrigation of both the Southwest and Northwest Quarters and that, at the time the application for Well No. 1 was filed and the decree issued, use was being made on both parcels. However, the hearing officer held that the operative date for purposes of determining the land on which well water could be used was 1946-the date of appropriation. Therefore, the hearing officer concluded that the State Engineer's issuance of the replacement well permit for irrigation on the Northwest and Southwest Quarters represented the allowance of an expansion of use that the State Engineer did not have jurisdiction to grant in the absence of a water court decree. The State Engineer affirmed the hearing officer's decision, and V Bar appealed the decision to the water court.

The water court affirmed the State Engineer, holding that, although V Bar was irrigating the Northwest Quarter with water from Well No. 1 at the time of application, the operative date for purposes of determining the acreage on which the water could be applied was 1946-the appropriation date granted by the decree. The water court also rejected V Bar's arguments that the State Engineer did not have jurisdiction to entertain Gallegos's petition seeking revocation of the replacement well permit and that the State Engineer should be equitably estopped from revoking the replacement well permit. V Bar raises the same issues on appeal. For the reasons discussed below, we affirm the order of the water court.

III. Analysis

A. Jurisdiction

Initially, we commence with a discussion of the State Engineer's jurisdiction to consider [1205]*1205petitions to revoke or modify previously-issued well permits and the proper procedure to follow when appealing a permitting decision of the State Engineer. V Bar argues the State Engineer is without authority to entertain revocation or modification petitions under the Colorado Administrative Procedures Act ("APA"), §§ 24-4-101 to -108, C.R.S. (2009), because such proceedings are "water matters" within the exelusive jurisdiction of the water courts. We conclude that, while petitions to revoke or modify well permits do constitute "water matters," the State Engineer is empowered to rule on such issues under the APA and certain provisions of the Water Rights Determination and Adjudication Act of 1969 ("1969 Act"), §§ 37-92-101 to -602, C.R.S. (2009).

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Bluebook (online)
233 P.3d 1200, 2010 WL 2564608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/v-bar-ranch-llc-v-cotten-colo-2010.