Wolfe v. Sedalia Water & Sanitation District

2015 CO 8, 343 P.3d 16, 2015 Colo. LEXIS 71, 2015 WL 525923
CourtSupreme Court of Colorado
DecidedFebruary 9, 2015
DocketSupreme Court Case No. 14SA12
StatusPublished
Cited by16 cases

This text of 2015 CO 8 (Wolfe v. Sedalia Water & Sanitation 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
Wolfe v. Sedalia Water & Sanitation District, 2015 CO 8, 343 P.3d 16, 2015 Colo. LEXIS 71, 2015 WL 525923 (Colo. 2015).

Opinion

JUSTICE HOBBS

delivered the Opinion of the Court.

T 1 This appeal concerns the historical beneficial consumptive use quantification of an 1872 irrigation right in a change of water right and augmentation plan proceeding involving water diverted from West Plum Creek in the South Platte River system, Water Division No. 1. Sedalia Water and Sanitation District ("Sedalia") is the current owner of a portion of that water right, which it acquired from Owens Brothers Concrete Company ("Owens Concrete"). The State and Division Engineers ("the Engineers") participated as parties in Owens Concrete's 1986 augmentation plan case. They also appear as parties in this case.

«[ 2 When the concrete company owned this portion of the originally decreed appropriation, it obtained a change of water right decree quantifying an annual average of 13 acre-feet of water available for use as augmentation plan credit for replacement of out-of-priority tributary groundwater depletions from a well. Having acquired the concrete company's interest in the 1872 priority, Seda-lia claimed a right to the same amount of historical consumptive use water for its well augmentation plan in this case. On competing motions for summary judgment, the water court ruled that the doctrine of issue preclusion prohibited the Engineers from re-litigating the quantification question, although the Engineers could raise the issue of abandonment at trial if they wished.

13 The issue the Engineers present for appeal concerns "a third successive change of the Ball Ditch water right" and whether its "average annual historical use last quantified by the second change decree" should be re-quantified in this proceeding to take into account "twenty-four years of subsequent nonuse." 1 In their briefs and at oral argument, the Engineers urge us to adopt a comprehensive rule that every change case triggers requantification of a water right. On the other hand, Sedalia asks us to adopt the polar opposite rule-that onee determined in a previous change case, the amount of historical beneficial consumptive use allocated to the original appropriation carries through every subsequent change case and cannot be relitigated.

We adopt no such cosmic rule. Instead, we address the case before us in light of applicable claim and issue preclusion water cases. We affirm the water court's judgment in part and reverse it in part. We hold that issue preclusion applies to prevent relitigation of the historical beneficial consumptive use quantification made in the 1986 Owens Concrete change of water right and augmentation decree, but this legal doctrine does not prevent a water court inquiry into the 24 years of post-1986 nonuse the Engineers allege. On remand from this decision and in finalizing Sedalia's decree, the water court should take any evidence and legal argument offered by the parties on the issue of the alleged post-1986 nonuse. If the water court finds there has been prolonged unjustified nonuse of the water right between entry of [20]*20the prior change decree and the pending decree application, it may conclude that this constitutes a changed cireumstance calling for the selection of a revised representative period of time for calculating the average annual consumptive use amount available for Sedalia's change of water right and augmentation decree.

J.

{4 On December 10, 1888, the Ball Ditch water right obtained a decree for a diversion rate of 3 cubic feet per second ("cfs") of water from West Plum Creek for irrigation with a priority date of April 19, 1872. Nearly a century later, on October 18, 1976, in Case No. W-2127, the District Court for Water Division No. 1 decreed Stephen Sump No. 1 as an alternate point of diversion for 0.4286 cfs of the 3 efs Ball Ditch water right.

T5 Later, Owens Brothers Concrete Company acquired an interest in 27.1% of the 0.4286 cfs of the Stephen Sump No. 1/Ball Ditch water right ("water right"). It filed an application in Case No. 88CW364 to change the right from irrigation use to augmentation plan use, to offset tributary groundwater de-pletions from a well it intended to operate in connection with its concrete plant. That change of water right proceeding involved quantification of historical beneficial consumptive use for the water right, as the water court had not previously adjudicated such a determination. The water court entered a stipulated decree in that case on December 3, 1986, wherein the Engineers participated as parties.2 The decree determined the amount of historical beneficial consumptive use under the 27.1% interest in the Stephen Sump No. 1/Ball Ditch 1872 water right priority; 8.1 acres of irrigated farmland yielded an average annual historical beneficial consumptive use of 13 acre-feet of water. The water court approved a change of water right for this amount as augmentation credit for use in the Owens Concrete augmentation plan.3 The decreed place of use changed from the historically irrigated farmland to Owens Concrete's well. Conditions of the decree to prevent material injury to other water rights included dry-up of the originally irrigated 8.1 acres of land. The court determined that Owens Concrete was entitled to claim the replacement water credits every year.4 No party appealed entry of the 838CW364 decree, and it became a final judgment.

16 Owens Concrete did not complete its intended well because a pumping test showed the capacity to withdraw tributary groundwater was less than anticipated at that location. The company left its 13 acre-feet of historical consumptive use water in the stream for 24 years pursuant to its augmentation plan, but never took credit for out-of-priority tributary groundwater depletions.

T 7 Sedalia, which provides water to municipal and industrial customers, purchased Owens Concrete's 27.1% interest in the Stephen Sump No. 1/Ball Ditch water right.5 For an additional source of supply for its approved Case No. 98CW182 augmentation plan, Seda-lia filed a change application in the case now before us, Case No. 10CW26L. As part of the application, Sedalia sought approval of the historical beneficial consumptive use credit amount previously decreed in Owens Concrete's augmentation plan, Case No. 838CW364, for its own augmentation plan.

T8 Sedalia and the Engineers settled all issues in the present case except whether the water court should requantify the annual average historical consumptive use amount of 13 acre-feet of water decreed to the original [21]*211872 priority in Case No. 83CW364.6 The parties filed a motion and cross-motion for summary judgment on this issue under C.R.C.P. 56. As a matter of law, the water court ruled that the Engineers could not relitigate the historical beneficial consumptive use amount determined in the Owens Concrete change case and, consequently, that amount would be fully available for purposes of Sedalia's change and augmentation plan. According to the water court, to hold otherwise would result in a de facto finding of abandonment of this part of the 1872 priority, depriving Sedalia of an opportunity to offer evidence rebutting the presumption of abandonment arising from a lengthy period of nonuse.7 Conversely, at trial the Engineers could raise the issue of whether Seda-lia had abandoned its interest in the water right obtained from Owens Concrete.

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Bluebook (online)
2015 CO 8, 343 P.3d 16, 2015 Colo. LEXIS 71, 2015 WL 525923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-sedalia-water-sanitation-district-colo-2015.