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_______________________________________________________________________________
Plaintiffs-Appellants,
v.
Colorado Ground Water Commission and Upper Black Squirrel Creek Ground
Water Management District,
Defendants-Appellees.
_______________________________________________________________________________
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE DAILEY
Taubman and Booras, JJ., concur
Felt Monson & Culichia, L.L.C., James W. Culichia, David M. Shohet, Colorado
Springs, Colorado, for Plaintiff-Appellant Cherokee Metropolitan District
Trout, Raley, Montano, Witwer & Freeman, P.C., Peter D. Nichols, Lisa M.
Thompson, Robert V. Trout, Denver, Colorado, for Defendant-Appellee Upper
Black Squirrel Creek Ground Water Management District
William H. Louis, County Attorney, M. Cole Emmons, Assistant County
Attorney, Colorado Springs, Colorado, for Amicus Curiae Board of County
Commissioners of El Paso County, Colorado
Lind, Lawrence & Ottenhoff, L.L.P., P. Andrew Jones, Windsor, Colorado, for
Amicus Curiae Lost Creek Ground Water Management District
Vranesh & Raisch, L.L.P., Michael D. Shimmin, Boulder, Colorado, for Amici
Curiae Marks Butte, Frenchman, Sand Hills, Central Yuma, W-Y, and Plains
Ground Water Management Districts
Plaintiffs, Meridian Ranch Metropolitan District, Meridian
wells. We affirm.
I. Background
1
As pertinent here, the Metro Districts’ wells are operated
wells.
commercial businesses.
On the first occasion, the hearing officer held that the Management
2
Commission overturned the hearing officer’s determinations and
3
of water to be withdrawn from a well, beyond
that allowed by the Commission.
4
II. Jurisdiction
raise and resolve sua sponte. Archuleta v. Gomez, 140 P.3d 281,
2009. But it does not have jurisdiction over “[w]ater cases involving
2
See, e.g., Colorado Ground Water Comm’n v. North Kiowa-Bijou
Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003); Upper Black
Squirrel Creek Ground Water Mgmt. Dist. v. Goss, 993 P.2d 1177
(Colo. 2000).
5
This is, without doubt, a “water case.” But it does not involve
question of an “adjudication.”
AviComm, Inc. v. Pub. Utils. Comm'n, 955 P.2d 1023, 1030 (Colo.
1998)); see also Archuleta, 140 P.3d at 284 (“A water court's
Colorado Ground Water Comm'n v. Eagle Peak Farms, Ltd., 919 P.2d
6
the application of the policy to any specific person,” it is legislative,
___ P.3d ___ (Colo. No. 08SA312, Oct. 19, 2009), the supreme court
state engineer. The supreme court concluded that the water court’s
supreme court noted, under the 1969 Act: (1) the state engineer
Procedure Act (‘CAPA’),” id. at ___; (2) the water court proceeding
7
___; (3) “section 37-92-501(3)(a) explicitly states that a party
proposed to the water court and litigated through the use of witness
___.
districts may not adopt rules without first conducting, upon proper
8
Because the rulemaking process here is closely akin to that
court and involving water law issues); Eagle Peak Farms, Ltd. v. Lost
Creek Ground Water Mgmt. Dist., 7 P.3d 1006, 1008 (Colo. App.
specifically, the Metro Districts assert that under the Ground Water
9
enact rules that effect changes to the amount of water allowed to be
and the district court erred in upholding the Disputed Rules. For
novo review by this court. See Ferrel v. Colo. Dep’t of Corr., 179
Trappers Lake Lodge & Resort, LLC v. Colo. Dep’t of Revenue, 179
look first to the words of the statute. Asphalt Specialties, Co., Inc. v.
City of Commerce City, ___ P.3d ___, ___ (Colo. App. No. 08CA2120,
Sept. 3, 2009).
10
We read the statute as a whole “to give ‘consistent,
109 P.3d 585, 593 (Colo. 2005) (quoting Bd. of County Comm’rs v.
intent. Heinicke v. Indus. Claims Appeals Office, 197 P.3d 220, 222
Commission, 180 Colo. 313, 505 P.2d 377 (1973), the supreme
Act:
11
regulate the water rights of the ground water
users.
12
a final determination of the amount of ground water so determined
resources:
3
“Final permits issued by the Commission . . . serve a function
analogous to that of absolute decrees issued by the Water Court.”
Veronica A. Sperling and David M. Brown, Outline of Colorado
Ground Water Law, 1 U. Denv. Water L. Rev. 275, 283 (1998); see
North Kiowa-Bijou, 77 P.3d at 75-76 (citing Sperling and Brown’s
article for the nearly identical proposition).
13
recharge creating what is called a mining
condition. Unless the rate of pumping is
regulated, mining must ultimately result in
lowering the water balance below the level from
which water may be economically withdrawn.
Due to the slow rate at which underground
waters flow through and into the aquifer, it
may be many years before a reasonable water
level may be restored to a mined aquifer.
496, 468 P.2d 835, 839 (1970); see also Upper Black Squirrel Creek
Ground Water Mgmt. Dist. v. Goss, 993 P.2d 1177, 1183 (Colo. 2000)
Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 370-71 (Colo. 1982)
14
designated ground water to insure that no more than a reasonable
aquifer.”).
historic water level, or any other level below which water still can be
levels.”).
15
111(1)(g), C.R.S. 2009 (Commission empowered to approve changes
The issues presented by this case are (1) whether there are
4
The text of section 37-90-111(1)(g) suggests that, in most
instances, requested changes to a permit will involve requests to
increase, not decrease, the volume of groundwater appropriation.
16
article shall be construed as entitling any prior
designated ground water appropriator to the
maintenance of the historic water level or any
other level below which water still can be
economically extracted when the total
economic pattern of the particular designated
ground water basin is considered . . . .
....
....
(Emphases added.)
17
Indeed, by virtue of the emphasized language in section 37-90-
district in general.”
added.)
18
Section 37-90-130(2) provides, in pertinent part:
...
19
water and the practicability of recharge of the
ground water aquifer; and to publish such
plans and information and bring them to the
notice and attention of the users of such
ground water within the district and to
encourage their adoption and execution;
...
...
...
20
means of rule or regulation. See § 37-90-130(2)(a) (management
waters of the district as, without the existence of the district, would
orders) which was specifically set forth only in the statute detailing
21
There is one caveat to a management district’s ability to
130(2)(a). 5
to validate them.
22
generally Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490,
495- 96 (Colo. App. 2008) (noting the three ways in which a state
not develop any argument with respect to this point in their briefs,
see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)
23
V. Due Process
Rules impair vested water use rights in violation of the federal and
Commission.
24
plenary authority over the administration and allocation of
district court erred in upholding the Disputed Rules; the other two
court’s order.
2009.
25
Initially, we question whether section 24-4-106 is a proper
basis for an attorney fee award: judicial review was sought here not
and 37-90-131(1)(b)).
by the parties and amici curiae, we cannot conclude that the appeal
26