Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

American Water Development, Inc. v. City of Alamosa

Supreme Court of Colorado

May 9, 1994

AMERICAN WATER DEVELOPMENT, INC., a Colorado corporation, Applicant-Appellant,
v.
CITY OF ALAMOSA; County of Alamosa; Alexander Ranch; Darell Keith Alexander; Richard Angell; Baca Grande Water & Sanitation District; Fred Bauder; Harold L. Bennett; Richard Blumenhein; Bonanza Road Water Users, Owners and Objectors; Lena C. Chiles; Floyd D. Chiles; Terry R. Chiles; Cyril Clayton; Dave Collins; David P. Collins; Barbara J. Collins; Colorado Division of Wildlife; Colorado Water Conservation Board; Columbine Telephone Company; Conejos Water Conservancy District; Concerned Citizens of Crestone, Colorado and Vicinity; Richard E. Conour; Elizabeth A. Conour; Cotton Creek Ranch; Town of Crestone; Fred J. Davie; Douglas M. Davie; Michael R. Dennet; Tom Enos; Dennis L. Felmlee; Oliver Powell Roemer, III, Successor Trustee Under the Trusts Under the Will of Avis Neal Roemer; First Pegasus Corporation; Freel Ranch; Eugene W. Freel; Beverly Freel; Harold L. Freel; Terry Lee Freel; Fullenwider Ranch, Inc.; Ernest Lamar Goodwin; Haidakhandi Universal Ashram; Ernest T. Harer; Grace Harer; Richard W. Hanby; Pamyla Hill; D. Robin Hood; Town of Hooper; J. Richard Johnston; Mary A. Johnston; L.D. Ranch; Town of LaJara; Henry R. Lamm; Mable A. Lamm; John N. Lawrence; KSD, Ltd.; Lazy KV Estates Homeowners Association, Inc.; Timothy N. Lovato; Lori S. Lovato; Marold Ranches; R.G. Marold; Barbara Mertian; A & M Farms; Pamela Bertin; Phillip Briscoe; Debra Briscoe; Eddie Clayton; Wayne C. Davis; Maggi Dessain; Margarita Diaz; Melvin E. Getz; Julie Goodnight; Greg Gosar; Margaret N. Herzfield; Maggie Houston-Smith; Pamela L. Lunt; Phil Martinez; Messick Farms; Richard A. Messick; Douglas G. Messick; Richard L. Messick; Sandra J. Murray; Curtis W. Nelson; Anne Silver Philleo; Robert S. Philleo; Marlene L. Pruitt; Robert A. Ress; Toni G. Romero; Marianne Sandstrom; Robert W. Simpson; W.E. Sisemote; C. Kimberly Snider; Francis E. Snider; M. Catherine Snider; Shella Snider; Katherine Steichen; Harvey V. Sullivan; Liz Washburn; John R. Wright; George Whitten, Jr.; Donald E. Whitten; Karen Whitten; Betty L. Worley; Town of Moffat; Town of Monte Vista; Jimmy R. Moore; Mary Moore; Morfitt Brothers Farm, Inc.; Darrel Neese; Harold Neese; Gayle A. Nichols; Edward R. Oliver; Otaka International; Robert A. Owens; Edwin Pace; Howard R. Platz; Rio Grande County Commissioners; Rio Grande County Farm Bureau; Rio Grande Water Conservation District; Rio Grande Water Users Association; Rito Alto and San Luis Ranches, Inc.; Rito Alto Ranch, Inc.; Rito Alto Ranchers; Arthur L. Rivale; Ileen J. Rivale; Rocky Mountain Bison, Inc.; Thomas C. Sanderson; County of Saguache; Town of Saguache; San Luis Valley Irrigation Well Owners, Inc.; San Luis Valley Water Conservancy District; Loren R. Santisteven; Julie A. Santisteven; Neil F. Seitz; Valley View Hot Springs; Martin T. Shellabarger; Patricia Shellabarger; Kenneth L. Skoglund; Mary F. Skoglund; Spiritual Life Institute of America, Inc.; David G. Stagner; Jeris A. Danielson, State Engineer; Steven E. Vandiver, Division Engineer; Travelers Insurance Company; Thomas F. Trim; Annabelle R. Trim; United States of America; Villa Grove Area Water Users, Owners and Opposers; Wagner Ranch, Ltd.; John H. Wagner; Weiss Ranches, Inc.; A.L. Wood; John M. Woodard; Erwin Young; Lynne Young, Objectors-Appellees. AMERICAN WATER DEVELOPMENT, INC., a Colorado corporation, Applicant-Petitioner,
v.
RIO GRANDE WATER CONSERVATION DISTRICT; San Luis Valley Irrigation Well Owners, Inc.; The City of Alamosa; The Town of Monte Vista; The Town of LaJara; The Town of Crestone; Saguache County; Alamosa County; Rio Grande County; Rio Grande Water Users Association; San Luis Valley Water Conservancy District; United States of America; State of Colorado; Colorado Division of Wildlife; Colorado Water Conservation Board; Jeris A. Danielson, State Engineer; Steven E. Vandiver, Division Engineer; Conejos Water Conservancy District; Oasis Land & Cattle Corp.; Oliver Powell Roemer, III, Successor Trustee Under the Trusts Under the Will of Avis Neal Roemer; Howard Platz; and Gayle Nichols, Objectors-Respondents.

Rehearing Denied June 6, 1994.

Page 355

Faegre & Benson, Joseph M. Montano, Diane B. Davies, Harlan S. Abrahams, Grimshaw & Harring, P.C., Wayne B. Schroeder, Denver, for American Water Development, Inc.

Carlson, Hammond & Paddock, John U. Carlson, William A. Paddock, Melanie Kopperud Backes, Denver, for Rio Grande Water Users Ass'n and San Luis Valley Water Conservancy Dist.

Hill & Robbins, P.C., David W. Robbins, Robert F. Hill, Karen A. Tomb, Anne K. LaPorta, Denver, for Rio Grande Water Conservation Dist., San Luis Valley Water Conservancy Dist., San Luis Valley Irr. Well

Page 356

Owners, Inc., City of Alamosa, Town of Monte Vista, Town of LaJara, Town of Crestone, County of Saguache, Alamosa County, Rio Grande County, and Rio Grande County Com'rs.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Patricia S. Bangert, Deputy Atty. Gen., Jennifer L. Gimbel, First Asst. Atty. Gen., Christine A. Klein, Bradley W. Cameron, Thomas W. Gibb, Asst. Attys. Gen., Natural Resources Section, Denver, for State of CO, CO Div. of Wildlife, CO Water Conservation Bd., and State and Div. Engineers for Water Div. 3.

Bruce McMillen, Saguache, for Richard Blumenhein, Bonanza Road Water Users, Owners and Objectors, David P. Collins, Barbara J. Collins, Ernest Lamar Goodwin, Lazy KV Estates Homeowners Ass'n, Inc., Marold Ranches, R.G. Marold, Loren Santisteven, Julie Santisteven, and Villa Grove Area Water Users, Owners and Opposers.

Janet Reno, U.S. Atty. Gen., Robert L. Klarquist, Atty., Appellate Section, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, Michael J. Norton, U.S. Atty., James J. Dubois, Atty., General Litigation Section, U.S. Dept. of Justice, Environment and Natural Resources Div., Denver, for U.S.

Fred Bauder, pro se.

Moses, Wittemyer, Harrison and Woodruff, P.C., David L. Harrison, Raphael J. Moses, Steven P. Jeffers, Boulder, for Conejos Water Conservancy Dist., Oliver Powell Roemer, III, Successor Trustee under the trusts under the will of Avis Neal Roemer, and Howard R. Platz, Oasis Land and Cattle Corp.

No appearance for objectors-appellees Alexander Ranch, Darell Keith Alexander, Richard Angell, Baca Grande Water & Sanitation Dist., Harold L. Bennett, Lena C. Chiles, Floyd D. Chiles, Terry R. Chiles, Cyril Clayton, Dave Collins, Columbine Telephone Co., Concerned Citizens of Crestone, CO and Vicinity, Richard E. Conour, Elizabeth A. Conour, Cotton Creek Ranch, Fred J. Davie, Douglas M. Davie, Michael R. Dennet, Tom Enos, Dennis L. Felmlee, First Pegasus Corp., Freel Ranch, Eugene W. Freel, Beverly Freel, Harold L. Freel, Terry Lee Freel, Fullenwider Ranch, Inc., Haidakhandi Universal Ashram, Ernest T. Harer, Grace Harer, Richard W. Hanby, Pamyla Hill, D. Robin Hood, Town of Hooper, J. Richard Johnston, Mary A. Johnston, L.D. Ranch, Henry R. Lamm, Mable A. Lamm, John N. Lawrence, KSD, Ltd., Timothy N. Lovato, Lori S. Lovato, Barbara Mertian, A & M Farms, Pamela Bertin, Phillip Briscoe, Debra Briscoe, Eddie Clayton, Wayne C. Davis, Maggi Dessain, Margarita Diaz, Melvin E. Getz, Julie Goodnight, Greg Gosar, Margaret N. Herzfield, Maggie Houston-Smith, Pamela L. Lunt, Phil Martinez, Messick Farms, Richard A. Messick, Douglas G. Messick, Richard L. Messick, Sandra J. Murray, Curtis W. Nelson, Gayle Nichols, Anne Silver Philleo, Robert S. Philleo, Marlene L. Pruitt, Robert A. Ress, Toni G. Romero, Marianne Sandstrom, Robert W. Simpson, W.E. Sisemote, C. Kimberly Snider, Francis E. Snider, M. Catherine Snider, Shella Snider, Katherine Steichen, Harvey V. Sullivan, Liz Washburn, John R. Wright, George Whitten, Jr., Donald E. Whitten, Karen Whitten, Betty L. Worley, Town of Moffat, Jimmy R. Moore, Mary Moore, Morfitt Bros. Farm, Inc., Darrel Neese, Harold Neese, Gayle A. Nichols, Edward R. Oliver, Otaka Intern., Robert A. Owens, Edwin Pace, Rio Grande County Farm Bureau, Rito Alto and San Luis Ranches, Inc., Rito Alto Ranch, Inc., Rito Alto Ranchers, Arthur L. Rivale, Ileen J. Rivale, Rocky Mountain Bison, Inc., Thomas C. Sanderson, Town of Saguache, Neil F. Seitz, Valley View Hot Springs, Martin T. Shellabarger, Patricia Shellabarger, Kenneth L. Skoglund, Mary F. Skoglund, Spiritual Life Institute of America, Inc., David G. Stagner, Travelers Ins. Co., Thomas F. Trim, Annabelle R. Trim, Wagner Ranch, Ltd., John H. Wagner, Weiss Ranches, Inc., A.L. Wood, John M. Woodard, Erwin Young, and Lynne Young.

No appearance for objector-respondent Gayle Nichols.

NOTE--Some parts of this form are wider than one screen. To view material that exceeds the width of this screen, use the right arrow key. To return to the original screen, use the left arrow key.

TABLE OF CONTENTS

   I.    Procedural History and Issues Presented ................................... 357
   II.   Dismissal of the Land Grant Claims ........................................ 360
         A.  Factual Background                                                      360
         B.  The Spanish and Mexican Land Grant Claim                                362
         C.  The Claim Under the Act of June 21, 1860                                365
   III.  Challenges to the Determination that Water Sought to be Withdrawn is        366
           Tributary
         A.  Whether the Trial Court Properly Determined the Effect of AWDI's        367
               Proposed Pumping on Surface Streams
         B.  Whether the Trial Court Properly Determined the Nature of the           368
               Unconfined Aquifer and the Effect of AWDI's Proposed Pumping on that
               Aquifer
             1.  Challenge to Natural Stream Legislation as Special Legislation      370
             2.  Inclusion of Unconfined Aquifer in Definition of Natural Stream     371
             3.  Requirement of Determination of Existing Aquifer Conditions at the  372
                   Time of Permit Application
         C.  Whether the Trial Court Properly Precluded Challenge to Means of        373
               Diversion of Closed Basin Project
   IV.   Procedural Prejudice                                                        374
         A.  Whether the Trial Court's Case Management Order and its Implementation  374
               Unfairly Prejudiced AWDI
         B.  Whether the Trial Court's Rulings were Objective                        375
   V.    Excessive and Unwarranted Findings                                          376
   VI.   Awards of Attorney Fees, Expenses, and Costs                                376
         A.  Whether AWDI can Contest the Conditions of Dismissal of the Tributary   377
               Claim
         B.  Whether Section 13"17"102(5) or C.R.C.P. 11 Precludes an Award of       379
               Attorney Fees and Expenses Incident to Dismissal of the Tributary
               Claim
         C.  Whether the Special Nature of Water Adjudication Proceedings Precludes  381
               the Award of Fees and Expenses Incident to Dismissal of the
               Tributary Claim
         D.  Whether the Trial Court Employed an Incorrect Standard or Relied on     381
               Insufficient Evidence in Assessing Fees and Expenses Incident to
               Dismissal of the Tributary Claim
             1.  Correctness of Standard                                             381
             2.  Sufficiency of Evidence                                             383
                 a.  Identification of Fees and Expenses Attributable to Tributary
                       Claim ....................................................... 383
                 b.  Scope of Work Performed in Defense of Tributary Claim ......... 385
                 c.  Reasonableness of Amounts Charged for Fees and Expenses ....... 386
             3.  Summary                                                             388
         E.  Whether Excessive Costs were Awarded Incident toDismissal of the        388
               Nontributary Claim
   VII.  Conclusion                                                                  390
   

----------

Page 357

OPINION

Justice LOHR Justice.

American Water Development, Inc. appeals from a judgment of the District Court for Water Division 3 denying its application with respect to water rights for the production of 200,000 acre feet of water per year by proposed wells in the San Luis Valley of Colorado and from a later judgment of that same court awarding attorney fees, expenses, and costs to certain objectors who successfully opposed the application. We consolidated these cases for all purposes on appeal [1] and now affirm both judgments.

I. Procedural History and Issues Presented

On December 31, 1986, American Water Development, Inc. ("AWDI") filed an "Application For Underground Water Rights Or, In The Alternative, For The Determination Of Rights To Nontributary Groundwater

Page 358

Outside Of Designated Groundwater Basins" in the District Court for Water Division 3. [2] Statements of opposition were filed by numerous objectors. [3] After several years of discovery and motion practice, AWDI filed an amended application with leave of the court on August 31, 1990. [4] The statements of opposition to the original application were deemed to apply to the amended application, and additional statements of opposition were filed.

In the original application, AWDI sought to establish the right to withdraw 200,000 acre-feet of ground water per year from proposed wells to be located on lands owned or claimed by the applicant and containing more than 100,000 acres in the Closed Basin drainage of the San Luis Valley in south-central Colorado (sometimes, "the Valley"). [5] The lands are made up of two noncontiguous parcels. The smaller parcel contains approximately 4,683 acres and is situated in the vicinity of the Town of Villa Grove in the northeastern part of the Valley. The larger parcel consists of Baca Grant No. 4 and adjacent lands, located approximately twenty miles to the south of Villa Grove. The original application proposed the use of 112 wells, 2,500 feet deep and perforated between the depths of 200 and 2,500 feet. Most of the wells were to be located on Baca Grant No. 4.

In its original application, AWDI asserted four alternative claims: (1) a claim for determination of a right to nontributary ground water pursuant to section 37-90-137(4), 15 C.R.S. (1990), subject to adjudication under section 37-92-203(1), 15 C.R.S. (1990), (2) a claim to water underlying Baca Grant No. 4 under Spanish and Mexican law and the 1848 Treaty of Guadalupe Hidalgo between the United States and Mexico, (3) a claim to water underlying Baca Grant No. 4 under the Act of June 21, 1860, Ch. 167, 12 Stat. 71 (1860), pursuant to which AWDI's predecessors acquired that tract from the United States, [6] and (4) a claim for determination of a water right for tributary ground water.

The amended application proposed implementation of pumping in phases, changed the number and location of wells (approximately 117 to be located on Baca Grant No. 4, and 15 to be located on AWDI's property near Villa Grove) and added a fifth claim pertaining to determination of injury from AWDI's proposed withdrawals and a proposal of methods to remedy any such injury by a plan for augmentation and other protective measures.

The original application indicated an intent to apply the water to various beneficial uses including agricultural use within the Valley. The amended application made clear for the first time that AWDI proposed to use some of the water outside the San Luis Valley along the Front Range within the State of Colorado.

Page 359

As the case progressed, the parties attempted to narrow the issues by motions for partial summary judgment. These included a motion by the objectors to dismiss the land grant claims. On July 5, 1990, the court granted partial summary judgment dismissing those claims.

A pretrial conference was held on September 26, 1991. Near the conclusion of the pretrial conference, and without prior notice, AWDI tendered a written motion to dismiss its fourth claim--for determination of a water right for tributary ground water. The objectors argued that dismissal would prejudice them unless the dismissal order included appropriate terms and conditions, including provision for payment of their attorney fees, expenses, and costs for preparing to defend against the tributary claim. At a second pretrial conference, the court granted the motion to dismiss, without prejudice, but imposed the condition that AWDI pay to the objectors their reasonable attorney fees, expenses, and costs in opposing the tributary and related claims. The court reserved determination of the amount of such award for later proceedings.

Before the second pretrial conference, the State of Colorado, one of the objectors, moved that the trial be bifurcated if the trial court should dismiss the tributary claim. By this motion, the state sought to defer consideration of issues of injury and proposed remedies, as presented by the fifth claim, until after the trial court's determination of rights to nontributary ground water. The court granted that motion to bifurcate, and the case proceeded to trial on the nontributary claim alone.

Following a trial that began on October 15 and concluded on November 22, 1991, the court denied and dismissed the application, based on its determination that the ground water that AWDI sought to withdraw is tributary to natural streams, and entered judgment accordingly. Thereafter, the court held an evidentiary hearing with respect to the costs, expenses, and attorney fees to be awarded as provided in the condition included in the earlier order dismissing the tributary claim. Based on evidence presented at that hearing, the court issued a judgment awarding ten named objectors specified amounts of attorney fees, expenses, and costs totaling $2,709,881.70. AWDI appealed each of the judgments to this court, [7] and we granted a motion to consolidate the cases for all purposes.

In this appeal, AWDI assigns the following errors, as set forth in its briefs in the sequence here presented: (1) the trial court's case management order and its implementation prejudiced AWDI, and the trial court's rulings were not objective; (2) the trial court erred in its order awarding fees and costs under C.R.C.P. 41(a)(2) and 54(d); (3) the trial court erred in its pretrial partial summary judgment rulings (a) dismissing the land grant claims, (b) precluding examination of the Closed Basin Project's [8] means of diversion, and (c) holding that legislation classifying certain stream systems as natural streams subject to appropriation did not violate the prohibition of special legislation under Article V, Section 25, of the Colorado Constitution; (4) the trial court erred in rejecting AWDI's claim for determination of a right to nontributary ground water; (5) the trial court failed to identify relevant existing aquifer conditions; and (6) the trial court incorporated excessive and unwarranted findings in its order dismissing AWDI's amended application.

We first address the challenged partial summary judgment rulings on the land grant claims (Issue 3(a)), then the combination of issues concerning rejection of AWDI's nontributary ground water right claim (Issues

Page 360

3(b) and (c), 4, and 5), next the issues concerning the case management order and the objectivity of the trial court's rulings (Issue 1), then whether the trial court's findings were excessive and unwarranted (Issue 6), and finally the challenge to the award of attorney fees, expenses, and costs (Issue 2).

II. Dismissal of the Land Grant Claims

The trial court granted the objectors' motions for partial summary judgment dismissing AWDI's claims of rights to ground water based on Spanish and Mexican law as recognized and affirmed by the United States or, in the alternative, on an absolute grant of title by the United States. [9] These claims, in essence, are that by reason of the manner in which AWDI's predecessor obtained title to Baca Grant No. 4, all rights to underground water, whether tributary or not, underlying that tract were acquired by the original grantee and were later conveyed to AWDI.

Standards governing appropriateness of summary judgment are well settled. Where there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is warranted. C.R.C.P. 56; Greenberg v. Perkins,845 P.2d 530, 531 (Colo.1993); Churchey v. Adolph Coors Co.,759 P.2d 1336, 1339-40 (Colo.1988); Pueblo W. Metro. Dist. v. S.E. Colo. Water Cons. Dist.,689 P.2d 594, 600 (Colo.1984). It is the burden of the moving party to demonstrate the absence of a triable factual issue, and any doubts as to the existence of such an issue must be resolved against that party. Greenberg, 845 P.2d at 531; Elm Distrib., Inc. v. Tri-Centennial Corp.,768 P.2d 215, 218 (Colo.1989). Although the party resisting summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the facts presented, the moving party's request must be granted where the facts are undisputed and the opposing party cannot prevail as a matter of law. Greenberg, 845 P.2d at 531; see Kaiser Foundation Health Plan of Colo. v. Sharp,741 P.2d 714, 719 (Colo.1987).

Applying these principles to the present case, we conclude that the record demonstrates that there is no genuine issue of material fact. The facts concerning the manner in which title passed into private ownership are undisputed. It is only the legal effect of the relevant events and documents that is at issue. Our task, therefore, is to determine whether the record supports the entry of partial summary judgment in favor of the objectors as a matter of law. We begin by presenting the salient facts that formed the basis of the trial court's decision.

A. Factual Background

In 1821, Luis Maria Cabeza de Baca, on behalf of himself and a number of his male children, petitioned Mexican governmental authorities for the grant of a tract of land containing nearly 500,000 acres [10] and known as the Vegas Grandes in the vicinity of the present day city of Las Vegas, New Mexico. H.R.Exec.Doc. No. 14, 36th Cong., 1st Sess. at 3 (1860) (hereinafter, "H.R.Exec.Doc. No. 14"). The tract was granted to Baca, [11] who settled on the land, remained for some time, and then left. See id. at 3-4. In 1835, certain other persons petitioned Mexican governmental authorities for the same land, and the petition was granted shortly thereafter with the proviso that persons who owned no land were to be permitted the same privilege of settling upon the grant as the persons who had petitioned. Id. at 44. Thereafter, several hundred families settled on the grant. See S.Rep. No. 228, 36th Cong., 1st Sess. at 3 (1860) (hereinafter, "S.Rep. No. 228").

In 1848, the United States and the Republic of Mexico entered into the Treaty of Guadalupe Hidalgo, ending hostilities between

Page 361

the two nations. Treaty of Peace, Friendship, Limits, and Settlement With The Republic of Mexico, Feb. 2, 1848, U.S. --Mex., 9 Stat. 922. Under Article V of treaty, Mexico ceded certain lands to United States. 9 Stat. at 926-28. Included within m was Vegas Grandes. Article VIII of treaty required United States to respect property of Mexican citizens in ceded lands. 9 Stat. at 929-30. [12]

In order to establish a process for determination of land claims within the portion of the ceded lands relevant here, Congress passed the Act of July 22, 1854, Ch. 103, 10 Stat. 308 (1854). Pursuant to that act, the surveyor general of the Territory of New Mexico, within which the Vegas Grandes was situated, was given the duty "to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico" and to report to Congress on the validity of such claims so that Congress could take "such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of eighteen hundred and forty-eight between the United States and Mexico...." Id. § 8 at 309. On December 18, 1858, the surveyor general issued his report with respect to the claims of the heirs of Baca and of the town of Las Vegas to the Vegas Grandes. He concluded

that the land embraced in either of the two grants is lawfully separated from the public domain and entirely beyond the disposal of the general government, and in the absence of the one the other would be a good and valid grant; but as this office has no power to decide between conflicting parties, they are referred to the proper tribunals of the country for the adjudication of their respective claims, and the case is hereby respectfully referred to Congress through the proper channel for its action in the premises.

H.R.Exec.Doc. No. 14 at 45.

On May 19, 1860, the United States Senate Committee on Private Land Claims issued its report. It determined that the grant to Baca and his sons "is a genuine and valid title," and that later, on a petition that represented the land to be public, the same land was granted to the predecessors of the town of Las Vegas, the persons presenting the petition were put in possession, "and several hundred families are located on it." S.Rep. No. 228 at 3. The report noted that the surveyor general "has recommended the confirmation of both these titles, leaving to the respective claimants the right of adjusting their conflicting claims in the courts." Id. at 3-4. The report observed, however, that "the plunging of an entire settlement of families into litigation, at the imminent hazard of being turned out of their homes, or made to purchase a second time, from a private owner, lands for which they paid their government a full equivalent, in the labor, risk, and exposure by which they have converted a wilderness, surrounded by hostile savages, into a civilized and thriving settlement" would be a disastrous result. Id. at 4. It then stated that an alternative involving "little loss or cost to the government," id., was available:

The claimants under the title to Baca, ... represented by ... counsel, have expressed a willingness to waive their older title in favor of the settlers, if allowed to enter an equivalent quantity of land elsewhere within the Territory; and your committee cannot doubt that Congress will cheerfully accept the proposal, which, indeed, would undoubtedly have been acceded to by Mexico if the Territory had remained hers, and to whose rights and duties the United States have succeeded.

Id.

Congress acted by adopting the Act of June 21, 1860, Ch. 167, 12 Stat. 71 (1860), confirming, among others, claim number 20, which embraced the competing claims of the

Page 362

Baca heirs and the town of Las Vegas [13] to the Vegas Grandes, and making the following provision for the heirs of Baca:

That it shall be lawful for the heirs of Luis Maria Baca, who make claim to the said tract of land as is claimed by the town of Las Begas [sic], to select instead of the land claimed by them, an equal quantity of vacant land, not mineral, in the Territory of New Mexico, to be located by them in square bodies, not exceeding five in number. And it shall be the duty of the surveyor-general of New Mexico, to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them: Provided, however, the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer.

Act of June 21, 1860, § 6, 12 Stat. 71, 72 (1860). As the United States Supreme Court characterized it, "Congress accommodated the dispute by a magnificent donation of lands to the heirs of Baca, and confirmed the original land to the town...." Maese v. Herman,183 U.S. 572, 581, 22 S.Ct. 91, 95, 46 L.Ed. 335 (1902). [14] Such a determination and resolution of claims arising under a treaty was within the province of Congress. See United States v. Sandoval,167 U.S. 278, 290, 17 S.Ct. 868, 872-73, 42 L.Ed. 168 (1897); Tameling v. U.S. Freehold & Emigration Co.,93 U.S. 644, 661, 23 L.Ed. 998 (1876); Sanchez v. Taylor,377 F.2d 733, 737 (10th Cir.1967).

What followed is detailed in Shaw v. Kellogg,170 U.S. 312, 18 S.Ct. 632, 42 L.Ed. 1050 (1898). The surveyor general of the Territory of New Mexico was directed by proper federal authority to survey the Vegas Grandes to determine the area of the grant, whereupon the Baca heirs would have the right to select an equal quantity of vacant, nonmineral land in the Territory of New Mexico in square parcels not to exceed five. Id. at 314, 18 S.Ct. at 633. The Baca heirs selected the Baca Grant No. 4 as one of the parcels. Id. at 315, 18 S.Ct. at 633-34. Prior to such selection, the Territory of Colorado had been organized, Act of February 28, 1861, ch. 59, 12 Stat. 172 (1861), and the area embraced within Baca Grant No. 4 was included within the boundaries of the newly formed territory. See Shaw, 170 U.S. at 316, 18 S.Ct. at 634. Following investigation and survey, the Colorado surveyor general approved the field notes, survey, and plat of Baca Grant No. 4. See id. at 314-25, 18 S.Ct. at 633-38. Upon such approval, in 1864 title passed pursuant to the Act of June 21, 1860, without the necessity for issuance of a patent. Id. at 342-43, 18 S.Ct. at 644-45. AWDI must predicate its land grant claims on the foregoing facts. We now turn to an analysis of those claims.

B. The Spanish and Mexican Land Grant Claim

AWDI first asserts that its title to Baca Grant No. 4 is derived from a Spanish or Mexican grant [15] and has all the attributes

Page 363

of such a grant, allegedly including transfer of all underground water, whether tributary or nontributary, underlying the granted lands. AWDI asserts that recognition of the Spanish or Mexican origin of its title is necessary in order to honor the requirement of the Treaty of Guadalupe Hidalgo that the United States respect the property rights of Mexican citizens.

"[I]ndividual rights of property, in the territory acquired by the United States from Mexico, were not affected by the change of sovereignty and jurisdiction." Tameling, 93 U.S. at 661. "The duty of providing the mode of securing them and fulfilling the obligations which the treaty of cession imposed, was within the appropriate province of the political department of the government." Id. Congress provided the necessary procedures by adopting the Act of July 22, 1854. Congress committed to the surveyor general of the Territory of New Mexico the duty of ascertaining the origin, nature, character and extent and determining the validity of all such claims in the Territory. Tameling, 93 U.S. at 662. The final action on each claim was reserved to Congress and not subject to judicial review. Id.

The land comprising Baca Grant No. 4 was never in the private domain Before it was granted to the Baca heirs pursuant to the Act of June 21, 1860. It was in territory under the sovereignty of Spain and then the Republic of Mexico prior to the Treaty of Guadalupe Hidalgo. Under that treaty the United States acquired sovereignty and the land became part of the public domain. [16] In order to resolve amicably the disputed claims to the Vegas Grandes, which was a completely different tract located in what is now the State of New Mexico, the Baca heirs, one of two sets of claimants to that latter tract, offered to "waive their older title in favor of" the other group of claimants "if allowed to enter an equivalent quantity of land elsewhere within the Territory." S.Rep. No. 228 at 4. [17] The Act of June 21, 1860, followed, in which the United States Congress accepted the offer of the heirs of Baca and allowed them "to select instead of the land claimed by them, an equal quantity of vacant land, [18] not mineral, in the Territory of New Mexico." The heirs of Baca did select such land, part of which was Baca Grant No. 4, and obtained title from the United States by following the procedures prescribed by the Act of June 21, 1860. The result was a grant of lands in which no private rights had ever been recognized under the laws of Spain or Mexico and a waiver of a claim to other lands under which such rights could have been asserted by the claimants. See Wise v. Watts,239 F. 207, 225-27 (9th Cir.1917), cert. denied, 244 U.S. 661, 37 S.Ct. 745, 61 L.Ed. 1376 (1917) (discussing title to Baca Grant No. 3, obtained under the same circumstances as Baca Grant No. 4).

The grant of lands, including Baca Grant No. 4, not subject to rights under the laws of Spain and Mexico in return for such waiver was not an abrogation of treaty rights as AWDI contends, but rather a resolution of competing claims well within the ambit of congressional authority. See Sandoval, 167 U.S. at 290, 17 S.Ct. at 873 ("The mode in which private rights of property may be secured,

Page 364

and the obligations imposed upon the United States, by treaties, fulfilled, belongs to the political department of the government to provide."); Tameling, 93 U.S. at 661. The Act of June 21, 1860, itself contains no suggestion that the grant of Baca Grant No. 4 involved any intent to create rights other than those incident to any conveyance of lands from the public domain of the United States to a private citizen. Cf. United States v. Roselius, 56 U.S. (15 How.) 31, 34, 14 L.Ed. 587 (1853) (confirmation of doubtful claim by Congress on certain terms and acceptance of those terms by claimant adjusts the claim on the footing of compromise and forecloses judicial review).

AWDI argues, however, that references by Congress to "confirmation" of the claim of the Baca heirs to the Vegas Grandes reflect an intent that the rights acquired by the Baca heirs in the substituted lands, including Baca Grant No. 4, were the same rights incident to their claim under Spanish or Mexican law to the Vegas Grandes. This argument is not well taken. The surveyor general of the United States did indeed recommend that the title of the Baca heirs to the Vegas Grandes be confirmed and the disputes between the two sets of claimants be resolved in court. Instead, however, pursuant to agreement, the Baca heirs waived that title in return for the right to obtain other lands from the United States. The surveyor general's recommended confirmation of the original title and Congress's ensuing confirmation of claim 20 both related to rights in the Vegas Grandes but suggested nothing about the nature of the title to be acquired from the United States by a compromise grant of other lands in that sovereign's public domain. [19]

AWDI also relies on case authority to support its argument that title to the alternative selected lands does not lose its original character as derived under the laws of Spain or Mexico. AWDI refers us to Henshaw v. Bissell, 85 U.S. (18 Wall.) 255, 21 L.Ed. 835Board of County Comm'rs of County of Pueblo v. Central Colo. Improvement Co.,2 Colo. 628 (1874) (Nolan I ); rev'd by Central Colo. Improvement Co. v. Board of Comm'rs,95 U.S. 259, 24 L.Ed. 495 (1877) (Nolan II ). Henshaw referred to Mexican law in part to determine the better title under conflicting United States patents issued upon a confirmation of grants made by the Mexican government as floating grants within a general tract large enough to satisfy both. Nolan I and Nolan II establish that when a Mexican land grant is confirmed to less than all of the lands located within the boundaries of the original grant, title relates back to and is grounded upon the laws of Mexico. In the present case, the claim confirmed to the Baca heirs was their claim to the Vegas Grandes. The Baca heirs waived that claim and accepted a grant from the United States to public domain lands not within the boundaries of any Mexican land grant. Neither Henshaw nor the opinions in Nolan I and Nolan II speak to this issue. For the reasons previously expressed, we hold that title to the Baca Grant No. 4 did not derive from the Mexican government or its Spanish predecessor. [20]

Page 365

C. The Claim Under the Act of June 21, 1860

AWDI asserts a supplemental or alternative claim to ownership of all ground water underlying Baca Grant No. 4 based on the language of the Act of June 21, 1860. As earlier discussed, section 3 of that Act "confirmed" certain private land claims in the Territory of New Mexico, including the competing claims of the Baca heirs and the Town of Las Vegas to the Vegas Grandes, as recommended for confirmation by the surveyor general. In section 4 of the Act, Congress provided "[t]hat the foregoing confirmation shall only be construed as quit-claims or relinquishments, on the part of the United States, and shall not affect the adverse rights of any other person or persons whomsoever." AWDI relies on this language of quit claim or relinquishment as conveying to the Baca heirs all rights of the United States in the lands selected by them in return for waiver of their claim to the Vegas Grandes. Such rights, according to this argument, included all rights to water underlying Baca Grant No. 4.

As earlier noted, however, the Act of June 21, 1860, did not confirm a claim of the Baca heirs to Baca Grant No. 4. They had no such claim. Instead, pursuant to section 6 of that Act and the legislation previously discussed, the Baca heirs were authorized to select alternative lands not within the boundary of the Vegas Grandes in return for waiver of their claim to the Vegas Grandes. Section 4 of the Act, quit claiming or relinquishing rights of the United States to confirmed claims, had no application to the substitute lands. AWDI's reliance on Henshaw v. Bissell, 85 U.S. (18 Wall.) 255, 21 L.Ed. 835 (1873), and language in Shaw v. Kellogg,170 U.S. 312, 331, 18 S.Ct. 632, 640, 42 L.Ed. 1050 (1898), is misplaced. Those cases contain language supporting the proposition that confirmation of claims under the Act of June 21, 1860, effected relinquishment of all rights of the United States to the premises covered by the claims. This proposition, based on section 4 of the Act, has no application to the substitute lands in the public domain, including Baca Grant No. 4, selected by the Baca heirs in return for waiver of their claim to the Vegas Grandes, the tract to which their claim pertained.

Principles of construction militate against AWDI's arguments as well. Land grants are construed favorably to the United States government, and nothing passes except what is conveyed in clear and explicit language. Watt v. Western Nuclear, Inc.,462 U.S. 36, 59, 103 S.Ct. 2218, 2231, 76 L.Ed.2d 400 (1983) (lands acquired under Stock Raising Homestead Act of 1916 do not include gravel deposits); Andrus v. Charlestone Stone Prod. Co.,436 U.S. 604, 617, 98 S.Ct. 2002, 2009-10, 56 L.Ed.2d 570 (1978) (water is not a valuable mineral subject to location under Federal Mining Law of 1872); United States v. Union Pac. R.R. Co.,353 U.S. 112, 116, 77 S.Ct. 685, 687, 1 L.Ed.2d 693 (1957) (right of way granted to railroad did not include mineral rights); Caldwell v. United States,250 U.S. 14, 20-21, 39 S.Ct. 397, 398-99, 63 L.Ed. 816 (1919) (right granted by statute to railroad to take timber necessary for construction did not extend to "tie slash"--tops of trees not usable for making ties). Any doubts are to be resolved in favor of the government and not against it, Western Nuclear, Inc., 462 U.S. at 59, 103 S.Ct. at 2231; Andrus, 436 U.S. at 617, 98 S.Ct. at 2009-10; United States v. Union Pac., 353 U.S. at 116, 77 S.Ct. at 687; Caldwell, 250 U.S. at 20-21, 39 S.Ct. at 398-99, as are any inferences, Caldwell, 250 U.S. at 20, 39 S.Ct. at 398. The rule of narrow construction of federal land grants has been applied with particular vigor with respect to water where determination that a grant carries rights to water would create inconsistencies with the water right system that has been based on local law and custom. See Andrus, 436 U.S.

Page 366

at 615-17, 98 S.Ct. at 2008-10. [21]

Nothing in the Act of June 21, 1860, suggests that the land to be received by the Baca heirs by selection from the public domain in exchange for relinquishment of their claim under Spanish or Mexican law to the Vegas Grandes was to have any incidents peculiar to claims derived under the law of those sovereigns. The Act contains no mention whatsoever of rights to water underlying the lands to be selected. [22] There is no basis in the Act of June 21, 1860, to support a construction that the Baca heirs acquired any rights that would have been recognized under Spanish or Mexican law to substituted lands selected by them in return for waiver of their claim to the Vegas Grandes. [23]

We hold that AWDI's argument that it acquired rights to water underlying Baca Grant No. 4 based on the terms of the Act of June 21, 1860, is not well founded.

III. Challenges to the Determination that Water Sought to be

Withdrawn is Tributary

At the time of trial, AWDI's sole remaining claim for a right to withdraw 200,000 acre feet of water annually from wells on lands owned or claimed by it was contained in that part of its amended application seeking a determination of rights to nontributary ground water under section 37-92-203(1), 15 C.R.S. (1990). The trial court determined that the water did not meet the statutory definition of nontributary ground water in section 37-90-103(10.5), 15 C.R.S. (1990), and therefore denied the claim. The court found that the water was tributary not by a mere preponderance of the evidence but "beyond a reasonable doubt." [24]

Section 37-90-103(10.5) defines nontributary ground water, in relevant part, as follows:

'Nontributary Ground Water' means that ground water, located outside the boundaries of any designated ground water basins [25] in existence on January 1, 1985, the withdrawal of which will not, within one hundred years, deplete the flow of a natural stream, including a natural stream as defined in sections 37-82-101(2) and 37-92-102(1)(b), at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. The determination of

Page 367

whether ground water is nontributary shall be based on aquifer conditions existing at the time of permit application....

Based on this definition, the water sought by AWDI was nontributary ground water only if within one hundred years the withdrawal at the rate of 200,000 acre feet per year would not deplete the flow of a natural stream at an annual rate of one-tenth of one percent of that amount, or 200 acre feet per annum. The trial court found that the effect of the withdrawals on three sets of natural streams would exceed the statutory standard. First, the court found that depletion to the surface flows of the Rio Grande River and San Luis Creek alone would be approximately 7,400 acre feet per annum. Second, the court found that depletions of approximately 3,600 acre feet per annum would result to the surface flow of Big Spring Creek and that depletions to many other streams in the Closed Basin would occur in amounts not quantified by the evidence. Additionally, the trial court found that there would also be depletions to the Closed Basin's unconfined aquifer, which the court concluded to be part of the water of a natural stream. We first address the findings concerning the effect of AWDI's proposed pumping on surface streams and then the issues relating to the effect on the unconfined aquifer. [26] We conclude this section by considering AWDI's challenge to the partial summary judgment order precluding it from challenging the means of diversion of the Closed Basin Project.

A. Whether the Trial Court Properly Determined the Effect of

AWDI's Proposed Pumping on Surface Streams

The trial court's determinations of the effects of the proposed withdrawals on the Rio Grande River, San Luis Creek, Big Spring Creek, and other surface streams are findings of fact. As such, they will not be disturbed on appeal unless wholly unsupported by the evidence. Board of County Comm'rs v. Upper Gunnison River Water Cons. Dist.,838 P.2d 840, 847 (Colo.1992); People v. City of Thornton,775 P.2d 11, 19 (Colo.1989).

The trial court was presented with extensive evidence, through expert testimony and voluminous exhibits, concerning the geologic and hydrologic characteristics of the Valley and of the Closed Basin in particular. The evidence established, and the trial court found, that underlying the lands in the Valley are two aquifers having different hydrologic properties and generally acting as separate hydrologic units. Separating them is a group of clay layers referred to as the blue clay series. The upper aquifer, called the unconfined aquifer, consists of coarse materials with relatively high hydraulic conductivities, and is situated above the blue clays, which range in depth from 35 feet on the west side of the Valley to 125 feet on the east. Most of the irrigation wells in the Valley are completed in this aquifer. [27] The lower aquifer is located below the blue clays. Although hydrologically connected at various points, the two aquifers have been separately administered by the state engineer for well permit purposes. The extent of the hydraulic connection is sufficiently slight that water in the confined aquifer is maintained under artesian pressure. The artesian condition results from a recharge of the confined aquifer by waters entering the aquifer at higher elevations at the edges of the Valley and the limited permeability of the blue clays separating the two aquifers.

The evidence concerning the effects to be produced by AWDI's proposed withdrawals

Page 368

of water was sharply conflicting in many respects. Each side attempted to develop a comprehensive geologic and hydrologic framework for use in predicting the movement of water within the San Luis Valley as a result of such withdrawals. For this purpose AWDI and the objectors utilized complex ground water flow computer models, the objectors' model having been developed by the Colorado state engineer. By introducing into the models certain data as described to the court through expert testimony, each side attempted to demonstrate the effect of the proposed withdrawals on surface streams and the unconfined aquifer.

In general, the court found the evidence presented by the objectors and utilized in operating their computer model more credible than that of AWDI. [28] In particular, the court made the critical finding that the ground water in the unconfined aquifer "is in hydraulic connection with most surface streams in the San Luis Valley and their alluvium for all or portions of most years." [29] As a result, the level of the water table in the unconfined aquifer influences gain or loss to the streams. On another critical factual issue, the trial court found that the values used by AWDI for streambed conductance, which expresses the rate at which a stream will lose water to the underlying aquifer, were not credible; AWDI's data greatly underestimated loss of water through streambed leakage. The court also found that AWDI's evapotranspiration data and use of that data in its computer model materially overstated the potential for reducing loss of water by evapotranspiration by lowering the water table through pumping and thus eliminating vegetation. These are examples of some of the more important factual findings that undermined the credibility of the results predicted by the use of AWDI's computer model.

The trial court also found that the State's model was originally created for administrative purposes and was "far more extensive and thorough" than that of AWDI. The court found that while not purporting to be able "to predict with exact precision the quantity and location of stream depletions" to be caused by AWDI's proposed pumping, the State's model was adequate for a determination of whether depletion to certain streams would exceed the statutory standard in the definition of nontributary water. The 7,400 acre feet per annum depletive effect on the Rio Grande River and San Luis Creek was directly predicted by the State's model and provided the basis for the trial court's finding that this effect was inconsistent with the statutory definition of nontributary water.

In addition, the State's model predicted the locations where the water level in the unconfined aquifer would be drawn down by AWDI's proposed pumping. Based on expert testimony that Big Spring Creek was in hydraulic connection with the unconfined aquifer, the computer model prediction that the effect of AWDI's proposed pumping would reduce the water level in that aquifer to a particular extent, and an expert's testimony concerning the effect of such a water level reduction on Big Spring Creek, the trial court found that the creek would be depleted by approximately 3,600 acre feet per year by the proposed pumping, a reduction in itself sufficient to defeat AWDI's claim that the water it sought to withdraw was nontributary. The trial court also found that the lowering of the water level in the unconfined aquifer would adversely affect other natural streams even though such effects could not be precisely quantified because those streams were not included in the computer model.

All of the trial court's findings were based on evidence in the record and will not be overturned. See, e.g., Upper Gunnison River, 838 P.2d at 847.

B. Whether the Trial Court Properly Determined the Nature of

the Unconfined Aquifer and the Effect of AWDI's

Proposed Pumping on that Aquifer

The trial court also determined that the unconfined aquifer was part of a natural

Page 369

stream, with the result that the depletive effects of AWDI's proposed withdrawals on that aquifer must be taken into account as well in determining whether the water to be withdrawn is nontributary. We agree.

Under Article XVI, Sections 5 and 6, of the Colorado Constitution, the water of every natural stream is declared to be the property of the public and subject to appropriation for beneficial use. The manner of implementation of that right has been delineated by the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to -602, 15 C.R.S. (1990 & 1993 Supp.), and extensive case law preceding and following that Act. The right to appropriate water of every natural stream extends to waters tributary to a natural surface stream. § 37-92-102, 15 C.R.S. (1990); State v. S.W. Colo. Water Cons. Dist.,671 P.2d 1294, 1308 (Colo.1983); Whitten v. Coit,153 Colo. 157, 385 P.2d 131 (1963).

Nontributary ground water is subject to disposition by the General Assembly in exercise of its plenary power to develop a system of law governing acquisition of rights in this resource. See S.W. Colo. Water Cons. Dist., 671 P.2d at 1304-18 (describing interrelation of federal and state law concerning the acquisition of rights to water). In exercise of that power, the General Assembly has provided for judicial determination of rights to nontributary ground water outside of designated ground water basins, § 37-92-203(1), 15 C.R.S. (1990), and has established standards and procedures concerning acquisition of such rights, § 37-90-137, 15 C.R.S. (1990 & 1993 Supp.). The right to withdraw nontributary ground water is based on ownership of the overlying land, § 37-90-102(2), 15 C.R.S. (1990); § 37-90-137(4), 15 C.R.S. (1990 & 1993 Supp.), rather than the doctrine of prior appropriation applicable to tributary water.

Because of the two separate systems for acquisition of rights in water in and tributary to natural streams and nontributary ground water it became useful to define the distinction between these two resources. The present case implicates two sets of statutes establishing that distinction. The one is a pair of statutes having particular application to stream systems arising and terminating in Colorado. The other is the statute defining "nontributary ground water."

In 1979, the General Assembly enacted essentially identical statutes, [30] as set forth in Ch. 346, secs. 1, 4, § 37-82-101(2), § 37-92-102(1)(b), 1979 Colo.Sess.Laws 1366, 1366, 1367-68, which provide:

A stream system which arises as a natural surface stream and, as a natural or man-induced phenomenon, terminates within the state of Colorado through naturally occurring evaporation and transpiration of its waters, together with its underflow and tributary waters, is a natural surface stream subject to appropriation....

We sometimes refer to sections 37-82-101(2) and 37-92-102(1)(b) collectively as the "natural surface stream legislation."

In 1985, the General Assembly adopted the definition of nontributary ground water in effect at the time AWDI asserted its claim and continuing to the present. § 37-90-103(10.5), 15 C.R.S. (1990). That statute appears earlier in this opinion at page 34 and specifically includes the natural streams defined in the natural surface stream legislation among the natural streams to be considered in applying the statutory test.

Relying on the definition of "natural surface stream" adopted in the natural surface stream legislation, which includes underflow and tributary waters, the trial court found the streams flowing into the Closed Basin and the unconfined aquifer into which those streams flow to be natural streams. AWDI argues, first, that the natural surface stream legislation is special legislation prohibited by Article V, Section 25, of the Colorado Constitution. AWDI also asserts that the unconfined aquifer is not part of a natural stream

Page 370

within the meaning of the statute defining nontributary ground water. In any event, AWDI argues, the trial court's conclusion that the water AWDI seeks to withdraw does not satisfy the statutory standard for nontributary ground water cannot be sustained because the court made no findings concerning relevant aquifer conditions existing at the time of the permit application, as is necessary to apply the definition of nontributary ground water under section 37-10-103(10.5). We address these issues in the order stated.

1. Challenge to Natural Stream Legislation as Special Legislation

AWDI argues that the trial court erred in granting the objectors' motion for partial summary judgment declaring the natural surface stream legislation to be consistent with the constitutional prohibition of special legislation. AWDI contends, as it did Before the trial court, that sections 37-82-101(2) and 37-92-102(1)(b), 15 C.R.S. (1990), constitute special legislation in violation of Article V, Section 25, of the Colorado Constitution. It asserts that these two statutes constitute special legislation because they apply only to stream systems in the Closed Basin and were intended to preclude the factual determination as to nontributariness that would otherwise be necessary in determining whether ground water in that basin is subject to the doctrine of prior appropriation applicable to tributary water rather than to allocation by landownership, the statutory basis for allocating nontributary ground water outside designated ground water basins. See § 37-90-102(2), 15 C.R.S. (1990); § 37-90-137(4), 15 C.R.S. (1990 & 1993 Supp.).

Article V, Section 25, of the Colorado Constitution prohibits the General Assembly from enacting special legislation. The relevant portion of Article V, Section 25, states simply, "where a general law can be made applicable no special law shall be enacted." [31] As we stated in Curtiss v. GSX Corp. of Colorado,774 P.2d 873 (Colo.1989),

[t]his constitutional prohibition is directed at "legislation that applies to some classes but not to others without a reasonable basis for distinguishing between them, or legislation that exempts some members of a class from coverage [of the general law] without a reasonable basis for the exemption."

Id. at 876 (quoting City of Montrose v. Public Utilities Comm'n,732 P.2d 1181, 1190 (Colo.1987)). A law does not violate the constitutional prohibition against special legislation if it is "general and uniform in its operation upon all in like situation." Curtiss, 774 P.2d at 876 (quoting McCarty v. Goldstein,151 Colo. 154, 158, 376 P.2d 691, 692-93 (1962)); Rifle Potato Growers Ass'n v. Smith,78 Colo. 171, 176, 240 P. 937, 939 (1925); People v. Earl,42 Colo. 238, 264, 94 P. 294, 302 (1908).

The statutes in question here provide that stream systems that terminate in Colorado are natural surface streams subject to appropriation. We regard this simply as recognition that such stream systems are natural streams within the meaning of Article XVI, Sections 5 and 6, of the Colorado Constitution and therefore subject to the constitutional right of appropriation. The legislature had a reasonable basis to address this particular class of streams and clarify the manner of obtaining rights to water in such stream systems.

The statutes satisfy the requirement that they be general and of uniform application. By their terms they apply to all stream systems in the state of Colorado that arise as natural surface streams and terminate in Colorado. The statutes are not limited to apply only to specific streams or specific geographic areas. When adopting the legislation, the legislature itself was aware of at least one other area in the state of Colorado to which the statutes would apply. See Senate Floor Debate on S.B. 481 (April 25, 1979).

Although the legislature was apparently aware of just two geographic regions that would be affected by the legislation, the number of class members known to be affected by the statutory criteria at the time of enactment is not determinative in deciding whether

Page 371

the legislation amounts to unconstitutional special legislation. In Darrow v. People,8 Colo. 417, 8 P. 661 (1885), we upheld the constitutionality of legislation that created a superior court in any town or city that had more than 25,000 inhabitants, even though Denver was the only city of that size when the legislation was adopted. In Darrow, we stated that

Denver, it is true, is the only city to which the act at present applies. But the legislature clearly intended to provide for places that may hereafter acquire the population mentioned. The law is general, and is unlimited as to time in its operation. There is nothing unreasonable in the supposition that other towns and cities within the state will eventually contain twenty-five thousand inhabitants.

Darrow, 8 Colo. at 418-19, 8 P. at 662; cf. In re Interrogatories,146 Colo. 233, 361 P.2d 350 (1961) (a bill authorizing annexation of a town by a city under circumstances unique to one location and providing for automatic repeal of annexation authority shortly after enactment was unconstitutional as special legislation). Like the legislation at issue in Darrow, the natural surface stream legislation has an indefinite period of application. Analogous to Darrow, there is nothing unreasonable in the supposition that with the development and refinement of knowledge of the geography and hydrology of the state, it may be learned that there are other stream systems that arise as natural surface streams and terminate in Colorado. Therefore, in the future, this legislation may be found to apply to such other streams.

Because the two statutes are of general and uniform applicability, they do not constitute special legislation in violation of Article V, Section 25, of the Colorado Constitution. Accordingly, the trial court's partial summary judgment ruling will be upheld. [32]

2. Inclusion of Unconfined Aquifer in Definition of Natural Stream

The trial court concluded as a matter of law that "the unconfined aquifer is water of a natural stream," and that the proposed pumping of 200,000 acre feet per annum would deplete the flow of that stream as well as other natural streams in the San Luis Valley to a greater extent than allowable in order to satisfy the criteria in the definition of nontributary ground water in section 37-90-103(10.5).

AWDI asserts first that the unconfined aquifer is not a natural stream within the meaning of section 37-90-103(10.5) because it does not fit the definition of "natural stream" in section 37-87-102(1)(b), 15 C.R.S. (1990). This argument has no merit.

Section 37-87-102(1)(b) provides:

As used in this article, unless the context otherwise requires:

. . . . .

(b) "Natural stream" means a place on the surface of the earth where water naturally flows regularly or intermittently with a perceptible current between observable banks, although the location of such banks may vary under different conditions.

(Emphasis added.) The "article" referred to in the foregoing definition is Article 87, entitled "Reservoirs." By its own terms, the definition does not apply to section 37-90-103(10.5), which appears in a separate article 90, captioned "Underground Water." Also, section 37-90-103(10.5) specifically includes within the meaning of "natural stream" "a natural stream as defined in sections 37-82-101(2) and 37-92-102(1)(b)." The trial court found that the unconfined aquifer falls within these definitions as "a stream system which arises as a natural surface stream which terminates within the state, together with its associated underflow and tributary water."

AWDI also argues that the amount of surface stream depletion alone determines whether water is nontributary within the meaning of section 37-90-103(10.5). This is incorrect. That section specifically refers to sections 37-82-101(2) and 37-92-102(1)(b) as included within the definition of natural streams. Those sections in turn refer to "a

Page 372

natural surface stream ... together with its underflow and tributary waters." Clearly then, the underflow and tributary waters of streams described in the natural stream legislation are included as part of the natural streams referred to in section 37-90-103(10.5), and the effect on such underflow and tributary waters must be considered in determining whether ground water to be withdrawn is nontributary.

AWDI also challenges factual findings upon which the trial court relied in determining that the unconfined aquifer constitutes associated "underflow and tributary water" of a natural surface stream and therefore by definition is part of the natural surface stream. See §§ 37-82-101(2) and 37-92-102(1)(b). Specifically, AWDI contends that its evidence concerning the lack of hydraulic connection between the unconfined aquifer and surface streams was more weighty and credible than that of the objectors. Similarly, AWDI contends that its evidence concerning streambed conductance, which affects the movement of water into and out of the subsurface surrounding a stream is more persuasive. Our review of the record, however, reveals ample evidence supporting the trial court's findings on these matters. Issues of credibility are to be resolved by the trial court. Consequently, the findings will not be disturbed on appeal. See Upper Gunnison River, 838 P.2d at 847. [33]

For the foregoing reasons we uphold the trial court's determination that the unconfined aquifer in the Closed Basin is part of a natural surface stream within the meaning of section 37-90-103(10.5).

3. Requirement of Determination of Existing Aquifer

Conditions at the Time of Permit Application

Section 37-90-103(10.5) requires that a determination that ground water is nontributary "shall be based on aquifer conditions existing at the time of permit application...." AWDI asserts that the trial court's order is not so based and that therefore the judgment must be reversed and remanded with directions to apply the statutory standard.

AWDI did not present evidence directed at the conditions of the aquifer as they existed in 1986 when AWDI first filed its permit application. Rather, an expert witness for AWDI testified that conditions during the 1970s were representative of conditions at the time of the application. The objectors introduced evidence that conditions in the 1970s were not representative but that such period was untypically dry. [34] The trial court held that it need not resolve this controversy because it was satisfied, applying the statutory standard, "that the ground water sought by [AWDI] is tributary even if the period 1970-1979, or any period thereafter is used." [35] Again, the evidence was conflicting,

Page 373

the court made findings resolving the material conflicts, and therefore the findings of the trial court must be sustained on review.

C. Whether the Trial Court Properly Precluded Challenge to

Means of Diversion of Closed Basin Project

AWDI argues that the trial court erred in granting partial summary judgment precluding AWDI from challenging the reasonableness of the means of diversion of wells producing from the unconfined aquifer on the basis of a water right decreed for the Closed Basin Project. We do not find it necessary to address this question on the merits.

The Closed Basin Project is a federal reclamation project that was authorized by the Reclamation Project Authorization Act of 1972. [36] The project was designed to withdraw water from the unconfined aquifer of the Closed Basin and deliver the water to the Rio Grande River. Under normal conditions, water that flows into the basin is collected in a sump area that is separated from the Rio Grande River drainage by a natural hydraulic barrier at the southern boundary of the Closed Basin. Once trapped there, much of the water is lost to evaporation and evapotranspiration. See generally Closed Basin Landowners Ass'n v. Rio Grande Water Cons. Dist.,734 P.2d 627 (Colo.1987).

The goal of the Closed Basin project is to lower the water table in the sump area by approximately two feet through the construction and operation of over one-hundred shallow wells, and to reduce water losses to evaporation and evapotranspiration. Water salvaged from the sump area is to be delivered to the Rio Grande River to help meet Colorado's obligations to New Mexico and Texas under the Rio Grande Compact. See Rio Grande Compact, P.L. No. 96, 53 Stat. 785 (1939); § 37-66-101, 15 C.R.S. (1973).

Id. at 629.

In December of 1972, Rio Grande Water Conservation District, the local sponsoring entity for this federal project, applied for determination of a conditional water right. In April 1980, in case W-3038, the District Court for Water Division 3 granted the application and decreed a conditional water right to withdraw 117,000 acre feet of water per year from 129 shallow wells situated on over 100,000 acres of lands. The wells would tap the unconfined aquifer in the Closed Basin. See generally Closed Basin, 734 P.2d at 629-31.

In the trial court, AWDI contended that in considering whether the ground water it sought to withdraw by its proposed wells is available for appropriation under its tributary claim and whether withdrawals would materially injure the vested rights of others, see § 37-90-137(2), 15 C.R.S. (1993 Supp.), the court must address whether the Closed Basin wells, which are limited by decree to withdrawals from the unconfined aquifer, constitute a reasonable means of diversion. See § 37-92-102(2)(b) 15 C.R.S. (1990); Alamosa-LaJara, 674 P.2d at 934-35; City of Colorado Springs v. Bender,148 Colo. 458, 462, 366 P.2d 552, 555 (1961). [37] AWDI's position was that any injury to the Closed Basin Project that might otherwise result from AWDI's proposed pumping should be

Page 374

addressed by requiring that the Project wells be deepened to produce water from the confined aquifer. Prior to trial, Rio Grande Water Conservation District moved for partial summary judgment to preclude AWDI from challenging in this proceeding the District's adjudicated water right for the Closed Basin Project. The trial court granted the motion, finding that the doctrine of res judicata barred any challenge to the Closed Basin Project decree. The court specifically stated that the applicant was barred from challenging "the reasonableness of the means of diversion established for the well withdrawals decreed in the April 21, 1980 Decree in Case No. W-3038, including the requirement that the depth of the wells be restricted to the unconfined aquifer." On this appeal, AWDI asserts that the court must consider whether the Closed Basin Project's means of diversion is reasonable. We need not reach this question.

The central issue in the case at trial was whether the water sought to be withdrawn was nontributary within the meaning of section 37-90-103(10.5), as claimed by AWDI. Reasonableness of the means of diversion of Closed Basin Project wells had no bearing on that issue, and AWDI did not prevail on its claim. The issue of reasonableness of means of diversion arose in connection with AWDI's tributary claim. AWDI, however, voluntarily dismissed that claim.

In general, a claimant who voluntarily dismisses a claim cannot appeal from the judgment of dismissal, for the judgment cannot be considered adverse as to the one who sought it. Jensen v. Matthews-Price, M.D.,845 P.2d 542, 543 (Colo.App.1992); accord Unioil, Inc. v. E.F. Hutton & Co., Inc.,809 F.2d 548, 555 (9th Cir.1986), cert. denied, 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987) & 484 U.S. 823, 108 S.Ct. 85, 98 L.Ed.2d 47 (1987); LeCompte v. Mr. Chip, Inc.,528 F.2d 601, 603 (5th Cir.1976); see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2376 (1971) (hereinafter "Wright & Miller"). And, as the Sixth Circuit Court of Appeals has observed,

[e]ven in those rare jurisdictions ... which permit appeal from an order of voluntary nonsuit where there is a ruling of the court which strikes at the heart of the case and precludes recovery by plaintiff, appeal from such order does not lie to review rulings which do not have the effect of determining the case against plaintiff.

Management Investors v. United Mine Workers of Am., 610 F.2d 384, 394 (6th Cir.1979) (quoting Kelly v. Great Atlantic & Pacific Tea Co.,86 F.2d 296, 297 (4th Cir.1936)). Cf. Harrington v. Anderson,87 Colo. 417, 419, 288 P. 1049, 1050 (1930) (we will not as a general rule pass on questions not necessary to the decision); Olney Springs Drainage Dist. v. Auckland,83 Colo. 510, 517, 267 P. 605, 608 (1928) (same). We do not regard the reasonable means of diversion issue as one that strikes at the heart of the tributary claim. In view of AWDI's voluntary dismissal of that claim, we hold that the partial summary judgment on the reasonableness of the means of diversion of the Closed Basin Project wells is not properly reviewable on this appeal.

IV. Procedural Prejudice

A. Whether the Trial Court's Case Management Order and its

Implementation Unfairly Prejudiced AWDI

In May of 1990, three and one-half years after the case was filed, the objectors moved for the entry of a case management order that would structure discovery and the pretrial process, including establishment of a discovery schedule and deadlines for amendments to AWDI's water application. In July of 1990 the court entered its case management order. Dates were set Before which all motions to amend the application had to be filed, discovery had to be completed, and lists identifying all expected testifying experts, fact witnesses, and exhibits had to be served upon all parties. AWDI was ordered to identify its experts and their proposed testimony as well as its fact witnesses and exhibits Before the times the objectors were required to disclose their own witnesses and exhibits.

AWDI now asserts that the case management order and its implementation were unfairly prejudicial. It argues that there was

Page 375

no justification for the requirement that AWDI identify its witnesses and exhibits Before the objectors and that this order unfairly enabled the objectors to conduct discovery "Before providing reciprocal information." In addition, AWDI maintains that because the trial court allowed the objectors to introduce late-designated evidence, there was "one-sided" enforcement of the order and that AWDI was unfairly afforded "fewer procedural protections" than the objectors.

Generally, pretrial discovery rulings are within the sound discretion of the trial court. In re Marriage of Mann655 P.2d 814, 816 (Colo.1982); Kerwin v. District Ct.,649 P.2d 1086, 1088 (Colo.1982); Cameron v. District Ct.,193 Colo. 286, 289, 565 P.2d 925, 928 (1977); see also Glisan v. Kurth,153 Colo. 102, 107, 384 P.2d 946, 949 (1963) ("to make pre-trial procedure effective, appellate interference with the trial court in this area must be kept at a minimum"). The trial court's decision to prescribe staggered discovery was fully justified by the nature of the issues in this case. AWDI had the burden of proof to establish its alternative claims for tributary or nontributary rights. See Public Service Co. of Colo. v. Board of Water Works of Pueblo, Colo.,831 P.2d 470, 480 (Colo.1992) (relating to tributary application). The central issue was whether the water to be produced was tributary or nontributary. To evaluate the application it was necessary to understand the complex factual framework concerning the geology and hydrology of the Valley, AWDI's computer model, and the data that would be used in running the model upon which AWDI predicated its claim. It was therefore reasonable to require AWDI to proceed first in order for the objectors to be able to discern the facts AWDI would rely upon to support its application in order to prepare the objectors' own case. Particularly considering the fact that AWDI was allowed to designate rebuttal experts after it had completed discovery from the objectors' expert witnesses, we cannot say that the trial court's decision to compel AWDI to identify its witnesses and exhibits Before the objectors was an abuse of discretion.

As for the alleged prejudice to AWDI from the court's "one-sided" implementation of the order, the record does not support this claim. The trial court did modify the management order to allow the objectors to introduce additional evidence, but this evidence did not create unfair surprise. The evidence consisted of another run from a previously introduced computer model showing the predicted results from a particular pumping scenario proposed by AWDI, as well as related testimony, and two demonstrative exhibits that graphically displayed data already available to AWDI. Moreover, the court granted a number of modifications for AWDI itself, including allowing the presentation of rebuttal testimony from a witness not identified until trial was underway.

A trial court has broad discretion in allowing deviations from the terms of pretrial orders. Murphy v. Colorado Aviation, Inc.,41 Colo.App. 237, 241, 588 P.2d 877, 881 (1978), impliedly overruled on other grounds by Public Service Co. v. District Ct.,674 P.2d 383 (Colo.1984); see C.K.A. v. M.S.,695 P.2d 785, 788 (Colo.App.1984) (trial courts have broad discretion in determining whether to allow late endorsement of witnesses not listed in pretrial orders). [38] AWDI has not demonstrated that the trial court abused that discretion.

B. Whether the Trial Court's Rulings were Objective

AWDI asserts that the trial court's rulings were not properly objective. In support of its position, AWDI cites a number of pretrial motions on which the trial court ruled in favor of the objectors by entering precisely the form of order proposed by them. AWDI also points out that the decree entered by the

Page 376

trial court was virtually identical to the objectors' proposed decree.

Adoption of a prevailing party's proposed findings of fact and conclusions of law is not necessarily improper. "[F]indings, if otherwise sufficient, are not weakened or discredited because given in the form submitted by counsel." Uptime Corp. v. Colorado Research Corp.,161 Colo. 87, 93, 420 P.2d 232, 235 (1966). Even those courts that condemn the uncritical adoption of findings prepared by the prevailing party are unwilling to reverse unless the findings themselves are inadequate. Id. at 92, 420 P.2d at 235.

On appeal, the court will assume that the trial judge examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be; otherwise, he would not have adopted them as his own. It is only when the findings themselves are inadequate and do not indicate the basis for the trial court's decision that the judgment will be reversed.

Id. at 93, 420 P.2d at 235 (citations omitted). The findings are sufficient and indicate the basis for the trial court's decisions. Therefore, they will be sustained despite the fact that the trial judge adopted the language of the prevailing party's proposed findings and conclusions as his own.

V. Excessive and Unwarranted Findings

AWDI asserts that the trial court's 104 page Findings of Fact, Conclusions of Law, Judgment and Decree contains "a multitude of findings and conclusions irrelevant to the character of the water [as tributary or nontributary]" and requests that these findings and conclusions be excised from the decree. AWDI expresses concern that some of these findings may have a collateral estoppel effect in the event a tributary claim is reasserted in the future. We believe this concern is ill founded.

Collateral estoppel bars relitigation of an issue only under the following conditions:

(1) The issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding;

(2) the party against whom estoppel is sought was a party to or was in privity with a party to the prior proceeding;

(3) there was a final judgment on the merits in the prior proceeding; and

(4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.

Denver v. Consolidated Ditches Co., 807 P.2d 23, 32 (Colo.1991); accord, e.g., Pomeroy v. Waitkus,183 Colo. 344, 350-51, 517 P.2d 396, 399 (1973). To the extent that any of the findings and conclusions of the trial court were not necessarily adjudicated or actually litigated under circumstances where AWDI had a "full and fair opportunity to litigate," they can have no collateral estoppel effect. Once the tributary claim had been dismissed and the injury and mitigation issues eliminated by bifurcation, the issues necessarily adjudicated were those required for determination of whether the water sought to be withdrawn met the statutory definition of nontributary ground water. Therefore, to the extent the trial court's findings and conclusions go beyond those necessary for such a determination, they can have no collateral estoppel effect in future litigation. Under these circumstances, we consider it unnecessary to make a determination of which, if any, of the findings and conclusions are not necessary or to excise any such findings or conclusions from the Findings of Fact, Conclusions of Law, Judgment and Decree.

VI. Awards of Attorney Fees, Expenses, and Costs

Having rejected AWDI's objections to the merits of the trial court's judgment, we now turn to AWDI's objection to the awards of attorney fees, expenses, and costs. A summary of the proceedings leading up to the awards is necessary to an understanding of AWDI's objections.

On September 26, 1991, almost five years after AWDI filed its application and following extensive discovery conducted by both AWDI and the objectors, a pretrial conference was held in preparation for a trial scheduled to begin on October 15, 1991. Prior to the pretrial conference, AWDI's land grant claims had been dismissed by partial summary

Page 377

judgment. As a result, AWDI's alternative claims for nontributary and tributary water rights were the only remaining bases for its asserted right to withdraw 200,000 acre feet of water per year by its proposed wells. Near the conclusion of the pretrial conference and without prior notice to the objectors, AWDI moved to dismiss, without prejudice, its application for determination of tributary water rights, taking the position that as a result of the trial court's rulings in this action, and other circumstances, it no longer had a "reasonable likelihood of prevailing on the claim." The objectors sought and were granted the opportunity to respond. In briefs, they took the position that if the court exercised its discretion to dismiss under C.R.C.P. 41(a)(2), the order of dismissal must be conditioned upon the award of all fees and expenses incurred by the objectors in defending against the tributary claim. The court held a nonevidentiary hearing and thereafter entered a written order dismissing the tributary claim without prejudice but requiring AWDI to pay to the objectors "all of their attorneys' fees, expert witness fees and costs, and other fees and expenses related to the Tributary Claim." The court ordered that a hearing to determine the amounts to be awarded would be held immediately following the trial on the nontributary claim, at which time the court would "consider the reasonableness of those fees and costs and the necessity of those expenditures."

Following the trial and resulting dismissal of the nontributary claim, the objectors sought recovery of attorney fees, expenses, and costs pursuant to the order dismissing the tributary claim under C.R.C.P. 41(a)(2) and also sought costs under C.R.C.P. 54(d) incident to the judgment of dismissal of the nontributary claim. AWDI opposed the requested awards. The court then held a three day evidentiary hearing to determine the amounts to be awarded to the objectors. At the conclusion of the hearing the court made findings and entered a judgment for the objectors in amounts totaling $2,236,790.40 for attorney fees, expenses including expert witness fees, and costs incurred in defending against the tributary claim, as well as $473,091.31 for other costs incident to the litigation resulting in dismissal of the nontributary claim. [39]

AWDI challenges the awards on several bases. First, it asserts that a court cannot condition voluntary dismissal of a claim on the payment of attorney fees, expenses, and costs under C.R.C.P. 41(a)(2), for to do so would violate section 13-17-102(5), 6A C.R.S. (1987), and C.R.C.P. 11. Second, AWDI argues that because of the unique nature of water adjudication and based upon Colorado Uniform Water Court Rule 5(b), Rule 41(a)(2) is not applicable to litigation concerning water rights. Third, AWDI contends that the awards were improper and excessive because the court employed an incorrect standard in evaluating the C.R.C.P. 41(a)(2) claims, and the evidence adduced in support of those claims was legally insufficient. Finally, AWDI challenges the amount of the costs awarded to the objectors under C.R.C.P. 54(d) as an abuse of discretion, lacking in sufficient evidentiary support, and not based on sufficient findings.

The objectors assert that AWDI cannot contest the awards made under C.R.C.P. 41(a)(2) because they were ordered incident to the dismissal of the tributary claim, which AWDI requested. We first address this threshold issue and then consider AWDI's objections to the awards.

A. Whether AWDI can Contest the Conditions of Dismissal of

the Tributary Claim

The objectors contend that having asked for and enjoyed the benefit of voluntary dismissal without prejudice, AWDI cannot now be heard to complain about the terms imposed as a condition of the dismissal by the court. The terms were imposed pursuant to C.R.C.P. 41(a)(2), which provides in relevant part:

[Subject to an exception not applicable here], an action shall not be dismissed at the plaintiff's instance save upon order of

Page 378

the court and upon such terms and conditions as the court deems proper.... Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.

Fed.R.Civ.P. 41(a)(2) is virtually identical, so federal precedent will be helpful in resolving this issue. See United States v. Bell,724 P.2d 631, 645 n. 18 (Colo.1986); Harding Glass Co., Inc. v. Jones,640 P.2d 1123, 1125 n. 3 (Colo.1982); United Bank of Denver Nat'l Assoc. v. Shavlik,189 Colo. 280, 282, 541 P.2d 317, 318 (1975).

Generally, a plaintiff may not appeal from an order granting its request for voluntary dismissal. Jensen v. Matthews-Price, M.D.,845 P.2d 542, 543 (Colo.App.1992); accord Unioil, Inc. v. E.F. Hutton & Co., Inc.,809 F.2d 548, 555-56 (9th Cir.1986), cert. denied, 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987) & 484 U.S. 823, 108 S.Ct. 85, 98 L.Ed.2d 47 (1987); LeCompte v. Mr. Chip, Inc.,528 F.2d 601, 603 (5th Cir.1976); see also 9 Wright & Miller § 2376. This rule is premised on the rationale that "such a dismissal cannot be characterized as an involuntary adverse judgment against the plaintiff." Jensen, 845 P.2d at 543; see also 5 James Wm. Moore et al., Moore's Federal Practice p 41.05 (2d ed. 1993). As the United States Court of Appeals for the Fifth Circuit has noted, when such a dismissal is granted,

the plaintiff has acquired that which he sought, the dismissal of his action and the right to bring a later suit on the same cause of action, without adjudication of the merits. The effect of this type of dismissal is to put the plaintiff in a legal position as if he had never brought the first suit.

LeCompte, 528 F.2d at 603.

In the present case, however, the dismissal was conditioned on terms imposed by the court under C.R.C.P. 41(a)(2) and to which AWDI never assented. The Colorado Court of Appeals has stated that rather than accept the terms and conditions of dismissal, "if a trial court places 'terms and conditions' upon a dismissal under C.R.C.P. 41(a)(2) which are unacceptable to plaintiff, plaintiff is entitled to elect to proceed with the litigation." Powers v. Professional Rodeo Cowboys,832 P.2d 1099, 1104 (Colo.App.1992); accord, e.g., Marlow v. Winston & Strawn,19 F.3d 300 (7th Cir.1994); Unioil, 809 F.2d at 554; see also 9 Wright & Miller § 2366. We have not previously been required to decide whether a plaintiff who disagrees with the legal or factual basis for terms or conditions imposed in an order dismissing a claim on the plaintiff's motion may choose not to proceed with litigation of the claim and yet preserve a right to challenge the terms and conditions on appeal.

The federal circuits have not adopted a single consistent analytic approach in deciding whether a plaintiff can appeal conditions imposed upon it under Fed.R.Civ.Proc. 41(a)(2) pursuant to a voluntary dismissal without prejudice. Cauley v. Wilson,754 F.2d 769, 770 (7th Cir.1985); see also discussion in Unioil, 809 F.2d at 555-56. Some cases have held that conditions imposed in voluntary dismissal orders can be challenged on appeal only if they amount to legal prejudice. Unioil, 809 F.2d at 555-56; LeCompte, 528 F.2d at 603. The condition of payment of the opposing party's costs and expenses has been stated to constitute prejudice in a practical sense but not legal prejudice. Unioil, 809 F.2d at 555-56; LeCompte, 528 F.2d at 603. The same court that decided LeCompte, however, has suggested that there will be cases

in which the amount of money set as the price of a voluntary dismissal without prejudice is so clearly unreasonable as to amount to appealable 'legal prejudice'.... We will examine each case to ensure that the terms and conditions accompanying the grant of a plaintiff's Rule 41(a)(2) motion are not so outrageous as to demand a full appellate review.

Yoffe v. Keller Indus., Inc., 580 F.2d 126, 131 (5th Cir.1978), cert. denied, 440 U.S. 915, 99 S.Ct. 1231, 59 L.Ed.2d 464 (1979); see also Mortgage Guaranty Ins. Corp. v. Richard Carylon Co.,904 F.2d 298, 300-01 (5th Cir.1990); Scholl v. Felmont Oil Corp.,327 F.2d 697, 700 (6th Cir.1964). This approach tends to intermingle the issue of entitlement to review and that of the reasonableness of the payment imposed. The Seventh Circuit Court of Appeals in Cauley adopted a more direct approach and permitted review of a

Page 379

condition to voluntary dismissal in order to assess abuse of discretion. The court explained:

[A] plaintiff may understand that the dismissal without prejudice is conditioned on paying attorneys' fees yet disagree with the amount of fees awarded. Thus an order awarding attorneys' fees may qualify as an involuntary adverse judgment even though the plaintiff requested and received the Rule 41(a)(2) dismissal.

Cauley, 754 F.2d at 771; see GAF Corp. v. Transamerica Ins. Co.,665 F.2d 364, 367-68 (D.C.Cir.1981).

We adopt the approach in Cauley and also consider it appropriate to take cognizance of challenges to the legal propriety of imposing terms and conditions of dismissal, which we view as an assertion of "legal prejudice." See Unioil, 809 F.2d at 555-56; LeCompte, 528 F.2d at 603. Of course, it must also be shown in order to challenge a term or condition of dismissal on appeal that the party seeking dismissal did not actually acquiesce in imposition of the condition. Mortgage Guaranty, 904 F.2d at 300.

In the present case AWDI was aware that terms and conditions would be imposed incident to its voluntary dismissal. When the trial court orally granted AWDI's motion to dismiss on October 10, 1991, the court stated that the dismissal was subject to the condition that AWDI pay to the objectors "all attorney fees and expert witness fees and other fees and expenses incurred by the objectors that are otherwise appropriate during the pendency of this litigation which relate to the tributary claim." AWDI then proceeded to trial on October 15, 1991, on the nontributary claim alone.

Although aware of the terms and conditions imposed, AWDI never acquiesced to them. AWDI asserted in proceedings Before the trial court that such terms and conditions were not legally permissible and has consistently maintained this position in the trial court and on appeal. The court in LeCompte determined that the plaintiff had not acquiesced to the conditions of dismissal where he not only objected to the inclusion of the defendant's proposed conditions in the dismissal order, but vigorously renewed his objections after the court issued its order, and--failing to obtain relief--then brought an appeal. The fact that the plaintiff never sought to have the voluntary dismissal set aside was not considered dispositive. LeCompte, 528 F.2d at 604.

We hold that a party such as AWDI that obtains a voluntary dismissal of its claims subject to terms and conditions to which it consistently maintains its objections may challenge those terms and conditions as legally impermissible or as an abuse of discretion on appellate review. We consider it especially appropriate to address the challenge to the amount of the fees and expenses imposed here, because the amount had not been quantified at the time AWDI decided to go forward with the nontributary claim alone.

B. Whether Section 13-17-102(5) or C.R.C.P. 11 Precludes an Award of Attorney Fees and Expenses Incident to Dismissal of the Tributary Claim

AWDI asserts that a requirement for payment of attorney fees and expenses as a term or condition of an order granting voluntary dismissal of a claim cannot be imposed in the absence of evidence and findings satisfying the requirements of section 13-17-102(5), 6A C.R.S. (1987), and C.R.C.P. 11--provisions which have no analogs in the federal statutes or rules. We disagree.

As earlier noted, C.R.C.P. 41(a)(2) provides that, with exceptions not pertinent here, "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Section 13-17-102(5) provides:

No attorney fees shall be assessed if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew, or reasonably should have known, that he would not prevail on said claim or action.

C.R.C.P. 11 provides, in pertinent part:

Reasonable expenses, including a reasonable attorney's fee, shall not be assessed if, after filing, a voluntary dismissal

Page 380

or withdrawal is filed as to any claim, action or defense, within a reasonable time after the attorney or party filing the pleading knew, or reasonably should have known, that he would not prevail on said claim, action, or defense.

AWDI argues that the trial court could not impose attorney fees as a term or condition of dismissal under C.R.C.P. 41(a)(2) in the absence of a finding that AWDI did not move to dismiss within a reasonable time after it knew or reasonably should have known that it would not prevail on its tributary claim, as required by section 13-17-102(5) and C.R.C.P. 11. AWDI asserts that both those provisions are applicable whenever payment of attorney fees is imposed upon a party incident to dismissal of a claim, including dismissals under C.R.C.P. 41(a)(2).

Preliminarily, we note that AWDI offers no case support for its assertion that section 13-17-102(5) and Rule 11 apply to limit a trial court's discretion to impose terms and conditions on a grant of voluntary dismissal under Rule 41(a)(2). The limited number of Colorado cases that have interpreted the latter rule have never mentioned any limitation of that kind. See Tillery v. District Ct.,692 P.2d 1079, 1084 (Colo.1984) (trial court may award costs and fees to defendant as a term and condition of voluntary dismissal); Powers v. Professional Rodeo Cowboys,832 P.2d 1099, 1102 (Colo.App.1992) (same).

More importantly, the purpose of Rule 41 is different than the objectives of section 13-17-102(5) and Rule 11. The language of both section 13-17-102 and Rule 11 expresses an intention to sanction a party who has continued to pursue a claim after the party or its attorney knew or should have known that the party would not prevail, i.e., that the claim is not meritorious. [40] No such language is present within Rule 41(a)(2). [41] Rule 41(a)(2) is intended to give the plaintiff the right to dismiss a claim that may later become viable or may be asserted later in a different forum, provided the court can ensure the defendant will not be unfairly prejudiced. Tillery, 692 P.2d at 1084; accord McCall-Bey v. Franzen,777 F.2d 1178, 1184 (7th Cir.1985) (terms and conditions imposed pursuant to Rule 41(a)(2) are the "quid pro quo" of allowing plaintiff to dismiss a potentially meritorious claim without being prevented by the doctrine of res judicata from bringing the same suit again); GAF Corp., 665 F.2d at 369 ("[n]o matter how conscientious and diligent [plaintiff] may have been, [defendant] suffered some costs by defending this action ... and [defendant] is entitled to such reimbursement of those costs as the court may order"); LeCompte, 528 F.2d at 604 (Rule 41(a)(2) "allows the plaintiff to withdraw his action from the court without prejudice to future litigation"); 9 Wright & Miller § 2362. According to Tillery, a plaintiff's Rule 41(a)(2) motion to dismiss voluntarily without prejudice "generally should be granted," Tillery, 692 P.2d at 1085, but the court must first determine that any harm to the defendant may be avoided by imposing terms and conditions of dismissal.

Thus, a court's focus when determining appropriate terms and conditions under C.R.C.P. 41(a)(2) is necessarily on a remedy for the defendant, not punishment of the plaintiff. Rule 41(a)(2) provides a means for preserving a potentially meritorious claim for another day or another forum provided that conditions of dismissal can be devised to protect the defendants from prejudice. Section 13-17-102(5) and Rule 11, on the other hand, are intended to protect a plaintiff from imposition of attorney fees upon dismissal of an unmeritorious claim provided that the plaintiff seeks dismissal promptly after learning that the claim cannot prevail.

Page 381

Although AWDI asserts that allegedly erroneous pretrial rulings by the trial court destroyed the prospects for success in establishing the tributary claim, AWDI has never conceded or suggested that such a claim was not meritorious or that it will not reassert such a claim in the future. We therefore reject AWDI's argument that imposition of a requirement of payment of attorney fees as a condition of voluntary dismissal without prejudice of a claim under C.R.C.P. 41(a)(2) violates either section 13-17-102(5) or C.R.C.P. 11.

C. Whether the Special Nature of Water Adjudication Proceedings Precludes the Award of Fees and Expenses Incident to Dismissal of the Tributary Claim

AWDI also contends that the condition concerning payment of fees and expenses that was included in the court's C.R.C.P. 41(a)(2) order of dismissal of the tributary claim fails to take account of and is inconsistent with the unique nature of water right adjudication. We disagree.

AWDI notes that, unlike typical civil cases, once an application for determination of a water right or a right to nontributary ground water is filed, any person who wishes may file a statement of opposition, without complying with traditional standing requirements. See § 37-92-302(1)(b), 15 C.R.S. (1990); Bunger v. Uncompahgre Valley Water Users Ass'n,192 Colo. 159, 165, 557 P.2d 389, 392 (1976). Thus, an applicant has no control over the number of objectors who participate in an action, or the fees and expenses they may generate. AWDI asserts that for this reason the imposition of fees and expenses in a water case can quickly become unfairly burdensome on the applicant. Every potential applicant, regardless of financial resources, would have to consider the possibility of future payment of objectors' fees and expenses in the event the applicant should later wish to dismiss its application. AWDI asserts that Colorado Uniform Water Court Rule 5(b) [42] reflects this distinction between water court proceedings and other civil actions in its provision for voluntary dismissals. Rule 5(b) requires court approval for withdrawal of a water rights application if a statement of opposition has been filed, but makes no provision for the imposition of "terms and conditions."

A note at the beginning of the Uniform Local Rules For All State Water Court Divisions provides in relevant part, "[e]xcept as expressly provided in these rules, the Colorado Rules of Civil Procedure ... shall apply to water court practice and procedure." Rule 5(b) contains no indication that C.R.C.P. 41 is not fully applicable to water cases. The fact that the number of objectors who need protection from prejudice by terms and conditions in an order of voluntary dismissal is large provides no persuasive reason to permit an applicant to obtain dismissal of a claim without providing such protection. We reject the contention that C.R.C.P. 41(a)(2) does not apply to water right adjudications.

D. Whether the Trial Court Employed an Incorrect Standard or Relied on Insufficient Evidence in Assessing Fees and Expenses Incident to Dismissal of the Tributary Claim

AWDI asserts that even if the trial court could award fees and expenses as a condition of voluntary dismissal of a claim, the court erred by employing an incorrect standard in determining the extent to which the fees and expenses are allowable. Furthermore, AWDI contends, evidence adduced in support of the amounts assessed was legally insufficient.

1. Correctness of Standard

We first address whether the court used the correct standard in determining attorney fees and expenses. AWDI argues that the trial court did not properly limit the award to those fees and expenses for activities that were rendered useless by the dismissal.

Page 382

Such a criterion, it contends, is the correct standard for assessing the limits of a permissible award of fees and expenses incident to a voluntary dismissal under C.R.C.P. 41(a)(2).

Tillery contains some guidance concerning the proper standard:

The district court could require the costs and fees to be reimbursed as a condition of granting the motion to dismiss, although consideration should be given to the fact that the defendants may recoup some of the fees if they prepare an answer to the petitioner's complaint in federal court.

Tillery, 692 P.2d at 1085. Because C.R.C.P. 41(a)(2) is "identical to the corresponding federal rule and the rules adopted by several other states," Tillery, 692 P.2d at 1084, it will also be helpful to look to the standards applied in cases outside this jurisdiction for guidance. Federal courts have consistently limited reimbursement under Fed.R.Civ.P. 41(a)(2) to expenses for work that will not be useful in future litigation of the same claim. Lau v. Glendora Unified School District,792 F.2d 929, 932 (9th Cir.1986) (Reinhardt, J., concurring) (defendant "not entitled to reimbursement of costs and legal fees incurred in preparing work product that may be useful in continuing litigation"); McCants v. Ford Motor Co., Inc.,781 F.2d 855, 860 (11th Cir.1986) (where a subsequent similar suit between the parties is contemplated, expenses awarded might be limited to those incurred in discovering information that will not be useful in the later suit); Cauley, 754 F.2d at 772 (trial court found to have abused its discretion in awarding fees for work product which could be useful in defending same claim in state court where claim was being pursued); McLaughlin v. Cheshire,676 F.2d 855, 856-57 (D.C.Cir.1982) (no entitlement to reimbursement for expenses in preparing work product that will be useful in continuing litigation in another forum); GAF Corp., 665 F.2d at 369 (same); Brown v. Zackert,10 Kan.App.2d 466, 701 P.2d 711, 714 (1985) ("while the conditions of dismissal are within the discretion of the court, the range of that discretion is confined to terms which relieve the defendant from the potential waste occasioned by the dismissal"). These cases are consistent with Tillery and provide helpful elaboration of the standard that we suggested in that case.

AWDI asserts that the trial court failed to apply this standard in the present case. In issuing the payment order, the trial court noted that dismissal of the tributary claim had previously been conditioned on the applicant's payment to the objectors of "all of their attorney fees, expert witness fees, costs, fees, and other expenses related to the tributary claim." AWDI contends that the words "related to" sweep too broadly and asserts that this language is evidence that the trial court improperly ordered the payment to the objectors of all expenses having anything to do with the tributary claim, including those incident to gathering information also useful in litigating the nontributary claim or that could be used against AWDI in future litigation of the tributary claim.

The remainder of the trial court's order, however, indicates that the court properly considered the danger of overlap with the nontributary claim and the possibility that work expended on the tributary claim would be useful in future litigation of the latter claim. The court rejected the possibility that work devoted to the tributary claim would be useful in future litigation of that claim, stating:

Depending on when a new tributary claim may be filed, much of the material discovered by Objectors prior to September 1991 will be outdated, if not useless, in any hearing concerning a "new" tributary claim. Any benefit from this earlier discovery is speculative at best.

In addition, the trial court expressly recognized the necessity of avoiding reimbursement of expenses incurred in gathering information useful in litigation of the nontributary claim. Out of concern about the possibility of "overlap," among other things, the court discounted the award of attorney fees and expense claims by ten percent.

Other than the court's use of the phrase "related to the tributary claim," AWDI offers no support for its contention that the trial court failed to apply the proper standard limiting its award of attorney fees and costs under Rule 41(a)(2) to expenses for work that

Page 383

it determined was not useful in defending against the nontributary claim or would not be of use in future litigation of a renewed tributary claim. We reject the contention that the trial court used the wrong standard in awarding fees and expenses.

2. Sufficiency of Evidence

AWDI asserts that even if the court used the proper standard, the evidence was insufficient to identify the fees and expenses incurred for work useful only on the tributary claim, failed to establish that the scope of the work on that claim was reasonable, and failed to show the reasonableness of the amounts charged for such work. We disagree with each of these assertions.

a. Identification of Fees and Expenses Attributable to Tributary Claim

AWDI as well as the objectors understood that determining an appropriate award might be difficult due to the possibility of overlap between the work performed and information gathered by the objectors to defend against the nontributary claim which went to trial and the efforts directed to defend against the tributary claim which was dismissed. This difficulty occurred in part because until AWDI unexpectedly moved to dismiss the tributary claim, the objectors had no reason to distinguish carefully between the two claims in maintaining their records of work performed and expenses incurred.

The party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award. Kinsey v. Preeson,746 P.2d 542, 551-52 (Colo.1987) (citing Board of County Comm'rs v. Auslaender,745 P.2d 999, 1001-02 (Colo.1987)); see § 13-25-127, 6A C.R.S. (1987) (burden of proof in any civil action, except claim for exemplary damages or body execution, "shall be by a preponderance of the evidence"); Spensieri v. Farmers Alliance Mutual Ins. Co.,804 P.2d 268, 271 (Colo.App.1990) ("If the attorney provides a reason and rational basis for the work done, he or she should be compensated accordingly...."); see also Blum v. Stenson,465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (when the fee claimant has carried his burden of showing that the claimed rate and number of hours are reasonable, the product is presumed to be the reasonable fee contemplated by 42 U.S.C. § 1988). Counsel is not required "to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures." Hensley v. Eckerhart,461 U.S. 424, 437 n. 12, 103 S.Ct. 1933, 1941 n. 12, 76 L.Ed.2d 40 (1983). This was done.

In this case the objectors' attorneys introduced time records kept contemporaneously with work done. The extent of the information varied, and the records kept by the private attorneys were generally more detailed than those of the government attorneys, but all included the date, the attorney, the time expended, and a general statement of work done. [43]

In addition, attorneys for the objectors testified as to the manner in which they allocated fees and expenses between the tributary and nontributary issues for the purpose of their claims under C.R.C.P. 41(a)(2). For instance, the lead attorney for the United States testified that virtually all of his time was devoted to the tributary claim, "but we decided to make the figure 85 percent, which is, I think, a very conservative estimate." The attorney for Oliver Powell Roemer III and Howard Platz testified that the concerns of both of those clients were limited to the tributary claim. He averred, "By definition, if the water was nontributary, it could not affect their water rights. Only tributary claims could affect their water rights." Accordingly, the fees and expenses incurred on behalf of those clients were limited to the tributary claim.

In response to AWDI's assertion that the objectors' work defending against the tributary claim must have been used in litigating

Page 384

the nontributary claim, an attorney for Rio Grande Water Users Association and San Luis Valley Water Conservancy District stated:

There's a big difference between trying a tributary claim and a nontributary claim. In a nontributary claim, all you've got to show is impact on any stream of one-tenth of 1 percent. In a tributary claim, you've got to know which stream systems are impacted and what amounts with a good deal of greater precision....

This attorney also testified, "[Y]ou spend a lot of time on a whole broad range of issues related to--on a tributary case that would never come up in a nontributary setting." In order to allocate accurately the time spent on each claim, this counsel reviewed all of his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.