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Yellow Jacket Water Conservancy District v. Livingston

Supreme Court of Colorado, En Banc

December 23, 2013

Concerning the Application for Water Rights of Yellow Jacket Water Conservancy District in Rio Blanco County
v.
Joseph E. LIVINGSTON; Barbara J. Livingston; John D. Livingston Trust; Joan P. Livingston; Virginia L. Bean; Ted Edmonds Revocable Trust; Ruth Longwell Edmonds Revocable Trust; C Lazy S Ranch, Inc.; David Y. Cogswell; Fawn Creek Ranch Company; Colorado Division of Wildlife and the Wildlife Commission; Elk Creek Ranch Development, Inc.; Elk Creek Ranch Owner's Association; K/K Ranch, LLC; Sleepy Cat Ranch, LLC; Western Resource Advocates; Colorado Cattlemen's Agricultural Land Trust; Erin Light, in her official capacity as Division Engineer for Water Division 6; and Dick Wolfe, in his official capacity as State Engineer, Opposers-Appellees. YELLOW JACKET WATER CONSERVANCY DISTRICT, Applicant-Appellant,

Page 455

Appeal from District Court, Routt County District Court, Water Division 6, Case Nos. 09CW48 & 09CW50, Honorable Michael A. O'Hara III, Judge

Attorneys for Applicant-Appellant: White & Jankowski, LLP, Sarah A. Klahn, Philip E. Lopez, Denver, Colorado, Cooley Zagar-Brown P.C., Trina Kay Zagar-Brown, Meeker, Colorado, Balcomb & Green, P.C., Scott Balcomb, Scott Grosscup, Glenwood Springs, Colorado.

Attorneys for Objectors-Appellees Joseph E. Livingston; Barbara J. Livingston; John D. Livingston Trust; Joan P. Livingston; Ted Edmonds Revocable Trust; and Ruth Longwell Edmonds Revocable Trust: Karp Neu Hanlon, P.C., Michael J. Sawyer, Jeffrey J. Conklin, Glenwood Springs, Colorado.

Attorneys for Objectors-Appellees Elk Creek Ranch Owners' Association, Elk Creek Ranch Development, Inc., and K/K Ranch, LLC: Porzak Browning & Bushong, LLP, Glenn E. Porzak, Karen L. Henderson, Boulder, Colorado.

Attorneys for Objector-Appellee Western Resource Advocates: Robert Harris, Bartlett Miller, Boulder, Colorado.

Attorney for Amicus Curiae Upper Arkansas Water Conservancy District: MacDougall & Woldridge, P.C., Julianne M. Woldridge, Colorado Springs, Colorado.

No Appearance by or behalf of: Virginia L. Bean; C Lazy S Ranch, Inc.; David Y. Cogswell; Fawn Creek Ranch Company; Colorado Division of Wildlife; Wildlife Commission; Erin C.H. Light, in her official capacity as Division Engineer for Water Division 6; and Dick Wolfe, in his official capacity as State Engineer.

OPINION

BOATRIGHT, JUSTICE.

¶ 1 In this opinion, we review the water court's determination that holdover directors of a water conservancy district board may not continue to act on behalf of the district one year after the expiration of their term. We hold that the holdover provision in the Water Conservancy Act (" WCA" ), section 37-45-114(1)(b), C.R.S. (2013), allows for a holdover director to continue to serve as a de jure officer and does not impose a temporal limit on a holdover director's authority to act on behalf of a district. Accordingly, we reverse the judgment of the water court and remand for proceedings consistent with this opinion.

Page 456

I. Facts and Procedural History

¶ 2 Yellow Jacket Water Conservancy District (" Yellow Jacket" ) holds conditional water rights for various bodies of water in northwest Colorado. Under the terms of the WCA, Yellow Jacket was required to file diligence applications every six years with the water court in order to maintain these conditional water rights. On September 29, 2009, before the diligence applications were due, Yellow Jacket's Board of Directors held a meeting. Yellow Jacket's Board is comprised of nine directors; at the time of the meeting, however, four directors were serving terms that had expired on October 18, 2008, and one vacancy remained due to a resignation earlier in the year. Consequently, only four members of the nine-person Board were serving unexpired terms. Nevertheless, the Board recorded a quorum at the meeting because seven directors, including three who were serving expired terms, were present. Yellow Jacket subsequently timely filed the diligence applications with the water court, which published them in its monthly resume.

¶ 3 In response to Yellow Jacket's applications, several parties (" the opposers" ) moved for summary judgment, requesting that the applications be dismissed and the water rights be cancelled. The opposers argued that because fewer than half of Yellow Jacket's directors were serving unexpired terms, the Board could not assemble a valid quorum ...


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