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In re Protest of Jim Hutton Educational Foundation

Supreme Court of Colorado, En Banc

March 16, 2015

Concerning the Matter of the Protest of the Jim Hutton Educational Foundation to Inclusion on the Revised Abandonment List of Water Rights in Yuma County, Colorado, Appellants: Dick Wolfe, P.E. State Engineer; David L. Nettles, P.E. Division Engineer, Water Division 1; and Republican River Water Conservation District;
v.
Jim Hutton Educational Foundation, Appellee

Page 856

Appeal from the District Court Weld County District Court, Water Division 1, Case No. 12CW111. Honorable James F. Hartmann, Water Judge.

SYLLABUS

The supreme court holds that when the State and Water Division Engineers prove that the water right holder has not used the decreed point of diversion for ten years or more, the Engineers trigger the rebuttable presumption of abandonment under section 37-92-402(11), C.R.S. (2014). Once triggered, the burden shifts to the water right holder to demonstrate a lack of intent to abandon. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse in order to rebut the presumption. The court therefore reverses the water court's judgment and remands for reconsideration of whether the Foundation met its burden of rebutting the presumption of abandonment.

Attorneys for Appellants State Engineer and Division Engineer for Water Division 1: Cynthia H. Coffman, Attorney General, Paul L. Benington, First Assistant Attorney General, Ema I. G. Schultz, Assistant Attorney General, Denver, Colorado.

Attorneys for Appellant Republican River Water Conservation District: Hill & Robbins, P.C., David W. Robbins, Peter J. Ampe, Dennis M. Montgomery, Andrew J. Rottman, Denver, Colorado.

Attorneys for Appellee: Porzack Browning & Bushong LLP, Steven J. Bushong, Karen L. Henderson, Boulder, Colorado.

OPINION

Page 857

HOOD, JUSTICE.

[¶1] In this case, the State and Division 1 Engineers (" Engineers" ) and Republican River Water Conservation District (" RRWCD" ) appeal the water court's decision concerning the Tip Jack water right. The Tip Jack water right was originally decreed to service the Tip Jack Ditch, which is part of a 4,000-acre ranch now owned and operated by the Jim Hutton Educational Foundation (" Foundation" ). The Engineers added the Tip Jack water right to the 2010 Revised Decennial Abandonment List for Water Division One because they found that the Foundation had abandoned the water right. The Foundation challenged the listing. After a six-day trial, the water court concluded that the Engineers had not established by a preponderance of the evidence that Jim Hutton or the Foundation had failed to use the Tip Jack water right and that even if they had, the Foundation had rebutted the resulting presumption of abandonment. The Engineers appealed.

[¶2] Existing law plainly establishes that if a water right holder fails to apply a water right to beneficial use for a period of ten years or more, the period of nonuse creates a rebuttable presumption that the water right holder has abandoned the right. See § 37-92-402(11), C.R.S. (2014). When the State and Division Engineers prove this statutory period of nonuse, the burden shifts to the water right holder to rebut this presumption. The issue of first impression we now address is how the presumption of abandonment applies when the water right holder continued to put decreed water to the use for which it was decreed, but nevertheless failed to divert water from the decreed diversion point for a period of ten years or more.

[¶3] We hold that when the Engineers prove that the water right holder has not used the decreed point of diversion for ten years or more, the Engineers trigger the rebuttable presumption of abandonment under section 37-92-402(11). Once triggered, the burden shifts to the water right holder to demonstrate a lack of intent to abandon. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse in order to rebut the presumption. We therefore reverse the water court's judgment and remand for reconsideration of whether the Foundation met its burden

Page 858

of rebutting the presumption of abandonment.[1]

I. Facts and Procedural History

[¶4] The Tip Jack water right was decreed in 1893 for 2.0 cubic feet per second (" cfs" ) for irrigation with an original point of diversion on the South Fork of the Republican River. In 1948, Roscoe Hutton acquired the Tip Jack water right. The following year, Roscoe filed a map and statement of claim with the State Engineer to move the diversion point because the construction of the Bonny Reservoir Dam destroyed the original diversion point. The dam was completed in 1952. But Roscoe did not file his formal application for a change in the point of diversion, which is different from a map and filing statement,[2] until the State Engineer placed the Tip Jack water right on the decennial abandonment list in 1977.

[¶5] In 1978, the water court entered a decree changing the point of diversion to below Bonny Reservoir. In so doing, the court decreed that all other provisions of the original 1893 decree remained in effect, including the 2.0 cfs diversion rate, and that no other changes to the water right could be made without prior approval of the court. At the same ...


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