Concerning the Protest of Tom McKenna and McKenna Ranch to the Revised Abandonment List of Water Rights in Water Division No. 2,
Steve Witte, as Division Engineer for Water Division 2, Opposer-Appellee Tom McKenna and McKenna Ranch, Applicants-Appellants:
Appeal from the District Court, Water Division 2, Case No. 12CW52. Honorable Larry C. Schwartz, Water Judge.
This case is a direct appeal from a water court judgment that decreed three of the appellants' water rights abandoned. The appellants challenged the water court's jurisdiction to enter the judgment, based on the Division Engineer's six-day delay in preparing the decennial abandonment list as required by section 37-92-401(1)(a), C.R.S. (2014), and asserted that there was insufficient evidence to support a judgment of abandonment. The supreme court holds that the deadline to prepare the abandonment list under section 37-92-401(1)(a) is directional and is not a jurisdictional mandate. Thus, the Division Engineer's failure to prepare the abandonment list by the statutory deadline did not divest the water court of jurisdiction over the case. Further, the supreme court declines to overturn the water court's determination of abandonment because the record supports the conclusion that the appellants intended to permanently discontinue their use of the three water rights.
For Applicants-Appellants: Felt, Monson & Culichia, LLC, David M. Shohet, Colorado Springs, Colorado.
For Opposer-Appellee: Cynthia H. Coffman, Attorney General, Katherine A. D. Ryan, Assistant Attorney General, Denver, Colorado.
In this direct appeal from a judgment of the water court, we consider the Applicants' challenge to the inclusion of three water rights on the 2010 abandonment list for Water Division Two. The Division Engineer placed the Applicants' three Sanchez Ditch water rights on the decennial abandonment list because the ditch had not diverted water for several decades. After a hearing in July 2013, the water court determined that the Sanchez Ditch water rights had not been applied to beneficial use for the statutory abandonment period and found that the Applicants had failed to rebut the resultant presumption of intent to abandon the rights. The water court therefore decreed the Sanchez Ditch water rights abandoned.
We must determine whether the water court's judgment of abandonment was proper. The Applicants contend that the judgment was improper because the Division Engineer missed the statutory deadline to prepare the abandonment list by several days, which they claim divested the water court of jurisdiction. We hold that the deadline to prepare the abandonment list under section 37-92-401(1)(a), C.R.S. (2014), is directional and is not a jurisdictional mandate. Thus, the Division Engineer's failure to prepare the abandonment list by the statutory deadline did not divest the water court of jurisdiction over the case. Further, we decline to overturn the water court's determination of abandonment because the record supports the conclusion that the Applicants intended to permanently discontinue their use of the Sanchez Ditch water rights. Accordingly, we affirm the water court's judgment of abandonment and remand the case to that court for further proceedings consistent with this opinion.
I. Facts and Proceedings Below
The Huerfano County District Court decreed three water rights in the Cucharas River to the Sanchez Ditch on June 12, 1889. The Sanchez Ditch rights comprise priorities 25, 53, and 64 on the river. They were decreed cumulatively to irrigate up to 200 acres at a rate of 4 c.f.s. (cubic feet per second). During the first half of the 1900s, water was regularly diverted through the Sanchez Ditch to irrigate crops.
The diversion point for the Sanchez Ditch has been moved twice as the course of the Cucharas River has changed. Early in the 1900s, the owners of the ditch built a concrete diversion dam upstream of the decreed point of diversion. When further erosion cut the ditch off from the river, the owners added an extension and installed a pipeline. The ditch extension still intersects the Cucharas, although the pipeline is gone, there is no headgate, and the bed of the ditch is at least four feet above the river. In addition, the concrete dam still straddles the Cucharas about a thousand feet upstream of the current ditch terminus. The diversion structure, however, is silted in and disconnected from the current Sanchez Ditch. Although segments of the Sanchez Ditch could carry water with some minor maintenance, the ditch cannot divert water without a diversion dam or pump system, as well as a new headgate. Moreover, the owners never legally changed the decreed point of diversion to correspond to the physical modifications to the ditch.
The Applicants, Tom McKenna and McKenna Ranch (collectively, " McKenna" ),
acquired the Sanchez Ditch rights in 1991 when Mr. McKenna bought a 25,000-acre tract of land east of Walsenburg, Colorado at a foreclosure sale. The property had stagnated in bankruptcy litigation for years and was in disrepair, but McKenna developed it into a working cattle ranch. Some of the earliest improvements he made were geared toward the development of a reliable supply of stock water. He cleaned out the old, abandoned wells on the property, bought used gasoline tanks for water storage, and drilled his own, deeper wells. He also looked into the water rights attached to the property. He learned from a real estate firm that many of the water rights listed in his deed were abandoned or non-existent but that he did own " ...