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Concerning the Application for Water Rights for Cherokee Metropolitan District in El Paso 9 County v. Cherokee Metropolitan District

Supreme Court of Colorado, En Banc

June 22, 2015

Concerning the Application for Water Rights for Cherokee Metropolitan District in El Paso 9 County, Colorado. Opposer-Appellant/Cross-Appellee: Upper Black Squirrel Creek Ground Water Management District,
v.
Cherokee Metropolitan District, Applicant-Appellee: Meridian Service Metropolitan District, and Appellees Pursuant to C.A.R. 1(e): Steven J. Witte, Division Engineer, Water Division 2, and Dick Wolfe, State Engineer, Intervenor-Appellee/Cross-Appellant:

Page 409

Appeal from the District Court of El Paso County Court, Water Division 2. Case No. 98CW80. Honorable Larry C. Schwartz, Water Judge.

Judgment Affirmed.

SYLLABUS

Upper Black Squirrel appealed from an order of the water court interpreting an earlier stipulated decree, to which it and Cherokee Metropolitan were parties, concerning the latter's rights to ground water in the Upper Black Squirrel Basin and, particularly, its right to export water for use outside the basin. Upper Black Squirrel sought a declaration that a provision of the stipulation, which required Cherokee to deliver wastewater returns back into the basin for recharge of the aquifer, barred Cherokee and Meridian, another metropolitan district with which Cherokee had entered into an intergovernmental agreement, from claiming credit for these wastewater returns as replacement water, for purposes of acquiring the right to additional pumping from Cherokee's wells in the basin. The water court ruled instead that nothing in the stipulation, and particularly not its use of the word " recharge," implied abandonment or forfeiture of any right Cherokee might otherwise have to claim future credits with the Ground Water Commission.

Although the water court found that Meridian, as a nonparty, was not bound by the stipulation in any event, it assessed costs and attorney fees against Meridian for pursuing frivolous defenses. Meridian cross-appealed the water court's order imposing costs and attorney fees.

The supreme court affirms the orders of the water court as to which error has been assigned on appeal and cross-appeal, holding that the water court properly interpreted the stipulation and did not abuse its discretion in ordering costs and fees.

For Opposer-Appellant/Cross-Appellee: Trout, Raley, Montaño, Witwer & Freeman, P.C., Lisa M. Thompson, Peggy E. Montaño, Douglas M. Sinor, April H. Killcreas, Denver, Colorado.

For Applicant-Appellee: Peter C. Johnson, Denver, Colorado; Hoffman, Parker, Wilson & Carberry, P.C., Jefferson H. Parker, Ryan S. Malarky, Denver, Colorado; Singularity Legal, PLLC, Gregory R. Piche', Denver, Colorado; Jackson Kelly PLLC, Heather E. Joyce, Denver, Colorado.

For Intervenor-Appellee/Cross-Appellant: W.B. Schroeder Law Office, LLC, Wayne B. Schroeder Boulder, Colorado.

JUSTICE COATS delivered the Opinion of the Court. JUSTICE HOBBS concurs in part and dissents in part, and CHIEF JUSTICE RICE joins in the concurrence in part and dissent in part. JUSTICE BOATRIGHT does not participate.

OPINION

COATS, Judge

Page 410

[ΒΆ1] Upper Black Squirrel appealed from an order of the water court interpreting an earlier stipulated decree, to which it and Cherokee Metropolitan were parties, concerning the latter's rights to ground water in the Upper Black Squirrel Basin and, particularly, its right to export water for use outside the basin. Upper Black Squirrel sought a declaration that a provision of the stipulation, which required Cherokee to deliver wastewater returns back into the ...


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