The People of the State of Colorado, ex rel. The State Engineer for the State of Colorado, and the Division Engineer for Water Division No. 3, Plaintiffs-Appellees
v.
Robert Gregg Sease, Defendant-Appellant
Appeal
from District Court Alamosa County District Court, Water
Division 3, 07CW53 Honorable Pattie P. Swift, Water Judge
Attorneys for Plaintiffs-Appellees: Cynthia H. Coffman,
Attorney General Paul L. Benington, First Assistant Attorney
General Denver, Colorado
Attorneys for Defendant-Appellant: Erich Schwiesow, P.C.,
Erich Schwiesow Alamosa, Colorado
OPINION
SAMOUR
JUSTICE
¶1
Who diverted water from Sheep Creek? The water court
concluded Robert Gregg Sease did-in violation of a 2013
order, which forbade him to use out-of-priority water from
Sheep Creek on his Saguache County property ("the Sease
Ranch"). Thus, the water court found Sease in contempt
of court and imposed both punitive and remedial sanctions on
him.
¶2
Sease now seeks review of the water court's contempt
order. He advances two arguments in this direct appeal.
First, he contends that the water court had no basis to find
that he owns the Sease Ranch. This finding was significant
because the water court inferred from it that Sease, rather
than anyone else, was responsible for the contemptuous work
performed on the Sease Ranch that caused water to be diverted
from Sheep Creek. Second, Sease maintains that the water
court improperly shifted the burden of proof to him when it
noted that there was a lack of evidence in the record that
"someone else came on the premises and did [the
contemptuous] work without [his] authorization or against his
will."
¶3
Because we disagree with Sease on both fronts, we affirm the
water court's contempt order. The matter is therefore
remanded to the water court for enforcement of its punitive
and remedial sanctions.
I.
Procedural History
¶4
This case has a tortuous procedural history. However, because
it is relevant to Sease's assertions on appeal, we detail
it here.
¶5
Sheep Creek flows through the Sease Ranch. The construction
of various structures on the Sease Ranch caused
out-of-priority depletions of water from Sheep Creek. In
response, between 2003 and 2007, the State Engineer for the
State of Colorado and the Division Engineer for Water
Division 3 (collectively "the State") issued Sease
five cease-and-desist orders. Sease did not comply with any
of them.
¶6
In October 2007, when the State had apparently had enough, it
brought a complaint in the water court seeking to enforce the
cease-and-desist orders. Among other things, the complaint
alleged that two diversions, fourteen ponds or reservoirs,
six ditches, eleven pipelines, and thirty dams had been
installed on the Sease Ranch to redirect water from Sheep
Creek. In his answer, Sease admitted "that he is the
owner of the property that is the subject matter of this
Complaint, being the Sease [R]anch as described." The
parties eventually resolved the complaint through a
stipulation ("the first stipulation") in which
Sease again admitted that he owns the Sease Ranch. In January
2008, at the parties' joint request, the water court
adopted the first stipulation and incorporated it into an
order ("the January 2008 Order"). The January 2008
Order required Sease to remove or remediate most of the
unlawful structures on the Sease Ranch and enjoined him from
allowing the remaining structures to divert or collect any
water from Sheep Creek. In addition, it provided that, at
"any later proceedings, the Parties will be bound by the
facts set forth" in the first stipulation, which
included Sease's acknowledgement that he owns the Sease
Ranch.
¶7
Seven contempt proceedings followed the January 2008 Order.
Although this appeal relates to the seventh proceeding, we
pause to summarize the first six in order to place the
contempt order challenged by Sease in context.
¶8
Just months after the January 2008 Order was issued, the
State brought a motion to hold Sease in contempt of court.
The State alleged that Sease had failed to remediate several
ponds and ditches. To resolve this dispute, the parties
reached a new stipulation ("the second
stipulation"), which was incorporated into a new order
("the June 2008 Order"). The June 2008 Order
imposed a $30, 000 penalty and required Sease to replenish
all out-of-priority depletions and to submit plans for the
court's approval detailing how he would do so. Sease
filed two such plans and verified in the application for
review of each plan that he owns the Sease Ranch.
¶9
In 2009, the State filed a second contempt motion. This time,
the State asserted that Sease had failed to comply with the
June 2008 Order because he had not replaced the water taken
out of priority from Sheep Creek. The parties entered into
another stipulation ("the third stipulation"), in
which (1) Sease admitted he was in contempt of court, (2) the
State rejected the plans Sease had filed, (3) Sease announced
his intentions to appeal that rejection, and (4) Sease agreed
to come into compliance with the June 2008 Order within a
certain period of time if he lost the appeal.[1]
¶10
The State submitted its third motion for contempt in 2010. In
that motion, the State contended that Sease had failed to
take the necessary steps either to comply with the June 2008
Order or to follow through on his agreements in the third
stipulation. For example, the State reported that one of its
employees had closed a headgate that diverted water from
Sheep Creek to the Sease Ranch, had placed a dirt berm in
front of that headgate to prevent seepage, and had posted a
notice on the headgate advising Sease not to open it. The
State claimed that Sease had disregarded this notice-and
others like it-at least twice. After a hearing, the water
court found that Sease had failed to drain or backfill
several ponds and had resumed diverting water from Sheep
Creek through at least one pipeline. The court therefore
imposed punitive and remedial sanctions, including a
ninety-day suspended jail sentence and a $39, 000 fine.
¶11
The year 2011 was no different than its three predecessors,
at least for our purposes. The State filed yet another
contempt motion-the fourth-which complained that Sease had
rebuilt obstructions that diverted water from Sheep Creek to
a reservoir. That motion was resolved by stipulation of the
parties ("the fourth stipulation"). Sease both
admitted that he had violated the June 2008 Order and
conceded that "prior Orders of the Court[] are valid,
ongoing obligations of Mr. Sease." Sease also
acknowledged that he had possessed the ability at all times
"to comply with the [June 2008 Order]," and that he
continued to have "the present ability to comply"
with that order. Sease then promised to backfill the
reservoir and to permanently prevent the diversion of water
from Sheep Creek to the Sease Ranch. Consistent with the
fourth stipulation, the water court issued an order
("the 2011 Order") which required that Sease pay a
one-time $15, 000 fine, incur a $100-per-day charge until the
property came into compliance with the June 2008 Order, and
complete thirty hours of community service in lieu of a
five-day jail sentence.
¶12
The following year, 2012, in what had become by then an
annual occurrence, the State filed a contempt motion, its
fifth, averring that Sease had failed to timely complete his
community service and pay fines that were due, remediate the
structures on his property, and stop using water out of
priority from Sheep Creek. The parties stipulated that Sease
was in violation of the June 2008 Order ("the fifth
stipulation"), and the water court issued an order
("the 2012 Order") which adopted the stipulation
and imposed more sanctions on Sease, including a one-night
jail sentence.
¶13
Just two months later, in April 2012, the State filed its
sixth contempt motion, alleging that Sease had built some
eighty-six new structures on the Sease Ranch that obstructed
Sheep Creek. Sease entered into a stipulation and plea
agreement with the State ("the sixth stipulation")
to resolve that motion. He pled guilty to indirect contempt,
agreed to serve a thirty-day jail sentence, and promised to
pay the State more than $160, 000 (including for attorney
fees and costs). The water court approved the sixth
stipulation in 2013 by incorporating its terms into an order
("the 2013 Order"), [2] which included a mandatory,
permanent injunction instructing Sease to "do
nothing whatsoever, directly or indirectly, in, along or
to Sheep Creek . . . without the prior written approval
of the [State]."[3] The 2013 Order further directed Sease
to submit a stream restoration plan. He did so. Sease's
plan acknowledged that "[a]ll of the land on which the
work . . . will occur is . . . owned by Mr. Sease, the
responsible party."
¶14
But this strange saga did not end with the 2013 Order. In
2015, the State filed its seventh contempt motion, the one
that led to the order Sease challenges in this appeal. In the
seventh contempt motion, the State claimed that Sease had
violated the 2013 Order in five different ways: (1) building
a new impoundment area, new ditches, and two new ponds; (2)
installing a new water tank and a metal gate at one end of a
ditch; (3) altering two existing ponds; (4) creating a ditch
to bypass a pipeline he was estopped from using; and (5)
altering parts of Sheep Creek by dredging it, widening a
channel, changing the course of its water flow by filling one
bank, and ...