Sam A. Allen, Plaintiff-Appellant
v.
State of Colorado; Colorado Court of Appeals; Margaret V. Morton; Larry L. Stevens; and Mesa County Land Conservancy, Inc., Defendants-Appellees and Appellee Pursuant to C.A.R. 1(e): Alan Martellaro, Division Engineer, Water Division 5.
Appeal
from the District Court Garfield County District Court, Water
Division 5, Case No. 14CW3021 Honorable James B. Boyd, Water
Judge
Attorneys for Plaintiff-Appellant6 Dufford, Waldeck, Milburn
& Krohn, L.L.P. Nathan A. Keever Grand Junction, Colorado
Attorneys for Defendant-Appellees State of Colorado and
Colorado Court of Appeals: Philip J. Weiser, Attorney General
Patrick L. Sayas, Senior Assistant Attorney General Denver,
Colorado
Attorneys for Defendant-Appellee Mesa County Land
Conservancy, Inc.: Berg Hill Greenleaf & Ruscitti, LLP
Peter D. Nichols Josh A. Marks Boulder, Colorado
Attorneys for Appellee Division Engineer, Water Division 5:
Philip J. Weiser, Attorney General Paul L. Benington, First
Assistant Attorney General Denver, Colorado
No
appearance on behalf of Margaret V. Morton or Larry L.
Stevens.
OPINION
JUSTICE GABRIEL
¶1
This case concerns whether a water court has jurisdiction to
consider a claim for inverse condemnation alleging a judicial
taking of shares in a mutual ditch company. The water court
dismissed plaintiff-appellant Sam Allen's inverse
condemnation claim, concluding that his claim was
"grounded in ownership and the conveyance of that
ownership, not use," and therefore the claim was not a
water matter within the exclusive jurisdiction of the water
court. We agree and thus affirm the water court's
dismissal order.
I.
Facts and Procedural History
¶2
The present dispute involves a ranch in Mesa County. The
United States, acting through the Farmers Home Administration
(the "FmHA"), acquired title to the ranch,
including 140 acres of ranchland, certain decreed water
rights, and nine shares of capital stock in Big Creek
Reservoir Company, a mutual ditch company. Several years
later, the FmHA granted a deed of conservation easement to
Mesa County Land Conservancy, Inc. The easement was recorded
and provided that "[a]ll water rights held at the date
of this conveyance shall remain with the land." Allen
later purchased the ranch, the decreed water rights, and the
ditch company shares from the FmHA.
¶3
Thirteen years later, Allen sold the ranch and the decreed
water rights to a third party, but he did not include the
ditch company shares in the sale. Mesa County Land
Conservancy then filed suit for declaratory and injunctive
relief, alleging that Allen had violated the terms of the
conservation easement by attempting to sever the shares from
the land. The district court ultimately issued a permanent
injunction requiring Allen to convey the shares to the
purchaser and prohibiting Allen from severing those shares
from the property. A division of the court of appeals
affirmed, Mesa Cty. Land Conservancy, Inc. v. Allen,
2012 COA 95, ¶ 43, 318 P.3d 46, 57, and we denied
Allen's petition for a writ of certiorari, Allen v.
Mesa Cty. Land Conservancy, Inc., No. 12SC533, 2013 WL
4008745, at *1 (Colo. Aug. 5, 2013).
¶4
Thereafter, Allen filed the present action against
defendants-appellees (collectively, "defendants")
in the water court. As pertinent here, Allen sought just
compensation for an alleged loss of property rights, claiming
that the division's ruling in the Mesa County Land
Conservancy action amounted to a judicial taking of his
interest in the ditch company shares.
¶5
Defendants moved to dismiss Allen's complaint pursuant to
C.R.C.P. 12(b)(1) and 12(b)(5), asserting, as pertinent here,
that the water court lacked subject matter jurisdiction over
Allen's complaint. In a detailed and thorough written
order, the water court ultimately agreed with defendants and
dismissed Allen's complaint for lack of subject matter
jurisdiction. The court began by noting that water courts
have exclusive jurisdiction over "water matters."
It then observed that this court has explained that
"water matters" are matters relating to the use of
water rights (as distinct from actions concerning the
ownership of such rights) and that such matters include
applications for initial decrees, actions seeking
declarations regarding the scope of use allowed by existing
water rights, and declaratory judgment actions to determine
what properties are subject to the requirements of water
decrees. The water court concluded that ...