Hutton Educ. Found. v. Rein, 418 P.3d 1156 (Colo. 2018) (holding that the Commission must have first determined whether the water at issue was designated groundwater before subject matter jurisdiction could vest in the water court to review the Foundation’s constitutional challenge of S.B. 52).
This was an appeal of the Colorado Groundwater Commission’s (“Commission”) successful motion to dismiss against the Jim Hutton Foundation’s (“Foundation”) claimed challenging both Senate Bill 10-52’s (“S.B. 52”) application in the Northern High Plains Basin (“NHP Basin”) and the Management Act constitutionality. The only issue on appeal was whether the water court properly dismissed the Foundation’s claims for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1).
S.B. 52, the Foundation argued, made any legal redress from the Commission impossible so it sought declaratory relief in water court for three claims against the State Engineer, the Colorado Department of Natural Resources, and the Division of Water Resources. The Commission intervened and moved to dismiss. The court noted the Foundation’s burden to prove that the water court had jurisdiction to consider the constitutional claim.
The Foundation owned surface water rights to divert from the South Fork of the Republican River in order to irrigate its ranch lands in Yuma County, Colorado. The sale of both the lands and water rights were relied upon to generate revenue for the Foundation. However, in 1962 the General Assembly ratified the 1942 Republican River Compact (“Compact”) to enact the Colorado Ground Water Management Act (“Management Act”), which was intended to develop Colorado’s groundwater resources. The Management Act also created the Commission with the authority to establish and administer procedures for groundwater permitting and use, as well as determine designated groundwater basins. After the Management Act, the amount of water users installing wells in the NHP Basin increased and forced the Commission to curtain [AG1] surface water use in order to ensure compliance with Colorado’s annual water allotment under the Compact.
The curtailment affected the Foundation’s surface water rights. The Foundation argued that the General Assembly limited its course of action as a surface water user to challenge the designated of groundwater basins when it enacted S.B. 52 in 2010 because prior to that year the Management Act provided that boundaries for designated groundwater basins could be changed “as future conditions required and factual data justified.” The court reasoned that S.B. 52 provided that wells for which permits had been issued to use designated groundwater could not be excluded from designated groundwater basin that were already finalized as such action would be contrary to any original basin designations.
To settle the only issue on appeal, the court looked to the Water Right Determination and Administration Act of 1969 (“1969 Act”), which authorized water courts exclusive jurisdiction over water matters in its division but did not mention designated groundwater. The court noted that the Management Act gave administrative authority of designated groundwater to the Commission.
The court then considered its precedent for situations where surface water rights owners asserted that well-pumping within a designated groundwater basin injured their surface rights. It has long held that the Commission must first determine whether designated water is at issue because only once the Commission concludes the water is not designated groundwater will jurisdiction vest in the water court. The Foundation contended that the jurisdictional rule should not apply to its situation because the procedure prior to the 2010 amendment to S.B. 52 should control, allowing them to challenge the surface water users that were impairing its water rights. However, the court noted that such an argument was a challenge to the constitutionality of the statute itself not to designated groundwater determinations.
The court did not agree with the Foundation’s contention as it was contrary to its longstanding precedent that requires the Commission’s determination before any claim, even a constitutional one, can ripen. The court reasoned that the Foundation simply asserted themselves that the water at issue was not designated groundwater absent any factual determination from the Commission but such an assumption did not give jurisdiction to the water court. As such, the Commission must first decide one way or another before the Foundation may be able to bring a claim in the water court.
Accordingly, the court affirmed the water court’s decision to dismiss the Foundation’s constitutional challenges of S.B. 52 and the Management Act until the Commission determination can inform whether the claim is ripe for review in the water court.
[AG1]Should this be curtail since the first word of the following paragraphs references the curtailment?