Colorado Water Law: An Historical Overview, Update 5

Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.


Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc.

“At the point at which a water rights case ceases to be a dispute handled informally by a water referee, and becomes litigation involving pre-trial discovery, sworn live testimony, and expert witnesses, it rests within the sound discretion of the trial court to determine whether, at the trial’s conclusion, there is a prevailing party entitled to costs. Since there is no statute or rule prohibiting the award of costs, and the unique nature of water right proceedings does not preclude the applicability of Rule 54(d), the award of costs necessarily rests in the sound discretion of the water court.” Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc., 85 P.3d 536, 541 (Colo. 2004).

United States of America v. Colorado State Engineer.

“The McCarran Amendment does not assert or imply that a state court would have jurisdiction to review the decision making process of federal entities, such as Interior or the Park Service, for compliance with federal law.

Indeed, such a conclusion would run contrary to the Administrative Procedure Act, the federal statute which establishes the practices and procedures followed by administrative agencies in rulemaking and adjudication. The language and legislative history of the APA’s judicial review provisions make clear that Congress intended to hold federal administrative agencies answerable for their conduct only in federal courts. 5 U.S.C. §§ 702, 706 (2004). Section 706 provides that a reviewing court shall ‘compel agency action unlawfully withheld or unreasonably delayed.’ 5 U.S.C. § 706(1). Section 702 defines the scope of that review: ‘A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute’ is entitled to judicial review and may bring suit against the agency. 5 U.S.C. § 702. However, the suit must be brought ‘in a court of the United States.’ Id. Thus, the waiver of sovereign immunity is expressly limited to federal court. The APA’s legislative history underscores this intent, explicitly stating that the United States will remain immune from suit in state courts.

Click here for a PDF of the entire article: 10 U. Denv. Water L. Rev. 391, 2006-2007.


View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.