In re Revised Abandonment List of Water Rights in Water Div. 2

In re Revised Abandonment List of Water Rights in Water Div. 2, 276 P.3d 571 (Colo. 2012) (en banc) (holding that an application for a change of a water right must be proven by historic use; a denial of an application for a change of a water right for failure to prove historic use does not amount to an unconstitutional taking of property without just compensation; and the failure of an applicant to prove historic use does not establish abandonment of the water right).

John C. Harrison (“Harrison”), acting as personal representative for the estate of Nolan G. Thorsteinson and trustee of The Margie (Dotts) M. Thorsteinson Trust, sought to avoid an abandonment order over a disputed water right in the Mexican Ditch. In May 2001, the Division Engineer placed this disputed water right on the decennial abandonment list and Harrison filed protests in the Water Court for Water Division No. 2. In 2006, Harrison entered into a stipulation with the State and Division Engineers (“Engineers”) whereby he would file an application for a change in the point of diversion reflecting the historic use of the water right and the Engineers would remove the water right from the abandonment list. The stipulation also specified that the water right not divert from any location other than the one originally decreed. If Harrison failed to follow the prescribed stipulations, he could not oppose a motion of the Engineers to have the water right declared abandoned.

Harrison timely filed an application for change of the water right and on the same day the water court accepted the stipulations, removed the water right from the abandonment list, and dismissed the case. The water court heard Harrison’s application in January 2011 and subsequently denied the application on its merits citing Harrison’s failure to prove the historic use of the water right. One month later, the water court granted the Engineers’ motion to have the water right declared abandoned. Harrison appealed both rulings directly to the Supreme Court of Colorado.

The court addressed three issues on appeal. First, whether Harrison fell within an exception to the requirement of proving historic use for a change of a water right. Second, whether the denial of a change of a water right for failure to prove historic use is tantamount to an unconstitutional taking of property without just compensation. And finally, whether abandonment is the proper remedy for failure to prove historic use.

On appeal, Harrison contended that he fell within an exception to the requirement that a requested change of a water right be proven by the actual historic use of the right over a representative period. The court rejected Harrison’s contention, however, because the exception, as created by the court in Flasche v. Westcolo Co., 112 Colo. 387 (1944), is not in regard to the general requirement of proving historic use. Rather, the exception is in regard to the representative period over which a showing of historic use could be sufficient. Moreover, a representative period of historic use was moot in this case because the water court did not find, and Harrison did not assert, a proven historic use.

Next, the court held that the water court’s denial of a change of a water right for failing to prove historic use does not unconstitutionally deprive an applicant of property without just compensation and is therefore not in violation of the Fifth Amendment of the United States Constitution or article II, section 15 of the Colorado Constitution. The court reasoned that although a water right is characterized as a property right, it remains usufructuary in nature and merely permits the use of water within the limitations of the prior appropriation doctrine.

Finally, the court addressed the parties’ stipulation that Harrison’s failure to include historic use in his application would result in abandonment of the water right. The court stated that the failure of a change applicant to prove historic use by a preponderance of the evidence does not establish an abandonment of that right. The court reasoned that although the parties stipulated to this remedy and the water court adopted this remedy, the language of the stipulation is ambiguous, there is more than one reasonable interpretation of the stipulation, and the parties’ actions were not consistent with the stipulation.

Accordingly, the court affirmed the water court’s dismissal of Harrison’s application because he failed to prove historic use and because denying a change of a water right for failure to prove historic use does not amount to an unconstitutional taking of property. The court reversed the water court’s decision to grant the Engineers’ motion for abandonment because the stipulation did not intend for abandonment as the consequence of Harrison’s failing to succeed in his change application.