Town of Minturn v. Tucker, 293 P.3d 581 (Colo. 2013) (holding substantive error existed in stipulations between parties and therefore the water court retained jurisdiction to correct substantive errors pursuant to statute).
The Town of Minturn (“Minturn”) filed applications in the Colorado District Court for Water Division No. 5 (“water court”) for new water rights and changes to existing water rights in 2005 and 2007. Over thirty parties challenged the applications and Minturn subsequently entered into agreements with all opponents. Among these opponents were J. Tucker, Trustee’s (“Tucker”) predecessors in interest, Battle Mountain Corporation, Battle Mountain Limited Liability Company, and Sensible Housing Co., Inc. These stipulations contained provisions stating the parties would not oppose entry of water decrees containing terms and conditions that were no less restrictive than what was contained in the stipulations. At some point after entry of the decrees, Minturn discovered the stipulations based several consumptive use calculations on billing statements, which made the monthly calculations off by one month and not reflective of actual monthly historical use numbers. Minturn petitioned the water court to correct the decrees. Tucker was the only opponent to these decree corrections. The water court granted the petition, and Tucker appealed.
The Colorado Supreme Court (“Court”) reviewed the case de novo. Minturn first argued Colo. Rev. Stat. § 37-92-304(10) provides the water court with authority to correct substantive or clerical errors in decrees. The Court began by analyzing the plain language of the statute and determined it plainly provided water courts the authority to correct substantive errors that could adversely affect a water right. The Court then looked to Minturn’s petitions to determine whether they alleged facts sufficient to establish a prima facie showing of clerical error. After examining the petitions, the Court determined there was in fact a prima facie showing, and upon such a showing, it became the duty of the water court to admit and consider all pertinent testimony to establish the intent of the original decree.
The Court then reviewed the evidence the water court examined and held the water court did not abuse its discretion in deciding the parties intended to use the actual consumptive use, and not the mistaken data provided by the billing company. The language of the stipulations and the initial decrees included specific language stating that the historic actual use of the applicant was the amount the parties intended to use in the decree.
The Court then considered whether the water court afforded Tucker an opportunity to rebut the evidence. Tucker supplied a supplemental response and affidavit, but did not provide expert testimony to rebut Minturn’s expert testimony. Because the water court afforded Tucker an opportunity to provide contrary evidence, it did not abuse its discretion in giving more weight to Minturn’s expert than to Tucker.
In sum, Minturn met the criteria established in Colo. Rev. Stat. § 37-92-304(10) to petition the water court to correct substantive errors, and the water court did not abuse its discretion in correcting the errors.
The Court next addressed the “no less restrictive” provisions of the stipulations to determine whether they precluded the water court from altering decrees. The stipulations between the parties contained language stating the parties would not oppose a decree as long as the decree contained terms and conditions that were no less restrictive than those in the stipulations. Tucker argued any increase in the monthly limitations was per se less restrictive on Minturn, and thus against the intent of the plain language of the stipulations. Minturn argued that while the monthly use totals would be different, the yearly consumptive use was identical. The Court examined the stipulations, and determined the phrase “no less restrictive” was open to more than one reasonable interpretation, and therefore was ambiguous. The Court then stated that because it was ambiguous, they would look to the facts and circumstances surrounding the stipulations to determine the intent of the parties. The Court examined the language of all the stipulations and concluded the intent of the parties was to use the “historical actual use” as the basis of the calculations, and the erroneous amounts submitted went against the intent of the parties.
The Court next looked at whether the corrected decrees were no less restrictive, as intended by the parties to the stipulations. The Court examined the actual historic use of Minturn and determined the corrected amounts entered by the water court correlated to the historic use, and thus were within the intent of the stipulations. Furthermore, the water court’s conclusion that no other vested rights would be injuriously affected was based on sufficient evidence. While Tucker argued his rights would be injuriously affected, he did not provide any evidence of this assertion. However, the Court also found if Tucker had evidence of an injurious effect, Colo. Rev. Stat. § 37-92-304(6) allowed the water court to retain jurisdiction over the adjudication for five years on the question of injury to vested rights.
Therefore, the Colorado Supreme Court affirmed the decision of the water court.