Denver, Colorado October 26, 2015
Members of the Colorado Supreme Court’s Water Court Committee focused their discussions on ways to improve efficiency and consistency among the State’s seven water divisions. Supreme Court Justice Allison Eid, chair of the committee, presided over the meeting. A permanent standing committee since 2009, the Water Court Committee works to “[identify] possible ways through rule and/or statutory change to achieve efficiencies in water court cases while still protecting quality outcomes, and [ensuring] the highest level of competence in water court participants,” according to the water court’s website.
For two hours, members engaged in a roundtable discussion of potential issues regarding water court procedures and rules to see if they might recommend any changes to the State’s seven water court judges and the Colorado Supreme Court. Among the topics were alternative dispute resolution, the role of the State and Division engineers in the early stages of a case, abandonment, and the duty to preserve evidence.
The Committee first addressed the idea that clients want to be more involved in the early stages of the water court process. Jennifer Ashworth, Project Engineer and co-founder of White Sands Water Engineers, Inc., said that some clients have expressed the desire to attend expert meetings, which are currently a series of confidential meetings in which engineers discuss their findings, agreements, and disagreements. Committee members – including David Robbins, president and co-founder of Hill & Robbins, P.C., and James Witwer, shareholder at Trout, Raley, Montaño, Witwer & Freeman, P.C. – pointed out that expert meetings are critical points at which engineers can work through dense technical issues among themselves and then report to the clients and their attorneys.
Committee members concluded that expert meetings may not be the place for clients to get involved, because settlement discussions could involve broader considerations about settling the case. They suggested there might be some point early in the process, perhaps an evaluation or mediation stage, where clients, attorneys, and experts could meet and attempt to resolve issues. John Cowan, Water Division One Water Referee, said judges already have the power to order mediation, but adding an express water court rule change for this may be helpful. At the request of Justice Eid, several members volunteered to study and report back on encouraging alternative dispute resolution in water cases.
Justice Gregory Hobbs, the Committee’s Chair until his retirement from the Supreme Court at the end of August of 2015, stated that if and when the State Engineer becomes a party in a water court case is another issue of concern. He suggested that the referee process might work better if the State and Division Engineers can consult in a non-adversarial way until it becomes clear that a water court trial may be necessary. Committee members discussed the issue that not every water division handles the referee process in the same way. State Engineer Dick Wolfe suggested that it may be helpful to hear from the water judges and referees about making the consultation process more consistent among the divisions. Justice Eid designated a sub-committee to look into this.
Next, Holly Kirsner Strablizky, Water Division Five Water Referee, suggested that there is confusion in the water law community about how abandonment cases should proceed. Particularly, she said that there is some misunderstanding among attorneys and judges on timelines and exactly what should happen when an abandonment action goes before a court. Justice Eid assigned Ms. Kirsner Strablizky and other members to study and report on this topic.
Mr. Witwer then presented to the Committee the issue of evidence preservation. Specifically, Mr. Witwer pointed out that the duration and means of the duty to preserve is unclear, especially in the electronic age and with regard to conditional water rights. He noted that preservation is especially important in water law cases because such cases can span years or even decades. He said it is particularly difficult to know exactly what information a client must retain and how long that client must keep the information to avoid spoliation issues at later proceedings. Mr. Witwer volunteered to head the subcommittee that will look into the issue.
Mr. Witwer also raised the concern that some cases involving specific disputes between individual parties go before the Supreme Court unnoticed, even though they may significantly impact water law in the state. He noted that this prevents participation by amicus curiae briefs. He suggested creating some informational system that would alert the water community more broadly.
Committee members also decided to focus on updating Continuing Legal Education water courses. At the meeting’s end, the Committee agreed to meet again in April and receive the reports from the subcommittees at that time.
The University of Denver Water Law Review would like to thank Retired Justice Gregory Hobbs for his help in preparing this piece.
The featured image is of the Colorado Supreme Court courtroom. This photo belongs to Jeffrey Beall and is licensed under the Creative Commons Attribution 3.0 Unported License.