C.R.C.P. 91

History

Rule 88. Judgments and Decrees (a) Record and Indices. The water clerk shall prepare and maintain books of all judgments and decrees in the sequence of their entry by the court, or shall keep microfilm or magnetic tape copies of the same. The water clerk shall prepare and maintain suitable indices of the judgments and decrees. (b) Entry and Finality of Judgment. Immediately following the issuance of a judgment and decree the water clerk shall make an entry of record concerning the same, and the judgment and decree shall then be deemed final. (c) Notice. A copy of such judgment and decree or notice thereof shall be given promptly to applicants and to any protestors and objectors, or their attorneys. Rule 89. Notice When Priority Antedating an Adjudication Is Sought Whenever a claimant makes application for the determination of a water right or a conditional water right and claims that his date of priority will antedate any earlier adjudication or claims a priority date earlier than the effective date of one or more priorities awarded by a previous decree or decrees within the water division in which the application is filed (except when provision for such antedation or earlier priority is made by statute), in order not to be forever barred, the owners of affected rights must object and protest within the times and in the manner provided by statute, and the water clerk shall include in the resume required by statute a specific notification in boldface type substan- tially as follows: ‘‘The water right claimed by this application may affect in priority any water right claimed or heretofore adjudicated within this division and owners of affected rights must appear to object and protest within the time provided by statute, or be forever barred.’’ (d) For purposes of relation back of the filing date of a subsequent applicant’s application for a water right or conditional water right pursuant to C.R.S. § 37-92-306.1, the subsequent application shall be filed within sixty days of the date the prior application is published in the resume. (e) Upon request, the water clerk shall provide a prospective applicant or opposer with one copy of the form for the relevant application or statement of opposition. The standard forms for applications and statements of opposition may also be found in the ‘‘Water Courts’’ section of the Colorado Judicial Branch web page. shall govern proceedings under article 92 of title 37, C.R.S. 1973. COMMENT Following the announcement on March 24, 1971, of United States v. District Court in and for the County of Eagle, 401 U.S. 520, 91 S. Ct. 998, 28 L. Ed. 2d 278 (1971), and United States v. District Court in and for Water Division Number 5, 401 U.S. 527, 91 S. Ct. 1003, 28 L. Ed. 2d 284 (1971). The Colorado Supreme Court appointed a water advisory committee for study and recommendations as to the necessity and possible content of rules of court as a result of the two United States Su- preme Court opinions. An attempt was made to have the membership of this committee repre- sentative of the different interests that might be affected by proceedings conducted in the light of these opinions and United States v. District Court, 169 Colo. 555, 458 P.2d 760 (1969), which was affirmed by the first mentioned United States Supreme Court opinion. After conferences and study the committee estab- lished tentative guidelines and recommended that a 5-man briefing and drafting committee be appointed for performance under the guidelines. Accordingly, a briefing and drafting committee was appointed, consisting of the following at- torneys: Kenneth Balcomb, Glenwood Springs, Colorado; Charles J. Beise, Denver, Colorado; Kenneth L. Broadhurst, Denver, Colorado; Gene Alan Erl, Washington, D.C.; and Donald H. Hamburg, Denver, Colorado, with Mr. Beise acting as chairman. Early in the work of the briefing and drafting committee, Messrs. Beise and Balcomb prepared a memorandum which is set forth later herein. After the briefing and drafting committee completed its work, it submitted proposed rules to the entire water advisory committee which, after some revision, unanimously approved them and recommended their adoption by the Colorado Supreme Court. The seven water judges of the state (Fred Calhoun, Donald A. Carpenter, Richard E. Conour, C. H. Darrow, William S. Eakes, William L. Gobin and Don Lorenz) then studied and conferred with respect to the proposed rules. After some revision, the water judges recommended their adoption. Ac- cordingly, the proposed rules were adopted sub- stantially as recommended on August 12, 1971, as Rules 86 through 91, C.R.C.P. While the Colorado Supreme Court does not comment nor pass upon the contents of the memorandum prepared by Messrs. Beise and Balcomb, it believes that the bench and bar will find value in it and, therefore, sets it forth in its entirety: By and large the Colorado Rules of Civil Procedure are to apply in conformity with sec- tion 37-92-304(3), C.R.S. 1973, unless varied by the proposed rules. Experience gained from the use of forms presently furnished indicated an insufficiency of information therein, requiring in many cases, statements of opposition and protests when, with additional information, the same would be unnecessary. Recommendations regarding the duties of the water clerk in the treatment of files, decrees, and judgments are made for the sake of simplic- ity, uniformity, and permanency. The proposed rule relating to publication of a claim of right on the part of any claimant to antedate in priority previous orders, decrees, and judgments of courts establishing priorities gave the committee the greatest trouble, but the committee is satisfied that the requirements of due process are met by the proposed rule. Due process relates to the right to be heard, and this right is subject to reasonable limita- tions. The type or kind of notice to be given to and the method of service thereof on other parties possibly affected by water adjudication pro- ceedings has varied in Colorado as changes in water law have occurred. In the original statutes of 1879 and 1881, personal service in addition to publication and posting was required where possible, with mailing of notice where not pos- sible. In 1905 special supplementary adjudication proceedings became possible. Original adjudi- cation proceedings in a water district still re- quired the 1879-1881 service treatment, 1 but after 1905 the supplementary proceedings re- quired only such notice as was required by the court. As a matter of practice this was generally confined to publication and posting. Countless decrees were entered in such special proceed- ings. All priorities so established and fixed are recognized in the present system of administra- tion. The 1943 law abolished special proceedings, and substituted general supplementary proceed- ings. It required by way of notice publication plus the mailing of the notice to those persons who had not theretofore adjudicated their claims according to the records of the state engineer and to all users who within the preced- ing calendar year had diverted water according to a list furnished by the water commissioner or division engineer. The incompleteness and insufficiency of these lists as a means of reaching claimants of water rights is well recognized. Factually, it is impossible to reach all claimants by any means other than publication. The salient feature of the previous statutory notice provisions to be noted here is that the requisite statutory publication, posting and mailing was confined to the district boundaries, and did not extend to the division of which the district was a part, even though the priority or priorities awarded related to and affected rights in the entire division. In 1887 the legislature required the division engineers to treat priorities awarded in the dis- tricts on a division-wide basis. The claim was made in O’Neil v. Northern Colorado Irriga- tion District, 56 Colo. 545, 139 P. 536 (1914), that if retrospective effect was given this statute allowing curtailment of plaintiffs’ priority awarded subsequent to 1887 in favor of defen- dants’ priority entered before 1887 without no- tice to the plaintiff but in another water district within the division, it resulted in a taking of plaintiffs’ property without due process of law. The challenge was made more than four years after entry of defendants’ decree. The Court held the four year statute effectively barred the suit irrespective of the 1887 statute. This result was affirmed by the Supreme Court of the United States in an opinion by Mr. Justice Holmes, 242 U.S. 20, 37 S. Ct. 7, 61 L. Ed. 123 (1916). We are not unmindful of the service of pro- cess requirement of due process in other types of litigation (condemnation) and have consid- ered other cases very kindly furnished by inter- ested members of and advisors to the committee as a whole. Neither are we unmindful of Rule 4 of our Rules of Civil Procedure which by the statute and the rule here under consideration would have no application to notice require- ments in water courts. We believe O’Neil fol- lowed by Eagle County 2 and Darrow3 control. Mr. Justice Holmes in O’Neil held that due process requirements were met when a party, though not entitled to be heard in the first in- stance, was allowed by statute a reasonable time thereafter to be heard. This was predicated on the fact that a decree regarding water priorities was a public fact. The fact that rights might be lost by inaction on the part of a claimant was likewise considered immaterial by Mr. Justice Holmes because the rule of limitation applied to him was likewise consistently applied by Colo- rado Courts to all similar situations. Plaintiff in O’Neil could not have been misled by contra- dictory rulings regarding applications of the rule. Eagle County, of course, holds that the McCarren Amendment allows joinder the United States in adjudication proceedings under the 1943 Act. Darrow goes even farther and says such joinder can effectively be made under other but dissimilar state adjudicatory proce- dures. The key is the presence of a state statute providing the procedure for adjudication. The procedural steps themselves are a matter of 1 Nichols v. McIntosh, 19 Colo. 22, 27 (1893). 2 169 Colo. 555, 458 P.2d 760, 401 U.S. 520, 28 L. Ed. 2d 278, 91 S. Ct. 998 (1971). 3 #24821, 401 U.S. 527, 28 L. Ed.2d 284, 91 S. Ct. 1003 (1971). state concern and need only be equally and fairly applied. 4 The Supreme Court of Colorado in its review in Eagle County held the trial court had the power to require the giving of whatever addi- tional notice of the claim of right to antedate previous decrees it deemed necessary. The 1969 Act gives notice by requiring pub- lication of the resume in one or more newspa- pers within the division as will give general circulation to water claimants in each county in the division. We do not believe this requires publication in every county which has a news- paper, but rather requires publication in a news- paper of general circulation in such county even if published elsewhere in the division. Thus publication in but one newspaper in the division might be found by the water court to be suffi- cient general circulation to meet due process requirements. Under this 1969 Act a well owner seeking his actual date of priority without preju- dice because of his failure to participate in ear- lier adjudications antedates prior decrees. The only notice required is publication. Personal service is not required. The proposed rule is consistent with this procedure. The additional statutory requirement of mail- ing to those requesting a copy of the resume relates not to the jurisdiction of the court or due process, but is for informational purposes only. The final and important safeguard regarding notice is met when the statute requires the ref- eree to direct mailing to those he deems affected by a particular claim. On the surface O’Neil dealt with a statute of limitations, and in Eagle County and Darrow the problem of notice was not directly involved. But in O’Neil the only notice which could have possibly reached the adjacent district, other than the important notice the statute itself gave, was the publication. The same is true in Eagle County. In Darrow, however, as the rule herein under consideration will require, the notice was given division wide, and this was more effective as notice in the area affected than any previous statutory notice requirements. We thus conclude that publication once in a newspaper or newspapers of general circulation within the division as required by statute and the proposed rule meets the requirements of due process, because: 1. Three years is a reasonable time for any- one to establish the error, if any, in the decree and judgment. 5 2. In this day and age of rapid communica- tion and transit, many newspapers are in general circulation throughout the state and not just a division. 3. The system has been effectively in force and in operation for nearly two years with rela- tion to well owners and is the accepted state method of giving notice. Rule 90. Dispositions of Water Court Applications (a) The water clerk shall receive and file all applications and number them upon payment of filing fees. The water clerk shall not accept for filing any application that is not accompanied by the required filing fee. Each application filed within each division shall be consecutively numbered, preceded by the year and the letters CW (e.g. 2009CW100) to identify such applications as concerning water matters. The applicant for a finding of reasonable diligence relating to a conditional water right and/or to make a conditional water right absolute shall include in the application a listing of the original and any other prior case numbers pertaining to the conditional water right included in the application; thereafter, the assigned case number for the application shall appear on any document, pleading, or other item in the case. Referee rulings and water court judgments and decrees shall include all relevant prior case numbers. (b) The water clerk shall include in the resume all applications filed during the preceding month that substantially contain the information required by Rule 3 of the Uniform Local Rules for All State Water Court Divisions and the standard forms approved by the water judges under C.R.S. § 37-92-302(2)(a), which together provide the informa- tion sufficient for publication to the public and potential parties. The water clerk, in consultation with the referee pursuant to Rule 6 of the Uniform Local Rules For All State 4 Ft. Lyon Canal Co. v. Arkansas Sugar Beet & Irrigated Land Co., 39 Colo. 332, 34 P. 278 (1907). At page 344 thereof the court said: All persons are bound to take notice of a public law. The irrigation statutes are public, and apply to all persons taking water from the same source. The waters of the state belong to the public, and, as we said, in substance, in the original opinion, the state in its sovereign capacity had the right to provide a reasonable method whereby such rights might be adjudicated and settled, and to require claimants of such rights to present them in a prescribed manner, within a prescribed time, and unless the law in this respect was obeyed, that all claims not thus presented should be barred. That is what the statutes on the subject of the use of water for irrigation have provided. All persons are bound to take notice of these provisions. 5 This limitation was increased from two to three years by the 1970 amendment, section 37-92-304(10), C.R.S. 1973. Water Court Divisions, shall promptly refer to the water judge for consideration and disposition any application that does not substantially contain the information required by Rule 3 of the Uniform Local Rules For All State Water Court Divisions and the standard forms approved by the water judges under C.R.S. § 37-92-302(2)(a). Any such application shall not be published in the resume pending disposition by the water judge. The water clerk shall promptly inform the applicant that the application has been referred to the water judge and provide the applicant with a list of the required information that was not contained in the application. (c) In determining whether or not to order publication of the application in the resume pursuant to C.R.S. § 37-92-302(3)(a), the water judge shall promptly review the applica- tion and shall employ an inquiry notice standard in conducting the review. Upon a finding that the application does not provide sufficient inquiry notice contemplated by Rule 3 of the Uniform Local Rules for All State Water Court Divisions and the standard forms approved by the water judges under C.R.S. § 37-92-302(2)(a) to justify publication, the water judge shall set a date pursuant to C.R.C.P. 41(b)(2) and C.R.C.P. 121, Section 1-10, by which date the application will be dismissed unless, prior to that date, a sufficient application is filed. The application will retain its original filing date unless and until the application is dismissed. Source: Entire rule amended and effective February 19, 2009. Editor’s note: Amendments to this section, adopted February 19, 2009, are applicable to appli- cations filed on or after July 1, 2009, but any portions thereof that can be adapted for use by the water judge or referee without prejudice to the parties may be utilized in existing cases. ANNOTATION Law reviews. For article, ‘‘Statutory and Rule Changes to Water Court Practice’’, see 38 Colo. Law. 53 (June 2009). Rule 91. Entry of Decree When No Protest Has Been Filed The water judge may enter a decree at any time upon any ruling of the referee to which no protest has been filed, and it shall be sufficient for such purpose to enter thereon substantially the following language: No protest was filed in this matter. The foregoing ruling is confirmed and approved, and is made the Judgment and Decree of this Court. Dated: ____________ Water Judge