Water Court Rule 12

For all decennial abandonment lists filed by the Division Engineers pursuant to C.R.S.

§ 37-92-401(4), the following procedures apply:

a. The water clerk shall cause notice of the availability of the final decennial abandonment list to be included in the resume and published in accordance with C.R.S. § 37-92-

401(4)(d). In addition, the water clerk shall include the revised or unrevised final decennial

abandonment list in its entirety in the copy of the resume described in C.R.S. § 37-92-

302(3)(a) posted on the water court’s web site in accordance with C.R.S. § 37-92-

302(3)(c)(I)(D). Neither the water clerk nor the Division Engineer is required to publish

the final decennial abandonment list in any newspaper. The published notice and resume

for the final decennial abandonment list shall include notice of the deadline for filing any

protest.

b. At any time, the Division Engineer may file motions to correct the final decennial

abandonment list to remove water rights, in whole or in part, accompanied by the Division

Engineer’s sworn statement confirming that, based on determinations made by the Division

Engineer prior to filing the final abandonment list, the water rights were incorrectly

included on the final decennial abandonment list due to mistake or inadvertence. Upon

proper motions, the water court shall grant the Division Engineer’s voluntary withdrawal

of such abandonment claims without ordering republication and the water rights shall be

removed from the decennial abandonment list. Such motions or orders granting such

motions shall not be construed to have enhanced or diminished any cause of action or

defense which might otherwise exist concerning any abandonment of the removed water

rights.

c. Any protest filed pursuant to C.R.S. § 37-92-401(5) shall automatically trigger a

bifurcation from the original case in which the decennial abandonment list was filed

without the necessity of a motion to bifurcate or any bifurcation order by the court. Each

bifurcated protest case shall be assigned a new case number by the water clerk, shall

include a reference to the original abandonment case number, shall include on the service

list any counsel of record for the Division Engineer in the original abandonment case, and

shall be published in the water court resume and newspapers in accordance with C.R.C.P.

90 and C.R.S. § 37-92-302(3) and with notice of the deadline for any entry of appearance

under Water Court Rule 12(e). The protestor shall be responsible for the costs of publication. Parties to the bifurcated protest cases shall not be considered parties to the original

abandonment case for the purpose of filings and service in the original abandonment case,

except as provided in Water Court Rule 12(l).

d. All other Water Court Rules, with the exception of Water Court Rules 3, 6 and 9,

apply to the bifurcated protest cases. For the purposes of the applicable Water Court Rules,

the final decennial abandonment list shall be considered an application, the Division

Engineer shall be considered the applicant, any protest shall be considered a statement of

opposition, and any protestant shall be considered an opposer.

e. Any person who may be affected by the subject matter of a protest or by any ruling

thereon and desiring to participate in any hearing pursuant to C.R.S. § 37-92-401(6) must

file an entry of appearance by August 31, 2022, or the respective tenth anniversary

thereafter. If the water judge permits additional protests after June 30, 2022, or the

respective tenth anniversary thereafter, as will serve the ends of justice pursuant to C.R.S.

§ 37-92-401(6), then any entry of appearance under this Water Court Rule 12(e) must be

filed by the last day of the second month following the month in which an additional

protest is filed. An entry of appearance must identify: (1) the portion of the decennial

abandonment list with respect to which the appearance is being made; (2) whether the

person is participating in support or in opposition to abandonment of the subject water

right(s); (3) any factual and legal basis for any allegation that the person may be affected

by the subject matter of the protest or by a ruling on the protest; and (4) any claim of

ownership in the subject water right(s).

f. The at-issue date for a bifurcated protest case shall be 49 days after the deadlines for

filing an entry of appearance by any potentially affected persons under Water Court Rule

12(e) unless modified by order of the water court entered in the original abandonment case

or in a bifurcated protest case. In no event shall the at-issue date precede the deadline for

filing an entry of appearance.

g. For the purpose of the proceedings within the bifurcated protest case, any person

entering an appearance under Water Court Rule 12(e) in support of abandonment of the

subject water right(s) shall have the same case management deadlines and order of

presentation at hearing as the Division Engineer unless otherwise ordered by the water

judge. Any person entering such an appearance in opposition to abandonment of the

subject water right(s) shall have the same case management deadlines and order of

presentation at hearing as the protestant(s) unless otherwise ordered by the water judge.

h. Any person who wishes to participate in a bifurcated protest case after the deadline

for filing an entry of appearance must intervene pursuant to Water Court Rule 7.

i. If it is necessary to determine the ownership of or right to use a water right that is the

subject of a protest to the decennial abandonment list in order to determine whether the

water right has been abandoned, in whole or in part, then the water judge may exercise

jurisdiction over any such controversy. If the water judge elects to exercise jurisdiction

over such a controversy, the water judge shall order any party to serve additional notice

under C.R.C.P. 4, and to file such supplemental pleadings as the water judge finds

necessary or appropriate to resolve such controversy. Any such controversy may be

resolved by separate hearing and under a preliminary case management order prior to

implementing the case management procedures of Water Court Rule 11 as to the Division

Engineer’s claim of abandonment. If the water judge does not elect to exercise jurisdiction

over such controversy, then the water judge may order the applicable parties to commence

a separate proceeding to resolve the controversy and stay further proceedings on the

abandonment claim until the that controversy is resolved. If the water judge exercises

jurisdiction over issues of ownership in such abandonment proceedings, the water judge

will consider any requests by a party as to the place of trial, and venue is proper within any

county in the water division notwithstanding C.R.C.P. 98.

j. Any order of the water court in a bifurcated protest case resolving the alleged

abandonment of all or part of any water right that is the subject of a protest shall be entered

in the bifurcated protest case and in the original abandonment case. Any party may file a

motion in the bifurcated protest case requesting the water court certify an order in a

bifurcated case as a final judgment under C.R.C.P. 54(b) and appellate review shall be

allowed as in other water matters. Any order certifying a final judgment in a bifurcated

protest case shall be entered in the bifurcated protest case and in the original abandonment

case.

k. If no protests have been filed, then promptly after the deadline for filing protests, the

water judge shall enter a final judgment and decree incorporating and confirming the

decennial abandonment list under C.R.S. § 37-92-401(7), without modification except as

to any corrections made under Water Court Rule 12(b). If protests to the final abandonment

list have been filed, then no less than 91 days after the deadline for filing any protests, the

Division Engineer may file a motion in the original abandonment case for the entry of a

final judgment and decree incorporating and confirming the decennial abandonment list as

to those water rights with respect to which no protest was filed. No appellate review shall

be allowed with respect to a final judgment and decree which confirms a portion of the

decennial abandonment list with respect to which no protest was filed.

l. Within 63 days of resolution of all bifurcated protest cases, including any appellate

reviews, the Division Engineer shall file a motion in the original abandonment case for a

judgment and decree listing: (1) the final decennial abandonment list as filed with the court

by the Division Engineer; (2) identification of all orders by case number and date in the

bifurcated protest cases and the resolution of the alleged abandonment of all or part of any

water right that was the subject of a protest; and (3) a complete listing of the water rights,

in whole or in part, abandoned by the water court. No conferral with any person shall be

required prior to the Division Engineer filing the motion. In each bifurcated protest case,

the Division Engineer shall simultaneously file notice of the filing of the motion in the

original abandonment case and a copy of the proposed judgment and decree. Any party to

a bifurcated protest case objecting to the form of the proposed judgment and decree may

file a response to the Division Engineer’s motion in the original abandonment case solely

to identify any clerical errors in the proposed judgment and decree within 21 days of the

date that notice of the motion’s filing was filed and served in the bifurcated protest case,

and the Division Engineer may file a reply.