Case No. 90SA514 Opening Brief for the Appellant

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to the Nature Center Diversion Dam is senior to all other decreed water rights filed in Water Division 1 during 1987 and 1988. In United States v. Bell 724 P.2d 631, 636 (Colo. 1986), the United States was denied the right to relate the filing date of an amendment back to the date of the original water right application because the United States had not fulfilled the notice requirements of C.R.C.P. 15(c)1 The original application sought to appropriate water from the "Colorado and White Rivers and water tributary thereto, which are located on [certain described lands]." Water from the mainstem of the Colorado River was not located upon these lands, so the United States filed an amendment to the original application seeking water from the mainstem of the Colorado River. The Colorado Supreme Court denied relation back of the amended application to the filing of the original application, citing with approval from 6 Wright & Miller, Federal Practice and Procedure Civil § 1497 at 498 -9 (1971): An approach that better reflects the liberal policy of Rule 15(c) is to determine whether the adverse party, viewed as a reasonably prudent man, ought to have been able to anticipate or should have expected that the character of the original pleaded claim might be altered or that other aspects of the conduct, transaction, or occurrence set forth in the original pleading might be called into question. Id. at 638. The Colorado Supreme Court found that no reasonably prudent person should have known from the United States' "unambiguous claims to waters" contained in its original application that the United States was seeking water from the Colorado mainstem. Id. at 639. As such, the 19 C.R.C.P. 15(c) states: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, that action would have been brought against him." C.R.C.P. 15 applies to water court proceedings 'only to the extent that the rule is not inconsistent or in conflict with procedures under the Act" United States v. Bell supra, 724 P.2d at 635-6. 25