DWR_3364090 - Laserfiche WebLink

Home Search

On July 1, 2015, Einspahr timely submitted the Objection to the reduction in permitted acreage and annual appropriation for Permit No. 13530/16927. (Ex. E-6; Ex. E-10.) The Objection noted that Einspahr objected to the reduction because the intended and actual irrigated acreage under Permit No. 12025 did not overlap with the permitted or actual irrigated acreage under Permit No. 13530/16927, and as such, the discrepancy in the legal description on Permit No. 12025 should not have bearing on Permit No. 13530/16927 because the discrepancy was only a clerical mistake dating back to the original application and beneficial use for Permit No. 12025. (Ex. E-6.) On July 22, 2015, the Commission entered Findings and Order and an Amended Final Permit reducing the permitted acreage and annual appropriation under Permit No. 16927 from 42 acres and 105 acre feet to 10 acres and 25 acre feet. (Ex. E-10; Ex. E-1 at p. 2.)4 On the same date, the Commission entered Findings and Order, and an Amended Final Permit, changing the legal description, irrigated acreage, and annual appropriation of Permit No. 12025. (Tr. 70:23-71:15.) No correspondence to Einspahr. (Tr. 186:3-5.) 4 Although Einspahr timely submitted his objection to the application concerning Permit No. 16927 on July 1, 2016, Staff misplaced the objection and entered the Findings and Order and Amended Permit on this application. Staff has conceded that the objection was timely. (Tr. 177:10-179:7; Ex. E-10.) 10 evidence in the record exists showing that Staff was issuing these Findings and Orders or Amended Permits, or the Replacement Permit, on the condition that the reduction with Permit No. 16927 be realized – in fact, Einspahr had made his intent to object to that application clear with his letter from counsel on March 26, 2015. (Ex. E-28.) By e-mail on August 25, 2015, Staff Designated Basins Team Leader Keith Vander Horst notified Einspahr’s counsel that he did not recognize the Objection until “organizing and filing correspondence” on his desk that day and acknowledged that the Findings and Order and Amended Final Permit reducing the permitted acreage and annual appropriation under Permit No. 16927 should not have been issued until the Objection was addressed; Mr. Vander Horst asked whether Einspahr wished to pursue the Objection, and if so, stated the Findings and Order and Amended Final Permit could be amended if necessary. (Ex. E-10; Tr. 177:10-179:7.) Einspahr’s counsel notified Mr. Vander Horst on August 26, 2015 that Einspahr wished to pursue the Objection. (Ex. E-10.) The Objection proceeded to a one-day evidentiary merits hearing on March 15, 2016, and after written closing arguments were submitted by the parties, the Hearing Officer entered the Initial Decision on May 16, 2016. III. ARGUMENT A. Standard of Review Rule 10(E) of the Division of Water Resources Rules of Procedure for All Adjudicatory Hearings Before the Ground Water Commission, 2 CCR 402-3, provides that a “hearing officer’s findings of evidentiary facts” shall be set aside if they are “contrary to the weight of the evidence.” Evidentiary facts are “the detailed factual or historical findings upon which a legal determination rests.” Joseph v. Mieka Corp., 282 P.3d 509, 513 (Colo. App. 2012). The hearing officer’s “ultimate conclusions of fact” also can be set aside if the Commission’s conclusion has a reasonable basis in the law and is supported by substantial evidence in the record. See also C.R.S. § 24-4-105(15)(b). Findings of ultimate fact “involve a conclusion of law, or a mixed 11 question of law and fact, and settle the rights and liabilities of the parties.” Joseph, 282 P.3d at 512 (citing State Bd. of Med. Examiners v. McCroskey, 880 P.2d 1188, 1193 (Colo. 1994)). Upon either such findings, “[t]he Commission may remand the case to the hearing officer for any further proceedings as they may direct, affirm, set aside, or modify, including any sanction or relief entered therein, in conformity with the facts and the law.” 2 CCR 402-3(10)(E). B. The Hearing Officer erroneously found that the change in description for Permit No. 12025 was conditioned upon a reduction of irrigated acreage and annual appropriation of Permit No. 16927. In the Initial Decision, the Hearing Officer held that “[t]he required reduction of 61 acres and 152.5 AF was a condition of the change in description of irrigated acreage for Permit No. 12025-FP . . . .” (Initial Decision ¶ 46.) The Initial Decision lists this reason as the basis for the Hearing Officer’s decision to deny Einspahr’s objection to reduction in Permit No. 16927. (Id.) The Initial Decision provides no authority or basis, in the documents or the law, that the change in description for Permit No. 12025 was conditioned upon the reduction with Permit No. 16927. Einspahr, with the approval of Staff, split the reduction between the two wells. However, the documents and testimony make clear that Einspahr intended always to object to the reduction in Permit No. 16927. Einspahr’s letter, through counsel on March 26, 2015, unequivocally stated that he was willing to accept the reduction on Permit No. 12025 but planned to object to the reduction on Permit No. 16927. (Ex. E-28; Tr. 64:10-18.) Einspahr was clear with his intentions, and Staff made no objection or condition (with any application or permit) based upon Einspahr’s express statements regarding the planned objection. There is no credible or substantiated basis in the record otherwise, and the Hearing Officer basing his decision directly on this finding is not supported by fact or law. As such, the Initial Decision should be set aside. See Joseph, 282 P.3d at 512. 12 C. The Hearing Officer improperly held that Staff must analyze Permit No. 13530/16927 in conjunction with the initial application submitted for replacement of Permit No. 12025. The Initial Decision also makes an improper determination that Staff is not limited to reviewing the application before it, but rather, can review permits for adjacent wells when determining a submitted application. (Initial Decision ¶¶ 22-23, 26-27, 36.) In other words, the Hearing Officer erred in holding that Staff could require a determination regarding overlap with Permit No. 13530/16927 when it was only initially asked to determine an application for replacement permit for Permit No. 12025. Specifically, the Initial Decision states “[t]o properly evaluate what [Einspahr] can legally irrigate with the well associated with Permit No. 12025-FP, the well with which it has an overlapping legal description of land to be irrigated must also be considered in order to properly define the subject right and protect against expansion of use.” (Initial Decision ¶ 36.) This is an erroneous holding under the plain language of C.R.S. § 37-90-111(1)(g) and Rule 7.4.1. C.R.S. § 37-90-111(1)(g) states that the Commission may “authorize a change in acreage served, volume of appropriation, place, time, or type of use of and by any water right . . . granted under the authority of the commission but only upon such terms and conditions as will not cause material injury to the vested rights of other appropriators.” Similarly, Rule 7.4.1 provides that “[a]n application to change the description of acres may be approved if a right to irrigate the claimed number of acres is established pursuant to Sections 37-90-107 and 108, C.R.S., and the requested change will not result in any material injury to the vested rights of other appropriators.” Rule 7.4.1 limits Staff’s review of a change in permitted acreage or annual appropriation to only the application that is submitted to Staff, without review of other wells or other permitted acreage. (Ex. E-1; Ex. E-2; Tr. 86:4-14.) The plain language of Rule 7.4.1 establishes this limit through singular references – Rule 7.4.1 applies to “an application”, “a right”, and “the requested change”. This is consistent with the singular reference in § 37-90-111(1)(g) to “a change”. Where language of a statute or rule is clear and ambiguous on its face, the plain language is applied. See, 13 e.g., Rags Over the Arkansas River, Inc. v. Colo. Parks and Wildlife Bd., 360 P.3d 186, 192 (Colo. App. 2015) (holding that, like construing a statute, an agency must interpret rules and regulations consistent with the plain language). Here, the initial submission to Staff was an application for a replacement well for Permit No. 12025. The record established that Einspahr initially only sought Staff action on Permit No. 12025 and submitted documents for Permit No. 13530/16927 only after Staff performed an analysis of that permit to hold Einspahr’s replacement well application for Permit No. 12025. (Ex. E-19; Tr. 56:1958:3.) Based on Einspahr’s initial submission, Staff’s review should have been limited to the application for replacement well for Permit No. 12025 and any change in description of permitted acres for that permit only. Rule 7.4.1 limited Staff to a review of whether Einspahr had a right to irrigate the acres he was seeking to irrigate under Permit No. 12025 (131 acres) and whether that irrigation would cause material injury to other appropriators. The Commission already made a determination on that analysis for Permit No. 12025, which resulted in a change in legal description and a reduction in permitted acreage and annual appropriation of 29 acres and 72.5 acre feet. (Tr. 170:9-14.) The Initial Decision states that this argument ignores the fact that Staff would have required the full 61 acre reduction on Permit No. 12025 if Permit No. 13530/16927 also was not involved. (Initial Decision ¶ 23.) However, this misses the point. The plain language of Rule 7.4.1 states that a 61 acre reduction for the theoretical overlap should not have been the analysis of Staff – rather, Staff should have been limited to changing the description of irrigated acreage and requiring a reduction to historic use on Permit No. 12025 only, which was a reduction in 29 acres and 72.5 acre feet. The Initial Decision equally misses the point it its dismissal of Neilsen’s testimony that, had a third party owned the rights to Permit No. 13530/16927, reduction on that permit would not have been required from the third party, but rather a full reduction of 61 acres would have been required on Permit No. 14 12025. (Initial Decision ¶ 22.) The plain language of Rule 7.4.1 also limits Staff in this situation to review of Permit No. 12025 and the 131 historic acres Einspahr sought to irrigate with the permit. Finally, the Initial Decision accepts Staff’s argument that Staff did not force Einspahr to submit the application for Permit No. 13530/16927, but rather recommended that process and Einspahr made the decision to split the reduction between the two permits. This holding fails to acknowledge that, even if termed a recommendation, Staff advised Einspahr to take this action and did force Einspahr in substance to submit the reduction for Permit No. 13530/16927 because it required a 61-acre reduction before the replacement permit would be issued, which put Einspahr’s irrigation that season at risk.5 Under Rule 7.4.1, the 61 acre reduction was improper, and the Initial Decision’s holding to the contrary is not based in law. D. The Hearing Officer inappropriately held that potential injury can establish material injury under C.R.S. § 37-90-111(g) and 2 CCR 410-1 Rule 7.4.1. Both § 37-90-111(g) and Rule 7.4.1 require that a requested change not materially injure the vested rights of other appropriators. A change does not cause “material injury” when it “will not cause unreasonable harm to a prior appropriator” and does not “increase the amount of water or the historical use to the detriment of other appropriators.” Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 371-373 (Colo. 1982). Here, the Hearing Officer held that “potential” injury of the theoretical increased irrigation with the 61 acre overlap meets the standard for showing “material” injury to require reduction with Permit No. 16927. (Initial Decision ¶ 28.) This is an improper holding. First, the plain language of the statute and rule show that material injury is not potential or effective injury. And, even if the Hearing Officer’s interpretation is accepted, a showing of material 5 The Initial Decision also accepts Staff’s argument that Staff necessarily must look at the claimed duplication under Rule 7.4.1 because it is required to analyze material injury to other appropriators and would create a negative precedent of not allowing Staff to work with appropriators to split a reduction among properties. However, that argument fails to recognize the actual historic irrigation that had occurred under Permit No. 12025 and Permit No. 13530/16927. And, if the Initial Decision stands and Staff is allowed to review Permit No. 13530/16927, the 15 injury was not established in this case because changing Permit No. 12025 to match the actual historic irrigation, while leaving Permit No. 13530/16927 as permitted based on its unchanged actual historic irrigation, does not cause material injury to other appropriators – it simply conforms the documents to reality, not theory.6 Einspahr presented a plethora of testimony and exhibits at the hearing showing that the properties irrigated under Permit No. 12025 (Circle 103) and Permit No. 13530/16927 (Circle 105) have been irrigated separately without overlap in the same irrigation patterns in Section 1 and Section 6 since he began farming the properties in 1982. (Ex. E-4; Ex. E-13; Tr. 29:5-7.) Moreover, additional evidence in the record establishes that the properties have been irrigated separately in this same manner since inception and first beneficial use because (1) it is impossible to have an overlap due to a trail road and power line poles between the properties, (2) when Einspahr began farming Circle 103 in 1982, the original 1969 center pivot irrigation system was on the property in the same irrigation pattern as currently exists, and (3) Einspahr’s expert reports (Ex. E-1, E-2), the 1968 Map, Statement of Well Filing (Ex. E-14), and the State Issued Map (Ex. E-17) corroborate the properties being irrigated separately. (Tr. 36:2-14, 36:19-39:4, 43:6-46:19.) Because the irrigated properties have been actually irrigated for over 50 years as they currently exist, changing the legal description and reducing the permitted acreage and annual appropriation for Permit No. 12025 to match this actual irrigation has no bearing on Permit No. 13530/16927. Rather, these changes make the State Engineer’s records consistent with what is, and has, actually occurred. A reduction in permitted acres and annual appropriation has occurred on Permit No. 12025 to address any harm to other appropriators, and leaving Permit No. 13530/16927 unchanged and consistent with historic separate irrigation will not harm other appropriators or precedent set will be harmful to appropriators, as it will create an expansion of agency authority and an abuse of discretion. See C.R.S. § 37-90-115. 6 The record also does not include any evidence that Einspahr had not established a right to irrigate the acres under Permit No. 13530/16927 or the acres in the changed legal description for Permit No. 12025. 16 increase the amount of permitted water use in relation to actual irrigation. The holding of the Hearing Officer to the contrary is against the law and the weight of the evidence. E. The Hearing Officer erred by finding irrigation under Permit No. 12025 on Section 1 and Section 6 was illegal and not the result of a clerical error. Colorado law recognizes in many situations that a clerical mistake should be corrected without adverse consequences. See C.R.S. § 37-92-304(10) (allowing for correction of clerical mistake in water court decree or judgment); C.R.C.P. 60(a) (providing court authority to correct clerical mistake in judgment, order, or other part of the record); C.R.S. § 38-35-109(5) (providing process for affidavit to correct scrivener’s error on recorded real property documents). Most notably to this case, C.R.S. § 37-92-304(10) allows a water court to correct a clerical mistake in a surface water decree, either on its own or on the petition of any person. Although Section 37-92-304(10) is a statutory provision under the Water Right Determination and Administration Act of 1969 (“1969 Act”) that governs water other than designated groundwater, this statutory section can be instructive and persuasive here in applying the Colorado Ground Water Management Act (the”Management Act”). See, e.g., Kerbs, 646 P.2d at 371-372 (applying the standard for “injuriously affected” applicable to surface water rights under the 1969 Act to the “material injury” reference in the Management Act because the terms expressed the same policy); see also Broyles v. Fort Lyon Canal Co., 638 P.2d 244, 248-49 (Color. 1981) (applying Management Act provisions to a well permit under the 1969 Act); Jaeger v. Colo. Ground Water Comm’n, 746 P.2d 515, 522 (Colo. 1987) (applying the definition of “appropriation” in the 1969 Act to the Management Act because the Management Act did not define that term). Under Section 37-92-304(10), a clerical mistake can be corrected to match the intention of the decree. In Telluride Co. v. Colo. Div. Engr. No. 4, 575 P.2d 1297 (Colo. 1978), a referee in a conditional water right proceeding issued an amended ruling that failed to mention three spring rights that were intended to be a part of the ruling. The water court confirmed the ruling, and the water right 17 claimant sought to correct the ruling to include the three spring rights. Id. at 1297-98. Based on Section 37-92-304(10), the Court held that the three spring rights were intended to be included in the ruling, and the omission of these rights in the ruling was a clerical mistake because the mistake could not “reasonably be attributed to the exercise of judicial consideration or discretion.” Id. at 1298. The Court remanded the case to the water court and directed the water court to correct the clerical mistake on the ruling “so that it expresses those matters omitted by the referee and intended by him to have been included.” Id. Similarly, Section 37-92-304(10) allows for the correction of a clerical mistake to match what is actually occurring with a water right. In Meyring Livestock Co. v. Wamsley Cattle Co., 687 P.2d 955, 957-59 (Colo. 1984), the plaintiff owned a storage decree. Under the decree, the plaintiff historically filled the reservoir to approximately 10 feet of water above the reservoir’s outlet – based upon the actual reservoir structure, this equated to 108 acre feet of water. Id. However, the final storage decree entered in 1932 provided the right to store water to a height of 10 feet above the outlet, but only 350,000 cubic feet of water, which is equivalent to 8 acre feet of water. The plaintiff brought an action in 1978 to correct the clerical mistake on the decree to reflect a right to store 108 acre feet, rather than 8 acre feet. Id. In support of its claim, the plaintiff alleged that it had actually and historically stored 108 acre feet of water by filling the reservoir to 10 feet above the outlet, that 8 acre feet of water would be insufficient to irrigate the 300 acres it actually and historically irrigated with the stored water, and that a state issued survey showed that a depth of ten feet in the reservoir equates to 108 acre feet of water. Id. The Plaintiff further alleged that the discrepancy in the decree could be explained by inconsistent testimony of the county engineer in the 1932 decree proceeding that noted the 8 acre feet of water, but also noted the depth of 10 feet and irrigation of 300 acres with the water. Id. Based on these allegations, the Court held that the plaintiff’s established that the “inconsistency in the 1932 decree is a clerical error” and remanded the case for further findings. Id. 18 Here, the Hearing Officer held that, despite extensive evidence presented by Einspahr otherwise, the discrepancy in legal description and actual irrigated acres for Circle 103 and Permit No. 12025 was not due to a clerical error. (Initial Decision ¶25.) However, the evidence in this case is consistent with Telluride and Meyring, and shows the weight of the evidence establishes the inconsistency in the legal description for Permit No. 12025 was a clerical error. Einspahr testified that Circle 103 has been actually and historically irrigated under Permit No. 12025 on the same parcel of property and same irrigation pattern in Section 6 and Section 1 since he began farming the property in 1982, and likely since inception. Einspahr further testified that, based on his knowledge and experience with the property and the terrain, the legal description placing Circle 103 only in Section 6 was a clerical mistake – considering the terrain of the area and lack of section line markers, Einspahr testified that it would be plausible for the applicant to have stood at the county road intersection thinking it was the section line, looked south, and determined that Circle 103 would be all in Section 6. Other evidence corroborated and substantiated Einspahr’s testimony. Einspahr’s expert reported and testified that, based on his review of this situation, Circle 103 had been irrigated in Section 1 and Section 6 since inception, and the incorrect legal description for Permit No. 12025 was a clerical mistake. The 1968 Map and the State Issued Map, which are documents in the State Engineer file and generated by the Department of Water Resources, show and intent to irrigate in Section 1 and Section 6, which is indicative of a clerical mistake.7 The Hearing Officer found that the permit application, Statement of Beneficial Use, and Final Permit with a legal description in Section 6 controlled, as these documents must be given higher credence. (Initial Decision ¶¶ 25-27.) Einspahr is not saying all documents in the State Engineer file 7 The handwriting on the application for Permit No. 12025 (Ex. S-15) that first listed the incorrect legal description appears to be consistent with the handwriting in the notary block of Ben Saunders, the Sandhills Ground Water Management District manager at that time. As such, the mistake may have been due to, in part, a misunderstanding 19 are not given weight, but where here the testimony and documentation establish that actual irrigation of acreage in Section 6 and Section 1 under Permit No. 12025 consistent with Circle 103 was, and has been, the acreage to be irrigated under Permit No. 12025, the weight of the evidence shows a clerical error that should be corrected without prejudice to Permit No. 13530/16927 – the opposite holding of the Hearing Officer in the Initial Decision should therefore be set aside. CONCLUSION For the foregoing reasons, Einspahr respectfully requests that the Commission set aside the Initial Decision, grant Einspahr’s objection to the reduction of permitted acreage and annual appropriation for Permit No. 16927, and enter an Order to restore Permit No. 16927 to 42 permitted acres and 105 acre feet of annual appropriation. DATED this 9th day of November, 2016. Respectfully submitted, /s/ Russell J. Sprague Russell J. Sprague, #40558 Kimbra L. Killin, #24636 COLVER KILLIN & SPRAGUE, LLP Attorneys for Applicant Gayln Einspahr of the legal description by the District. Consistent with this inference, Einspahr testified that it is common for groundwater management district employees to assist in completion of well forms for submission to Staff. 20 CERTIFICATE OF SERVICE I certify that on November 9, 2016 a copy of APPLICANT GAYLN EINSPAHR’S APPEAL BRIEF was served on the following via e-mail: Joseph (Jody) Grantham Hearing Officer jody.grantham@state.co.us Jennifer Mele, Esq. Assistant Attorney General Attorney for Staff of the Colorado Ground Water Commission jennifer.mele@state.co.us Pauline Wilber Legal Assistant, Attorney General’s Officer pauline.wilber@state.co.us Keith Vander Horst and Rick Nielsen Staff for the Colorado Ground Water Commission keith.vanderhorst@state.co.us rick.nielsen@state.co.us /s/ Russell J. Sprague AG Report2016-11-18.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 18, 2016 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 7, 2016. cherokee metropolitan district Case No. 08-GW-71 13SA330</w:t></w:r></w Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: An application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with four other water users in the basin. A hearing was held for two weeks in Denver beginning on June 8, 2009 during which the applicants completed their initial presentation and the objectors began their presentations. An additional week of hearing scheduled for August 3 through 7, 2009 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010. Status: In November of 2009, the Upper Black Squirrel Creek Ground Water Management District filed in district court, in Case No. 98CW80, for a declaratory judgment asking the court to determine whether under a 1999 Stipulation Cherokee is required to use its waste water as recharge for the basin or if that waste water can be claimed as replacement credit under a replacement plan. On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. UBS filed an appeal on December 18, 2013. The Supreme Court affirmed the orders of the District Court. Staff has not heard from Cherokee as to how they plan to proceed with the application still pending before the Hearing Officer. cherokee metropolitan district Case No. 08-GW-78 09-GW-15</w:t></w:r></w Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with 08GW71. Status: See above. meridian service metro district Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for a change of water right. Two parties filed objections. Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</ resolution of the issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. Gallegos, Reinaldo, et al Case No. 03-GW-06 03CV1335</w:t></w:r></w 15SA118</w:t></w:r></w Designated Basin: Upper Crow Creek Management District: Before: Supreme Court Attorney: Pat Kowaleski Subject: Petition to de-designate portions of the Upper Crow Creek Designated Ground Water Basin. Background: The petitioners originally sent letters to the State Engineer in 2002 and 2003 seeking curtailment of wells within the Basin. The State Engineer declined to curtail wells and the petitioners appealed the issue of the Commission’s jurisdiction over surface water rights first to District Court and eventually to the Supreme Court. The Supreme Court held