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8-01 AG Report.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission August 17, 2001 The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. Status: At the November, 1998 meeting the Commission affirmed the Initial Decision of its Hearing Officer that it was not appropriate to hear the change applications of Eagle Peak because the Lost Creek District had not approved Eagle Peak’s export application. On January 14, 1999 Eagle Peak appealed this decision to Adams County District Court and, among other things, has requested that the District Court rule on the change applications, even though the Commission has not reviewed the substance of the applications. The Complaint also seeks unspecified damages against the State for impairment of Eagle Peak’s water rights. This Office filed an Answer to the complaint on February 12, 1999 and the record was certified on June 15, 1999. A Status Conference was held on December 13,1999 and a number of procedural matters were handled. The Court was unable to locate the administrative record which had been sent and the Commission staff is reconstructing the record for transmittal to the Court. This case is on hold pending the Court of Appeal’s resolution of the Petition for Rehearing in 98CA1518, which is Eagle Peak’s challenge of Lost Creek’s denial of export. ( See next item.) EAGLE PEAK FARMS LTD Case Number: 98CV1727, 98CA1518 Designated Basin: Lost Creek Management District: Lost Creek Before: Colorado Court of Appeals Attorney: Pat Kowaleski Subject: Denial by the Lost Creek District of Eagle Peak’s application for export Status: The District denied Eagle Peak’s application for export and when Eagle Peak appealed the decision to District Court, the Court dismissed the challenge because all parties had not been properly served. The Court of Appeals overturned this procedural decision and remanded the case to the District Court for a determination on the merits. The District filed a Petition for Rehearing with the Court of Appeals and the Petition for Rehearing was denied on February 3, 2000. The Lost Creek District filed a Petition for Writ of Certiorari with the Colorado Supreme Court on March 3, 2000 and the petition has not yet been acted upon by the Supreme Court. (The Commission is not a party to these proceedings.) No new activity. OutBack Properties, LLC, and Joe Gargiulo Case Nos. 00-GW-03 and 00-GW-13 Designated Basin: Kiowa-Bijou Management District: Kiowa-Bijou Before: Steve Lautenschlager, Hearing Officer Attorney: Matt Poznanovic Subject: Outback Properties and Joe Gargiulo protest the denial of their applications for replacement plans for proposed withdrawals from the Dawson Aquifer. Status: A hearing was held on February 28, 2001. On May 1, the Hearing Officer issued his initial decision to sustain the denial of each proposed replacement plan. There were no objections to the initial decision, and it was made a final decision of the Hearing Officer. This case has been closed. Woodmen Hills Metropolitan District Case No. 00-GW-05 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Steve Lautenschlager, Hearing Officer Attorney: Pat Kowaleski Subject: Objection by the Management District to Woodmen Hills’ application for determination of water right to allow appropriation from the Laramie-Fox Hills, Arapahoe, Denver and Dawson aquifers underlying a 1112 acre property. Status: A hearing was held on April 24, 2001 and the Hearing officer denied the applications. No appeal was filed and case has been closed. Woodmen Hills Metropolitan District Case No. 00-GW-06 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Steve Lautenschlager, Hearing Officer Attorney: Pat Kowaleski Subject: Objection by the Management District to Woodmen Hills’ application for well permits to use three ponds to appropriate designated ground water from the alluvial aquifer, as well as its application for a replacement plan. Status: See previous item. Ray Gerk Case No. 01-GW-01 and 01-GW-02 Designated Basin: Northern High Plains Management District: Frenchman Designated Ground Water Management District Before: Steve Lautenschlager, Hearing Officer Attorney: Matt Poznanovic Subject: In Case No. 01-GW-01, objections were made by John Vasa and Catherine Goddard to Mr. Gerk’s two applications for changing the description of irrigated acres for two commingled wells with Permit Nos. 11779-FP and 14840-FP, and also a request for reducing the permitted irrigated acres for the well with Permit No. 14840-FP. In Case No. 01-GW-02, objections were made by John Vasa and Catherine Goddard to Mr. Gerk’s two applications for changing the description of irrigated acres for two separate commingled wells with Permit Nos. 12147-FP and 12148-FP to allow for rotational irrigation. Status: The Hearing Officer ordered the two cases be consolidated, and a hearing was set for March 20, 2001. On March 20, the parties met with Staff to discuss settlement, and agreed on acceptable terms and conditions. At the hearing, the Hearing Officer ordered Staff to prepare a proposed Order incorporating the agreed upon terms and conditions, for review by the parties. The parties were allowed thirty days to comment. As no objections were made to the initial Order, the Hearing Officer issued a final Order. The consolidated cases have been closed. DENNIS DUNIVAN Case Nos. 01-GW-03 Designated Basin: Southern High Plains Management District: Southern High Plains Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by I. Nick Shaffer, Ira and Dorene Shaffer, and Elvin and Lana Shaffer to Mr. Dunivan’s application to construct a new well to appropriate designated ground water from the Dockum Group Aquifer for the irrigation of a 240 acre property. In addition, Mr. Dunivan is requesting to reduce the annual appropriation under Permit No. 11422-F to 120 acre-feet for irrigation of the same 240 acre property. Status: A hearing is set for August 23, 2001. On August 7, the parties shall participate in a prehearing conference for the purpose of clarifying issues and procedures for the hearing. TERRY HISLE Case Nos. 01-GW-04 and 01-GW-05 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Steve Lautenschlager, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by the Management District to Mr. Hisle’s two applications for Determinations of Water Rights to allow appropriations from the Dawson aquifer underlying two 40 acre properties. Status: The Hearing Officer ordered the two cases be consolidated, and a hearing was set for June 20, 2001. Prior to the hearing date, Mr. Hisle entered into a stipulation with the District, and as a result, the District withdrew its objection. These cases have been closed. LARRY RIDE Case Nos. 01-GW-06 and 01-GW-07 Designated Basin: Northern High Plains Management District: Frenchman Ground Water Management District Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by Bernard and Edith Loos, Ray and Lila Wilson, Darrell Whittington, Dale Whittington and Dola Schaal in Case Nos. 01-GW-06 and 01-GW-07, and an objection by Chuck and Janet Schmidt in Case No. 01-GW-07 to Mr. Ride’s applications to appropriate designated ground water from the Ogalalla aquifer for the irrigation of a 258 acre property and a 157 acre property. Status: The Hearing Officer ordered the two cases be consolidated, and a hearing was set for September 25, 2001. Subsequent to the hearing setting conference, the Hearing Officer granted the Staff’s Motion to Publish in Washington County. While notice had previously been published in Logan County, the Staff believed that notice should also be published in Washington County. To allow time for the additional publication and objection period, the September 25 hearing was vacated. A hearing setting conference is scheduled for October 30. RONALD MCLEAN Case No. 01-GW-08 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Management District to Mr. McLean’s application for appropriation of designated ground water from the Denver aquifer underlying a 40 acre property. Status: A hearing was set for September 26, 2001. Prior to the hearing date, Mr. McLean entered into a stipulation with the District, and as a result, the District withdrew its objection. This case has been closed. Thomas H. Bradbury et al Case No. 99-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Steve Lautenschlager, Hearing Officer Attorney: Pat Kowaleski Subject: The Bradburys filed 14 applications for Determinations of Water Rights, pursuant 37-90-107(7)(c). The District filed objections claiming that the statute is unconstitutional in that it “attempts to separate the administration of groundwater contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hill Aquifers and that they be treated differently from all other groundwaters covered in the Act…” The District contends that a system which uses ownership of land to determine interests in water is violative of Article 16, Section 5 of the Constitution which declares that the water of the state is the property of the public and subject to appropriation. Status: A hearing was held on January 16, 2001 and on February 1 the Hearing Officer issued his initial decision, granting the applications and determining that they were not speculative. At its last meeting the Commission reviewed the initial decision and approved the applications. The District has challenged this decision in Arapahoe County District Court and the parties have filed Motions mirroring, for the most part, the positions that they took before the Hearing Officer and the Commission. We have filed a Motion to Dismiss, alleging that the District is, in effect, requesting a review of the record of proceedings before the Commission, while the proper relief should be a de novo review, i.e. a completely new review, by the District Court. P:NR\H2O\GWC\8-01 AG Report.doc 4 5 AgendaAug01.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 8:30 a.m. Friday August 17, 2001 Far View Lodge, Multi Media Room Mesa Verde National Park, CO (970) 529-4422 A G E N D A 1 Determine Quorum. Review and Approval of Agenda Items. Approval of Minutes for Meeting of May 18, 2001. Report of the Executive Director by Hal Simpson. Status of the Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson. Discussion of potential rule or statute change for administration of wells in the Southern High Plains Designated Basin, by William Fronczak. Staff Report by Suzanne Sellers and Megan Sullivan. Report of the Attorney General by Matthew Poznanovic. Management District Reports: a. Frenchman e. WY i. Southern High Plains b. Sand Hills f. Arikaree j. North KiowaBijou c. Marks Butte g. Plains k. Upper Black Squirrel d. Central Yuma h. East Cheyenne l. Upper Big Sandy Lost Creek Old Business New Business Next meeting scheduled for November 16, 2001. Adjournment AGMemo.doc Ken Salazar Attorney General Christine M. Arguello Chief Deputy Attorney General Alan J. Gilbert Solicitor General STATE OF COLORADO DEPARTMENT OF LAW Office of the Attorney General State Services Building 1525 Sherman Street - 5th Floor Denver, Colorado 80203 Phone (303) 866-4500 FAX (303) 866-5691