Colorado Supreme Court Round-Up (10/22/07)


Pagosa Area Water & Sanitation Dist. v. Trout Unlimited (pdf, 46 pages).

Much of Colorado is a high plains desert. That being true, water is big deal in this state, so much so that we have special courts to adjudicate water rights.

Water and sanitation districts are distinct, statutorily-established units of government that exist to supply water and to maintain reservoirs, treatment plants, etc. In this case, two such districts that service residents in and around Archuleta County came up with a plan, based on projected population growth, to divert enough water from the San Juan River to keep the Dry Gulch Reservoir full through the year 2100. The districts filed an application with the water court for approval of the plan. Several groups opposed the application. After a trial, the court essentially granted the districts all they asked for.

The state constitution provides that water is public property “subject to appropriation.” Appropriations are granted to public agencies and private persons intending to make a “beneficial use” of the water; hoarding to effect speculation for profit is a no-no. A public entity’s application must be consistent with “reasonably anticipated requirements based on substantiated projections of future growth.” The planning period for water appropriation must be “reasonable.”

Related to the anti-speculation doctrine is the statutory “can and will” rule, which provides that a water appropriation will be granted only if “it is established that the waters can and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.”

The rule announced in this case is unremarkable:

We hold that a governmental water supply agency has the burden of demonstrating three elements in regard to its intent to make a non-speculative conditional appropriation of unappropriated water: (1) what is a reasonable water supply planning period; (2) what are the substantiated population projections based on a normal rate of growth for that period; and (3) what amount of available unappropriated water is reasonably necessary to serve that population for the planning period, above its current water supply. In addition, it must show under the “can and will” test that it can and will put the conditionally appropriated water to beneficial use within a reasonable period of time.

The Court’s disposition — remand to the water court for additional findings of fact — isn’t especially remarkable either. However, the Court interpreted one of its past cases in a way that appears to impose a presumptive fifty-year limit on planning periods for public entity appropriation applications:

Although the fifty year planning period we approved in Bijou is not a fixed upper limit, and each case depends on its own facts, the water court should closely scrutinize a governmental agency’s claim for a planning period that exceeds fifty years.

Cert Petitions:

Four denied, two granted:

1) Roberts v. People, No. 07SC430 will answer these questions:

Whether the court of appeals erred in holding that a theft by deception continues to be committed until it is detected; and therefore in holding that the various amounts of money the defendant surreptitiously took from his employer on different occasions constituted a single theft, unaffected by the statutory six-month limitation on aggregating the value of property stolen from multiple thefts; and in holding that the defendant’s sentence was mandatorily aggravated because he was on probation for another offense by the time these particular takings were detected.

2) The Court will answer these questions in Delarosa-Ramirez v. People, No. 07SC159:

Whether the court of appeals erred by failing to consider petitioner’s challenge to the constitutionality of subsection (d) of the criminal impersonation statute, C.R.S. section 18-5-113(1), on grounds that the statute is both facially void for vagueness and unconstitutionally vague as applied to petitioner.

Whether the court of appeals erred in holding that the trial court’s failure to instruct the jury on the meaning of the word “might” in the criminal impersonation statute did not require reversal of petitioner’s conviction.

Whether the court of appeals incorrectly concluded that the district court did not err in permitting irrelevant and prejudicial testimony to be introduced to the jury through a prosecution witness.

Whether the court of appeals erred in holding that the prosecution introduced sufficient evidence to prove the elements of criminal impersonation beyond a reasonable doubt.

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