HomeMy WebLinkAbout2023SA258 - City v. Lazy D Grazing Association, et al. - 11 - Answer BriefCOLORADO SUPREME COURT
2 East 14th Avenue
Denver, Colorado 80203
COURT USE ONLY
Appeal From:
Division 1 Water Court - South Platte River Basin
Hon. Todd Taylor, Water Judge
Case Number 2020 CW 3113
Concerning the Application for Water Rights of:
LAZY D GRAZING ASSOCIATION, in Weld County
Opposers - Appellants:
CITY OF STERLING; and CITY OF FORT COLLINS
Applicant - Appellee:
LAZY D GRAZING ASSOCIATION
Non-Participating Opposers:
BASIN LANDS, LLC; BIJOU IRRIGATION COMPANY; BIJOU
IRRIGATION DISTRICT; CACHE LA POUDRE WATER USERS
ASSOCIATION; CITY OF BOULDER; CITY OF ENGLEWOOD;
CITY OF GREELEY, ACTING BY AND THROUGH ITS WATER AND
SEWER BOARD; CITY OF THORNTON; L.G. EVERIST, INC.;
NORTHERN COLORADO WATER CONSERVANCY DISTRICT;
MARY ESTABROOK; STATE ENGINEER AND DIVISION
ENGINEER FOR WATER DIVISION NO. 1; and UNITED WATER
AND SANITATION DISTRICT.
Attorneys for Applicant-Appellee Lazy D Grazing Ass’n:
Bradley C. Grasmick, #35055
Wesley S. Knoll, #48747
Richard LiPuma, #17892
LAWRENCE CUSTER GRASMICK JONES & DONOVAN, LLP
5245 Ronald Reagan Blvd., Suite 1
Johnstown, CO 80534
Telephone: (970) 622-8181
Email: brad@lcwaterlaw.com; wes@lcwaterlaw.com;
rich@lcwaterlaw.com
Case Number:
2023 SA 258
ANSWER BRIEF
DATE FILED: February 13, 2024 2:22 PM
FILING ID: 278E0CC699264
CASE NUMBER: 2023SA258
ii
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and
C.A.R. 32, including all formatting requirements set forth in the rules. Specifically,
the undersigned certifies that:
The brief complies with the applicable word limits set forth in C.A.R.
28(g). It contains 9,475 words.
The brief complies with the standard of review requirements set forth in
C.A.R. 28(b). In response to each issue raised, the appellee must provide
under a separate heading before the discussion of the issue, a statement
indicating whether appellee agrees with appellant’s statements concerning the
standard of review and preservation for appeal and, if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any
of the requirements of C.A.R. 28 and C.A.R. 32.
LAWRENCE CUSTER GRASMICK
JONES & DONOVAN LLP
/s/ Richard LiPuma
_____________________________
By: Bradley C. Grasmick
Wesley S. Knoll
Richard LiPuma
Attorneys for Lazy D Grazing Ass’n
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TABLE OF CONTENTS
Certificate of Compliance . . . . . . . . ii
Table of Contents . . . . . . . . . . iii
Table of Authorities . . . . . . . . . vi
Issues Presented . . . . . . . . . . 1
Statement of the Case . . . . . . . . . 1
I. Nature of the Action . . . . . . . 1
II. Course of Action and Disposition . . . . . 2
III. Procedural History . . . . . . . . 6
IV. Statement of Facts . . . . . . . . 8
Summary of the Argument . . . . . . . . 14
Argument . . . . . . . . . . . 16
I. The SEO was Legislatively Authorized to Issue
Its Determination of Facts . . . . . . 16
A. The Standard of Review is De Novo . . . . 16
B. Nontributary Groundwater is Distinct from Tributary
Groundwater and Treated Differently Under the
Constitution and Laws of Colorado . . . . 16
C. The SEO is Required to Determine Facts Presented in
Nontributary Groundwater Applications . . . 19
iv
D. The SEO Did Not Make Inappropriate Legal
Conclusions . . . . . . . . 22
E. No Violation of Due Process Occurred . . . 24
F. Even if the SEO Exceeded Its Authority, the
Water Court Did Not Rely on the Presumptions
Arising from Its Determination . . . . . 24
II. The Water Court Did Not Misapply Presumptions or Shift
the Burden of Proof to the Cities . . . . . 25
A. Lazy D Agrees the Standard of Review of Review is
De Novo . . . . . . . . 25
B. The Water Judge Understood and Correctly Applied
the Presumption that Groundwater is Tributary . . 25
C. The Water Judge Correctly Analyzed the Presumption
Arising from the SEO’s Determination of Facts . . 27
D. The Water Court Did Not Shift the Burden of Proof
to the Cities or Require Proof that ULA Groundwater
is Tributary . . . . . . . . 29
III. The Water Court’s Ruling that the Nontributary Presumption
Was Not Rebutted Applied the Correct Standard and was
Supported by Evidence . . . . . . . 31
A. The Standard of Review is Clear Error, Not De Novo . 31
B. The Water Court Applied the Correct Legal Standard
and Its Findings of Fact, Including that the Presumption
Was Not Sufficiently Rebutted, Must be Upheld . . 32
v
IV. The Water Judge Did Not Improperly Rely on Extra-Record
Evidence to Determine Disputed Adjudicative Facts . . 34
A. The Correct Standard of Review is Abuse of Discretion . 34
B. Water Courts Are Allowed, and Should Be Encouraged,
to Consider Authoritative Legal and Scientific Sources . 35
1. Independent Judicial Research on Scientific Matters
is Widely Accepted and Should be Encouraged . 35
2. Colorado Law Allows Independent Judicial
Research on the Scientific Principles Relating to
Groundwater . . . . . . 37
3. The Water Judge Did Not Erroneously Rely on
Extra-Record Sources . . . . . 42
V. A Final Note on the Impact This Court’s Ruling Will Have . 43
Conclusion . . . . . . . . . . . 44
Certificate of Service . . . . . . . . . 46
vi
TABLE OF AUTHORITIES
COLORADO CONSTITUTION
Colo. Const. art. XVI, § 5 . . . . . . . 16, 18
Colo. Const. art. XVI, § 6 . . . . . . . 16-17, 18
COLORADO CASES
American Water Dev. v. City of Alamosa,
874 P.2d 352 (Colo. 1994) . . . . . . . 28
American Water Dev., Inc. v. City of Alamosa,
874 P.2d 352 (Colo. 1994) . . . . . . . 19
Anderson v. Lett,
374 P.2d 478 (Colo. 1962) . . . . . . . 41
Bayou Land Co. v. Talley,
924 P.2d 136 (Colo. 1996) . . . . . . . 19
Chatfield East Well Co. v. Chatfield East Property Owners Ass’n.,
956 P.2d 1260 (Colo. 1998) . . . . . 17, 18, 20, 23, 28
City & County of Denver v. Middle Park Water Conservancy Dist.,
925 P.2d 283, 286 (Colo. 1996) . . . . . . 31-32
City of Black Hawk v. City of Central,
97 P.3d 951 (Colo.2004) . . . . . . . 32, 34
City of Englewood v. Burlington Ditch, Res. & Land Co.,
235 P.3d 1061 (Colo. 2010) . . . . . . 16, 34
vii
Colorado Ground Water Com’n. v. North Kiow-Bijou Groundwater
Mgmt. Dist.,
77 P.3d 62 (Colo. 2003) . . . . .17, 17 n.2, 19-20, 25, 39
Colorado Water Conservation Bd. v City of Central,
125 P.3d 424 (Colo. 2005) . . . . . . . 22
Dahman v. Ford Leasing Dev. Co.,
492 P.2d 875 (Colo. App. 1971) . . . . . . 6, 26
East Cherry Creek Valley Water and Sanitation Dist. v. Rangeview
Metro. Dist.,
109 P.3d 154 (Colo. 2005) . . . . . . 18, 19, 20
East Twin Lakes Ditches and Water Works, Inc. v. Board of
County Com’rs. of Lake County,
76 P.3d 918 (Colo. 2003) . . . . . . . . 29
Empire Lodge Homeowners’ Ass’n. v. Moyer,
39 P.3d 1139 (Colo. 2001) . . . . . . 16-17
Equitable Life Assur. Soc. Of U.S. v. Hemenover,
100 Colo. 231 (1937) . . . . . . . . 40
Gallegos v. Groundwater Com’n.,
147 P.3d 20 (Colo. 2006) . . . . . . . . 16
In re Gibbs,
856 P2d 798 (Colo. 1993) . . . . . . 32, 34
Kuiper v. Lundvall,
187 Colo. 40, 529 P.2d 1328 (1974) . . . . . . 18
viii
Lowder v. Tina Marie Homes, Inc.,
601 P.2d 657 (Colo. 1979) . . . . . . . 41
Martin v. People,
27 P.3d 846 (Colo. 2001) . . . . . . . . 22
Mile Hi Concrete, Inc. v. Matz,
842 P.2d 198 (Colo. 1992) . . . . . . 39, 40
Monte Vista Canal Co. v. Centennial Irrigating
Ditch Co.,
135 P. 981 (Colo. App. 1913) . . . . . . 40-41
People ex rel. AJL,
243 P.3d 244 (Colo. 2010) . . . . . . . 26
People ex rel. Danielson v. City of Thornton,
775 P.2d 11 (Colo. 1989) . . . . . . . 32
People v. G.H. Hard Land Co.,
117 P.141 (Colo. 1911) . . . . . . . . 41
People v. Marsh,
396 P.3d 1 (Colo. App. 2011) . . . . . . . 34
People v. Orozco,
210 P.3d 472 (Colo. App. 2009) . . . . . . 34
People v. Sena,
2016 COA 161 . . . . . . . . 34, 40
People v. Shreck,
22 P.3d 68 (Colo. 2001) . . . . . . . . 36
ix
Prestige Homes v. Legouffe,
658 P.2d 850 (Colo. 1983) . . . . . . 41-42
Safranek v. Town of Limon,
228 P.2d 975 (Colo. 1951) . . . . . . 25, 26
Sierra Mining Co. V. Lucero,
194 P.2d 302 (Colo. 1948) . . . . . . . 41
Simpson v. Bijou Irrigation Co.,
69 P.3d 50 (Colo. 2003) . . . . . . . . 16
State Engineer v. Castle Meadows, Inc.,
856 P.2d 496 (Colo. 1993) . . . . . . . 22
Stonewall Estates v. CF & I Steel Corp.,
592 P.2d 1318 (Colo. 1979) . . . . . . . 26
Upper Black Squirrel Creek Groundwater Mgmt. Dist.
v. Goss,
993 P.2d 1177 (Colo. 2000) . . . . . 16, 17, 18, 39
Water Supply & Storage Co. v. Larimer & Weld Irr. Co.,
24 Colo. 322 (1897) . . . . . . . 39-40
Wolfe v. Jim Hutton Educational Foundation,
2015 CO 17 . . . . . . . . 16, 29, 31
OTHER CASES
Johnson v United States,
780 F.2d 902 (11th Cir (Fla) 1986) . . . . . . 35
Samuels v Mladineo,
608 So.2d 1170 (Miss. 1992) . . . . . . 35-36
x
STATUTES
§ 37-82-101, C.R.S. . . . . . . . . . 25
§ 37-90-103(10.5), C.R.S. . . . . . 2, 18-19, 23-24, 25, 30
§ 37-90-137, C.R.S. . . . . . . . . 20, 21
§ 37-90-137(2)(a)(II), C.R.S. . . . . . . . . 20
§ 37-90-137(2)(b)(I)(A), C.R.S. . . . . . . . . 20
§ 37–90–137(4), C.R.S. . . . . . . . . 14, 19-20
§ 37–90–137(4)(d), C.R.S. . . . . . . . 20 n.4
§ 37–90–137(4) to (6), C.R.S. . . . . . . . 19-20
§ 37-92-102, C.R.S. . . . . . . . . . 18
§ 37-92-102(1), C.R.S. . . . . . . . . 25-26
§ 37-92-103(11), C.R.S. . . . . . . . . . 26
§ 37-92-203(1), C.R.S. . . . . . . . 1, 14, 20, 38
§ 37-92-302(1)(a), C.R.S. . . . . . . . . 21
§ 37-92-302(1)(b), C.R.S. . . . . . . . . 21
§ 37-92-302(2), C.R.S. . . . . . . . 21, 21-22, 27, 28
§ 37-92-302(2)(a), C.R.S. . . . . . . 2, 14, 21, 43
xi
§ 37-92-305, C.R.S. . . . . . . . . . 33
§ 37-92-305(6)(a), C.R.S. . . . . . . . . 21
§ 37-92-305(6)(b), C.R.S. . . . . 2, 5-6, 14, 22, 27, 28, 33, 44
§ 37–92–305(11), C.R.S. . . . . . . . . 19-20
§ 37-92-402(11), C.R.S. . . . . . . . . . 29
RULES
Rule 26(a)(1), C.R.C.P. . . . . . . . . . 7
Rule 26(a)(2), C.R.C.P. . . . . . . . . . 8
Rule 41(b), C.R.C.P. . . . . . . . 3, 4, 23, 24
Rule 201, C.R.E. . . . . . . . . . . 34
Rule 201(b), C.R.E. . . . . . . . . 40, 42
Rule 301, C.R.E. . . . . . . . . . 14-15, 28
Rule 11, U.L.R. . . . . . . . . . . 7
OTHER AUTHORITIES
Cheng, Independent Judicial Research in the Daubert Age,
DUKE LAW JOURNAL, Vol. 56:1263 (2007) . . . . 36, 37
Hobbes, Colorado’s 1969 Adjudication and Administration Act:
Settling In, 3 U. DENV. WATER L. REV. 1 (1999) . . . 37-38
xii
TIMELY, FAIR AND EFFECTIVE WATER COURTS: REPORT OF THE
WATER COURT COMMITTEE TO CHIEF JUSTICE MULLARKEY,
COLORADO SUPREME COURT, August 1, 2002 . . . 38, 39
1
ISSUES PRESENTED
1. On applications to determine nontributary groundwater rights, does the state
engineer have legislative authority to determine facts, including whether the
claimed groundwater is nontributary?
2. Did the water court erroneously shift the ultimate burden of proof to opposers,
instead of merely shifting the burden to go forward with evidence rebutting
the presumption that arose from the state engineer’s findings of fact?
3. Did the water judge commit clear error in finding that the opposers failed to
rebut the presumption arising from the state engineer’s findings of fact?
4. Did the water judge improperly rely on independent judicial research to
determine disputed facts?
STATEMENT OF THE CASE
I. NATURE OF THE ACTION.
This is a water rights action. Applicant-Appellee Lazy D Grazing Association
(“Lazy D”) applied pursuant to §37-92-203(1), C.R.S. for rights to withdraw
nontributary groundwater from the Upper Laramie Aquifer underlying 24,711 acres
of ranch land owned by its members, commonly called “The D.” CF, pp.4, 98.
Appellants-Opposers City of Fort Collins and City of Sterling (“Fort Collins,”
2
“Sterling,” or collectively, the “Cities”)–along with a dozen other parties–filed
statements of opposition to the Lazy D application. CF, pp.14-18, 23-27. The
Colorado State Engineer’s Office (“SEO”) also filed a statement of opposition. CF,
pp.65-69. Pursuant to §§37-92-302(2)(a) and 305(6)(b), however, the SEO later filed
its Determination of Facts, finding inter alia that the subject water is in fact
“nontributary groundwater,” as defined in §37-90-103(10.5). CF, pp.145-152.
II. COURSE OF ACTION AND DISPOSITION.
Prior to trial, Lazy D entered into stipulations with most opposers, including
the SEO, consenting to entry of a proposed decree. E.g., CF, p.484 ¶1. These
stipulations confirmed that the Upper Laramie Aquifer (hereinafter, “ULA”)
underlying The D contains nontributary groundwater (e.g., CF, p.491 ¶5), and the
amount of water available for withdrawal totals 1,944,591 acre feet (CF, p.493 ¶29).
Only Sterling and Fort Collins pressed their opposition toward trial.
A trial was held before the water court on non-consecutive days including
April 10-12, 2023, and April 24-25, 2023. Lazy D presented an extensive case-in-
chief spanning most of the first three days of trial. Lazy D’s evidence consisted
largely of expert testimony and technical exhibits describing the physical, geologic,
hydrogeologic and hydrologic characteristics of the ULA and its hydraulic
3
disconnection from all overlying surface streams and their alluvial systems.
After Lazy D rested, the Cities made an oral motion to dismiss the application
pursuant to Rule 41(b), C.R.C.P. See 3TR 166:14-17. The Cities argued that
hydraulic disconnection of the aquifer from surface stream systems was not
demonstrated clearly and convincingly. 3TR 170:6-20. After hearing the Cities’ Rule
41 argument, the water judge asked the Cities to specify the location where they
contend a hydraulic connection exists between the ULA and a natural stream. 3TR
179:14-20. The Cities could not answer directly, arguing instead that there are
merely “potential points of connection,” such as areas where “the disconnect is
within four feet of the surface,” and Lazy D should have investigated those areas
more extensively. 3TR 179:24, 180:8-9, 180:10-20. Lazy D responded that the
SEO’s Determination of Facts, alone, created a rebuttable presumption that the ULA
is physically and hydraulically disconnected from surface stream systems, and
“supports a nontributary determination unless or until rebutted.” 3TR 191:6-10.
Notwithstanding this presumption, Lazy D reiterated that it presented
“overwhelming” evidence independently proving the hydraulic disconnection. See
3TR 191:11-194:5 (summarizing). The water judge agreed that the SEO’s findings
created a presumption that shifts the burden of going forward with evidence, without
4
shifting the entire burden of proof. 3TR 200:21-201:9. This is sufficient to defeat the
Rule 41 motion. 3TR 202:10-15. The water judge went further, however, ruling that
even in the absence of any such presumption, Lazy D proved by clear and convincing
evidence that the ULA is physically and hydraulically disconnected from any surface
stream or alluvium. 3TR 202:15-203:21. The motion was denied.
The Cities were given “an opportunity to present their rebuttal evidence of
both the state engineer’s determination and the applicant’s case.” 3TR 204:24-205:3.
They presented evidence, although their expert did not perform any independent
analysis, but relied on (and interpreted differently) documents and evidence
developed by Lazy D’s expert. See CF, p.2761. After the Cities rested, Lazy D
presented a short rebuttal case. On considering evidentiary objections about
undisclosed opinions during rebuttal testimony, the water judge decided to allow the
Cities to present a surrebuttal case to present certain undisclosed opinions rebutting
the SEO’s findings of fact. See 5TR 129:4-131:5. The Cities did present such
additional evidence. 5TR 147:21-155:5.
The water judge entered Findings of Fact and Conclusions of Law on August
18, 2023. CF, pp.2754-86. In the findings of fact, the water judge cited and quoted
several sources demonstrating that the water judge had performed some independent
5
judicial research. None of the citations or quotes were relied upon to decide a
disputed adjudicative fact. Rather, the citations pertain solely to scientific principles
whose accuracy cannot reasonably be questioned and which corroborated expert
testimony presented at trial or illuminated findings of this Court in prior legal
decisions. Beyond the extra-evidentiary references, the water judge made extensive
findings comparing and contrasting the evidence presented by both experts.
Ultimately the water court found that clear and convincing evidence demonstrated
“that the groundwater in the Upper Laramie Aquifer is physically and hydraulically
separated from the water in overlying surface stream systems and their alluvium.”
CF, p.2780. Notably, the water court’s findings were made wholly independent of
the SEO’s Determination of Facts, even though the findings were consistent with the
SEO’s findings. CF, p.2781.
In its conclusions of law, the water court noted that jurisdictional formalities
were met. Id. Contrary to the Cities’ arguments in this appeal, the water court
expressly acknowledged that it (not the SEO) has exclusive jurisdiction to determine
rights in nontributary groundwater. CF, p.2782. The water court applied the correct
definition of “nontributary groundwater.” Id. The water court ruled that the
presumption arising under §37-92-305(6)(b), C.R.S. merely shifted to the Cities the
6
burden of going forward with evidence to rebut the presumption; but the “ultimate
burden of proof” remains on Lazy D. CF, p.2784. The water court acknowledged
that proof by clear and convincing evidence is stronger than a mere preponderance
and requires proof that a contention is “highly probable,” and “unmistakable and
free from serious or substantial doubt.” Id., quoting Dahman v. Ford Leasing Dev.
Co., 492 P.2d 875, 877 (Colo. App. 1971). The water court ruled that the Cities failed
to rebut the presumption arising from the SEO Determination of Facts, but further
(and more importantly) held that, “independent of the State Engineer’s
determination,” Lazy D proved by clear and convincing evidence that the subject
water is nontributary. CF, p.2785. The water court finally determined the volume of
water available for withdrawal based on Lazy D’s rigorous calculations and
stipulation with the SEO, and granted Lazy D’s application. Id. A formal Decree
determining Lazy D’s water rights, consistent with the findings and conclusions
discussed above, was entered on September 6, 2023. CF, pp.2816-25.
III. PROCEDURAL HISTORY.
Because the Cities falsely assert that the SEO’s Determination of Facts “was
not disclosed” or “was not properly disclosed” (Opening Brief at 9, 10), procedural
history on that issue is discussed here.
7
Lazy D filed its original application in July 2020. CF, p.4. Fort Collins and
Sterling were among the very first opposers to enter the case through statements of
opposition. CF, pp.14, 23. The SEO entered the case through its statement of
opposition after the Cities. CF, p.65. On November 30, 2020, then again on February
6, 2021, the SEO notified the court and parties that it intended to file a Determination
of Facts under §37-92-302(2)(a), C.R.S., but it needed additional time to evaluate
the evidence and provide a thorough review. CF, pp.91-92, 129. The SEO’s formal
Determination of Facts was filed with the court on March 31, 2021. CF, pp.145-52.
Lazy D filed disclosures pursuant to Rule 26(a)(1), C.R.C.P. and Rule 11,
U.L.R. on October 11, 2021. CF, p.162. Lazy D expressly and specifically disclosed
the SEO’s Determination of Facts. CF, p.164 ¶H. Lazy D also disclosed as persons
with relevant information the specific SEO engineers and scientists who prepared
any portion of the Determination of Facts. CF, p.163 ¶D. The SEO also filed Rule
26(a)(1) disclosures, identifying engineers and scientists who prepared the
Determination of Facts and making available for inspection and copying its entire
case file, including all engineering data and analyses, maps, photographs, field notes,
correspondence with Lazy D, and all general data kept in various data bases. CF,
pp.212-18.
8
Lazy D filed numerous proposed decrees throughout the pretrial period, and
the earliest versions, and all subsequent versions, expressly disclose and refer to the
SEO’s Determination of Facts. See, e.g., CF, pp.269, 286, 303, 753. When Lazy D
and the SEO entered into a stipulation for entry of a decree, the proposed decree
expressly referred to the Determination of Facts. CF, pp.483, 489.
Lazy D filed its expert disclosures pursuant to Rule 26(a)(2), C.R.C.P. on July
1, 2022. CF, p.312. Again, Lazy D disclosed each SEO engineer and scientist who
prepared the Determination of Facts, and stated that they were expected to testify
according to the opinions expressed in the Determination of Facts. CF, pp.313-14,
¶¶B, C, D, H, I. Leaving no doubt about the adequacy of disclosures, the Cities own
experts reported in their Rule 26(a)(2) disclosures that they had not only reviewed,
but affirmatively “relied upon,” the SEO’s Determination of Facts. CF, p.442 ¶4.
IV. STATEMENT OF FACTS.
Lazy D and its members own The D, a ranch of 24,711 acres located along
Colorado’s Wyoming border, around State Highway 85. EX, p.1310, LD22. The D
is used for cattle grazing from May through November each year. 1TR 100:4-7,
137:3-9. While Lazy D owns a lot of land, it does not have access to a lot of water.
The surface streams on and around The D are generally ephemeral, flowing only
9
occasionally after rare precipitation events. 1TR 102:3-12; 229:14-230:23. Alluvial
wells don’t produce much water on and around The D and as a result, there is no
irrigation on The D and operations are limited by the dry conditions. 1TR 100:13-
16, 136:19-21, 228:8-230:23. Lazy D learned about the ULA when its adjacent
neighbor to the west, the Terry Grazing Association (“TGA”) Ranch (see EX,
p.1311, LD23), obtained permission in Case No. 2011CW275 to tap into thousands
of acre feet of nontributary groundwater beneath its lands. EX, pp.908, 932 (LD115,
116). The D lies outside any designated groundwater basin, and the ULA is not part
of the Denver Basin aquifers. 1TR 206:18-23; CF, p.2755.
Geology: The D lies in the Cheyenne Basin, a depositional basin consisting of
distinct layers of clays, shales and sandstones (similar to the Denver Basin). The
Cheyenne Basin is bounded by the Hartville Uplift on the northwest, the Chadron
Arch on the northeast, and the Greeley Arch on the south, which seals it from the
Denver Basin, and from the South Platte and Cache la Poudre rivers. See EX, pp.
1353, 1354; see generally the Conceptual Site Model prepared by Lazy D’s expert,
EX, pp. 1321-45. Important geologic formations, ordered from top to bottom,
include the Ogallala, White River, Laramie, and Fox Hills formations. EX, pp.1355,
1358, 1359. The Laramie formation (containing the subject nontributary
10
groundwater) underlies The D. See EX, p.1364. The ULA is confined above by the
Brule Clay member of the White River formation (a thick layer of stiff, sticky
claystones/siltstones that preclude water movement across it - see 1TR 223:14-
227:6; 2TR 69:1-70:11) and below by the Laramie Shale Interval (see 1TR 219:11-
220:7). The Laramie formation outcrops on or around the southwestern part of The
D. See EX, pp. 1358, 1365; 1TR223:14-227:6, 2TR 69:1-70:11.
Surface Hydrology: There are no perennial streams flowing through The D.
See EX, pp.1363, 1364. The important intermittent and ephemeral streams above the
ULA outcrop that have perennially saturated alluvium include the Spring Creek
system and the Lone Tree Creek system. Owl Creek and other streams outside the
ULA outcrop area were not discussed extensively at trial.
ULA and Sub-Surface Flow: The ULA is in the upper 600 feet of the Laramie
formation, above the Laramie Shale interval, and below the White River formation’s
Brule Clay layer. The ULA is made up of interbedded layers of sandstones,
siltstones, shales and claystones. 2TR 111:6-9. These interbedded layers act as a
locally confining layer even in the outcrop areas. 2TR 60:1-19; EX, p.974; 1TR
219:1-10. ULA groundwater generally moves from the west and south to the north
and east, from Colorado into Wyoming. EX, p.1356. Discharge is primarily from
11
well pumping in Colorado and Wyoming (where the ULA is referred to as the
“Lance” formation). 1TR 234:3-235:6, 217:6-16. Recharge occurs in the outcrop
area due to precipitation and stream flows there. 2TR 60:1-61:9. Importantly, there
is an “unsaturated zone” in this area, where the pore space in the geological materials
is only partially filled with water. 2TR 86:6-87:8; see also 4TR 240:19-241:12
(where the Cities’ expert admits there can be no hydraulic connection between
aquifers separated from surface streams by a zone of material that is not “fully”
saturated).
No Hydraulic Connection: Lazy D’s expert, Walt Niccoli, created a
Conceptual Site Model of the ULA analyzing extensive data from dozens of existing
boreholes, over 1,000 water and oil well logs, measurement of spring and seep flows,
climatological records, recharge information and estimates, geochemical and
geotechnical samples, geologic mapping, aquifer hydraulic tests, and geophysical
logs. Niccoli reviewed volumes of published information regarding the Cheyenne
Basin and the Laramie formation, and analyzed data developed and maintained by
the Colorado Division of Water Resources, the University of Wyoming, the
Nebraska Geological Survey, the Colorado Geological Survey, Colorado State
University and the United States Geological Survey. Niccoli had seven additional
12
boreholes drilled in key locations to fill in data gaps. He analyzed the stratigraphic
and physical structures, including drilling core samples of actual ULA material, and
all physical aquifer characteristics, taking under consideration clay lenses and other
materials not likely to contain or permit movement of water.1
The parties agreed that the Greeley Arch physically separates the ULA from
the South Platte and Cache la Poudre rivers, and the White River Brule Clay layer
physically separates the ULA from overlying streams (see 1TR 218:22-25). Thus,
the experts focused on the ULA outcrop area and the overlying Spring Creek and
Lone Tree Creek systems. The Cities’ expert, Timothy Crawford, was forced to
reluctantly agree with Niccoli that a hydraulic connection between systems could
only exist if the entire ULA material was fully saturated, otherwise withdrawal of
water from the ULA cannot impact the rate of downward recharge from the
overlying streams to the ULA. 4TR 240:19-241:12; 2TR 86:6-87:8. To show the
unsaturated zones, Niccoli prepared numerous cross-sections, which were evaluated
1 Pinpoint citations to the record are impractical here because this is a broad
summary. Generally, Mr. Niccoli testified on the first day of trial about the numerous
sources and voluminous data reviewed, then spent most of the next two days
reviewing hundreds of specific well logs and other evidence more directly pertinent
to his conclusion of no physical or hydraulic connection between the ULA and the
overlying stream systems.
13
in conjunction with the data from relevant well logs, and the hydraulic disconnection
evidence was thus summarized in trial exhibit LD105. EX, pp.784-803. For all
relevant wells, water was encountered and the wells were screened far below the
bottom of the surface stream alluvium. Mr. Crawford noted that, in some wells, the
potentiometric head–or static water levels–settled to a point higher than the bottom
of the surface stream alluvium, but Mr. Niccoli determined that this resulted from
artesian pressure and did not indicate a hydraulic connection. See EX, p.962; 2TR
56:16-57:7. Crawford’s other challenges–e.g., the ULA boundary was not precisely
drawn on Niccoli’s figures; The drilling log for well permit no. 287480 indicated
water at a shallow depth, which Niccoli explained was a finding of perched water–
were not persuasive. CF, pp.2772-79.
Lazy D’s extensive evidence of hydraulic disconnection was clear and
convincing on its own. CF, p.2780. Additionally, the SEO had formally determined
that “[w]ithdrawal of groundwater from the Upper Laramie Aquifer underlying the
land claimed in the application will not, within one hundred years of continuous
withdrawal, deplete the flow of a natural stream at an annual rate greater than one-
tenth of one percent of the annual rate of withdrawal.” CF, p.149 ¶7. Moreover, the
TGA Decree further confirmed the complete hyrdraulic disconnection in a location
14
that was actually physically closer than The D to the areas where the Cities
contended a potential connection might exist. EX, p. 908, 914 ¶12.
SUMMARY OF THE ARGUMENT
Nontributary groundwater is not part of the natural stream and is not
governed by the constitutional prior appropriation system. Instead, the right to
withdraw and use nontributary groundwater is based on ownership of the land
overlying the claimed nontributary groundwater. Determination of rights to
withdraw nontributary groundwater is based on statutes, and both water judges and
the state engineer have authority granted by the legislature. The water court has
sole and exclusive jurisdiction to determine rights to nontributary groundwater
under §37-92-203(1), C.R.S. The state engineer has authority to issue well permits
for nontributary groundwater wells pursuant to §37-90-137(4), C.R.S. The state
engineer is expressly authorized to determine the facts of each nontributary
groundwater application. §37-92-302(2)(a), C.R.S. The water court is required to
consider the state engineer’s factual determination in making its final
determination. §37-92-305(6)(b).
Additionally, the state engineer’s findings create a presumption of truth,
subject to rebuttal by any party. Id. Like any evidentiary presumption, the burden
15
shifts to the opposing party the burden to go forward with evidence rebutting the
presumption (see Rule 301, C.R.E.), but the ultimate burden remains on the
applicant to prove by clear and convincing evidence that the claimed groundwater
is nontributary. Here, the trial court correctly analyzed and applied the
presumption, and its ruling that the opposers failed to rebut the presumption is well
supported by evidence in the record. Moreover, any error would be harmless
because the water court also expressly ruled that the evidence presented at trial,
independent from any presumption, clearly and convincingly proved that the
claimed groundwater is physically and hydraulically disconnected from the natural
stream, and thus nontributary.
Finally, water judges must have specialized knowledge to effectively handle
the complex scientific issues that come before them, particularly in nontributary
groundwater cases. The Supreme Court has historically encouraged water judges to
attend conferences and educate themselves. The water judge here merely did what
he was encouraged to do, and he did it properly. Water courts may take judicial
notice of facts reported in credible, reliable sources so long as they do not rely
solely on independently researched facts to determine ultimate disputed facts.
16
ARGUMENT
I. THE SEO WAS LEGISLATIVELY AUTHORIZED TO ISSUE ITS
DETERMINATION OF FACTS.
A. The Standard of Review is De Novo.
Lazy D agrees that general legal conclusions are reviewed de novo. Wolfe v.
Jim Hutton Educational Foundation, 2015 CO 17, ¶9; City of Englewood v.
Burlington Ditch, Res. & Land Co., 235 P.3d 1061, 1066 (Colo. 2010). More to the
point, a water court’s interpretation and application of statutes shall be reviewed de
novo. Gallegos v. Groundwater Com’n., 147 P.3d 20, 28 (Colo. 2006); Simpson v.
Bijou Irrigation Co., 69 P.3d 50, 58 (Colo. 2003).
B. Nontributary Groundwater is Distinct from Tributary
Groundwater and Treated Differently Under the Constitution and
Laws of Colorado.
Beginning with the most fundamental tenet of Colorado water law, all water
within the State is a public resource; persons may not own water, but may obtain
rights to use water under the law. Upper Black Squirrel Creek Groundwater Mgmt.
Dist. v. Goss, 993 P.2d 1177, 1181 (Colo. 2000); Colo. Const. art. XVI, §5. Surface
water is part of the natural stream, and if unappropriated, may be appropriated for
beneficial purposes, with water courts adjudicating rights and priorities, and with the
SEO administering those rights according to decrees and applicable statutes. Empire
17
Lodge Homeowners’ Ass’n. v. Moyer, 39 P.3d 1139, 1147 (Colo. 2001); Colo. Const.
art. XVI, §6. Groundwater is more complicated.
Groundwater supplies about eighteen percent of the State’s water needs.
Colorado Ground Water Com’n. v. North Kiow-Bijou Groundwater Mgmt. Dist., 77
P.3d 62, 69 (Colo. 2003).2 The General Assembly recognizes four categories of
groundwater: tributary; nontributary; designated; and Denver Basin.3 Id.; Goss, 993
P.2d at 1182-83. Only tributary groundwater is hydraulically connected to surface
water and is thus part of the natural stream. North Kiowa-Bijou, 77 P.3d at 69-70;
Goss, 993 P.2d at 1182; Chatfield East Well Co. v. Chatfield East Property Owners
Ass’n., 956 P.2d 1260, 1268 (Colo. 1998). Nontributary groundwater “is not part of
the surface stream as contemplated by the Colorado Constitution and is not subject
2 Note here this Court’s reliance, not on any expert testimony in the record
below, but on an independently-researched public resource, the Colorado
Geological Survey Groundwater Atlas. Justice Bender’s Opinion is informed by this
Atlas’s discussion of lay definitions of groundwater, its description of how
groundwater fills the pores between rocks, soils, grains of sand and silt, and particles
of clay, and how aquifers are composed of “saturated pores.” North Kiowa-Bijou, 77
P.3d at 69. The concept of judges using extra-record resources to inform their
understanding of evidence and legal principles is discussed below, but this is a fine
example of how this very Court engages in and benefits from such extra-record
research.
3 There is no dispute that The D lies outside any designated groundwater
basin, and outside the Denver Basin. The discussion here is limited to only tributary
and nontributary groundwater.
18
to the prior appropriation provisions of the Colorado Constitution.” Goss at 1182,
citing Kuiper v. Lundvall, 187 Colo. 40, 44, 529 P.2d 1328, 1331 (1974); East
Cherry Creek Valley Water and Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d
154, 157 (Colo. 2005); see also §37-92-102, C.R.S. (the “basic tenets of Colorado
water law” expressly except nontributary groundwater from sections 5 and 6 of
article XVI of the Constitution). Because tributary and nontributary groundwater are
two completely separate classifications, regulated under completely distinct
provisions of law, the Cities’ repeated cries that Lazy D has somehow “remove[d] a
massive amount of water from the constitutional priority system” (see, e.g., Opening
Brief at 2) falls flat. Lazy D’s nontributary groundwater was not part of that system
to begin with.
The right to use nontributary groundwater “is purely a function of statute” and
arises from the legislature’s desire to conserve for reasonable use groundwater that
is being mined. Chatfield East at 1268; Goss at 1183. Allocation and administration
of nontributary groundwater is subject to General Assembly’s plenary authority over
waters not part of the natural stream. Goss at 1182. “Nontributary groundwater” is
groundwater outside a designated basin, the withdrawal of which will not, within
one hundred years of continuous withdrawal, deplete the flow of a natural stream at
19
an annual rate greater than one-tenth of one percent of the annual rate of withdrawal.
§37-90-103(10.5), C.R.S.; North Kiowa-Bijou at 71. Instead of priority of
appropriation, nontributary groundwater is allocated on the basis of overlying land
ownership. Id.; East Cherry Creek Valley, 109 P.3d at 157; Bayou Land Co. v.
Talley, 924 P.2d 136, 148-49 (Colo. 1996), citing American Water Dev. v. City of
Alamosa, 874 P.2d 352, 369 (Colo. 1994), cert. denied, 513 U.S. 1015 (1994).
C. The SEO is Required to Determine Facts Presented in
Nontributary Groundwater Applications.
Landowners overlying nontributary groundwater, like Lazy D here, begin
with an inchoate (not vested) right to extract and use such groundwater. Bayou Land
at 149; East Cherry Creek Valley at 157; Chatfield East at 1268. To obtain a vested
right, the landowner may either seek a decree from the water court or apply to the
SEO for a well permit. North-Kiowa Bijou at 71; Bayou Land at 149. In either case,
the withdrawal standards are the same:
Whether the use right is determined by water court decree
under § 37–92–305(11) or by obtaining a well permit from
the state engineer under § 37–90–137(4) and drilling a
well, the same withdrawal standards apply: withdrawals
are allowed on the basis of an aquifer life expectancy of
one hundred years, material injury to vested nontributary
rights shall not be deemed to result from the reduction of
either hydrostatic pressure or water level in the aquifer,
and the amounts of withdrawal allowed by permit or
20
decree shall be the same. See § 37–90–137(4) to (6); §37–
92– 305(11).
North Kiowa-Bijou, 77 P.3d at 72.
The water court has sole and exclusive jurisdiction to adjudicate a
landowner’s rights to nontributary groundwater under §37-92-203(1), C.R.S.; see
also Chatfield East, 956 P.2d at 1269. Nevertheless, the General Assembly also “has
assigned specific responsibilities . . . to the state engineer.” East Cherry Creek
Valley, 109 P.3d at 158. The SEO oversees the use of nontributary groundwater (id.)
and has authority to issue well permits for nontributary groundwater wells pursuant
to §37-90-137(4), C.R.S.4 That statute (§37-90-137, generally) also regulates
issuance of well permits for tributary groundwater wells. In the context of tributary
wells, the SEO is required to “make a determination as to whether or not the exercise
of the requested well permit will materially injure the vested water rights of others.”
§37-90-137(2)(a)(II) and (b)(I)(A). However, this inquiry makes no sense in the
context of nontributary wells, which are administered based on overlying land
4 This authority exists regardless of whether the landowner has adjudicated
their rights through the water court process. § 37-90-137(4)(d), C.R.S. provides, “the
annual amount of withdrawal allowed in any well permits issued under this
subsection (4) shall be the same as the amount determined by court decree, if any”
(emphasis added).
21
ownership, not priority appropriation.
For nontributary well applications, landowners seeking a water court
determination of rights must set forth in their applications specific facts supporting
the requested determination, and such facts are then provided to the SEO for review.
§37-92-302(1)(a). Additionally, all statements of opposition are provided to the
SEO. §37-92-302(1)(b). Then, a “determination shall be made by the state engineer
upon receipt from the water clerk of a copy of the application,” the determination
being “a determination as to the facts of such application.” §37-92-302(2)(a)
(emphasis added). Not only is there an express statutory requirement for the SEO to
issue a determination of facts, but the water court is then required by mandatory
language to consider it: The “water judge shall consider the state engineer's
determination as to such groundwater as described in section 37-92-302(2) in lieu of
findings made pursuant to section 37-90-137.” §37-92-305(6)(b), C.R.S. (emphasis
added). The phrase “in lieu of findings made pursuant to section 37-90-137” refers
to the preceding paragraph, under which the water judge considering applications
for tributary groundwater must consider the SEO’s findings regarding non-injury to
other vested rights. See §37-92-305(6)(a).
Thus, under §37-92-302(2), the SEO is expressly authorized and required to
22
issue a determination of facts regarding nontributary groundwater applications; and,
under §37-92-305(6)(b), the water court is required to consider the SEO’s
determination of facts. Lazy D agrees that these statutes must be construed according
to the plain and ordinary meaning of the language therein, harmonized with other
statutes, to give effect to the General Assembly’s purpose and intent. Martin v.
People, 27 P.3d 846, 851 (Colo. 2001); Colorado Water Conservation Bd. v. City of
Central, 125 P.3d 424, 434 (Colo. 2005); State Engineer v. Castle Meadows, Inc.,
856 P.2d 496, 504 (Colo. 1993). It seems inescapable that the SEO is legislatively
authorized to “make a determination of the facts,” and the water court could not have
erred by allowing it.
D. The SEO Did Not Make Inappropriate Legal Conclusions.
Apparently recognizing their frivolous position, the Cities phrase their
arguments carefully to limit applicability. Instead of arguing that the SEO should
not determine facts, the Cities say only that the SEO should not specifically
“determine groundwater is nontributary.” Opening Brief at 5; see also pp. 9 (SEO
not authorized to make legal conclusions), 12 (SEO nontributary determinations
should not be subject to rebuttal), 13 (SEO determination of facts was not
sufficiently limited; SEO made legal conclusion), 14 (same), 15 (SEO should not
23
make “nontributary determinations”), 18 (SEO is limited to factual findings). Thus,
the Cities attempt to draw a distinction between the factual finding that
groundwater is nontributary, and the legal conclusion that it is so.
The Cities tried the same tactic during their Rule 41 argument at trial, and
the water judge not only understood the difference between a findings of fact and
legal conclusions, but explained this clearly to the Cities:
...the state engineer made a determination of fact that,
“Withdrawal of groundwater from the Upper Laramie
Aquifer underlying the land claimed will not, within 100
years of continuous withdrawal, deplete the flow of a
natural stream at an annual rate greater than one-tenth of
one percent of the annual rate of withdrawal.
Now, the state engineer went on to say that the
groundwater is nontributary as defined in Section 37-90-
103, subsection 10.5. That’s the legal conclusion, is that
the groundwater is nontributary. But the finding of fact is
that the water at issue here will not cause a depletion of the
flow of the natural stream at a greater than one-tenth of
one percent of the annual rate of withdrawal.
3TR 199:3-20. It is settled that nontributary determinations involve “a mixed
question of fact and law.” Chatfield East, 956 P.2d at 1272. The factual findings
here–that the subject groundwater is not in a designated basin; and withdrawal will
not deplete a natural stream–necessarily lead to the conclusion, as a matter of fact
and law, that such groundwater meets the statutory definition of nontributary
24
groundwater, as set forth in §37-90-103(10.5). Thus, the SEO did not exceed its
authority in noting its determination of facts as a conclusion, citing the nontributary
definition, nor did the water court err in considering the SEO’s purely factual
findings regarding the impact of withdrawing water from the ULA beneath The D.
E. No Violation of Due Process Occurred.
The Cities’ argument that the SEO’s Determination of Facts was not disclosed
is simply groundless, frivolous and vexatious. As shown in the statement of the case
above, disclosures were adequate. The Cities were afforded a fair opportunity to
rebut both the SEO’s factual determinations and the evidence presented by Lazy D.
Indeed, the Cities were even allowed to present previously undisclosed opinions in
a special surrebuttal case.
F. Even if the SEO Exceeded Its Authority, the Water Court Did Not
Rely on the Presumptions Arising from Its Determination.
The Cities’ recurring claim that the water court erroneously relied on legal
conclusions in the SEO’s Determination of Facts will not become true, no matter
how many times it is repeated. The water judge simply did not rely on the SEO
Determination of Facts, but ruled upon the independent evidence presented by Lazy
D at the trial. CF, p.2785; see also pp.2754-2781 (extensive fact findings based on
evidence presented at trial); 3TR202:15-203:21 (Rule 41 motion denied on the basis
25
of Lazy D’s independent evidence, without reliance on SEO presumption). The
SEO’s Determination of Facts was proper in all respects, but even if it exceeded its
authority, the water court did not rely on its conclusions, thus any error was harmless
and the water court’s determination should be affirmed.
II. THE WATER COURT DID NOT MISAPPLY PRESUMPTIONS OR SHIFT THE
BURDEN OF PROOF TO THE CITIES.
A. Lazy D Agrees the Standard of Review is De Novo.
B. The Water Judge Understood and Correctly Applied the
Presumption that Groundwater is Tributary.
Lazy D agrees that Colorado groundwater is presumed to be tributary until a
different classification is established by clear and convincing evidence. Colorado
Ground Water Com’n. v. North Kiow-Bijou Groundwater Mgmt. Dist., 77 P.3d 62,
70 (Colo. 2003); Safranek v. Town of Limon, 228 P.2d 975, 977 (Colo. 1951). To
demonstrate that groundwater is nontributary, the evidence must show that
withdrawal will not within one hundred years of continuous withdrawal deplete the
flow of a natural stream at an annual rate greater than one-tenth of one percent of the
annual rate of withdrawal. §37-90-103(10.5), C.R.S. The “natural stream” includes
surface streams, together with their underflow and tributary waters, but expressly
excludes nontributary groundwater as defined in §37-90-103(10.5). §§37-82-101
26
and §37-92-102(1); see also §37-92-103(11) (a natural stream’s “underground
water” includes “that water in the unconsolidated alluvial aquifer of sand, gravel,
and other sedimentary materials and all other waters hydraulically connected thereto
which can influence the rate or direction of movement of the water in that alluvial
aquifer or natural stream”–emphasis added). Obviously, if groundwater is physically
and hydraulically disconnected from the natural stream, well pumping will not
deplete or otherwise impact the natural stream and it is necessarily nontributary
groundwater.
Applicants (Lazy D here) bear the burden of proving that the claimed
groundwater is nontributary under a heightened “clear and satisfactory” standard.
Stonewall Estates v. CF & I Steel Corp., 592 P.2d 1318, 1320 (Colo. 1979);
Safranek, 228 P.2d at 977. This standard requires proof that is more than a
preponderance of the evidence but less than beyond a reasonable doubt. People ex
rel. AJL, 243 P.3d 244, 251 (Colo. 2010). The evidence must demonstrate that it is
“highly probable” that the groundwater is nontributary. Id.; Dahman v. Ford Leasing
Dev. Co., 492 P.2d 875, 877 (Colo. App. 1971) (evidence must be “unmistakable
and free from serious or substantial doubt”).
While the Cities cite authority for these undisputed legal principles, they do
27
not point to any part of the water court’s orders that violate them. Nor could they.
The water court clearly understood all of these principles and correctly recited and
applied them. Indeed, the water court cited many of the same authorities that the
Cities cited in their Opening Brief at 15-18. CF, pp. 2782-2784. The water court
correctly identified the presumption that groundwater is tributary (CF, p. 2784), the
inclusion of connected underground waters in the natural stream (CF, p. 2783), the
statutory definition of nontributary groundwater (CF, p. 2782), and the heightened
burden of proof required to classify groundwater as nontributary (CF, p.2784). With
these settled principles in mind, the water court determined that “Lazy D has proved
by clear and convincing evidence . . . that the subject groundwater is nontributary
because withdrawals from the Upper Laramie Aquifer underlying the Lazy D Ranch
will not cause depletions in the flow of any surface stream or its alluvium.” CF, p.
2785. While the Cities do not like the result, no error occurred.
C. The Water Judge Correctly Analyzed the Presumption Arising
from the SEO’s Determination of Facts.
As discussed earlier, the statutory regime for nontributary groundwater
determinations requires the SEO to issue a determination of facts under §37-92-
302(2), C.R.S., and the water court is legally required to consider the SEO’s findings
of fact under §37-92-305(6)(b), C.R.S. The latter statute goes further, mandating that
28
“the state engineer’s findings of fact contained within such determination shall be
presumptive as to such facts, subject to rebuttal by any party.” §37-92-305(6)(b),
C.R.S. (Emphasis added). The Cities carelessly claim that “[n]o reported cases
address the interpretation and application of Subsection 305(6)(b).” Opening Brief
at 3. On the contrary, this Court has expressly interpreted the statute consistently
with Lazy D’s arguments here: “The water court must consult with the state engineer
regarding the decree application and give presumptive effect to the state engineer’s
findings of fact.” Chatfield East Well Co. v. Chatfield East Property Owners Ass’n.,
956 P.2d 1260, 1266 (Colo. 1998). In a case where the water court determined that
the applicant had failed to sustain its burden of proof, this Court noted with approval
that: “The state engineer had issued a determination pursuant to §37-92-302(2), 15
C.R.S. (1993 supp.), that the water was tributary, and the trial court took note of the
rebuttable presumption created by that determination.” American Water Dev., Inc.
v. City of Alamosa, 874 P.2d 352, 366 n.24 (Colo. 1994).
The presumption established by the SEO’s findings of fact “imposes upon the
party against whom it is directed the burden of going forward with evidence to rebut
or meet the presumption, but does not shift to such party the burden of proof.” Rule
301, C.R.E. This rule is commonly applied by water courts in the context of the
29
statutory abandonment presumption: failure to apply water to a beneficial use for a
period of ten years creates a rebuttable presumption of abandonment. §37-92-
402(11), C.R.S. In that context, as here, the presumption shifts the burden of going
forward with evidence to the water rights owner, but it does not in and of itself prove
abandonment. East Twin Lakes Ditches and Water Works, Inc. v. Board of County
Com’rs. of Lake County, 76 P.3d 918, 921 (Colo. 2003); Wolfe v. Jim Hutton
Educational Foundation, 2015 CO 17, ¶26 (judgment reversed where water court
did not require evidence to rebut the presumption of abandonment).
Again, the water court here correctly analyzed the presumption imposed by
the SEO’s Determination of Facts. The water judge applied the presumption only as
shifting the burden to go forward with evidence, but holding that “the ultimate
burden of proof remains on the applicant . . . to establish that the claimed
groundwater is nontributary by clear and convincing evidence.” CF, p.2784.
D. The Water Court Did Not Shift the Burden of Proof to the Cities
or Require Proof that ULA Groundwater is Tributary.
The Cities next complain that the water court’s request for evidence to rebut
the nontributary groundwater presumption arising from the SEO’s findings of fact
was tantamount to shifting the entire burden of proof. More hyperbolically, the Cities
contend the water court required them “to prove what is already presumed under
30
Colorado law: that the Subject Groundwater is tributary.” Opening Brief at 20. This
is untrue. The water judge merely looked for evidence of a hydraulic connection
between the ULA and any overlying streams or alluvium, which would rebut the
SEO’s finding of hydraulic disconnection. See, e.g., CF, pp.179:14-180:25. The
Cities gave insufficiet evidence.
The water court’s request for rebuttal evidence falls far short of requiring
proof that the groundwater is tributary. That inquiry, beyond a mere hydraulic
connection between water systems, would require quantification analysis to
determine whether movement of water upon withdrawal would deplete the natural
stream in an amount greater than what is allowed under the definition of nontributary
groundwater found in §37-90-103(10.5). The example for burden shifting quoted in
the Opening Brief at 22 is merely a finding that Lazy D’s expert was more credible
than the Cities’ expert. Nothing there suggests that the ultimate burden of proof was
shifted to the Cities. Similarly, the water court’s observation that the Cities claimed
hydraulic connection, but did not attempt to quantify the impact (Opening Brief at
22-23; CF, p.2761) was not an indication that the burden had shifted or that
quantification evidence was necessary. The water judge merely observed generally
that the Cities did not attempt to show the extent of any claimed hydraulic
31
connection.
III. THE WATER COURT’S RULING THAT THE NONTRIBUTARY PRESUMPTION
WAS NOT REBUTTED APPLIED THE CORRECT STANDARD AND WAS
SUPPORTED BY EVIDENCE.
A. The Standard of Review is Clear Error, Not De Novo.
In section 3 of the Opening Brief (at pp. 23-27), the Cities’s deceptive
headline states that they contend the water court applied the “wrong standard” with
regard to rebutting the presumption imposed by the SEO’s Determination of Facts.
Opening Brief at 23. However, the Cities quickly admit that they could not even
discern what legal standard the water court applied. Opening Brief at 24. Then, they
conclude without explanation that, to the extent any standard was applied, it must
have been the wrong one–but they never argue about, identify or articulate the
correct standard. The balance of this section attempts to challenge the evidence
supporting the water court’s determination that the presumption was not rebutted. A
trial court’s findings of fact are not disturbed except in the case of clear error.
In the context of determining whether a presumption was rebutted, a “water
court's resolution of the factual issues presented will not be disturbed on appeal
unless the evidence is wholly insufficient to support the decision.” Wolfe v. Jim
Hutton Educational Foundation, 2015 CO 17, ¶9; City & County of Denver v.
32
Middle Park Water Conservancy Dist., 925 P.2d 283, 286 (Colo. 1996); People ex
rel. Danielson v. City of Thornton, 775 P.2d 11, 19 (Colo. 1989) (whether a
presumption was rebutted involves questions of fact, and a water court’s resolution
of factual issues will not be disturbed unless the evidence is “wholly insufficient to
support the decision”). Stated differently, factual findings are binding on appeal
“unless they are so clearly erroneous as to find no support in the record.” City of
Black Hawk v. City of Central, 97 P.3d 951, 956 (Colo.2004), quoting In re Gibbs,
856 P.2d 798, 801 (Colo.1993).
B. The Water Court Applied the Correct Legal Standard and Its
Findings of Fact, Including That the Presumption was Not
Sufficiently Rebutted, Must be Upheld.
Here, the Cities urge that the state engineer’s Determination of Facts was
issued before the final version of Lazy D’s expert reports. They do not explain how
that may have affected the SEO’s findings, or how a later issuance date (after version
6 of the Lazy D report) would have changed their rebuttal evidence. They also claim
that they presented through their expert some evidence claiming the ULA is
hydraulically connected to Spring Creek and Lone Tree Creek. Nevertheless, the
water court considered this testimony and found it to lack credibility, favoring
instead the more thorough and reasonable analysis of Lazy D’s expert. The Cities
33
claim their evidence regarding well permit no. 287480 disagreed with the SEO’s
Determination of Facts, and Lazy D’s own expert agreed that well was completed in
the Laramie-Fox Hills formation, not the ULA. But this fact, alone, is not sufficient
to defeat the SEO’s broader findings of fact. They finally stated that they presented
some evidence regarding the volume of water available in the ULA beneath The D.
Again, the mere presence of some evidence is not sufficient to overturn the water
court’s factual findings where the conflicting evidence (here, Mr. Niccoli’s
calculations and the stipulation between Lazy D and the SEO regarding the volume
of water available) was superior.
Finally, again, even if the Cities succeed in convincing this Court that they
rebutted the SEO’s nontributary presumption, the water court’s ultimate
determination was not based at all on the presumption, but was grounded upon
independent evidence as if the presumption did not exist. Thus, any error is harmless.
But there is no error. The correct standard is not disputed: §37-92-305 sets for the
“standards with respect to . . . decisions of the water judge.” Title of §37-92-305,
C.R.S. That statute required the water court to consider the SEO’s Determination of
Facts, and to treat the SEO’s findings as presumptive, subject to rebuttal. §37-92-
305(6)(b), C.R.S. The water court correctly applied this standard.
34
IV. THE WATER COURT DID NOT IMPROPERLY RELY ON EXTRA-RECORD
EVIDENCE TO DETERMINE DISPUTED ADJUDICATIVE FACTS.
A. The Correct Standard of Review is Abuse of Discretion.
Trial courts generally have discretion to take judicial notice of adjudicative
facts from sources outside the record. Rule 201, C.R.E.; People v. Sena, 2016 COA
161, ¶23; People v. Marsh, 396 P.3d 1, 20 (Colo. App. 2011). Whether a trial court
properly took judicial notice of extra-record facts is reviewed for abuse of discretion.
People v. Sena, 2016 COA 161, ¶22; Marsh, 396 P.3d at 20-21. Abuse of discretion
occurs when the trial court’s decision is manifestly arbitrary, unreasonable, unfair or
based on an erroneous understanding or application of the law. Sena, ¶23, quoting
People v. Orozco, 210 P.3d 472, 475 (Colo. App. 2009).
To the extent the Cities are challenging the water court’s findings of fact, the
clearly erroneous standard applies and the findings should not be disturbed unless
they have no support in the record. City of Black Hawk v. City of Central, 97 P.3d
951, 956 (Colo.2004), quoting In re Gibbs, 856 P.2d 798, 801 (Colo.1993); City of
Englewood v. Burlington Ditch, Reservoir and Land Co., 235 P.3d 1061, 1066
(Colo. 2010).
35
B. Water Courts Are Allowed, and Should Be Encouraged, to
Consider Authoritative Legal and Scientific Resources.
1. Independent Judicial Research on Scientific Matters is
Widely Accepted and Should be Encouraged.
A federal appellate court has observed that, “[i]t is a matter of common
knowledge that courts occasionally consult sources not in evidence, ranging
anywhere from dictionaries to medical treatises,” and its “findings are not
necessarily tainted simply because he brings his experience and knowledge to bear
in assessing evidence submitted at trial.” Johnson v United States, 780 F.2d 902, 910
(11th Cir (Fla) 1986) (citations omitted). The Johnson case involved complex
medical and scientific testimony on the nature of iron poisoning, and the trial judge,
“in order to familiarize himself with the subject matter and to put technical testimony
into context, consulted medical journals not in evidence.” Id. at 909.
The Mississippi Supreme Court, in a similar situation, catalogued numerous
instances where the United States Supreme Court itself had undertaken extensive
personal research to understand scientific principles at issue in cases being decided
there. Samuels v Mladineo, 608 So.2d 1170, 1184-86 (Miss. 1992). The Mississippi
Court stated:
most appellate courts, when dealing with complex issues,
often resort to various periodicals and treatises to become
36
familiar in understanding the subject matter at hand. In
seeking to understand expert testimony from any
specialized field, e.g., engineering, mechanics, medicine,
etc., this Court is not confined to what is stated or
explained in the trial record by witnesses, or counsel in a
brief, but may resort to any and all authoritative sources.
A judge or justice has the same responsibility to try and
understand what a case is all about as a lawyer. This is part
of our search for truth and justice.
Samuels, 608 So.2d at 1184.
Decisions like these are important to our jurisprudence for a number of
reasons. In Colorado, trial judges must undertake the difficult task of determining
the reliability of scientific principles, the qualifications of expert witnesses, and the
usefulness of expert testimony in ultimate fact finding. People v. Shreck, 22 P.3d 68,
78 (Colo. 2001). Yet, judges are traditionally trained in legal analysis and thus lack
the background to effectively assess scientific reliability. Cheng, Independent
Judicial Research in the Daubert Age, DUKE LAW JOURNAL, Vol. 56:1263, 1266
(2007). To enhance their effectiveness in dealing with complex scientific issues,
judges should seek to educate themselves through judicial education and
independent research. Judicial education programs, specifically including judicial
conferences on scientific evidence, have become increasingly popular for judges
interested in improving scientific decision making. Id. at 1273. Independent research
37
allows judges to educate themselves during the course of a trial, in a timely manner
and at the appropriate level of specificity. Moreover, independent research provides
“stable, citable references.” Id. at 1274.
Unfortunately, the adversary system is sometimes ill suited to handle
specialized scientific knowledge. “Experts are the only variety of witness that can
be pre-screened and paid by the parties, practically ensuring conflicting and partisan
testimony.” Id. at 1281. Yet, published scientific literature is easily accessible now,
and judges can readily scrutinize and check scientific principles and findings. Id. at
1281-82. While a judge’s ignorance of facts is ideal for certain situations (i.e., a
judge should not decide liability for a car accident that the judge herself witnessed),
“ignorance in the scientific context is actively harmful” and substantially increases
the likelihood of erroneous decisions. Id. at 1300.
2. Colorado Law Allows Independent Judicial Research on the
Scientific Principles Relating to Groundwater.
In 1967, to address the complexities associated with groundwater science and
the gaps in legislative control, the General Assembly directed the Natural Resources
Department to conduct an investigation of the interrelationship of groundwater and
surface water, and to recommend legislation. Hobbes, Colorado’s 1969
Adjudication and Administration Act: Settling In, 3 U. DENV. WATER L. REV. 1, 13
38
(1999). This directly led to passage of the Water Right Determination and
Administration Act of 1969 (the “1969 Act”). One of the “major accomplishments”
of the 1969 Act was that it established “specialized water court jurisdiction.” Hobbes
at 17. Now, only specially designated water judges, and no other district court
judges, may decide water rights matters, specifically including “determinations of
water rights to nontributary groundwater.” §37-92-203(1), C.R.S.
This Court has been, and continues to be, committed to enhancing the efficacy
of water judges in handling complex water matters. In 2008, the Water Court
Committee of the Colorado Supreme Court reported to the Chief Justice that:
The subject matter contained in water court proceedings is
often highly technical in nature and is becoming
increasingly complex. Specialized skills and experience
are needed to understand the evidence and expert
testimony presented in water cases. In addition, the field
of water resources has a highly specialized and unique
terminology. Technical expert witnesses include ...
geotechnical engineers, ground-water and surface water
hydrologists, geohydrologists, hydrogeologists, geologists
. . . and watershed scientists, to name a few.
TIMELY, FAIR AND EFFECTIVE WATER COURTS: REPORT OF THE WATER COURT
COMMITTEE TO CHIEF JUSTICE MULLARKEY, COLORADO SUPREME COURT, August 1,
2002, p. 11. One of the primary recommendations of the Committee was to provide
more robust education opportunities for water judges to advance their level of
39
knowledge and skill, with the goal of providing “a detailed and rigorous discussion
of technical methods and approaches encountered in the water court arena.” Id. at
12-13. The Committee specifically recommended judicial conferences on such
topics as “Advanced Applications in Ground Water Hydrology.” Id. at 14. Thus, it
should not be surprising that the Division 1 Water Judge attended, or obtained
materials from, such a conference and used it to inform his understanding of the
evidence in this case.
It is quite common for water judges (and Justices of this Court), as part of
their legal research, or in conjunction with fact research on complicated scientific
questions, to cite authoritative sources of authority outside the record. An example
was provided above - Supra. p. 17 n.2. Other examples are common. See, e.g., Upper
Black Squirrel Creek Groundwater Mgmt. Dist. v. Goss, 993 P.2d 1177, 1182 n.5
(Colo. 2000) (relying on a scientific paper to inform “the hydrological relationship
between tributary ground water and surface water”); Mile Hi Concrete, Inc. v. Matz,
842 P.2d 198, 201 n.4 (Colo. 1992) (relying on professional publication to inform
the court about potential dangers posed by wet concrete). Indeed, this Court has long
cited and relied on articles from the Encyclopedia Brittanica, the same source
criticized by the Cities here. See, e.g., Water Supply & Storage Co. v. Larimer &
40
Weld Irr. Co., 24 Colo. 322, 330 (1897) (scientific article informed the court on
complex scientific understanding of hydraulics); Equitable Life Assur. Soc. Of U.S.
v. Hemenover, 100 Colo. 231, 236 (1937) (citing Brittanica and other extra-record
sources to inform the Court on the meaning and interpretation of “poison”); Mile Hi
Concrete, 842 P.2d at 201 n. 4.
Colorado law expressly allows judges to take judicial notice of adjudicative
facts, but the fact must not be in “reasonable dispute.” Rule 201(b), C.R.E. For
example, a judge may, in trying to understand expert testimony, research and take
judicial notice of published scientific literature correlating chemical exposure with
an increased risk of cancer; but the judge should not rely on her independent research
to settle the disputed fact–that the chemical caused the particular plaintiff’s cancer.
A fact is not in reasonable dispute if it is “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” Id.; see also People v. Sena, 2016 COA 161, ¶¶26-27 (trial court took
proper judicial notice of arrest warrant, but did not overstep by taking notice of facts
on the very issue the parties are litigating).
The cases cited by the Cities are consistent with the rule, but do not apply to
the water judge’s conduct in this case. The Monte Vista Canal case involved a judge
41
who applied his personal knowledge of local ditch systems to make findings contrary
to evidence that was presented during the trial. Monte Vista Canal Co. v. Centennial
Irrigating Ditch Co., 135 P.981, 984-85 (Colo. App. 1913). The G.H. Hard Land
case is even less applicable in that it did not involve judicial notice at all; the trial
judge, based on speculation, made clearly erroneous findings contrary to the
evidence presented. People v. G.H. Hard Land Co., 117 P.141, 145 (Colo. 1911).
The Lowder and Sierra Mining cases both show examples of proper judicial notice,
but in contexts different than presented here. Lowder v. Tina Marie Homes, Inc., 601
P.2d 657, 659 (Colo. 1979); Sierra Mining Co. V. Lucero, 194 P.2d 302, 303 (Colo.
1948).
The Anderson case involved two parties both attempting to apply
mathematical formulae to determine speeds and distances of vehicles at the time of
a crash. Anderson v. Lett, 374 P.2d 478, 481-82 (Colo. 1962). The trial court had
refused to take judicial notice of one party’s liability where the mathematical
calculations could not be reliably applied without dispute or controversy. This Court
merely affirmed that trial courts cannot indulge in “arbitrary deductions from
scientific laws” to determine the ultimate disputed fact, whether a party was
negligent. Id. Similarly, the Prestige Homes case deals with independent judicial
42
research on scientific matters, but merely illustrates the principle that applying
independent research to the ultimate disputed issue (like a judge using general
published literature to conclude a chemical caused a particular plaintiff’s cancer) is
inappropriate. Prestige Homes v. Legouffe, 658 P.2d 850, 853-54 (Colo. 1983)
(appellate court relied on extra-record medical treatises to find, contrary to the lower
ruling and expert testimony presented, that electric shock from a 220 volt power line
caused serious injury without leaving a visible burn mark).
3. The Water Judge Did Not Erroneously Rely on Extra-
Record Sources.
The water judge here did not improperly take judicial notice of any fact in
reasonable dispute. Its citation to Encyclopedia Brittanica is consistent with this
Court’s own practices. Its reliance on the Adjudicating Groundwater judicial
conference material is wholly consistent with the recommendations of this Court’s
own Water Court Committee. Its consultation of the US Geological Survey’s
Ground Water Glossary, and other scientific papers published, updated and
maintained by the US Geological Survey, are exactly the types of “sources whose
accuracy cannot reasonably be questioned” contemplated by Rule 201(b), C.R.E.
Finally, law reviews are generally considered to be legal authorities, and citation to
such articles to inform a water court’s application of law is perfectly appropriate.
43
Notwithstanding the Cities’ vague protestations that the matters for which outside
sources are disputed, the water judge did not ultimately determine any reasonably
disputed fact based solely on independent judicial research. Rather, the trial judge
properly took notice of facts from credible, reliable sources to inform his
understanding of the complicated expert testimony and legal issues presented in this
case. The water judge’s efforts should be applauded, as well as affirmed.
V. A FINAL NOTE ON THE IMPACT THIS COURT’S RULING WILL HAVE.
Section V of the Opening Brief merely repeats arguments addressed above:
seeking to overturn the water court’s findings of fact, particularly as related to the
credibility of experts; questioning the SEO’s authority to determine facts; and
claiming the burden of proof was erroneously shifted. The Opening Brief closes by
noting that this Court’s decision may affect two other pending cases. Lazy D answers
only by acknowledging that this Court’s decisions affect all pending and future
nontributary groundwater cases. It is important for this Court to correctly rule that,
in nontributary groundwater determinations:
1. The SEO is authorized and required to issue determinations of fact pursuant
to 37-92-302(2)(a);
44
2. The water court is required to consider such factual determinations pursuant
to §37-92-305(6)(b), C.R.S.;
3. The SEO’s factual determinations create a rebuttable presumption, shifting
the burden to go forward with evidence to the opposer, while the ultimate
burden of proof remains the applicant’s to prove by clear and convincing
evidence that the claimed groundwater is nontributary; and
4. Water courts may, and are encouraged to, take judicial notice of scientific
facts reported in credible, reliable sources for the purpose of informing their
understanding of complex scientific facts and application of laws to such
facts, as long as they do not rely on independently researched facts to decide
disputed ultimate issues of fact.
CONCLUSION
For the reasons set forth in this Answer Brief, Lazy D respectfully requests
that the water court’s decisions and decree be affirmed.
45
Dated: February 13, 2024.
Respectfully submitted,
LAWRENCE CUSTER GRASMICK
JONES & DONOVAN LLP
/s/ Richard LiPuma
________________________________
By: Bradley C. Grasmick
Wesley S. Knoll
Richard LiPuma
Attorneys for Lazy D Grazing Association
46
CERTIFICATE OF SERVICE
I hereby certify that on February 13, 2024, I served true and correct copies of the
foregoing Answer Brief on the following parties via the Court E-Filing System:
Party Name Party Type Attorney Name
Basin Lands, Llc Opposer-Appellee Matthew Machado (Lyons Gaddis PC)
Bijou Irrigation Company Opposer-Appellee Bradley Neil Kershaw (Vranesh and Raisch)
Stuart B Corbridge (Vranesh and Raisch)
Bijou Irrigation District Opposer-Appellee Bradley Neil Kershaw (Vranesh and Raisch)
Stuart B Corbridge (Vranesh and Raisch)
Cache La Poudre Water Users Association Opposer-Appellee Daniel Kenneth Brown (Fischer Brown Bartlett Larsen and Irby
PC)
Whitney Phillips Coulter (Fischer Brown Bartlett Larsen and Irby
PC)
City of Boulder Opposer-Appellee Jessica Lynn Pault-Atiase (Boulder City Attorneys Office)
Lisa M Thompson (Trout Raley)
Michael A Kopp (Trout Raley)
City of Englewood Opposer-Appellee Geoffrey M Williamson (Berg Hill Greenleaf and Ruscitti LLP)
Megan Christensen (Berg Hill Greenleaf and Ruscitti LLP)
Patrick Michael Haines (Berg Hill Greenleaf and Ruscitti LLP)
Peter D Nichols (Berg Hill Greenleaf and Ruscitti LLP)
City of Fort Collins Opposer-Appellant Eric Ryan Potyondy (City Attorneys Office)
City of Greeley, Acting By And Through Its
Water And Sewer Board
Opposer-Appellee Carolyn F Burr (Welborn Sullivan Meck & Tooley, P.C.)
Daniel James Biwer (City of Greeley)
James Merle Noble (Welborn Sullivan Meck & Tooley, P.C.)
Jens Jensen
City of Sterling Opposer-Appellant Alan E Curtis (Curtis Justus and Zahedi LLC)
Nicoli Rose Bowley (Curtis Justus and Zahedi LLC)
Virginia Marie Sciabbarrasi
City of Thornton Opposer-Appellee Kara Nicole Godbehere (City of Thornton)
Division 1 Engineer Appellee Division 1 Water Engineer (State of Colorado DWR Division 1)
L.g. Everist, Inc. Opposer-Appellee Matthew Lake Merrill (MERRILL LAW LLC)
Lazy D Grazing Association Applicant-Appellee Bradley Charles Grasmick (Lawrence Custer Grasmick Jones and
Donovan LLP)
Richard T Li Puma (Lawrence Custer Grasmick Jones and
Donovan LLP)
Ryan Matthew Donovan (Lawrence Custer Grasmick Jones and
Donovan LLP)
Wesley Sage Knoll (Lawrence Custer Grasmick Jones and
Donovan LLP)
Mary Estabrook Opposer-Appellee N/A
47
Party Name Party Type Attorney Name
Northern Colorado Water Conservancy
District
Opposer-Appellee Bennett William Raley (Trout Raley)
Lisa M Thompson (Trout Raley)
Michael A Kopp (Trout Raley)
State Engineer Appellee Colorado Division Of Water Resources (State of Colorado -
Division of Water Resources)
State Engineer And Division Engineer For
Water Division No. 1
Opposer-Appellee Emilie Blake Polley (CO Attorney General)
United Water And Sanitation District Opposer-Appellee Ann Marie Rhodes (The Law Office of Tod J Smith)
Tod Jay Smith (The Law Office of Tod J Smith)
______________________
Char Garza, Legal Assistant