Colorado Supreme Court Hands Down Decision in Burlington Ditch Water Case, Which was Heard at Denver Law in January 2011

The Colorado Supreme Court has published its decision in the Burlington Ditch (also referred as the FRICO case) case, which it heard oral arguments about at Denver Law on January 20, 2011. The hearing drew nearly 500 students, faculty, and a who's who of the state's leading water lawyers.

The water involved in the case is located near Barr Lake, a large reservoir a short distance north of Denver International Airport.

In an opinion written by Justice Gregory Hobbs, the Supreme Court upheld a state water court's decree and said in part, "In order to prevent an unlawful enlargement of the Burlington and FRICO water rights, the Companies' 1885 Burlington direct flow water right is limited to the 200 cubic feet per second historically diverted and used for irrigation around Barr Lake."

The case was of particular interest since a number of Denver Law alums and adjunct professors were involved on various sides of the matter.

Don C. Smith, Director of the Environmental and Natural Resources Law Program, said, "This opinion marks the final stage in a major matter of water law that we were privileged to have a 'front row seat to' thanks to the Supreme Court's willingness to hear the case at Denver Law. Following the progress of this appeal has been a much talked about subject since the oral argument in January. The Supreme Court's visit was definitely a highlight of the just concluded spring semester, and we hope to host the Court again in the future."

Overflow Crowd at Sturm College of Law Attends Colorado Supreme Court Hearing Of "Water Case of the Century"

Nearly 500 students, faculty, the state's leading water attorneys, undergraduate university students, high school students, and members of the community at large watched today as the Colorado Supreme Court heard oral arguments in the Burlington Ditch (also known as FRICO) case.

The case, which some have described as "the water case of the century," attracted enormous attention because of a series of interrelated water issues that involve some of the state's largest irrigation districts as well as a whole group of municipalities including the city and county of Denver. The water involved in the case is located near Barr Lake, a large reservoir a short distance north of Denver International Airport.

Nearly 200 packed the Sturm College of Law courtroom, with another 150 in an adjacent room that had live streaming video. When that room filled to capacity, a third room was opened for those interested in hearing the argument.
Before the oral argument began, Dean Marty Katz welcomed the Supreme Court and noted that having the court hear arguments at the College of Law reflected DU's commitment to bringing the practice of law closer to students. This is part of the College of Law's objective to prepare "practice ready" lawyers, Dean Katz said.

Dean Katz also said that the day represented an especially proud one since the College of Law has "one of the oldest and best natural resources programs in the country. The University of Denver began teaching about natural resources in the late 1800s, and water law has been one of our offerings."

Following the oral argument, the lawyers who argued both sides of the case re-assembled in a nearby room where they fielded questions from students about appellate advocacy and what lessons the students could take from what they had just seen in the courtroom. The attorneys who took part in the question and answer session included John P. Akolt III, David C. Hallford, Willam A. Hillhouse II, Brian M. Nazarenus, Steven O. Sims, and Star L. Waring.

Student volunteers from the College of Law's Water Law Review escorted the justices around the law building.

Following a second oral argument, which involved a matter of statutory interpretation, the Supreme Court, members of the faculty, and student volunteers had lunch in the faculty library.

Don C. Smith, Director of the Environmental and Natural Resources Law Program at the College of Law, said the day had been of enormous value for the entire law school community. "What our students saw today was appellate advocacy at its finest before the Colorado Supreme Court. So much can be learned from watching oral arguments before a court of the Colorado court's stature.

"There can be few more influential learning experiences than that provided by observing a skillful court posing insightful questions to advocates involving one of the most important cases the Supreme Court will rule on this year. The fact that the attorneys who argued the case were willing to entertain nearly one hour's worth of questions from students exemplified the tremendous professionalism of this stellar group of water lawyers, who together represent a "Who's Who" among water experts in the American west."

In summary, today was a tremendous experience for everyone at the College of Law, Mr. Smith said.

"I think it is safe to say that today's event will long be remembered by those who attended. The lessons learned will be of use to all of our students throughout their entire careers," Mr. Smith said. "It was a distinct honor and pleasure for the College of Law to host this important case and the Colorado Supreme Court."

Editor's note: In the top picture, the Colorado Supreme Court hears an argument from one of the attorneys. In the second picture, the attorneys participating in the oral argument respond to questions from students. Photos by Wayne Armstrong, University of Denver.

Looking Ahead to the Oral Arguments in the "FRICO" Water Rights Case: Regardless of Outcome, the Case Has Major Implications for State's Water Law

Tomorrow the University of Denver’s Sturm College of Law has the distinct honor of providing the venue for a session of the Colorado Supreme Court. The Court will hear argument on Case No. 2009SA133, an appeal from a decision by the District Court, Water Division 1—encompassing the entire South Platte drainage, an area extending generally from the Continental Divide east to Colorado’s border with Nebraska and from the Palmer Divide north to Colorado’s border with Wyoming—regarding an application seeking changes to certain historical agricultural water rights.

The Court’s opinion will be a landmark in Colorado water law, and represents the increasing scrutiny applicants before the Water Court face. The water rights at issue are substantial legal and physical rights within the South Platte basin, and the parties—the applicants and the several opposers—represent significant water users and water rights owners in the metro-Denver area.

As is becoming typical for water rights applications in Colorado, and particularly in the South Platte Basin, the application giving rise to this appeal involves a complex system of water rights and parties. The application was filed in 2002, later to be amended, and opposed by forty-five parties. This application involves historical agricultural water rights operated within the FRICO-Burlington system just northeast of Denver (“FRICO water rights”).

These water rights and their proposed changes are generally one element of a large, regional municipal water supply proposal, which is addressed in a handful of still-pending cases before the Water Court. After disentangling and reorganizing some of these issues into a new, partially consolidated case, and after settlement with many of the parties, trial to the Water Court lasted sixteen days in the spring of 2008. The Water Court issued its Findings of Fact, Conclusions of Law, and Order on the issues and evidence presented at trial; the order, which is indicative of the complexity of this case, is 154 pages in length.

To provide some general context, water rights are established by diversion of water from the public waters of the state and placement to beneficial use; the Water Court only confirms the use and administration date by its decrees. Upon diversion and beneficial use, the water right develops the parameters by which the right is defined, including the location of diversion, the location of use, the type of use, and the seasonal timing of the use.

Any owner of a water right—water rights are freely alienable, as any other real property right, and may be transferred separate from ownership of adjacent land—may change any aspect of the water right on application to the Water Court for a change of water right and published notice of the proposed change. It is the Water Court’s duty to determine whether the proposed change will materially injure other vested water rights. One means of protecting other water rights from material injury is to limit the amount of water after the change to the quantity of historical consumptive use.

Colorado’s prior appropriation system governs a system of property rights that are extraordinarily valuable and to which owners have strong and emotionally-charged connections. Our water law has a history dating back to the claims and practices associated with mining as the territory developed in the 1860s, and the practice of water law routinely involves reliance on and reference to judicial opinions entered just after statehood, in 1876. Similarly, water rights in the state, operated according to the prior appropriation system, carry priorities dating to the earliest adjudications, in 1862.

As greatly steeped in this long history as both the rights and the law by which they are governed are, the rights and the prior appropriation system adapt as our society and water needs change. Using the Water Court process, users may apply their water rights to new and changing uses. As pressure on the State’s water supply mounts due to increased demands and recent dry years, other water users, the Court, and state officials view proposed changes with a keen eye. This increased scrutiny together with advancing sophistication within proposed water projects continues to raise questions our long history of water law has yet to address. The Water Court and the Supreme Court—appeals of Water Court decisions are taken directly to the Supreme Court; the Court of Appeals does not have jurisdiction over water matters—advance our system of water law by interpreting how such new questions fit within the prior appropriation system of law and policy.

Tomorrow’s argument to the Supreme Court presents such questions for review. The application, while encompassing a more extensive scope of water rights, issues, and parties than the average application for a change of water right, is surely representative of a change of historical agricultural water rights to municipal uses. Particularly given the geographic proximity of the FRICO water rights to the Denver metro area, as well as the significant extent of the operations to proceed from this change, the application is hotly contested.

Several of the issues the Supreme Court must decide result from physical changes in the 1960s and the 1990s impacting the operation of the FRICO water rights. Changes by the City of Denver to accommodate sewer and flood concerns redirected the supply of water in the river in the vicinity of the FRICO water rights. The Water Court must approve any changes to the location from which a water user diverts its water right; here the Water Court refused to permit continued diversion of greater than the amount of water physically available—now greatly reduced as a result of the changes—at the original headgate. Further, the Water Court refused to include in the calculation of consumptive use the water diverted under the FRICO water rights within the new configuration. As is evident based on its detailed findings, the Water Court meticulously considered the evidence and argument it received on the issues. The Water Court’s decision is soundly based on Colorado water law precedent protecting other water rights. These are unique circumstances, however, and may be distinguished from prior decisions.

With this appeal, the Supreme Court must balance competing protective measures: those protecting the entire system of water rights and those protecting continued use of a water right within an ever changing society. While the weight of Colorado’s water law has developed to protect water rights and maintain water supplies legally available to users, this case presents a unique question regarding changes for which an applicant seeks approval but did not independently implement. Regardless of the outcome of this case, it will impact future water operations and proposed changes presented to the Water Court.

If the Water Court’s determinations are affirmed, future change applicants will face an even greater burden to support their claims and water users may be reluctant to enter into arrangements intended to maintain the flexibility of what is generally a user-enforced system. If the Court overturns the Water Court’s determinations, individual water users may have greater confidence to enter into agreements with other users, but any such bargain will be rigorously reviewed and likely contested by non-participating users.

Marjorie L. Sant
Panorama Law Practice, LLC
Sturm College of Law LLM Student

Editor's note: Marjorie Sant, a graduate of the University of Colorado School of Law, is an experienced Colorado water lawyer. Currently she is pursuing a Masters in Environmental and Natural Resources Law at the University of Denver Sturm College of Law

"Colorado Water Case of the Century" to be Argued at University of Denver Sturm College of Law January 20, 2011

A case that some experts have described as the "Colorado water case of the century" will be argued at the University of Denver Sturm College of Law on January 20, 2011, from 8.30 a.m. to 10 a.m.

The Burlington Ditch Reservoir & Land Company and Farmers Reservoir and Irrigation Company case (also known as the FRICO case) will be heard by the Colorado Supreme Court meeting in room 165 at the College of Law. The water rights case involves a determination of the historic consumptive use of the 1885 Burlington direct flow and storage water rights.

Don C. Smith, Director of the Environmental and Natural Resources Law program said, "The setting of oral arguments in this important case at the College of Law will provide DU students, faculty, and friends an excellent opportunity to hear this historic case. In one measure of the importance of the case, the Supreme Court has provided for a 90 minute argument rather than its more typical 30 or 45 minutes."

Associate Dean and Professor Fred Cheever said the College of Law was "honored to be hosting the Supreme Court." Dean Cheever noted that most of the state's prominent water lawyers will be at the College of Law to observe the oral arguments.

A second case on the Court's docket is a matter involving legislative intent.

Anyone wishing more information about the Court's session at the College of Law should contact Stefanie Carroll by clicking here.