BEFORE THE STATE ENGINEER, STATE OF COLORADO CASE NO. 14-SE-04 IN THE MATTER OF A PETITION FOR AN APPEAL OF CERTAIN ORDERS OF THE DIVISION ENGINEER IN WATER DIVISION NO. 6 CONCERNING THE MEEKER TOWNSITE DITCH RESPONDENT/APPELLEE DIVISION 6 ENGINEER’S ANSWER Respondent/Appellee Erin Light, Division Engineer for Water Division 6, by and through the undersigned Assistant Attorney General, files the following Answer to Petitioners/Appellants Meeker Townsite Ditch Company and David Smith Ranches (“Petitioners”) September 17, 2014 Notice of Appeal and Request for Adjudicatory Hearing (“Notice”) and September 29, 2014 Supplement to Notice of Appeal and Request for Adjudicatory Hearing (“Supplement”), and states as follows: ANSWER 1. The Division Engineer is without knowledge or information sufficient to form a belief as to whether the Petitioners are owners of water rights decreed to the Meeker Townsite Ditch (“Ditch”), and therefore denies those allegations. 1 2. The Division Engineer admits that the Ditch is located in and near Meeker, within Water Division 6. The Division Engineer also admits that her office is located in Steamboat Springs. 3. The Division Engineer denies that Petitioners have a carte blanche “legal interest to divert water into the Ditch from the White River.” However, the Division Engineer admits that water can be diverted into the Ditch pursuant to the terms of the decrees entered in Civil Action 133, Garfield County District Court, dated May 10, 1889; Civil Action 624, Rio Blanco District Court dated May 26, 1942; and Case No. W-2956, Water Division 5, dated September 30, 1976, so long as the water rights adjudicated in those decrees have not been abandoned and are put to beneficial use in an amount that is reasonable and appropriate under reasonably efficient practices to The paragraph numbers herein correspond to the paragraph numbers in the Notice. 1 accomplish without waste the purpose for which the appropriations were lawfully made. The Division Engineer admits that the Ditch has been decreed three absolute direct flow water rights out of the mainstem of the White River above Meeker in the amounts of 20.0 cfs, 5.7 cfs, and 0.25 cfs. The Division Engineer admits that the 20 cfs water right was appropriated in 1883 and adjudicated in Civil Action 133, Garfield County District Court, dated May 10, 1889. The Division Engineer denies that the 5.7 cfs water right was adjudicated in 1897. However, the Division Engineer admits that water right was appropriated in 1887 and adjudicated in Civil Action 624, Rio Blanco District Court dated May 26, 1942. The Division Engineer admits that the decree entered in Civil Action 133, Garfield County District Court, dated May 10, 1889 predates the Colorado River Compact. The Division Engineer denies that the decree entered in Civil Action 624, Rio Blanco District Court dated May 26, 1942 predates the Colorado River Compact. The Division Engineer admits that the Ditch “irrigates lands above the town of Meeker, then passes through town, and irrigates lands below the town, both above and below the Ditch.” However, these irrigated lands only total 153 acres. The Division Engineer is without knowledge or information sufficient to form a belief as to whether “Petitioners and their predecessors have applied the diverted water from the Ditch to beneficial use for more than 100 years,” and therefore denies those allegations. 4. The Division Engineer admits that she issued an order to Petitioners on August 15, 2014 (“August Order”). The Division Engineer further admits that the August Order requires Petitioners to (1) immediately discontinue any diversion of water into the Ditch from the White River to the extent that water being diverted is not necessary for the application to a beneficial use; and (2) within 10 days, install, and thereafter maintain, a suitable and proper measuring device in the Ditch. 2 5. The Division Engineer admits that she issued a second order to Petitioners on September 15, 2014 (“September Order”). The Division Engineer further admits that the September Order states “the waste of water down Curtis Creek and Sulphur Creek, except under emergency conditions, should remain zero from now and into the future. Water being continually run down these draws from the ditch is considered wasteful and will prompt further action by this office…I note there is also a wastegate at Fairfield Gulch. The amount of water being run through this wastegate should also be minimized as much as possible.” 6. The Division Engineer denies that Petitioners are “adversely affected and aggrieved” by the Division Engineer’s August and September Orders and by the Division Engineer’s interpretation of the phrase “necessary for the application to beneficial use.” The Division Engineer further denies that her “interpretation of the phrase ‘necessary for the application of beneficial use’ and threatened enforcement of said interpretation has created a controversy regarding a reduction of the quantity and use of Petitioners’ right to apply appropriated and decreed water to beneficial use.” Petitioners remain entitled to divert water into the Ditch pursuant to the terms of their decrees in an amount that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriations were lawfully made. The Division Engineer denies that she is “attempting to restrict the diversion of water down the Ditch at a time when the White River is not under an administrative call and at a time when no other water rights owner is affected by the Diversion.” The Division Engineer has the authority to curtail Petitioners’ wasteful diversions at any time pursuant to § 37-92-502(2)(a), C.R.S., regardless of whether or not the White River is under administration. 7. The Division Engineer admits that the August Order states that “[i]n this case it appears that water is being diverted at too great a rate for the [153 acres] that are being irrigated and the rate of diversion is not being reduced to eliminate waste.” The Division Engineer denies the allegations that the lands irrigated from the Ditch “greatly exceeds 153 acres.” The Division Engineer denies that the August Order “fails to take into consideration other valid uses of water from the Ditch.” Petitioners have not described what these so-called other “valid uses” are. The only valid uses of water are the decreed uses in an amount that is reasonable and appropriate 3 under reasonably efficient practices to accomplish without waste the purpose for which the appropriations were lawfully made. 8. The Division Engineer denies that the wasteways at Curtis Creek, Suphur Creek and Fairfeld Gulch are “tail ditches.” Petitioners are required to adjust the amount of water being diverted into the Ditch at the headgate, rather than diverting more water than is needed and dumping the unneeded portion down these wasteways. Petitioners are also required to use reasonably efficient practices to carry the flow of water in the Ditch to where it is needed for beneficial use. 9. The Division Engineer denies that the August Order “fails to provide any evidentiary basis to support the claim that any waste or absence of beneficial purpose is occurring by virtue of the manner in which the Ditch has been or is being operated.” The Order states that Petitioners are diverting more water than is necessary to irrigate the 153 acres irrigated under the Ditch and the unnecessary water is being dumped down the wasteways. The Division Engineer also denies that the water being dumped down the wasteways is “waste water” or “tail water.” Waste/tail water is water left over after the application of water to a beneficial use such as irrigation. Boulder v. Boulder & Left Hand Ditch Co., 192 Colo. 219, 222-23, 557 P.2d 1182, 1185 (1976). Waste water is different than water being wasted. 10. The Division Engineer denies that “[t]he apparent impetus for the Order is a civil complaint by the owner of improved property abutting the waste ditch who claims that seepage from the waste ditch is injuring his improvements.” The Division Engineer further denies that she is “using her administrative authority to intervene in a purely civil matter, to protect a non-water right owner.” Any civil matter regarding seepage is independent and irrelevant to the Division Engineer’s Orders curtailing Petitioners’ wasteful diversions. 11. The Division Engineer admits that the September Order gives Petitioners until November 30, 2014 to install an operable measuring device for the Ditch. The Division Engineer has statutory authority to require installation of a measuring device. See § 37-92-502(5)(a), C.R.S. (“The state engineer and division engineers have authority to order any owner or user of a water right to install and maintain at such owner’s or user’s expense necessary meters, gauges, or other measuring devices”). 4 12. The Division Engineer denies that an “upstream culvert…is causing a flow restriction downstream of the [current] measuring device, which restriction is causing the [current] measuring device to become submerged.” 13. The Division Engineer admits that Petitioners filed the Notice and Supplement pursuant to Sections 1.1.4., 1.1.5. and 1.1.6. of the Division of Water Resources Procedural Regulations. However, as further stated below, only Section 1.1.5. applies, and only in a limited manner. 14. The Division Engineer denies that her August and September Orders are “invalid, improper, and unenforceable” for the reasons claimed by Petitioners. The Division Engineer has authority to curtail wasteful diversions pursuant to § 37-92-502(2)(a), C.R.S. 15. Paragraph 15 of the Notice states that Petitioners appeal the Orders and request a hearing. This calls for neither an admission nor a denial. However, as further described below, Petitioners are not entitled to a hearing in this matter. 16. The claim for relief in paragraph A on pages 4-5 of the Notice should be denied. Petitioners are requesting reconsideration, reversal, and/or dismissal of the Division Engineers’ Orders under Sections 1.1.4 (as relied on in the Supplement) and 1.1.6 of the Division of Water Resources Procedural Regulations. Section 1.1.4. only mandates a hearing for the specific situations enumerated in subsection 1.1.4.A., none of which are involved in this appeal. A hearing on the present petition is discretionary and the petition should be resolved pursuant to Section 1.1.5, under which either an evidentiary or non-evidentiary hearing may be held. See Sections 1.1.5(E)(2) and (E)(6). Section 1.1.6. only applies after the State Engineer has issued a final order, which has not occurred yet. Petitioners alternatively request a declaration under Section 1.1.5 that the Orders only apply when the White River is subject to administration. Petitioners take the position that they are entitled to waste water when there is no valid downstream call on the White River. No evidentiary or nonevidentiary hearing is required for the Hearing Officer to decide this legal issue. Orders preventing waste are applicable at all times, regardless of whether the White River is under administration pursuant to a valid downstream call. See § 37-92-502(2)(a), C.R.S. (“Each division engineer shall order the total or partial discontinuance of any diversion in his division to the extent that the water being diverted is not necessary for application to a beneficial use”); § 37-92-103(4), C.R.S. (defining beneficial use as “the use of 5 that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made”); § 37-84-108, C.R.S. (“During the summer season it shall not be lawful for any person to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, and for domestic and stock purposes, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water”); see also Fellhauer v. People, 167 Colo. 320, 336, 447 P.2d 986, 994 (1968) (“[T]he right to water does not give the right to waste it”). 17. The claim for relief in paragraph B on page 5 of the Notice should be denied. Petitioners are requesting a hearing under Sections 1.1.4., 1.1.5. and 1.1.6. As stated in paragraph 16 above, only Section 1.1.5. is applicable here. Under Section 1.1.5., Petitioners are not automatically entitled to a hearing. The crux of the Notice is whether the Division Engineer can issue an order discontinuing diversions to the extent that water is being wasted during free river. This is legal issue that can be briefed, rather than a factual issue requiring a hearing. 18. The claim for relief in paragraph C on page 5 of the Notice should be denied. Petitioners are requesting a stay/abeyance of the Division Engineer’s Orders pending these proceedings. Neither the Administrative Procedure Act nor the Division of Water Resources Procedural Regulations provide the Hearing Officer with authority to stay the Division Engineer’s Orders prior to a final decision by the State Engineer. If the Hearing Officer determines that he does have the authority to stay the Division Engineer’s Orders, that determination should be made under the same standard of review for a preliminary injunction under C.R.C.P. 65 or an injunction of an administrative proceeding under C.R.S. § 24-4-106(8) by requiring a showing of immediate and irreparable injury. Injunctive relief is rarely granted where the actions complained of are those of governmental departments in the exercise of their authority. Rathke v. McFarlane, 648 P.2d 648, 651 (Colo. 1982); accord Envirotest Sys. v. Colo. Dep't of Revenue,109 P.3d 142, 144 (Colo.2005). Moreover, irreparable harm cannot be shown where there is an adequate remedy of law for court review. Id. at 145. There are no allegations in the Notice demonstrating any immediate and irreparable injury to Petitioners stemming from the Division Engineer’s Orders. Rather, Petitioners maintain the ability to lawfully divert their 6 water rights pursuant to the terms of their decrees. The Orders only prevent Petitioners from unlawfully wasting water and require a suitable and appropriate measuring device. Compliance with the Orders will not result in irreparable injury to Petitioners. Petitioners also have an adequate remedy of law after these proceedings are over to appeal any final decision of the State Engineer to the Division 6 Water Court. VBar Ranch v. Cotten, 233 P.3d 1200, 1207 (Colo. 2010). Finally, the Division Engineer?s Orders are presumed to be lawful and valid. McClean v. Farmers?Highline Canal Reservoir Co., 44 Colo. 184, 191, 98 P. 16, 18 (1908) (?The law presumes that public officials discharge their duties in conformity with the statutes, and the burden of showing to the contrary rests with him who relies thereon?); see also Guiraud U. Nev. Canal Co., 79 C010. 289, 295, 245 P. 485, 487-88 (1926). Petitioners have not provided any specific facts in the notice to overcome this presumption. McClean, 44 Colo. at 191-92, 98 P. at 18-19. AFFIRMATIVE DEFENSES Petitioners have failed to state a claim on which relief can be granted. Petitioners? claims are not ripe. RESPE CTFULLY SUBMITTED this 16th day of October, 2014. JOHN W. SUTHERS Attorney General 7 PHILIP E. Assistant Attorney Gener Water Resources Unit Natural Resources and Environment Section Attorneys for the Division Engineer for Water Division 6 *Counsel of Record CERTIFICATE OF SERVICE I hereby certify that I have duly served the Within DIVISION 6 ANSWER to the parties herein Via email at Denver, Colorado, this 16th day of October, 2014, addressed as follows: Via Email: Gary S. Engle. Esq. Erin Light Division Engineer, Water Division No. 6 erin.ligh1@state.co.us Kevin Rein Deputy State Engineer kevin.rein@state.co.us Mike Sullivan Deputy State Engineer mike.sullivaantatecous Philip E. Lopez 0