Summary
The Colorado Supreme Court addressed whether failure to use a decreed point of diversion for ten years or more triggers the statutory rebuttable presumption that a water right has been abandoned. The court held that proof of nonuse at the decreed diversion point is sufficient to shift the burden to the water-right holder to show facts excusing the nonuse or demonstrating an intent not to abandon. The court reversed and remanded for reconsideration of whether the Jim Hutton Educational Foundation rebutted the presumption.
Questions Presented
- Whether proof that a water-right holder failed to use the decreed point of diversion for ten years or more triggers the statutory rebuttable presumption of abandonment under section 37-92-402(11), even when the holder may have used the water through an undecreed diversion point.
- Whether the Foundation rebutted the presumption of abandonment with evidence excusing nonuse of the decreed diversion point or demonstrating an intent not to abandon the Tip Jack water right.
Holdings
- When the Engineers prove that a water-right holder has not used the decreed point of diversion for ten years or more, they establish the rebuttable presumption of abandonment under section 37-92-402(11). Proof of nonuse at the decreed diversion point is sufficient; the Engineers need not prove additional nonuse of the water right.
- After the presumption is triggered, the water-right holder must produce evidence of a fact or condition excusing the nonuse or otherwise demonstrating a lack of intent to abandon. The water court must separately analyze whether the Foundation used the Tip Jack water right, rather than merely maintaining or using the Tip Jack Ditch, and whether the evidence rebutted the presumption.
Factual background
The Tip Jack water right was decreed in 1898 for irrigation at an original diversion point on the South Fork of the Republican River. After construction of Bonny Reservoir destroyed the original point, a 1978 decree changed the diversion point but left the other terms of the original decree in effect. The Engineers found that the decreed diversion point had never been used for more than ten years, while the Foundation contended that the water had been diverted through the Hutton 2 diversion point and used in the Tip Jack Ditch. The water court found nonuse of the relocated diversion point but relied on ditch maintenance, property transactions, and other evidence to reject or rebut abandonment.
Procedural history
The Division Engineer placed the Tip Jack water right on the 2010 Revised Decennial Abandonment List after determining that it had been abandoned. The Foundation objected and protested in water court. After a six-day trial, the water court ruled that the Engineers had not proved abandonment by a preponderance of the evidence and alternatively found sufficient evidence to rebut any presumption of abandonment. The Colorado Supreme Court reversed and remanded.
Remand instructions
The water court must reconsider whether the Foundation met its burden of rebutting the presumption of abandonment. It must separately analyze use of the Tip Jack water right, distinguish use of the Tip Jack Ditch from use of the water right itself, and determine whether the Foundation presented evidence excusing nonuse of the decreed diversion point or demonstrating lack of intent to abandon.