Summary
holding reviewing court may construe scope of water rights adjudicated in prior decrees to determine effect of change to water right.
Summary of this case from Select Energy Servs., LLC v. K-Low, LLCOpinion
No. 09SA374.
March 14, 2011.
Appeal from the District Court, Water Division 7, Water Court, Case No. 09CW22, Gregory Lyman, J.
Maynes Bradford Shipps Sheftel, LLP, Janice Sheftel, Katherine A. Burke, Adam T. Reeves, Durango, Colorado, Attorneys for Appellant.
Miller, Agro, Robbins, L.L.C., Nancy Agro, Durango, Colorado, The Craig Law Firm P.C., Geoffrey M. Craig, Durango, Colorado, Attorneys for Appellees.
In this appeal from a judgment of the District Court for Water Division No. 7, the Southern Ute Tribe ("the Tribe") seeks to set aside the judgment on three grounds: (1) this case involves a declaratory judgment action requiring personal service on the Tribe and other affected parties pursuant to C.R.C.P. 19 and 4, and publication of resume notice pursuant to section 37-92-302(3)(a), C.R.S. (2010) was insufficient; (2) if the applicants ("the Ditch Companies") properly filed this case as an application for a determination of a water right under section 37-92-302(1)(a), the lack of verification of the application when it was filed prevented the court from proceeding; and (3) the water court abused its discretion by denying the Tribe's motion to intervene pursuant to section 37-92-304(3), C.R.S. (2010) and in disallowing its late-filed statement of opposition.
The Tribe phrases the issues on appeal as follows:
1. Whether a request for a water court to interpret the meaning of a previously entered decree is a "determination of a water right," as that term is used in Section 37-92-302(1)(a), C.R.S. (2010), and, therefore, entitled to benefit from special statutory procedures, including resume notice.
2. Whether the "relation back" doctrine and C.R.C.P. 15(c) apply to amendments attempting to correct procedural errors in applications for determinations of water rights, including failure to verify such an application.
3. Whether the Southern Ute Indian Tribe ("Tribe") met the requirements for intervention set forth in Section 37-92-304(3), C.R.S. (2010), in this case.
The Ditch Companies filed an application in this case for a water court determination that two previously adjudicated decrees included priorities for year-round stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use. Resume notice and newspaper publication occurred. One of the Ditch Companies belatedly verified the application. The Tribe did not file a statement of opposition to the application within the time period specified by section 37-92-302(1)(b) and (c). No statements of opposition were filed by any other party. The water court considered and denied the Tribe's motion to intervene and disallowed its untimely statement of opposition. The water court then proceeded to consider the case and entered its written judgment that the previously adjudicated decrees had awarded the Ditch Companies priority dates for year-round stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use.
We hold that the application in this case is for a determination of a water right under section 37-92-302(1)(a) and the water court properly proceeded in compliance with the resume notice procedures of section 37-92-302(3); the belated verification of the application related back to the original application; and the water court did not abuse its discretion in denying the Tribe's motion to intervene and disallowing its untimely filed statement of opposition.
I.
This case centers on various water rights in the Pine River drainage of Colorado that the La Plata County District Court adjudicated pursuant to a general adjudication in 1934 and a supplemental adjudication in 1966 ("the Initial Decrees"). Paragraph 8 of the 1934 decree included the right to use water for "domestic purposes, incidental to the appropriation and use for agricultural purposes." In the 1966 decree, paragraph 9 of the preamble clarified this language to include the right to use water for " domestic and stockwater purposes, incidental to the appropriation and use for agricultural purposes." (Emphasis added).
In re the Adjudication of Priorities of Water Rights for Irrigation Purposes, No. 1248 (La Plata County District Court 1934); In re the Supplemental Adjudication of Priorities of Water Rights to the Use of Water, No. 1248-B (La Plata County District Court 1966).
Between 2001 and 2005, seven of the eight Ditch Companies, who hold some of the initially decreed Pine River rights, separately filed applications in the water court for wintertime stock watering rights from the Pine River (the "Winter Applications"). The Tribe, another holder of some of the initially decreed Pine River rights, filed statements of opposition to the Winter Applications.
The Winter Applications included In re King Consolidated Ditch Co., 01CW104 (filed Dec. 28, 2001); In re Morrison Consolidated Ditch Co., 01CW108 (filed Dec. 31, 2001); In re Los Pinos Ditch Co., 05CW70 (filed Dec. 20, 2005); In re Thompson-Epperson Ditch Co., 05CW71 (filed Dec, 20 2005); In re Sullivan Ditch Co., 05CW72 (filed Dec. 21, 2005); In re Remmow Land Co., 05CW89 (filed Dec. 29, 2005); In re Pine River Canal Co., 05CW98 (filed Dec. 30, 2009). The Spring Creek Ditch Co. apparently did not file such an application.
In its written consultation report filed with the water court pursuant to section 37-92-302(4), the Division Engineer took the position that the Ditch Companies' already held the right to make wintertime stockwater use under the priorities of the Initial Decrees and had historically exercised that right. The Division Engineer's written report recommended that the water court enter an order or decree so finding in each of the Ditch Companies' cases, and then dismiss the Winter Applications. The report reads, in part:
It is believed that all of the ditches that have applied for these non-irrigation season water rights have probably had winter diversions incidental to agricultural practices which date back to the early appropriations of water for the ditches . . .
Therefore, as long as the non-irrigation season uses of domestic and stockwater is not expanded beyond the historic practices, and the primary use of the water in these ditches is still for irrigation of agricultural lands, it is not believed a new water right is needed for these purposes. . . .
It would be beneficial to have court recognition of the non-irrigation uses of domestic and stockwater historically used by these ditches, either by Order of the court or by decrees entered in each individual case. . . . If the court is in agreement, an Order could be issued recognizing these uses as being allowed in the 1934 and 1966 adjudications based on historic practices, and the applications in these cases could be dismissed.
The Ditch Companies entered into settlement discussions with the Tribe to dispose of the Winter Applications in accordance with the Division Engineer's consultation report, but settlement was not achieved. Counsel for the Ditch Companies then informed counsel for the Tribe that the Ditch Companies would file a separate, consolidated application to confirm that their wintertime stock watering use had been adjudicated in the Initial Decrees.
On March 25, 2009, the Ditch Companies filed with the clerk of the water court an application for a determination of water rights, asking the water court to confirm that the Initial Decrees had adjudicated priorities for stock watering rights decreed to their diversion structures, including wintertime use. That same day, the Ditch Companies notified the Tribe of the consolidated application via e-mail.
The application is entitled "Application For Determination of Water Rights (Surface)," follows the standard form for such an application adopted by the water judges pursuant to section 37-92-302(2)(a), and requests the water court to "issue an order interpreting Case Numbers 1248 and 1248-B to include year-round stockwatering and domestic uses incidental to agricultural purposes."
On March 26, 2009, the Ditch Companies made a motion to vacate the trial dates for the Winter Applications and hold those cases in abeyance. The Ditch Companies served the motion on counsel for the Tribe. The motion recites that the Ditch Companies
filed Case Number 2009CW22 requesting the Court to confirm that Case Numbers 1248 and 1248-B adjudicated stockwater and domestic use incidental to agricultural uses. If the Court makes an affirmative determination, the applicants will not need an additional water right unless supplemental water is necessary.
On March 30, 2009, the Tribe filed a written consent to the motion, and the water court stayed all seven Winter Applications pending the outcome of the consolidated application.
In early April 2009, the water clerk prepared and published notice of the Ditch Companies' application in the monthly resume of water right applications in the Durango Herald newspaper. On May 27, 2009, one of the Ditch Companies filed a verification of the application.
On June 30, 2009, the Tribe filed simultaneous motions to intervene in this case and oppose the application. The Tribe contended that the application had been improperly filed as a request for a determination of water rights rather than as a declaratory judgment action that requires personal service under C.R.C.P. 19 and 4. The Tribe also asserted that the water court lacked authority to proceed with the application because it was not verified when filed.
The water court concluded that the late-filed verification "related back" to the filing of the application, disallowed Tribe's statement of opposition as untimely filed, and exercised its discretion to deny the intervention motion. The water court's written order recites, in part:
C.R.S. 37-92-304(3) enumerates the specific grounds required to intervene in a Water Court proceeding. In addition to paying the appropriate fee, the proposed Intervenor must show "mistake, inadvertence, surprise, or excusable neglect," or that its proposed intervention is "to support a referee's ruling."
Here, the Opposer has not alleged or proven that [sic] any of these criteria in its Motion to Intervene. This is not surprising since allegations of mistake, surprise or inadvertence would be factually unfounded. The Opposer had actual notice of this Application, in addition to the resume notice published in the Durango Herald and this Court's website sufficient to trigger an inquiry of the extent of the subject decree. . . .
The case is in its final stages and would be completed fairly soon. The Division Engineer has already prepared and filed a Consultation Report favorable to the applicant's position. Had Opposer filed a timely statement of opposition to the Application, the issues it now raises could have been more fully and appropriately addressed by the Division Engineer's report and the Applicant would have had to address those matters before the referee's decision. . . .
To allow intervention now would frustrate the legislative intent of expediency and finality. At this point, the Division Engineer and the Applicant have already worked to resolve the outstanding issues in this and three other cases. Their careful resolution regarding the scope of the Decree, that now resolves several water issues before the court and avoids duplicative decrees, will be wastefully ignored. If the court grants the motion and the Opposer becomes a party in the trial, the matter will likely not be resolved for at least one to two years and the Applicant will be required to spend tens of thousands of dollars on a trial and related work to get to the result they have already agreed upon with the Division Engineer. The State, both through the Division Engineer's office and the Water Court, will needlessly expend additional resources and time on this matter. The Opposer cannot cure its failure to oppose this issue prior to the referee's ruling by filing a Motion to Intervene.
The water court later found that the Initial Decrees included wintertime stock watering right use for the Ditch Companies' diversions, and entered judgment accordingly. The court's Findings of Fact, Conclusions of Law, and Decree recite, in part:
Year round stockwatering and year round domestic uses incidental to the appropriation and use for agricultural purposes are hereby confirmed as part of and included within the decreed uses in Case Numbers 1248 and 1248-B. This ruling applies to all ditches decreed in Case Numbers 1248 and 1248-B in accordance with the amounts and priorities adjudicated to each ditch in those cases. Water diverted for stockwatering and domestic uses in particular instances will continue to be administered by the Division Engineer and Water Commissioners under their statutory authority, the decree language in Case Numbers 1248 and 1248-B, and general principles of Colorado water law.
After the water court denied the Tribe's motion to reconsider, the Tribe appealed to us seeking to vacate the judgment.
II.
The Ditch Companies filed the application in this case for a water court determination that two previously adjudicated decrees included priorities for stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use. We hold that the application in this case is for a determination of a water right under section 37-92-302(1)(a) and the water court properly proceeded in compliance with the resume notice procedures of section 37-92-302(3); the belated verification of the application related back to the original application; and the water court did not abuse its discretion in denying the Tribe's motion to intervene and in disallowing its untimely filed statement of opposition.
A. Standard of Review
We review de novo a lower court's conclusions of law. Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff's Dept., 196 P.3d 892, 897 (Colo. 2008). We set aside a trial court's factual findings only when they are "so clearly erroneous as to find no support in the record." People ex rel. AJL, 243 P.3d 244, 250 (Colo. 2010) (citation omitted).
Statutory construction proceeds de novo. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010). When construing a statute, we effectuate the intent of the General Assembly; we look to the plain meaning of the statutory language and consider it within the context of the statute as a whole. Bly v. Story, 241 P.3d 529, 533 (Colo. 2010). We construe the entire statutory scheme to give consistent, harmonious, and sensible effect to all parts. Climax Molybdenum Co. v. Walter, 812 P.2d 1168, 1174 (Colo. 1991).
If the statutory language is clear, we apply it. Specialty Rests. Corp., 231 P.3d at 397. If the statutory language is ambiguous, we may use other tools of statutory interpretation to determine the General Assembly's intent. Crandall v. City of Denver, 238 P.3d 659, 662 (Colo. 2010). We avoid interpretations that would lead to an absurd result. Id.
The water court has authority to determine a prior decree's setting, intent, meaning and effect when adjudicating an application for a water use right or ascertaining the existence of an undecreed enlargement of a decreed water right. Tonko v. Mallow, 154 P.3d 397, 404-05 (Colo. 2007); Cherokee Metro. Dist, v. Simpson, 148 P.3d 142, 146-47 (Colo. 2006). Water matters involve determinations regarding the right to use water, the quantification of a water right, or a change in a previously decreed water right. Crystal Lakes Water Sewer Ass'n v. Backlund, 908 P.2d 534, 540 (Colo. 1996).
B. Determination of a Water Right under Section 37-92-302(1)(a)
The Colorado Rules of Civil Procedure preserve special statutory procedures, such as those contained in the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to -602 (the "1969 Act"). C.R.C.P. 81(a) (providing that the Rules of Civil Procedure "do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute"). The Tribe concedes that the subject matter in this case is a water matter within the special statutory jurisdiction of the water court pursuant to section 37-92-203(1), but it contends that the application filed in this case was not properly filed as an application for determination of a water right under section 37-92-302(1)(a) for which the Colorado General Assembly intended the resume notice and newspaper publication procedure of section 37-92-302(3) to apply. Accordingly, we turn to this issue.
1. Plain Language
Section 37-92-302(1)(a) provides:
Any person who desires a determination of a water right or a conditional water right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation, finding of reasonable diligence, approval of a proposed or existing exchange of water under section 37-80-120 or 37-83-104, or approval to use water outside the state pursuant to section 37-81-101 shall file with the water clerk a verified application setting forth facts supporting the ruling sought, a copy of which shall be sent by the water clerk to the state engineer and the division engineer. The term "determination of a water right or conditional water right" includes any plan or change in plan under the provisions of section 37-45-118(1)(b)(II) that is or has been incorporated into a decree.
The words "including a determination that a conditional water right has become a water right by reason of the completion of the appropriation" do not provide a limitation on the term "determination of a water right." A statutory definition of a term as "including" certain things does not restrict the meaning to those items included. The word "include" is ordinarily used as a word of extension or enlargement. Cherry Creek School Dist. No. 5 v. Voelker, 859 P.2d 805, 813 (Colo. 1993).
(Emphasis added).
We begin by examining the plain language of the phrase "determination of a water right." Words and phrases should be given effect according to their plain and ordinary meaning. Granite State Ins. Co. v. Ken Caryl Ranch Master Ass'n, 183 P.3d 563, 567 (Colo. 2008). The ordinary meaning of a "determination" is the "settling and ending of a controversy especially in a judicial setting." Webster's New International Dictionary 616 (3rd ed. 2002). "Water right" is defined in section 37-92-103(12) of the 1969 Act and means "a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same." (Emphasis added).
The application in this case qualifies as an application for "determination of a water right" under the plain words of section 37-92-302(1)(a). The Ditch Companies filed an application for a determination that the water rights previously adjudicated in the Initial Decrees (case numbers 1248 and 1248-B) included priorities for year-round stockwatering and domestic use incidental to agricultural purposes, including wintertime use. The application is entitled "Application For Determination of Water Rights (Surface)" and provides the information requested under the standard form adopted by the water judges pursuant to section 37-92-302(2)(a) and Rule 3(a) of the Uniform Local Rules For All State Water Court Divisions.
Water courts are authorized to construe and make determinations regarding the scope of water rights adjudicated in prior decrees. Crystal Lakes Water and Sewer Ass'n v. Blacklund, 908 P.2d at 542. Section 37-92-302(1)(a) does not restrict a water right to one determination only, nor does it require that any subsequent determination after the initial determination of a water right must necessarily result in the assignment of a new priority date. This is consistent with the fundamental principle that adjudications of water rights have as their object the confirmation of pre-existing rights. Groundwater Appropriators of S. Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22, 26 (Colo. 2003).
Once a water right has been adjudicated, it is given a legally vested priority date that entitles the owner to a certain amount of water subject only to the rights of senior appropriators and the amount of water that is available for appropriation. Navajo Development Co., Inc. v. Sanderson, 655 P.2d 1374, 1377 (Colo. 1982). Section 37-92-306, C.R.S. (2010), which addresses the assignment of priority dates when the claim for a water right has not been adjudicated previously, does not require the holder of an existing adjudicated water right to surrender the right's priority and take a junior priority when, as here, the applicant files an application in water court seeking confirmation that an earlier decree carries with it a senior priority for the water use at issue. See United States v. Bell, 724 P.2d 631, 634 (Colo. 1986). The General Assembly has required no such exaction or devaluation of a water right as the price for a water court being able to consider an application to determine the scope and meaning of a prior decree within the meaning of the term "determination of a water right."
2. Resume Notice and Newspaper Publication Procedure
The resume notice and newspaper publication provisions of section 37-92-302(3) and C.R.C.P. 90, both of which authorize resume notice for water matters involving and affecting the relative priorities of water rights on a stream system, are broadly applicable to water court applications. The General Assembly included the resume notice and newspaper publication procedures in the 1969 Act, in lieu of personal service, because water rights are decreed to structures, rather than individual owners, and water court proceedings for the determination of water rights are proceedings in rem. Well Augmentation Subdistrict v. City of Aurora, 221 P.3d 399, 408-09 (Colo. 2009).
When notice of the application is published through the resume procedure, the court obtains jurisdiction over persons and property affected by the application; the purpose of resume publication is to give notice of the nature, scope and impact of the decree sought, thereby enabling any interested person to file a statement of opposition and contest the factual or legal grounds for issuance of such a decree. Dallas Creek Water Co. v. Huey, 933 P.2d 27, 38 (Colo. 1997).
C.R.C.P. 90(a) requires the water clerk to receive and file all applications and number them upon payment of filing fees. C.R.C.P. 90(b) commands the water clerk to include in the resume all applications filed during the preceding month that substantially contain the information required by Rule 3 of the Uniform Local Rules for All State Water Court Divisions and the standard forms approved by the water judges under section 37-92-302(2)(a).
We have held personal service under C.R.C.P. 4 and 19 to be required in water matters only in limited circumstances. For example, in Gardner v. State, 200 Colo. 221, 614 P.2d 357, 361 (1980), we required such service because the proceeding was aimed at terminating, by abandonment, a specific person's ownership interest in a water right. Other instances of party versus party litigation in water court that come under the personal service requirements of C.R.C.P. 4 and 19 include injunction and declaratory judgment actions where relief is sought against a named party, as opposed to an application affecting all water rights on a stream system.
Examples include City of Golden v. Simpson, 83 P.3d 87 (Colo. 2004), an injunction action by an individual water user against the state engineer, Archuleta v. Gomez, 200 P.3d 333, (Colo. 2009), an injunction action involving a claim for adverse possession of a water right pitting individuals within a ditch system against each other, and N. Sterling Irrigation Dist. v. Simpson, 202 P.3d 1207 (Colo. 2009), a declaratory judgment action between a water district and the state engineer regarding administration of "the one fill rule" for a particular reservoir. These actions focus on specific disputes among and between specific water users and/or state water officials.
Other matters that involve water in some way may simply not be considered a water matter that is within the jurisdiction of a water court. For example, who owns the title to a water right or a share in a mutual ditch company is not a water matter within the special jurisdiction of the water court. See, e.g., Humphrey v. Sw. Dev. Co., 734 P.2d 637, 640-41 (Colo. 1987); Jacobucci v. District Court, 189 Colo. 380, 541 P.2d 667, 674 (1975). In Groundwater Appropriators of the South Platte Basin v. City of Boulder, 73 P.3d at 23, we refused to consider a request for injunction by some parties to a conditional water right application case because it was unrelated to the application in the case and beyond the special statutory jurisdiction of the water court.
In contrast, the General Assembly designed the resume notice and newspaper publication procedure for water matters that involve the interrelationship of all the water right priorities on the stream. This procedure is calculated to alert all water users on the stream system whose rights may be affected by the application, and provide an opportunity for any person to participate in the water right proceeding and to oppose the application. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 24 (Colo. 1996).
The applicants in this case filed an application to confirm the priorities of existing water rights decreed in prior adjudications to their ditches. This was not an attack on the Tribe's ownership interest in its decrees; rather, it was a bona fide effort to determine the relative priority of the Ditch Companies' rights in relation to all other water decreed uses of stream water. The applicants filed this application after the Division Engineer for Water Division No. 7 asserted in response to the Winter Applications that the Ditch Companies already had the right to make wintertime stockwater use in reliance on the priority dates specified in the Initial Decrees.
The resume notice and newspaper publication procedure is designed to protect the rights of water users, like the Tribe, whose rights may be affected by an application for determination of a water right. The Tribe had a right to file a statement of opposition within the time prescribed in the statute, but failed to do so.
3. The Resume Notice and Publication in This Case Proceeded in Accordance with the Statute
Section 37-92-302(3)(a) sets out the requirements for resume notice and newspaper publication. It provides, in part:
Not later than the fifteenth day of each month, the water clerk shall prepare a resume of all applications in the water division which have been filed in his office during the preceding month. The resume shall give the name and address of the applicant, a description of the water right or conditional water right involved, and a description of the ruling sought.
(Emphasis added).
Section 37-92-302(3)(b) goes on to provide that "[n]ot later than the end of such month, the water clerk shall cause such publication to be made of each resume or portion thereof in a newspaper or newspapers as is necessary to obtain general circulation once in every County affected, as determined by the water judge."
Section 37-92-302(1)(b) and (c) provide a time period in which a party may file opposition statements:
(b) Any person, including the state engineer, who wishes to oppose the application, may file with the water clerk a verified statement of opposition setting forth facts as to why the application should not be granted or why it should be granted only in part or on certain conditions. . . .
(c) Such statement of opposition must be filed by the last day of the second month following the month in which the application is filed.
Section 37-92-302(3)(I)(D) sets forth the monthly means by which all the holders of water rights potentially affected by determinations of water right applications depend upon for notice, and they are bound thereby:
(D) On and after January 1, 2006, not later than the end of each month, the water clerk shall post a copy of the resume on the water court's web site. Not later than the end of such month, the referee or the water clerk shall send a copy of such resume by mail or electronic mail to any person who the referee has reason to believe would be affected. The water clerk shall notify each person who has requested a copy of the resume by submitting his or her name and electronic mail address to the water clerk of the availability of the resume on such web site. The water clerk shall maintain an electronic mailing list of such names and addresses, and a person desiring to have his or her name and address retained on the list shall resubmit the information by January 5.
(Emphasis added).
4. Application to this Case
In the case before us, the water clerk published notice of the consolidated application in Water Division No. 7's monthly-resume within the local newspaper, as provided by the 1969 Act. The monthly resume also appeared on the water court's web page at www.courts.state.co.us/courts/water/index.cfm.
As a result, the Southern Ute Tribe and all other water users on the stream received the requisite legal notice. The Tribe argued to the water court and now to us that it was also entitled to personal service under C.R.C.P. 4 and 19, in lieu of or in addition to resume notice. The Tribe is not entitled to personal service, nor must personal service be effectuated on any or all other water users on the stream who may be affected by the water court's determination of the Ditch Companies' water rights.
The General Assembly enacted the resume notice and newspaper publication procedure to serve the dual purpose of providing due process notice to all users of water rights on the stream, so they could decide whether to participate in the water court proceedings through filing a timely statement of opposition, and, whether or not they do so, bind them to the results of the adjudication. Williams v. Midway Ranches Prop. Owners' Ass'n, Inc., 938 P.2d 515, 524 (Colo. 1997).
The resume notice and newspaper publication procedure is equally applicable to federal reserved and tribal water rights as to Colorado prior appropriation water rights. See United States v. Bell, 724 P.2d at 641. In three cases vigorously litigated by our state to a successful conclusion, the United States Supreme Court has recognized and upheld the legal efficacy of Colorado's case-by-case adjudication method employing the resume notice and newspaper publication procedure, notifying and binding federal agencies and tribal water rights pursuant to the waiver of sovereign immunity Congress authorized through the 1952 McCarran Amendment. See United States v. Dist. Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971); United States v. Dist. Court for Water Div. No. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284 (1971); Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The unpractically or virtual impossibility of effectuating personal service on the owners of all water rights on a large steam system, such as the Colorado, South Platte, or Arkansas watersheds, underlies this statutory procedure.
In summary, the application for determination of a water right in this case involves whether an adjudicated priority decreed in a prior case encompasses wintertime stockwater use. Publication of the resume and newspaper notice in this case gave notice of the application to the Southern Ute Tribe, along with the holders of all other water rights on the Pine River, and conferred jurisdiction on the water court to adjudicate the application.
The 1969 Act does not require that every application for determination of a water right must result in assignment of a new priority date. An applicant who holds a prior adjudicated decree may file an application with the water court for review and determination of the scope and content of the prior decree. This is consistent with the General Assembly's overarching purpose that the Act be construed and administered consistent with the doctrine of prior appropriation. Empire Lodge Homeowners' Assn. v. Moyer, 39 P.3d 1139, 1146-47 (Colo. 2001).
C. Relation-Back Doctrine Applies to Belated Verification
Any person who desires a determination of a water right must file a "verified application" with the water clerk. § 37-92-302(1)(a). Statements of opposition to applications for a determination of a water right must be filed by the last day of the second month following the month in which the application was filed. § 37-92-302(1)(c).
Here, the Ditch Companies filed their application on March 25 but omitted a verification. On that same day, the Ditch Companies sent to the Tribe a copy of the application. The water clerk published notice of the application in the Durango Herald Newspaper in early April. At some point, the Ditch Companies realized their mistake in not verifying the application and one of them filed verification with the court on May 27. On June 30, the Tribe submitted its statement of opposition and motion to intervene.
The water court denied the Tribe's statement of opposition as untimely, finding the verification cured any defect and related back to the date of the original application pursuant to C.R.C.P. 15(c). Therefore, the last day for statements of opposition to be filed was May 31, a full month before the Tribe submitted their statement on June 30. The Tribe alleges that the failure of the Ditches to verify the application at the time of its filing violated statutory prerequisites for the matter to proceed, and cannot be cured by a later verification. Therefore, the verification did not "relate back," and the Tribe's statement of opposition fell within the time limits of section 37-92-302(1)(c). We disagree.
1. Amendments to Pleadings and Relation Back
C.R.C.P. 15 governs amendments to pleadings and relation back issues in water court proceedings, including amendments to applications. City of Thornton v. City of Fort Collins, 830 P.2d 915; 922-23 (Colo. 1992); United States v. Bell, 724 P.2d at 635. C.R.C.P. 15(c) provides that, when a claim asserted in an amended pleading "arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." See Thornton, 830 P.2d at 922 (holding that C.R.C.P. 15(c) operates to ensure interested parties are aware of the claims in the amendment from the date of the original application).
In Thornton, we held that an amendment to an application that did not change the source, amount and use of Poudre River water, but only differed in the number of diversions, properly related back to the date of the original application. Id. at 923. The initial application and the amendment both functioned to put those parties with interests on the river on notice. In contrast, we denied the relation back of the amendment in United States v. Bell, 724 P.2d at 639, because the source of the claimed water in the amendment differed from the original application. Due to this difference, insufficient notice was provided by the original application to parties who had interests in the water source newly designated by the amendment. Id.
2. Verification
The Tribe contends that the verification requirement of 37-92-302(1) must be strictly construed, and the unverified application should have been dismissed as improper because verification is a statutory requirement. However, in SL Group, LLC v. Go West Indus., Inc., 42 P.3d 637, 641 (Colo. 2002), we found that only the notice requirements of the 1969 Act must be strictly construed, in order to satisfy due process concerns. Id. ("It is an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality that all interested parties be given notice reasonably calculated, under all the circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections."); see also Closed Basin Land-owners Ass'n v. Rio Grande Water Conservation Dist., 734 P.2d 627, 634 (Colo. 1987) (applicant must strictly comply with notice provisions of the 1969 Act).
Lack of verification is a technical defect in an application, and "[g]enerally, courts should be flexible when ruling on a motion to amend pleadings and disregard technical errors not affecting the substantial rights of parties." Currier v. Sutherland, 215 P.3d 1155, 1161 (Colo.App. 2008), aff'd 218 P.3d 709 (Colo. 2009); see Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) (permitting late-filed verification of employment discrimination to relate back to original charge, even though the time for filing had expired); see also Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001) (federal rule requiring signature did not prevent later cure of a signature defect from relating back to date of original pleading).
C.R.C.P. 15 requires that "leave [to amend] shall be freely given when justice so requires." We have interpreted this phrase liberally:
Although leave to amend is not to be granted automatically, the court should not impose arbitrary restrictions on the application of the rule or exercise its discretion in a manner that undercuts its basic policy. Pleadings are not sacrosanct, Brown v. Schumann, 40 Colo.App. 336, 339, 575 P.2d 443, 445 (1978), and amendments thereto should be granted in accordance with the overriding purposes of our rules of civil procedure — "to secure the just, speedy, and inexpensive determination of every action." C.R.C.P. 1(a). The United States Supreme Court in Foman v. Davis, 371 U.S. 178 [ 83 S.Ct. 227, 9 L.Ed.2d 222] (1962), outlined the dominant considerations applicable to the resolution of requests for amendatory pleading: "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'"Varner v. District Court, 618 P.2d 1388, 1390 (Colo. 1980).
3. Application to this case
The belated verification the Ditch Companies filed did not change the amount, the source, or the use of the water claimed in the original application. Cf. United States v. Bell, 724 P.2d at 639. The amendment only served to verify the application previously filed. See Black's Law Dictionary 1698 (9th ed. 2009) (purpose of verification is to confirm truth or correctness of pleading by affidavit or oath). The Tribe cannot claim lack of notice due to the absence of verification, as the water resume provides notice of all pending water rights applications to interested parties on the stream, regardless of whether the application was verified at the time of filing. See § 37-92-302(3) (describing the content of the resume). Not only did the Tribe receive resume notice, it received actual notice of the contents of the application on the day the Ditch Companies filed the original application.
C.R.C.P. 15(c) allows amendments to relate back to the date of the original pleading so long as the interested parties received notice of the amended claim at the time of the original pleading. See United States v. Bell, 724 P.2d at 635; Thornton, 830 P.2d at 915. The amendment in this case satisfied the notice requirement and the water court properly disallowed the Tribe's statement of opposition, which was filed a month late, for non-compliance with the time frame specified in section 37-92-302(1)(c).
D. The Water Court Did Not Abuse Its Discretion in Denying Intervention
On the same day it filed its untimely statement of opposition, the Tribe filed a motion to intervene in this case. The water court denied this motion because the Tribe did not meet the statutory requirements for intervention under section 37-92-304(3). The court denied the intervention motion and dis-allowed its untimely statement of opposition. We find no abuse of discretion.
1. Requirements for Intervention
Section 37-92-304(3) provides that
[a]ny person may move to intervene in proceedings before the water court upon paying of a fee . . . and upon a showing of mistake, inadvertence, surprise, or excusable neglect or to support a referee's ruling. The water court shall grant the motion to intervene only if intervention is sought no less than thirty days before any pretrial conference . . . and if intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.
(Emphasis added). Thus, a party may move to intervene upon a showing of mistake, inadvertence, surprise or excusable neglect. Upon such a showing, the court must grant the motion if the request is made at least 30 days before any pre-trial conference, and no undue delay or prejudice will arise. If the party seeking intervention is unable to demonstrate excusable neglect or any of the other prerequisites to intervention, the water court does not abuse its discretion in denying intervention.
To warrant intervention for excusable neglect, the circumstances must show that "there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident." Farmers Ins. Group v. Dist. Court, 181 Colo. 85, 507 P.2d 865, 867 (1973). Therefore, in the absence of "personal tragedy, illness, family death, destruction of files, or other similar situations which would cause a reasonably prudent person to overlook a required deadline," failure to meet a deadline is not excusable neglect. Id.
In SL Group, 42 P.3d at 641, we construed the excusable neglect requirement in the 1969 Act as an extension of due process notice concerns. While "excusable neglect" is not defined by statute, "it is clearly an element of a statutory scheme designed . . . to increase the likelihood that parties actually affected by the adjudication will have a meaningful opportunity to be heard, despite the statute's abandonment of a requirement of personal service." Id. There, contrary to the water clerk's responsibilities under section 37-92-302(3), the clerk failed to mail the application to a person who owned property the ditch ran through. Under the circumstances, because a reasonably careful person would not have been notified of the action, we held that the landowner's failure to file a timely protest was due to excusable neglect. Id. at 642.
2. The Water Court Did Not Err
Whether the Tribe met the criteria for intervention in this matter is a question we review for an abuse of discretion. In re K.L.O-V., 151 P.3d 637, 642 (Colo.App. 2006). Abuse of discretion occurs only if the water court's decision is manifestly arbitrary, unreasonable, or unfair under the circumstances. Municipal Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA Inc., 990 P.2d 701, 710 (Colo. 1999).
The Tribe argues that its failure to file a timely statement of opposition was due to excusable neglect, because it believed the Ditch Company was filing a declaratory judgment action that was subject to the personal service requirements of C.R.C.P. 19 and 4. However, whatever it may have assumed, the application in this case plainly qualifies under the water right determination provisions of 37-92-302(1)(a) and the resume and newspaper publication provisions of section 37-92-302(3)(a). Therefore, as a matter of law, the water court obtained jurisdiction to enter a judgment on an application that affected the relative priorities of all water rights decreed to structures on the Pine River.
Unlike the petitioners in SL Group, 42 P.3d at 641, the Tribe received actual and resume notice of the application, and it acknowledged the existence of this application in its consent to place the Winter Applications on hold pending the outcome of this case. In its order denying the intervention, the water court determined that the Tribe's allegations of mistake, surprise, inadvertence, and excusable neglect were factually unfounded by any evidence that meets the criteria for intervention specified in section 37-92-304(3).
After finding the Tribe did not demonstrate excusable neglect, the court also noted that granting the Tribe's motion to intervene would result in undue delay or prejudice to the Ditch Companies. The Division Engineer's consultation report, filed before the Tribe's motion to intervene, set out the basis for a recommended judgment that the two previously adjudicated decrees contained priorities for year round stockwater and domestic use, including wintertime use. In denying the Tribe's motion to intervene, the water court found that "the Division Engineer and the Applicant have worked to resolve the outstanding issues in this and three other cases" and "the intervention would frustrate the legislative intent of expediency and finality." If the court were to grant the motion, "the matter will not likely be resolved for at least one to two years and the Applicant will be required to spend tens of thousands of dollars on a trial and related work to get the result they have already agreed upon with the Division Engineer."
Pursuant to section 37-92-302(4) the Division Engineer has a statutory role and a duty to consult with and advise the water court regarding the contents of the application. Under water court rule 6(e), the referee "shall institute consultation with the division engineer in every case promptly after the last day for filing statements of opposition." The water judge is authorized by section 37-92-302(4) to act as the referee, as occurred in this case.
The General Assembly has prescribed in section 37-92-303(1) that the goals of the referee shall include a ruling on each unopposed application, within sixty days after the last day on which statements of opposition may be filed, and all other applications as promptly as possible. See Rule 6(e), Uniform Local Rules for All State Water Court Divisions. Thus, both the statute and the water court rules favor the just, speedy, cost efficient disposition of water court cases. Id.
The water court concluded that the Tribe failed to meet any of the statutory criteria for intervention and could not cure, through its intervention motion, its failure to timely file a statement of opposition and participate prior to the referee's ruling.
In light of the facts and rationale the water court employed in its written ruling, we cannot say that denial of the intervention motion was manifestly arbitrary, unreasonable, or unfair. Municipal Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d at 710. The water court did not abuse its discretion in denying the Tribe's intervention motion and in disallowing its untimely statement of opposition.
III.
Accordingly, we affirm the water court's judgment.
Justice RICE dissents, and Justice COATS and Justice EID join in the dissent.