History often plays a role in water rights cases, and many tools are used for determining that history. But for the history of the Rocky Hill Seepage and Overflow Ditch, located in the San Luis Valley, what historic tools can be used in determining water rights isn’t cut and dry.
The case, Mike and Jim Kruse Partnership v. Craig Cotten, Division Engineer, Water Division 3, dealt with the question of whether water flowing into an irrigation ditch owned by the partnership was identified by the water court nearly 90 years ago. The Colorado Supreme Court on Jan. 25 reversed the decision of the lower court and effectively stopped the partnership from using an irrigation ditch. The court also eliminated the use of a 1936 photograph as evidence. The photograph was a large part of the water court’s determination of who owned the water rights, but for the Supreme Court, that photo was extrinsic.
The use of era photos in water cases are “absolutely” common, according to Steve Bushong, of Porzak Browning & Bushong and the ditch owner’s counsel. Testimonies, statements of claim, maps and filing statements are routinely used as evidence, and Bushong says he often uses aerial photos when he’s lucky enough to find “old enough versions.”
The aerial photo in question was taken three years after a 1933 water court decree surrounding the ditch and allows the viewer to see where the ditch was built, according to Bushong. While the court in 1933 may not have had the photograph, “it sure gives context to the testimony and decree in 1933 and the intent of the appropriators.” Both the 1936 photo, and a second photo taken in 1941, were given as joint exhibits by both parties in case. The 1941 photo was taken in a wet year and more clearly shows some of the water sources involved in the case.
Bushong said both parties stipulated to admissibility of the photos prior to the trial and relied on them. “Should the losing party really be able to then argue it was error for the water court to consider the very evidence it offered?” Bushong said in an interview with Law Week.
The ditch lies next to the La Garita Canal, and the canal was completed in 1884 to control flow of the La Garita Creek. The creek flows out of the mountains into the San Luis Valley, and as it travels from a steeper area in the mountains to a flatter plain, the creek created an alluvial fan with multiple channels. “Without human intervention, this water would spread across and saturate the land, and historically, that is what it did.”
But exactly when and why that water was changed is the crux of the case. By 1884, the east-flowing creek intersected perpendicularly with the north-running canal. At some point, possibly before 1914, a siphon was installed below the canal to funnel the creek beneath it and into another channel going east.
The water court in its 1933 decree combined several ditches into one — the one in question in the Supreme Court case. The decree doesn’t mention the siphon or creek by name, simply describing it as “waste, seepage and spring waters” that are independent and non-tributary to any natural running stream or water, according to the Supreme Court opinion, and noted three headgates existing on the ditch.
For many years, there was no question about water rights on the ditch. Then, in 2016, the U.S. Fish and Wildlife Service placed a call on the creek, and soon after the division engineer told the owners of the ditch they had no right to the water exiting the siphon because the 1933 decree named only waste, seepage and spring waters as sources, according to Supreme Court opinion.
In 2020, the water court based it’s finding for the Mike & Jim Kruse Partnership, partially relying on the aerial photo from 1936, which shows a channel taking water from the location where the siphon empties on the east side of the canal.
The engineers appealed the water court’s order, arguing the decree unambiguously excluded the creek as a source and the court erred in using the aerial photo to label the decree ambiguous, according to the Supreme Court opinion.
According to the Supreme Court’s opinion, the water court seized on the photo “grasping for guidance” and declared the decree ambiguous. In the final resolution of the water court on this matter, the court acknowledged that the decree didn’t include the creek as source of water for the ditch, but also found the decree was ambiguous to whether the creek was the intended source of the waters — and the ditch’s second headgate location, according to the Supreme Court opinion.
The decree described the location of the headgate, and the court ultimately reasoned that the decree language could also be “construed to place Headgate No. 2 in a variety of locations” — including at the siphon.
Then, according to the Supreme Court opinion, the water court used extrinsic evidence to the decree and concluded the second headgate was in fact right at the siphon in 1933. The water court used the 1936 photo and created an ambiguity: “If the headgate was decreed there, that would be an odd place for it unless Siphon water was intended as a source.” Further, the water court looked to more extrinsic evidence to determine whether the phrase “waste, seepage and spring waters” included the siphon water.
Bushong said the Supreme Court recognized the description of the headgate’s location as broad, but since the decree doesn’t eliminate the headgate as the siphon, it isn’t evidencing the headgate was there. And, he said that because the court doesn’t think it can look to the photograph, which, he argues, does place the headgate at the siphon, it went through a runaround to decide the headgate wasn’t at the siphon.
The water court also found it “highly unlikely that farmers appropriating water in an arid area such as the San Luis Valley would not appropriate all the water that became available to them.”
However, the Supreme Court opinion explains that the use of the 1936 photo “to definitively place” the headgate at the siphon in 1933 suggested that the siphon water was a decreed source. This, in turn, opened the door for further evidence extrinsic to the proceedings. “But the decree is unambiguous based on its text and the 1933 proceedings, so the photograph is irrelevant under any of the three possible interpretative methodologies.”
In reversing the water court’s decision, the Supreme Court noted that a conflict existed in its case law as to which materials a court may rely on when deciding if a decree is ambiguous or not. In some cases, the court may look beyond “the four corners of a decree only when the words on the page are ambiguous.”
No matter the method applied, the Supreme Court found that the creek water wasn’t issued to the ditch — and since the 1936 photo was extrinsic to the proceedings that birthed the decree, the water court erred in relying on it to characterize the decree as ambiguous.
“Under any of the three interpretive approaches, evidence extrinsic to the underlying proceedings is admissible only after a finding of ambiguity, not to create the ambiguity.” However, by placing the second headgate at the siphon, this created the ambiguity that the headgate was decreed there, as it would be an “odd place for it” unless the siphon water was intended as a source.
The court cited the case Select Energy Servs. V. K-LOW LLC, which states that any individual holding a water right may request that the water right be “memorialized in a water decree.” As a result, the decree itself recognizes the scope of a water right and any asserted right “must appear on the face of the decree.”
“So, if the [p]artnership has an enforceable right to the [s]iphon water, that right must derive from the [d]ecree,” the opinion states. However, the parities disagreed about how to read decrees and if they could look to extrinsic evidence. The opinion also states that in interpreting water decrees, a court “looks first” to the plain language of the decree and this step can be the first and last, unless “the decree is facially ambiguous.”
But, the opinion states that no matter if the court limited the inquiry to the text, sweep in the statements of claim and transcripts of testimony, or examine all material before the 1933 court, “we conclude that the decree unambiguously excludes the creek water.” Because the decree is unambiguous under all those methods, the water court erred in looking to the 1936 photo.
However, Bushong is concerned by the implications of the Supreme Court’s opinion.
“The ruling creates confusion on the legal standards, overruled factual findings supported by the record and creates more problems for the [Rocky Hill ditch] owners because the water will still flow into their ditch, they just cannot apparently use it anymore,” Bushong said.
In this instance, Bushong said that the state essentially created an ambiguity by changing historical administration and claiming the water that flowed into the ditch was no longer the lawful source of the ditch. Turning to law, the owner was able to prove in water court that the intent of the appropriators and the facts birthing the decree was to capture all the water. And intent of the appropriators is one of the legal standards that applies in interpreting old decrees.
The Supreme Court ultimately concluded the 1933 decree and proceedings “unambiguously” excluded the creek water previously flowing through the siphon and reversed the court’s order. The text of the decree “categorically excludes” siphon water as a source for the ditch, and the proceedings exposed no ambiguities that required the court to doubt their construction of the decree.
“So ends our work: Under any of the three available approaches to decree interpretation, courts may not look at evidence extrinsic to the original proceedings, when, given the admissible materials, the decree is reasonably susceptible to only one interpretation,” the opinion states.
— Avery Martinez