attorneys for applicant-appellant, coors brewing company ......molson coors brewing company 1801...

SUPREME COURT, STATE OF COLORADO 2 East 14th Avenue Denver, Colorado 80203

▲ COURT USE ONLY ▲

Appeal from District Court, Water Division 1 The Honorable James F. Hartmann Case No. 15CW3179

Applicant-Appellant: COORS BREWING COMPANY

v.

Opposers-Appellees: CITY OF GOLDEN; CENTENNIAL WATER AND SANITATION DISTRICT; CITY AND COUNTY OF DENVER; CITY OF ARVADA; CITY OF BLACK HAWK; CITY OF NORTHGLENN; CITY OF THORNTON; CITY OF WESTMINSTER; CLIMAX MOLYBDENUM COMPANY; FARMERS HIGH LINE CANAL AND RESERVOIR CO.; FRICO; PUBLIC SERVICE COMPANY OF COLORADO; STATE AND DIVISION ENGINEERS; TOWN OF GEORGETOWN Attorneys for Applicant-Appellant, Coors Brewing Company: Stephen H. Leonhardt (#15122) Courtney M. Shephard (#47668) Morgan L. Figuers (#46427) BURNS, FIGA & WILL, P.C. 6400 South Fiddler’s Green Cir., Suite 1000 Greenwood Village, CO 80111 (303) 796-2626 [email protected] [email protected] [email protected] Samuel Walker (#34517) MOLSON COORS BREWING COMPANY 1801 California Street, Suite 4600 Denver, CO 80202 (303) 927-2164 [email protected]

Case No. 17SA________

NOTICE OF APPEAL

DATE FILED: March 16, 2017 4:45 PM

2

Appellant, Coors Brewing Company (“Coors”), by and through its attorneys,

hereby provides its Notice of Appeal pursuant to Rules 3 and 4 of the Colorado

Appellate Rules.

I. NATURE OF THE CASE

A. Nature of the controversy.

Beginning in the 1970s, Coors adjudicated three augmentation plans that

allow Coors to divert and store water from Clear Creek for its Golden brewery

operations. The augmentation plan decrees provide that when Coors diverts water

from Clear Creek out of priority, Coors must deliver additional water to Clear

Creek to replace the depletions to the stream. The required replacement water

deliveries allow Coors to divert and consume water outside of the priority system

without injuring other water users. Coors does not always consume all of the water

that it diverts and replaces under its augmentation decrees and, as a result, it

sometimes generates effluent from using the diverted water. This effluent is extra

water that Coors is not required to deliver to the stream to fulfill the replacement

obligations specified in its augmentation decrees. Coors has leased this effluent to

other water users because it has already compensated Clear Creek for consumption

of this water.

3

This appeal involves the application Coors filed in December 2015 to amend

its three augmentation plans decreed in Consolidated Case Nos. W-8036(75) and

W-8256(76), Case No. 89CW234, and Case No. 99CW236, Water Division 1

(collectively, the “Coors Augmentation Decrees”). Coors applied for an

amendment to add explicit rights of reuse, successive use, and disposition for the

effluent that Coors generates by using the fully augmented diversions of water that

it makes pursuant to the terms and conditions of its Augmentation Decrees.1 On

November 4, 2016, the Water Court entered an order holding that, as a matter of

law, Coors may not amend its Augmentation Decrees to add explicit rights of reuse

or successive use for its effluent, but that Coors must obtain such rights by

adjudicating a new, independent appropriation. Coors appeals that holding to this

Court.

B. Order Being Appealed and Basis for Appellate Jurisdiction

Coors appeals the holding in the Water Court’s November 4, 2016 Order re:

City of Golden’s Motion to Dismiss or Alternatively Motion for Determinations of

Questions of Law and Coors Brewing Company’s Cross-Motion for Determination

of Question of Law (“November 2016 Order”; attached hereto as Exhibit A) that

1 In the same application, Coors requested an absolute and conditional right of exchange, which is not at issue in this appeal.

4

Coors may not amend its Augmentation Decrees to add explicit rights of reuse or

successive use for the effluent that Coors generates by using its fully augmented,

out-of-priority diversions, but that Coors must instead adjudicate a new,

independent appropriation to use its effluent.

The November 2016 Order ruled on a motion filed by the City of Golden

(“Golden”) and a cross-motion filed by Coors. Golden filed a Motion to Dismiss

or Alternatively Motion for Determinations of Questions of Law on July 18, 2016,

requesting that the Water Court dismiss Coors’s application pursuant to C.R.C.P.

12(b)(5) or, in the alternative, determine under C.R.C.P. 56(h) that (1) Coors must

obtain a change of use and place of use to reuse and successively use its effluent

and (2) it is appropriate for the Water Court to address any overdraft associated

with previous changes in Coors’s replacement water rights in Case No.

15CW3179. Coors filed both a response and a cross-motion seeking a

determination under C.R.C.P. 56(h) that the Water Court may not reconsider or

requantify the water rights decreed as replacement sources in the Coors

Augmentation Decrees because the historical consumptive use of those water

rights was quantified in the same proceedings and, therefore, requantification is

prohibited under C.R.S. § 37-92-305(3)(e). In the November 2016 Order, the

Water Court declined to dismiss Coors’s application or to enter the legal

5

determinations sought by either Golden or Coors. Instead, the November 2016

Order concluded that, as a matter of law, Coors may not amend its Augmentation

Decrees to add explicit rights of reuse or successive use for the effluent that Coors

generates by using its fully augmented, out-of-priority diversions, but that Coors

may only obtain such rights through a new, independent appropriation.

Coors is appealing the Water Court’s conclusion in the November 2016

Order that, as a matter of law, Coors may not add explicit rights of reuse or

successive use for the effluent that Coors generates by using its fully augmented,

out-of-priority diversions by amending the Coors Augmentation Decrees, but that

Coors may only obtain such rights through a new, independent appropriation.

Coors does not appeal the Water Court’s other holdings in the November 2016

Order regarding Golden’s motion to dismiss Coors’s application and Golden’s and

Coors’s cross-motions for determinations of questions of law. The Division 1

Water Court certified the November 2016 Order as a final judgment pursuant to

C.R.C.P. 54(b) in an order entered on January 27, 2017 (attached hereto as Exhibit

B).

The Colorado Supreme Court has jurisdiction over this appeal pursuant to

Colorado Appellate Rule 1(a)(2), which provides for an appeal from a “judgment

and decree, or any portion thereof, in a proceeding concerning water rights,” and

6

C.R.S. § 13-4-102(1)(d), which excludes “water cases involving priorities or

adjudications” from the jurisdiction of the Colorado Court of Appeals.

C. Whether the Order Resolved All Issues Pending Before the Water Court Including Attorney’s Fees and Costs.

The November 2016 Order did not resolve all issues pending before the

Water Court in Case No. 15CW3179. The November 2016 Order effectively

denied Coors’s first claim for relief—for an amendment to the Coors

Augmentation Decrees—which is the subject of this appeal. However, the

November 2016 Order did not make a determination regarding Coors’s second

claim for relief—for an absolute and conditional right of exchange. No request for

an award of attorney’s fees or costs has been made in Case No. 15CW3179.

D. Whether the Judgment Was Made Final for Purposes of Appeal Pursuant to C.R.C.P. 54(b).

On January 27, 2017, the Water Court entered the Order Certifying Final

Judgment, which certifies the Water Court’s November 2016 Order as a final

judgment pursuant to C.R.C.P. 54(b).

E. Date of Order.

The Water Court entered the Order on November 4, 2016, and certified the

Order as a final judgment under C.R.C.P. 54(b) by order entered on January 27,

2017.

7

F. Whether Any Extensions Were Granted to File Motions for Post-Trial Relief.

A trial was not held in Case No. 15CW3179. Accordingly, no extensions to

file motions for post-trial relief have been filed or granted because post-trial relief

is not applicable.

G. Date Any Motion for Post-Trial Relief Was Filed.

Not applicable.

H. Date Any Motion for Post-Trial-Relief was Denied Under C.R.C.P. 59(j).

Not applicable.

I. Whether an Extension was Granted to File a Notice of Appeal.

No extensions were requested or granted to file a notice of appeal.

II. ADVISORY LISTING OF THE ISSUES TO BE RAISED ON APPEAL

A. Whether the Water Court erred in holding that, as a matter of law,

Coors may not add explicit rights of reuse or successive use for the

effluent Coors generates from its fully augmented, out-of-priority

diversions by amending its Augmentation Decrees, and that Coors

may only obtain rights of reuse or successive use for its effluent from

such diversions through a new, independent appropriation.

8

B. Whether the Water Court erred in concluding that the effluent or

return flows Coors generates by using its fully augmented, out-of-

priority diversions are subject to appropriation by other water users,

like return flows from in-priority diversions of native water.

C. Whether the Water Court erred in interpreting Coors’s Augmentation

Decrees to require permanent dedication of effluent or return flows to

the stream, even when not needed to offset or replace out-of-priority

depletions that have been fully augmented.

III. TRANSCRIPT

The Water Court did not hold any hearings in connection with its November

2016 Order on motions. Therefore, there are no transcripts of any argument or

evidence presented before the Water Court in Case No. 15CW3179.

IV. WHETHER THE ORDER ON REVIEW WAS ISSUED BY A MAGISTRATE WHERE CONSENT WAS NECESSARY. Not applicable to Case No. 15CW3179.

9

V. NAMES AND CONTACT INFORMATION FOR ALL COUNSEL FOR THE PARTIES

Attorneys for Applicant-Appellant, Coors Brewing Company: Stephen H. Leonhardt (#15122) Courtney M. Shephard (#47668) Morgan L. Figuers (#46427) Burns, Figa & Will, P.C. 6400 S. Fiddler’s Green Circle, Suite 1000 Greenwood Village, CO 80111 (303) 796-2626 [email protected] [email protected] [email protected] Samuel Walker (#34517) Molson Coors Brewing Company 1801 California Street, Suite 4600 Denver, CO 80202 (303) 927-2164 [email protected] Attorneys for Opposer-Appellee City of Golden: Glenn Edward Porzak (#2793) Steven J. Bushong (#21782) Corina A. Hach (#47783) Porzak Browning & Bushong LLP (303) 443-6800 [email protected] [email protected] [email protected]

mailto:[email protected]







10

Attorneys for Opposer-Appellee Centennial Water and Sanitation District Veronica A. Sperling (#14310) Paul F. Holleman (#21888) Buchanan Sperling & Holleman PC (303) 431-9141 [email protected] [email protected] Attorneys for Opposer-Appellee City and County of Denver Casey S. Funk (#11638) Daniel John Arnold (#35458) Denver Water (303) 628-6460 [email protected] [email protected] Attorneys for Opposer-Appellee City of Arvada Steven P. Jeffers (#17858) Madoline Wallace-Gross (#32255) Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, PC (720) 726-3671 [email protected] [email protected] Attorneys for Opposer-Appellee City of Black Hawk Harvey W. Curtis (#8246) David L. Kueter (#26136) Harvey W. Curtis & Associates (303) 292-1144 [email protected] [email protected]









11

Attorneys for Opposer-Appellee City of Northglenn Brent A. Bartlett (#23093) Donald E. Frick (#39406) Fischer, Brown, Bartlett & Gunn, P.C. (970) 407-9000 [email protected] [email protected] Attorneys for Opposer-Appellee City of Thornton William A. Hillhouse II (#2959) John P. Justus (#40560) Hoskin Farina & Kampf (970) 986-3400 [email protected] [email protected] Attorneys for Opposer-Appellee City of Westminster Lee H. Johnson (#18852) Mason H. Brown (#44831) Carlson, Hammond & Paddock, L.L.C. (303) 861-9000 [email protected] [email protected] Attorneys for Opposer-Appellee Climax Molybdenum Company Brian M. Nazarenus (#16984) Sheela S. Stack (#32768) Ryley Carlock & Applewhite (303) 863-7500 [email protected] [email protected] Attorney for Opposer-Appellee Farmers High Line Canal and Reservoir Co. Brice Steele (#26265) Law Offices of Brice Steele, P.C. (303) 659-3171 [email protected]










12

Attorneys for Opposer-Appellee FRICO Joseph B. Dischinger (#12240) Beth Ann J. Parsons (#32128) Fairfield and Woods, P.C. (303) 830-2400 [email protected] [email protected] Attorneys for Opposer-Appellee Public Service Company of Colorado Carolyn F. Burr (#25978) James M. Noble (#36716) Jens Jensen (#47471) Welborn Sullivan Meck & Tooley, P.C. (303) 830-2500 [email protected] [email protected] [email protected] Attorneys for Opposer-Appellee State and Division Engineers Jeffrey N. Candrian (#43839) Michael S. Toll (#44087) Office of Colorado Attorney General (720) 508-6288 [email protected] [email protected] Attorneys for Opposer-Appellee Town of Georgetown Cynthia F. Covell (#10169) Andrea L. Benson (#33176) Alyson K. Scott (#41036) Alperstein Covell, P.C. (303) 894-8191 [email protected] [email protected] [email protected]







mailto:michael.toll@coag.




13

VI. APPENDIX

Copies of the November 4, 2016 Order and the January 27, 2017 Order

Certifying Final Judgment are attached hereto as Exhibits A and B, respectively.

Respectfully submitted this 16th day of March, 2017. BURNS, FIGA & WILL, P.C. (Original signature on file

at Burns, Figa & Will, P.C.)

By: S/ Stephen H. Leonhardt

Stephen H. Leonhardt Courtney M. Shephard Morgan L. Figuers

Attorneys for Appellant, Coors Brewing Company

14

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 16th day of March, 2017, a true and correct copy of the above and foregoing NOTICE OF APPEAL was served on the following via CO-Court E-Filing or by depositing a copy of same in the United States mail, postage prepaid, addressed as follows:

Paul F. Holleman, Esq. Veronica A. Sperling, Esq. Buchanan Sperling and Holleman PC Attorneys for Centennial Water and Sanitation District

Madoline Wallace-Gross, Esq. Steven P. Jeffers, Esq. Lyons Gaddis Kahn Hall Jeffers Dworak and Grant PC Attorneys for City of Arvada

Casey S. Funk, Esq. Daniel J. Arnold, Esq. Denver Water Attorneys for City and County of Denver

David L. Kueter, Esq. Harvey W. Curtis, Esq. Harvey W. Curtis and Associates Attorneys for City of Black Hawk

Glenn E. Porzak, Esq. Steven J. Bushong, Esq. Corina A. Hach, Esq. Porzak Browning & Bushong LLP Attorneys for City of Golden

John P. Justus, Esq. William A. Hillhouse, Esq. Hoskin Farina and Kampf PC Attorneys for City of Thornton

Donald E. Frick, Esq. Brent A. Bartlett, Esq. Fischer Brown Bartlett and Gunn PC Attorneys for City of Northglenn

Brice Steele, Esq. Law Offices of Brice Steele PC Attorneys for Farmers High Line Canal and Reservoir Co.

Lee H. Johnson, Esq. Mason H. Brown, Esq. Carlson Hammond & Paddock LLC Attorneys for City of Westminster

Brian M. Nazarenus, Esq. Sheela S. Stack, Esq. Ryley Carlock & Applewhite Attorneys for Climax Molybdenum Co.

Beth Ann J. Parsons, Esq. Joseph B. Dischinger, Esq. Fairfield and Woods PC Attorneys for FRICO

Andrea L. Benson, Esq. Cynthia F. Covell, Esq. Alyson K. Scott Alperstein Covell PC Attorneys for Town of Georgetown

15

Carolyn F. Burr, Esq. James M. Noble, Esq. Jens Jensen, Esq. Welborn Sullivan Meck & Tooley PC Attorneys for Public Service Co. of Colorado

Jeffrey N. Candrian, Esq. Michael S. Toll, Esq. Colorado Attorney General’s Office Attorneys for the State and Division Eng.

(Original signature on file at Burns, Figa & Will, P.C.)

By: /s/ Carole L. Wilds Carole L. Wilds

DISTRICT COURT, WATER DIVISION 1, STATE OF COLORADO 901 9th Avenue P.O. Box 2038 Greeley, CO 80632

▲ COURT USE ONLY▲

CONCERNING THE APPLICATION FOR WATER RIGHTS OF COORS BREWING COMPANY, IN JEFFERSON, ADAMS, AND WELD COUNTIES

Case No: 15CW3179 Div.: 1

ORDER RE: CITY OF GOLDEN’S MOTION TO DISMISS OR

ALTERNATIVELY MOTION FOR DETERMINATIONS OF QUESTIONS OF LAW AND COORS BREWING COMPANY’S CROSS-MOTION FOR

DETERMINATION OF QUESTION OF LAW

This matter comes before the court on a Motion to Dismiss or Alternatively

Motion for Determinations of Questions of Law filed by the City of Golden (Golden).

Adolph Coors Brewing Company (Coors) filed a response and cross-motion for determination of question of law. Golden filed a reply to its motion and a response to

Coors’s cross-motion. The City of Thornton (Thornton) filed notice of joinder to

portions of Coors’s response and a response to Coors’s cross-motion. Coors was granted leave to file a sur-reply to Golden’s reply. Coors also filed a reply in support of its cross-motion. The motion and cross-motion are now fully briefed. The court has considered the motions, responses, and replies and now enters the following findings and conclusions.

Golden seeks in its motion either a dismissal of Coors’s application for failure to state a claim for relief, pursuant to C.R.C.P. 12(b)(5), or in the alternative

determinations of questions of law. Coors seeks determination of questions of law in

its cross-motion.

DATE FILED: November 4, 2016 12:24 PM CASE NUMBER: 2015CW3179

Exhibit A to Notice of Appeal Page 1 of 19


With regard to Golden’s motion to dismiss, the court finds that Coors’s application presents proper claims for relief to reuse or successively use return flows after Coors’s first use of the water; however, as explained in more detail later in this order, an amendment to the application is not the proper method to obtain the right to reuse or successively use the water in this case, and instead Coors must seek an independent water right. Several questions of law have been presented by the parties in their respective pleadings. First, the parties ask the court to determine whether Coors may simply amend an existing decree to allow return flows from fully augmented out-of-priority diversions to be reused or successively used, as proposed by Coors, or instead must Coors obtain a new water right to reuse or successively use the return flows after the

first use of the water, as argued by Golden. For the remainder of this order, the court

will refer to the water rights Coors seeks as “re-use” or “reuse” for ease of reference, with the understanding that Coors seeks the right to reuse, successively use, and

completely consume the return flows remaining after its first use of the water. The

court finds that if the procedure suggested by Coors is approved by the court, Coors would be entitled to reuse return flows that are “waters of the state,” C.R.S. § 37-92-

303(13), and are subject to appropriation by other water users, when Coors neither

included such claims in its initial augmentation plan applications nor proved that it would place return flows to beneficial use at the time the original decrees were issued. Coors may not obtain the right to reuse return flows through an amendment to its

decreed augmentation plans, but instead may only obtain the right to reuse return flows by adjudicating a new water right.

Next, Golden requests a legal determination from this court that Coors must seek a change of the water rights it uses as replacement sources in its augmentation

plans before Coors may reuse return flows. Golden further requests this court to rule

that certain water rights Coors uses as replacement sources, which involved the quantification of historical consumptive use in previous court cases, must be re-quantified to address any potential overdraft that Coors may have received since the

change of use decrees were issued. The court disagrees with Golden’s position on this


legal question. The application filed in the present case does not seek to modify the sources, amount, or use of the replacement water used by Coors in the augmentation plan. Rather, the water Coors now seeks to beneficially use—the effluent returning to the stream after Coors’s first use of the water—involves a new appropriation, rather than a change of use of an existing water right. Thus, there is no need to revisit or re-quantify the water sources used by Coors in its augmentation plans as part of this case.

Finally, Golden asserts that Coors’s resume notice failed to provide other water users with a sufficient description of the water rights sought by Coors, and therefore, as a matter of law, the court lacks jurisdiction over Coors’s application. The court disagrees with Golden and finds that Coors’s resume notice sufficiently satisfied the

inquiry standard because it placed potential opposing parties on notice that their own

water rights may be injured by the re-use of return flows by Coors. I. BACKGROUND

In the 1960s and 1970s, Coors acquired water rights in agricultural ditches,

transmountain sources, and nontributary water sources in an effort to secure

adequate water supplies for its then-existing and future operations. These water

sources were obtained to serve, in part, as replacement sources in augmentation plans developed by Coors. Coors obtained a decree for the Coors Augmentation Plan I in consolidated cases W-8036(75) and W-8256(76), to replace depletions from out-

of-priority surface water and ground water diversions. Coors later adjudicated two additional augmentation plans—Coors Augmentation Plan II (Case No. 89CW234)

and Coors Augmentation Plan III (Case No. 99CW236)—to further ensure that Coors has access to sufficient water supplies to sustain its brewing operations

during fluctuating economic and climatic conditions. Coors diverts a significant

amount of the water it uses at the brewery from tributary wells operating near the plant, and because these wells are junior in priority to many other water rights existing along the South Platte River, Coors replaces depletions through its

augmentation plans. Coors utilizes other junior water rights in its operations that


also require Coors to replace out-of-priority diversions through the augmentation plans.

Beginning in 1977, shortly after the Coors Augmentation Plan I decree was issued, Coors developed a program to lease effluent generated from the first use of water to other water users. Coors keeps detailed accounting records listing the amount of water it diverts out of priority, the amount of water it places into the stream to replace out-of-priority depletions, and the quantity of effluent returned to the stream after Coors’s first use of the water. Coors characterizes the return flows from its first use of the water and any amount of replacement water it places in the stream, above that which is necessary to account for its out-of-priority depletions, as “reusable effluent.” The court will refer to this category of water as effluent or

return flows in this order. Coors’s practice of leasing effluent to third parties

continued for decades, with approval from the State Engineer. In 2014, the State Engineer effectively halted Coors’s water leasing program

when he refused to approve a lease of effluent generated from the Coors

augmentation plans to Martin Marietta Materials, Inc. for use in a substitute water supply plan. This led Coors and Martin Marietta to file a motion for determination

of a question of law in Case No. 13CW3053, in which this court was asked to

determine whether a junior water user that diverts native water out of priority, but places an equal amount of replacement water into the stream pursuant to a decreed augmentation plan, has an implicit right to reuse the water diverted, even if the

junior water user’s decree does not specifically authorize re-use. Martin Marietta and Coors argued that fully augmented diversions are analogous to foreign water

imported into a stream system, thereby rendering the diverted water fully consumable through re-use. The court disagreed with Martin Marietta and Coors’s

characterization of the water. Instead, the court concluded that a junior water user

that diverts water out of priority under a decreed augmentation plan does not have an implicit right to reuse return flows from native water sources, and the re-use of native water return flows may only occur if the decree specifically authorizes such

use. Order re: Motion for Determination of Question of Law Filed by Martin


Marietta Materials, Inc. and Coors Brewing Company, and Cross-Motion for Determination of Question of Law Filed by State and Division Engineers, 13CW3053, p. 5 (Water Div. 1, Aug. 27, 2015). Because the questions raised in the pleadings by the parties in the present action are so closely related to the court’s ruling in 13CW3053, the court will attach a copy of the 13CW3053 ruling to this order for ease of reference.

In response to the court’s ruling in 13CW3053, Coors now requests an amendment to its existing augmentation plan decrees to authorize re-use of effluent remaining after Coors’s first use of the water at the brewery. The amendment proposed by Coors to its three augmentation plans reads as follows:

Once Coors provides sufficient replacement water to the stream to fully

replace depletions from its out-of-priority diversions as provided in this decree, such diversions are fully consumable and may be reused by Coors at

the Golden Brewery or, at Coors’s discretion, successively used and disposed of by agreement to other water users at locations downstream from the

location of Coors’s effluent returns on Clear Creek or the South Platte River

in Jefferson County, Adams County, and Weld County, or by exchange to the Farmers High Line Canal or the Rocky Mountain Ditch, for any beneficial

uses allowed pursuant to this plan for augmentation, subject only to approval

of any augmentation plan that is needed for such other parties’ use. Coors believes this amendment would allow continuation of its long-standing

practice of leasing excess water, when available, to other water users at locations downstream from where the effluent accrues to Clear Creek. Golden objects to

Coors’s requested amendment, arguing that return flows belong to the stream system as a public resource and available for appropriation by other water users.

Golden asserts that Coors must apply for a separate water right before it may

lawfully reuse return flows. Golden also contends that this court lacks jurisdiction


due to deficiencies in Coors’s resume notice caused by a lack of clarity concerning the type of water right sought in the application.

II. ANALYSIS

A. Golden’s motion to dismiss

Golden asserts that Coors may not amend an existing augmentation plan

decree to add re-use of return flows, but may only receive such right through adjudication of a new water right. Because Coors seeks an amendment to an existing decree, rather than through an independent water right, Golden argues that Coors

has failed to state a claim upon which relief may be granted, and therefore the

application must be dismissed pursuant to C.R.C.P. 12(b)(b). The purpose of a motion to dismiss for failure to state a claim upon which relief

can be granted is to test the formal sufficiency of the complaint. Dunlap v. Colorado

Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992). Motions to dismiss for failure to state a claim under C.R.C.P. 12(b)(5) are “viewed with disfavor and are rarely

granted.” Id. at 1291 (quoting Davidson v. Dill, 180 Colo. 123, 131, 503 P.2d 157, 162

(1972)). A trial court may not dismiss a complaint for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the claim. In addition,

the allegations of the complaint must be viewed in the light most favorable to the

plaintiff. Id.

When passing on a motion to dismiss a complaint, the court may only consider the matters stated in the pleadings. Glover v. Southard, 894 P.2d 21 (Colo. App.

1994). The material allegations are deemed admitted and the motion to dismiss

should only be granted if plaintiff would not be entitled to relief under the facts pleaded. Id.

Although the court agrees with Golden that Coors must seek an independent right to reuse the return flows, rather than through an amendment to an existing decree, the court nevertheless finds that Coors’s application satisfies the requirements

for water court applications found at Rule 3, Uniform Local Rules for All State Water


Court Divisions (Water Court Rules). Moreover, it appears from the application that Coors is in a position to present facts in support of its claims.

Coors clearly articulates in the application that it is seeking the right to reuse, successively use, and dispose of the water rights used in the three augmentation plans decreed in Case Nos. W-8036(75), W-8256(76), 89CW234, and 99CW236. Coors included in the application the dates of the previous augmentation plan decrees, a description and location of the augmented structures involved the prior cases, the sources of augmentation water, and the location where replacement water is delivered to the stream. Coors also describes the beneficial uses to which the return flows would be applied, one of which involves continuing its long-standing practice of leasing excess return flows to other water users.

Coors provided sufficient information in the application to support its claim for

an independent water right to reuse return flows and Golden’s motion to dismiss the application is denied.

B. Motions for determination of questions of law

Having found that Coors’s application withstands Golden’s motion to dismiss,

the court next turns to Golden’s contention that Coors may not simply amend the

application to secure the right to reuse return flows, but instead must request an independent water right.

In support of its claim to amend its augmentation plans to allow re-use of

return flows, Coors places heavy emphasis on the fact that it fully replaces its out-of-priority diversions under the augmentation plans, and as a result the amount of water

available in the stream for use by other water appropriators remains the same. Based on this non-injury assertion, Coors again takes the position that out-of-priority

diversions that are fully replaced through operation of an augmentation plan are fully

consumable. According to Coors, because the water is fully consumable, Coors may gain the right reuse return flows by simply amending its decreed augmentation plans. Coors also believes that because an augmentation plan is not a water right, an


independent water right is not required for the re-use of return flows. The court disagrees with the arguments presented by Coors.

Under C.R.C.P. 56(h), “[a]t any time after the last required pleading, with or without supporting affidavits, a party may move for determination of a question of law. If there is no genuine issue of any material fact necessary for the determination of the question of law, the court may enter an order deciding the question.” C.R.C.P. 56(h). “The purpose of Rule 56(h) is, ‘to allow the court to address issues of law which are not dispositive of a claim (thus warranting summary judgment) but which nonetheless will have a significant impact upon the manner in which the litigation proceeds.’” Bd. of Cnty. Comm’rs of Cnty. of Arapahoe v. United States, 891 P.2d 952,

963 n. 14 (Colo. 1995) (quoting 5 Robert Hardaway & Sheila Hyatt, Colorado Civil

Rules Annotated § 56.9 (1985)). In reviewing a motion for determination of question of

law, a court may decline to enter an order deciding the question if there exists a

genuine dispute over any material fact necessary for the determination of the question of law. C.R.C.P. 56(h); Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011).

Coors’s argument that there is no cognizable expectation by other water users

to return flows from fully augmented diversions, and thus no injury, is quite similar to the issue addressed and rejected by the Colorado Supreme Court in Water Supply and

Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987). In Water Supply and Storage Co., the

applicant argued that other water users had no expectation of return flows that were reused or successively used by the applicant immediately after the applicant’s first use

of tributary water. Id. at 682-83. In ruling against the applicant, the Colorado

Supreme Court held that “once the beneficial use upon which a water right is based has taken place, any unconsumed waters remain ‘[w]aters of the state,’ . . . and are subject to ‘[a]ppropriation,’ . . . .” Id. at 683. Indeed, it is firmly implanted in Colorado water law that “water native to the stream system is limited to one use in that system and return flows belong to the stream system as part of the public’s resource, subject to appropriation and administration.” Burlington Ditch Reservoir & Land Co. v. Metro

Wastewater Reclamation Dist., 256 P.3d 645, 663 (Colo. 2011); see also City of

Thornton v. Bijou Irrigation Co., 926 P.2d 1, 65 (Colo. 1996) (the amount of water not


consumed through its decreed uses must be returned to the natural stream system, where it then becomes “subject to diversion and use under the appropriations and associated system of priorities existing on the stream.”). Because return flows belong to the stream, any re-use of return flows, without a decree authorizing such use, would constitute an unlawful enlargement of an appropriation by Coors. Santa Fe

Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46, 54 (Colo. 1999). Moreover, in order to reuse return flows from the first use of native water, Coors must establish all of the elements of an independent appropriation and obtain a decree as a separate water right. Id.

As made clear by the opinions in Water Supply and Storage Co., Burlington

Ditch Reservoir & Land Co., and Thornton, supra, there is no automatic right to

recapture and reuse native water after its initial application to beneficial use, even if the water is diverted out of priority and fully replaced under an augmentation plan.

An augmentation plan is designed to increase the amount of water available for

beneficial use within the system, C.R.S. § 37-92-103(9), and allows a water user to divert water outside of the priority system by replacing water to the stream to account

for the out-of-priority diversions. Williams v. Midway Ranches Prop. Owners Ass’n,

938 P.2d 515, 522 (Colo. 1997). The court agrees with Coors that an augmentation plan is not, itself, a water right because it merely provides the mechanism for

diverting water outside of the priority system, and thus the augmentation plan is not awarded a priority date. Empire Lodge Homeowner’s Ass’n v. Moyer, 39 P.3d 1139,

1155 (Colo. 2001). However, when native water is diverted by a water user, regardless

of whether the diversion occurs under the priority system or through operation of an augmentation plan, the water must be applied to a beneficial use. “Beneficial use” is the amount of water that is reasonable and necessary to accomplish the purposes of the appropriation. C.R.S. § 37-92-103(4). As relevant here, the beneficial uses to which Coors may apply the water are defined by the augmentation plan decrees and none of the decrees authorize Coors to reuse or successively use the return flows. To the contrary, each of Coors’s three augmentation plans specify that any amount of water not consumed during Coors’s initial use of the water must be returned to the stream.


See decrees entered in Case Nos. W-8036 and W-8256 at p. 16, Case No. 89CW234 at p. 35, and Case No. 99CW236 at p. 65. Clearly, the language found in Coors’s augmentation plan decrees recognize the established legal principle that native water is limited to a single use and all unused water must be returned to the stream, where it then becomes available for appropriation by other water users. Burlington Ditch

Reservoir & Land Co. 256 P.3d at 663. It was contemplated by Coors and the court when the augmentation plan

decrees were issued that Coors would return to the stream all water not consumed by Coors though its initial, decreed uses. The court finds that Coors may not now attempt to amend its existing decrees to add re-use of return flows, when Coors neither

claimed nor proved when originally litigating its augmentation plans that it would place return flows to beneficial use. Allowing Coors, or any other water user, to simply

amend an existing augmentation plan to allow return flows to be reused, when such

use currently does not exist, would result in return flows that have historically accumulated to, and belong to, the stream to precipitously be removed from the

priority system.

For the reasons expressed herein, the court concludes that Coors must establish all of the elements of an independent appropriation to obtain the right to reuse native

water return flows generated after Coors’s first use of the water.

C. Lack of jurisdiction due to deficiencies in resume notice

Golden also advances an argument that this court lacks jurisdiction over

Coors’s application because the resume notice failed to accurately describe the nature

of the application. Golden contends that Coors’s application is ambiguous because the Engineers had difficulty ascertaining the type of water right or relief claimed. According to Golden, it is likely that Coors deliberately filed the application in such a way to avoid the legal standards that would apply to a change in water right.

The court disagrees with Golden. Coors’s resume notice substantially complied with the legal standards set forth to place potential opposing parties on inquiry notice of the nature of the form of relief requested in the application.


To apply for or change a water right, an applicant must comply with Colorado’s resume notice requirements. C.R.S. § 37-92-302(3)(a). Resume notice must include “the name and address of the applicant, a description of the water right . . . involved, and a description of the ruling sought.” Id. An inquiry standard applies when determining the reasonableness of resume notice, which involves the court considering “whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings.” Burlington Ditch Reservoir & Land Co. 256 P.3d at 674–75. Accordingly, inquiry notice must provide “sufficient facts to attract the

attention of interested persons and prompt a reasonable person to inquire further,” such as those facts that a “reasonably diligent” inquiry would have disclosed. In re

Water Rights of Columbine Assocs., 993 P.2d 483, 490 (Colo. 2000). Alleged deficiencies

in resume notice justify invalidation “only if the resume taken as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of

the proposed diversion.” Id.

Here, Coors’s resume notice and application complied with Colorado’s legal requirements. The application included the applicant’s basic information, identified

the decreed augmentation plans involved, and stated the relief sought by Coors.

Because the language used in the application and resume notice described the requested provisions to allow for reuse, successive use, and disposition, any

reasonable, interested person would have been placed on notice to investigate further

as to whether their own water rights could be injuriously affected by the application. Even though Golden alleges that a lack of clarity makes it difficult to determine the

relief sought, as a whole, the resume and application provided adequate details regarding the relief Coors requests.

III. ORDER

Based on the foregoing, the court denies Golden’s motion to dismiss the application. The court concludes that Coors must obtain the right to reuse,


successively use, and dispose to depletion return flows from its first use of native water by fulfilling the requirements of a new water rights appropriation. Because Coors does not seek in this application to change the source, amount, location, or use of the water supplies designated as replacement supplies under its three decreed augmentation plans, Golden’s request that the court revisit or re-quantify the historical consumptive use of those sources of water is denied.

Dated: November 4, 2016 BY THE COURT _______________________________ James F. Hartmann Water Judge, Water Division One


of 7

DISTRICT COURT, WATER DIVISION 1 WELD COUNTY, COLORADO Weld County Courthouse 901 9th Avenue, P.O. Box 2038 Greeley, CO 80631 (970) 475-2400


CONCERNING THE APPLICATION FOR WATER RIGHTS OF MARTIN MARIETTA MATERIALS, INC., IN ADAMS AND JEFFERSON COUNTIES

Case No. 13CW3053 (Consol. Cases 90CW215 and

91CW47)

ORDER RE: MOTION FOR DETERMINATION OF QUESTION OF LAW FILED BY MARTIN MARIETTA MATERIALS, INC. AND COORS BREWING COMPANY, AND

CROSS-MOTION FOR DETERMINATION OF QUESTION OF LAW FILED BY THE STATE AND DIVISION ENGINEERS

This matter comes before the court on a Motion for Determination of Question of Law

filed jointly by Martin Marietta Materials, Inc. (“Applicant”) and Coors Brewing Company (“Coors”). The State and Division Engineers (“Engineers”) filed a response and a cross-motion for determination of questions of law. Consolidated Mutual Water Company (“Consolidated”) filed a response to both motions. The Applicant and Coors filed a response to the Engineers’ cross-motion for determination of questions of law and a reply to the Engineers’ response. The Engineers filed a reply to Coors and the Applicant’s response.

The motion and cross-motion are now fully briefed. The court has reviewed the

pleadings and attachments to the pleadings, and taken judicial notice of the contents of the file and the Water Division One cases cited by the parties in their pleadings.

The court finds that diverting water out of priority from the public stream system and

replacing the water under a decreed augmentation plan does not allow a junior water user to circumvent the firmly established rule of Colorado water law that an appropriation is limited to the amount of water the appropriator places to beneficial use. Because the native waters of streams belong to the public, any amount of water not beneficially used by Coors for the uses specified in its decrees must be returned to the stream system, thereby becoming available for use by other appropriators.

Attachment to

Order - 2

015CW3179


of 7

Moreover, the court concludes that the augmentation plans decreed in Case Numbers W-

8036, W-8256, 89CW234, and 99CW236 permit a single use of the native water diverted by Coors for any of the various purposes specified in those particular decrees, and the terms of those decrees do not authorize reuse or successive use of the water. Pursuant to the express provisions of those four decrees, Coors is required to return any unconsumed native water from Coors’s initial use back to the Clear Creek-South Platte stream systems. Therefore, Coors may not lease the effluent generated from the augmentation plans decreed in Case Numbers W-8036, W-8256, 89CW234, and 99CW236 to the Applicant unless Coors obtains or has obtained a subsequent decree authorizing reuse and/or successive use of the native water. Coors may, however, reuse and successively use non-native, non-tributary water that has been imported into the stream system.

I. BACKGROUND

The Applicant filed the application in this action to amend its plans for augmentation

decreed in Case Numbers 90CW215 and 91CW47. The proposed amendments to the augmentation plans would allow the Applicant to use up to 101.7 acre feet of water leased from Coors as a replacement source for the Applicant’s out-of-priority depletions. The water leased from Coors is effluent generated from Coors’s use of water diverted and fully augmented by Coors through its augmentation plans decreed in Case Numbers W-8036, W-8256, 89CW234, and 99CW236.

The Applicant and Coors jointly filed a motion for determination of law seeking a ruling

from the court that the effluent generated by Coors is fully augmented and therefore fully consumable, and thus can be reused and successively used by Coors to extinction. The Applicant and Coors also ask the court to determine as a matter of law that the Applicant may use the water leased from Coors as replacement water in the Applicant’s augmentation plan. Coors posits the theory that native stream water that is fully augmented at initial diversion is similar in character to foreign or developed water, thereby removing the water from the priority system. This, according to Coors and the Applicant, would allow Coors successive uses of the water to include, as in this instance, leasing its effluent to other water users. Coors also cites to the decrees entered in Case Numbers 02CW180, 04CW326, and 08CW82, each of which authorizes the City of Thornton to use water leased from Coors as a replacement source of water in Thornton’s augmentation plans, as authority for this principle.

Consolidated, through its response to the motion and cross motion, aligns with Coors and

the Applicant on this issue. The Engineers object to the Applicant’s use of Coors effluent as replacement water and

assert that the decrees approving the Coors augmentation plans do not specify that Coors may reuse or successively use the effluent from Coors’s initial use of the water. The Engineers

Attachment to

Order - 2

015CW3179


of 7

request the court to rule that Coors does not automatically acquire a right to reuse or successively use the water merely because its augmentation decrees are silent on this subject. Instead, the Engineers request this court find, as a matter of law, that Coors may only use the water in the manner specifically decreed in its three augmentation plans. Because the decrees do not authorize reuse or successive use of the water, the Engineers contend Coors may not lease effluent derived from native water to the Applicant as a replacement source in the Applicant’s augmentation plan.

II. LEGAL STANDARD

Under C.R.C.P. 56(h), “[a]t any time after the last required pleading, with or without

supporting affidavits, a party may move for determination of a question of law. If there is no genuine issue of material fact necessary for determination of the question of law, the court may enter an order deciding the question.” “The purpose of Rule 56(h) is to ‘allow the court to address issues of law which are not dispositive of a claim (thus warranting summary judgment) but which nonetheless will have a significant impact upon the manner in which the litigation proceeds.’” Bd. of Cnty. Comm’rs v. United States, 891 P.2d 952, 963 n.14 (Colo. 1995) (quoting 5 Robert Hardaway & Sheila Hyatt, Colorado Civil Rules Annotated § 56.9 (1985)). In reviewing a motion for determination of question of law, a court may decline to enter an order deciding the question if there exists a genuine dispute over any material fact necessary for the determination of the question of law. C.R.C.P. § 56(h); Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011).

III. ANALYSIS

The Applicant and Coors present a question of first impression to this court: whether a junior water user that diverts native water out of priority and fully replaces the water to the stream pursuant to a decreed augmentation plan may reuse or successively use the water, even if the junior water user’s decree does not specifically authorize reuse or successive use. The Applicant and Coors equate native water withdrawn from a stream that is fully replaced under an augmentation plan to developed, foreign, or non-tributary water, and thus they believe the water may be fully consumed, reused, or successively used. Even though the underlying water right decree does not specifically permit reuse or successive use of water, the Applicant and Coors believe an augmentation plan provides Coors an implied right to fully consume, reuse, or successively use water diverted out of priority from the stream up to the amount of replacement water Coors adds to the stream under the augmentation plan.

The court disagrees with the Applicant and Coors. It is undisputed that Coors diverts, at

least in part, water that is native and tributary to the Clear Creek and South Platte stream systems. The fact that Coors diverts native, tributary water out of priority by adding replacement

Attachment to

Order - 2

015CW3179


of 7

water to the stream under an augmentation plan does not change the character of the water diverted from native water to something akin to foreign, developed, or non-tributary water.

Article XVI, Section 6 of the Colorado Constitution provides in pertinent part that the

“right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” This section also entitles those with “priority of appropriation . . . the better right between those using the water for the same purpose.” Id. Water rights in Colorado are usufructuary in nature, thereby allowing use of the state’s waters subject to the prior appropriation doctrine. In re Revised Abandonment List of Water Rights in Water Div. 2, 276 P.3d 571, 575 (Colo. 2012). “A water right comes into existence only through application of the water to the appropriator's beneficial use; that beneficial use then becomes the basis, measure, and limit of the appropriation.” Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53 (Colo. 1999) (citing Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882). “‘Beneficial use’ means the use of 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 . . . .” C.R.S. § 37-92-103(4). After appropriating a water right, a water user must adjudicate the right in order to benefit from administration within the priority system. Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1149 (Colo. 2001).

Coors may only use the water for the beneficial uses that are specified in its decrees.

“The property right we recognize as a Colorado water right is a right to use beneficially a specified amount of water . . . that can be captured, possessed, and controlled in priority under a decree, to the exclusion of all others not then in priority under a decreed water right.” Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53 (Colo. 1999) (emphasis added). “[A]ctual beneficial use under a decreed water right defines the genesis, maturation, and limitation of every appropriative water right in this state….” Ready Mixed Concrete Co. in Adams Cnty. v. Farmers Reservoir & Irrigation Co., 115 P.3d 638, 645 (Colo. 2005). “The purpose of adjudication is to fix the priority of a water right for its decreed uses so that it can be administered vis-à-vis all other decreed water rights.” Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 54 (Colo. 1999) (emphasis added).

Based on the foregoing, Coors is limited to the amount of water it places to beneficial use

in accordance with the provisions of its decrees. Coors may not apply the water to beneficial uses beyond those uses reflected in its decrees, unless Coors applies for a change of use. “When a holder of a decreed water right wishes to . . . alter the . . . use of the water, the holder must petition the water court.” City of Golden v. Simpson, 83 P.3d 87, 92 (Colo. 2004).

Native water that is not consumed during a water user’s initial, decreed beneficial use

must be returned to the stream. “With respect to seepage and return flows from the use of native water, the rule in Colorado has been clear and unambiguous for at least seventy years: ‘It is elementary that the waters of the public streams of this state belong to the people, and that appropriators acquire only a right of use. It is also settled law that an appropriator is limited in his use of water to his actual needs. He must not waste it, and if there is a surplus remaining

Attachment to

Order - 2

015CW3179


of 7

after use, it must be returned to the stream whence it came.’” City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 65 (Colo. 1996) (quoting Pulaski Irrigating Ditch Co. v. City of Trinidad, 203 P. 681, 682 (1922)).

The argument asserted by the Applicant and Coors in this case—that there is no expectation by other water users of return flow from fully augmented diversions—is quite similar to the issue addressed by the Colorado Supreme Court in Water Supply and Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987). In Water Supply and Storage Co., the applicant argued that other water users had no expectation of return flows that were reused or successively used by the applicant immediately after the applicant’s first use of tributary water. Id. at 682-83. In ruling against the applicant, the Colorado Supreme Court held that “once the beneficial use upon which a water right is based has taken place, any unconsumed waters remain ‘[w]aters of the state,’ . . . and are subject to ‘[a]ppropriation,’ . . . .” Id. at 683.

Applying these principles to the present motions, the court concludes that a junior water

user that diverts native water out of priority under a decreed augmentation plan does not have the right to reuse and successively use the water, unless the decree specifically authorizes reuse and/or successive use. Instead, the amount of native water that is not beneficially used for the uses and amounts specified in the applicable decree must be returned to the stream system.

The court further finds that the decrees entered in Case Numbers W-8036, W-8256,

89CW234, and 99CW236 authorize only a single use of the water for any of the various purposes specified in those decrees. All of these decrees contain similar language regarding Coors’s application of water to beneficial use and its responsibility to return water it does not consume to the stream system. For example, the decree entered in Case Number 99CW236 sets forth the following requirements at page 65:

Whenever a call is made to increase stream flow for the benefit of senior water rights Coors, while operating under this Decree, shall either reduce its junior diversions to the extent those diversions reduce the availability of water to such senior water rights or provide replacement flows of water in substitution for its junior depletions to Clear Creek and the South Platte River from the additional sources of augmentation supplies Coors owns or has the right to use . . . . [T]he waters thus diverted are stored for subsequent use or used immediately by (Coors) within its industrial complex for the various purposes for which it requires water; after use, the portion of water not consumed is measured through appropriate continuously recording measuring devices approved by the Division Engineer of Water Division 1 and returned to Clear Creek-South Platte stream systems at various . . . locations.

(Emphasis added). See also Case Numbers W-8036 and W-8256 at page 16, and Case No. 89CW234 at page 35. The decrees entered in Case Numbers W-8036, W-8256, 89CW234, and 99CW236 contain no language authorizing Coors to reuse or successively use the native water it diverts.

Attachment to

Order - 2

015CW3179


of 7

Coors believes the decrees entered in Case Numbers 02CW180, 04CW326, and 08CW82,

which authorize the City of Thornton to lease effluent from Coors, constitute legal precedent in Water Division One supporting Coors’s theory that fully augmented native water may be reused and successively used, regardless of whether such reuse or successive use is authorized in the augmentation plan decree. Coors’s argument is misplaced. As pointed out by the Engineers, Coors holds a number of water rights through various decrees, some of which expressly authorize Coors to reuse, successively use, or fully consume the water it diverts. See, e.g., Case Number 96CW1117. Moreover, Coors correctly notes that within its extensive water portfolio are rights to use water derived from foreign and non-tributary sources, which would permit Coors to reuse, successively use, and fully consume water originating from those sources, even if the applicable decrees are otherwise silent as to reuse or successive use. See e.g. C.R.S. § 37-82-106; Pub. Serv. Co. of Colo. v. Willows Water Dist., 856 P.2d 829, 833 n. 8 (Colo. 1993)(“An appropriator of native, tributary water which historically flows back to the stream system … is permitted only one use of the water because the return flows are subject to water rights on the stream in order of their priority. By contrast, the owner of water which has been imported into a stream system has the right to successive reuse, to extinction, of the water.”)

The lease between the Applicant and Coors contemplates delivery of up to 101.7 acre feet

of water per year by Coors to the Applicant. A material factual question for trial exists as to whether the water Coors proposes to lease to the Applicant is effluent resulting from Coors’s use of one of its non-native, non-tributary water sources, or from a decree that specifically authorizes reuse or successive use of the water. Therefore, the court makes no determination at this time whether water proposed to be leased from Coors is available to the Applicant for use in its augmentation plan.

IV. ORDER

Based on the foregoing, the court concludes that the use of native, tributary water,

diverted out of priority by a junior water user and fully replaced under a decreed augmentation plan, is defined by the language contained within the applicable decree. A decreed augmentation plan does not provide a water user an implied right to reuse or successively use native, tributary water merely because the user fully replaces the water diverted out of priority; instead, a water user seeking to reuse or successively use native, tributary water must obtain a water court decree authorizing such reuse and/or successive use. Moreover, the amount of native, tributary water that is not beneficially used by the water user, as such use is specified under the terms and conditions of the applicable decree, retains its character as native, tributary water and must be returned to the stream.

As relevant to the present action, the decrees entered in Case Numbers W-8036, W-8256,

89CW234, and 99CW236 do not authorize Coors to reuse or successively use the native, tributary water it diverts under those decrees.

Attachment to

Order - 2

015CW3179


of 7

DATED: August 27, 2015.

BY THE COURT:

___________________________________ James F. Hartmann Water Judge, Water Division 1

Attachment to

Order - 2

015CW3179


DISTRICT COURT, WATER DIVISION 1 STATE OF COLORADO 901 9th Avenue Greeley, CO 80632


CONCERNING THE APPLICATION FOR AMENDMENT TO PLANS FOR AUGMENTATION OF COORS BREWING COMPANY, IN JEFFERSON, ADAMS, AND WELD COUNTIES

Case No. 2015CW3179 (W-8036(75) & W-8256(76),

89CW234, 99CW236)

Water Division 1

ORDER CERTIFYING FINAL JUDGMENT

This matter comes before the Court on the Motion of Applicant, Coors Brewing

Company (“Coors”), for certification under C.R.C.P. 54(b). The Court has considered the response filed by the City of Golden and Coors’s reply. On January 16, 2017, the Court issued an order to Coors to provide additional information to the Court to clarify whether Coors would be seeking a new appropriation to reuse and/or successively use the water after its first use in the augmentation plans. Coors responded to the Court’s inquiry by confirming that it would not be seeking a new appropriation to reuse or successively use the water in the present action, but instead seeks only an amendment its augmentation plans to allow re-use and successive use of the water. Based on the additional information provided by Coors, the Court makes the following findings:

1. On November 4, 2016, this Court entered an Order regarding the City of Golden’s Motion to Dismiss or Alternatively Motion for Determinations of Questions of Law and Coors Brewing Company’s Cross-Motion for Determination of Question of Law (“November 4 Order”).

2. The November 4 Order effectively denied Coors’s first claim for relief in this case—for an amendment to its three augmentation plans decreed in Consolidated Case Nos. W-8036(75) and W-8256(76), Case No. 89CW234, and Case No. 99CW236 (“Coors’s First Claim for Relief”).

3. The November 4 Order is a final judgment and ultimately disposes of Coors’s First Claim for Relief in its entirety.

4. There is no just reason for delay of an appeal from the denial of Coors’s First Claim for Relief, and the Order should be certified as a final judgment pursuant to C.R.C.P.

DATE FILED: January 27, 2017 8:21 AM CASE NUMBER: 2015CW3179

Exhibit B to Notice of Appeal Page 1 of 2


54(b) for the purposes of judicial efficiency and equitable resolution for Coors and the opposers in this case.

Coors’s Motion for C.R.C.P. 54(b) Certification is GRANTED. The Court hereby certifies that its November 4, 2016 Order RE: City of Golden’s Motion to Dismiss or Alternatively Motion for Determinations of Questions of Law and Coors Brewing Company’s Cross-Motion for Determination of Question of Law constitutes a final judgment pursuant to C.R.C.P. 54(b) and ultimately disposes of Coors’s First Claim for Relief in its entirety, and finds there is no just reason to delay entry of judgment on the question of whether Coors may obtain rights of reuse or successive use for its return flows from fully augmented, out-of-priority diversions by amending its decreed augmentation plans, or whether such rights may only be obtained through a new, independent appropriation.

DATED: January 27, 2017 BY THE COURT: ____________________________________ James F. Hartmann

Water Judge, Water Division One

Exhibit B to Notice of Appeal Page 2 of 2

attorneys for applicant-appellant, coors brewing company ......molson coors brewing company 1801...

Documents