July 4, 2008

Dunwodys get partial judgment on Elk Creek water rights
Will-O-Wisp president sees no effect on water permit application

by Lynda James

Division 1 Water Court Judge Roger Klein ruled in favor of Drayton and Vera Dunwody in a partial summary judgment that now clears the way for the Dunwodys -to challenge the. Will-O-Wisp Metropolitan District’s claim to senior water rights on Elk Creek.

Neither the Dunwodys nor the district foresee any impact from the decision on the district’s water 1041 permit application tied to the Tanglewood Reserve development near Pine Junction.

The complaint

The Dunwodys first filed their complaint against the district’s ownership claim of the 1913 Glasman Ditch water right in March 2007. The complaint is based on the Dunwody’ alleged chain of title back to the original owners of the water right.

In the district’s response to that complaint, the district asserted that the Dunwodys were precluded from claiming the Glasmann Ditch water, based on the- final approval of their 81CW144 water court decree; which gave full notice of the change in water right application. The district stated the decree established the district’s ownership of the water right.

The district’s response led to the Dunwodys filing for the partial summary judgment. A summary judgment can only be awarded when there is no issue of material facts in a case and those facts - can not be disputed. A partial summary judgment can be awarded when certain material facts, but not the whole case, are based on law and are undisputed.

The 81CW144 decree changed the 1.0 cubic feet per second 1913 Glasmann Ditch irrigation water right to an augmentation water right that would be used to offset evaporation losses from the proposed Woodside Reservoir.

Summary judgment order

In the summary judgment order, Klein cited previous cases that determined "the adjudication of a change in water right is distinct from a determination of the ownership in a water right."

Klein stated that the approval of a water augmentation plan and change in a water right use by water court does not grant ownership of a water right.
Klein stated that since no claim to determine ownership was made by the district in 81CW144, the notice provided to change the use of that water right was not adequate "to the extent that it deprives the Plaintiffs (Dunwodys) of a claim of ownership."

Klein ruled "The decree. in Case 81CW144 is void against the Plaintiffs and their predecessors in interest to the extent that it purports to determine ownership in the Glasmann Ditch water right."

The district asserted the Dunwodys were also barred from claiming the Glasmann Ditch water right because of the doctrines of "claim preclusion" and "issue preclusion". Both doctrines prevent re-litigation of claims or issues that were or could have been litigated in a prior proceeding.

According to Klein’s partial summary judgment order, according to the claims preclusion doctrine, among other things, the subject matter and claims for relief must be identical in both cases.

Klein stated that in a change of use in water rights’ cases such as: 81CW144, the fundamental inquiry is whether the change will injure more senior and vested water rights. In the Dunwody complaint, the fundamental inquiry is a quiet title action concerning which party has a superior claim to the property (the water right).

Issue preclusion is similar to claim preclusion, but states that the issue was litigated and determined in a prior hearing as well as the opposing party having a full and fair opportunity to litigate the issue.

Klein said the issue of ownership and opposing parties’ rights to the Glasmann Ditch water right was not litigated in 81CW144.

According to the order, the Dunwodys are not barred from litigating their claim of in the Glasmann Ditch water rights by the doctrines of claim and issue preclusion.

A trial on the issue of ownership is set for November.

Will-O-Wisp Metropolitan District President Rick Angelica told The Flume that the district could not comment on the decision because the case is still in litigation. He did say that neither the summary judgment nor the outcome of the case in November would have any effect on the water 104f’jrmit application set to be heard by Park County Commissioners on July 10. It was continued from last year until the district could prove it had all property rights to complete the project.

Condemning property

Since then, the district has condemned property in Woodside Park Estates Unit 5 to build the facilities necessary to withdraw water from Elk Creek and pump it to the district storage facilities near Wandcrest Road and U.S. 285 in Pine Junction.

The 1041 hearing concerns the district’s junior water rights on Elk Creek that will be used to supply water to the Tanglewood Reserve development near Pine Junction. The senior water rights and the future Woodside Reservoir are not part of the permit application.

Angelica said that if the district decides to build the Woodside Reservoir, a. new water 1041 permit application would need to be submitted to Park County.

Vera Dunwody also told The Flume that the ownership case involving the senior water rights is not an issue in the upcoming county 1041 permit hearing.

"We appreciate the court reading the application and that it ruled based on the evidence," Dunwody added.

Dunwody pointed to two specific paragraphs in the summary judgment order.

In Paragraph 12, the judge’s order recognized an inconsistency in the legal description of lands irrigated in the 1913 decree and in 81CW144.

Paragraph 16 states, "A genuine issue of material fact cannot be raised solely by means of argument. The party opposing the summary judgment cannot rest upon the allegations or denials in its pleading, but must, rather produce specific facts showing there is a genuine issue of trial."

Dunwody said they were pleased with Klein’s ruling on summary judgment and now are preparing for the November court case.

P.S.  The following link will take you to the referenced court document.


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