Comment

Following the announcement on March 24, 1971, of United States v. District Court in and for the County of Eagle, 401 U.S. 520, 91 S. Ct. 998, 28 L. Ed. 2d 278 1971, and United States v. District Court in and for Water Division Number 5, 401 U.S. 527, 91 S. Ct. 1003, 28 L. Ed. 2d 284 1971. The Colorado Supreme Court appointed a water advisory committee for study and recommendations as to the necessity and possible content of rules of court as a result of the two United States Supreme Court opinions. An attempt was made to have the membership of this committee representative of the different interests that might be affected by proceedings conducted in the light of these opinions and United States v. District Court, 169 Colo. 555, 458 P.2d 760 1969, which was affirmed by the first mentioned United States Supreme Court opinion. After conferences and study the committee established tentative guidelines and recommended that a 5-man briefing and drafting committee be appointed for performance under the guidelines. Accordingly, a briefing and drafting committee was appointed, consisting of the following attorneys: Kenneth Balcomb, Glenwood Springs, Colorado; Charles J. Beise, Denver, Colorado; Kenneth L. Broadhurst, Denver, Colorado; Gene Alan Erl, Washington, D.C.; and Donald H. Hamburg, Denver, Colorado, with Mr. Beise acting as chairman. Early in the work of the briefing and drafting committee, Messrs. Beise and Balcomb prepared a memorandum which is set forth later herein.

After the briefing and drafting committee completed its work, it submitted proposed rules to the entire water advisory committee which, after some revision, unanimously approved them and recommended their adoption by the Colorado Supreme Court. The seven water judges of the state Fred Calhoun, Donald A. Carpenter, Richard E. Conour, C.H. Darrow, William S. Eakes, William L. Gobin and Don Lorenz then studied and conferred with respect to the proposed rules. After some revision, the water judges recommended their adoption. Accordingly, the proposed rules were adopted substantially as recommended on August 12, 1971, as Rules 86 through 91, C.R.C.P.

While the Colorado Supreme Court does not comment nor pass upon the contents of the memorandum prepared by Messrs. Beise and Balcomb, it believes that the bench and bar will find value in it and, therefore, sets it forth in its entirety:

By and large the Colorado Rules of Civil Procedure are to apply in conformity with section 37-92-3043 , C.R.S. 1973, unless varied by the proposed rules.

Experience gained from the use of forms presently furnished indicated an insufficiency of information therein, requiring in many cases, statements of opposition and protests when, with additional information, the same would be unnecessary.

Recommendations regarding the duties of the water clerk in the treatment of files, decrees, and judgments are made for the sake of simplicity, uniformity, and permanency.

The proposed rule relating to publication of a claim of right on the part of any claimant to antedate in priority previous orders, decrees, and judgments of courts establishing priorities gave the committee the greatest trouble, but the committee is satisfied that the requirements of due process are met by the proposed rule.

Due process relates to the right to be heard, and this right is subject to reasonable limitations.

The type or kind of notice to be given to and the method of service thereof on other parties possibly affected by water adjudication proceedings has varied in Colorado as changes in water law have occurred. In the original statutes of 1879 and 1881, personal service in addition to publication and posting was required where possible, with mailing of notice where not possible.

In 1905 special supplementary adjudication proceedings became possible. Original adjudication proceedings in a water district still required the 1879-1881 service treatment, n1 Nichols v. McIntosh, 19 Colo. 22, 27 1893. but after 1905 the supplementary proceedings required only such notice as was required by the court. As a matter of practice this was generally confined to publication and posting. Countless decrees were entered in such special proceedings. All priorities so established and fixed are recognized in the present system of administration.

The 1943 law abolished special proceedings, and substituted general supplementary proceedings. It required by way of notice publication plus the mailing of the notice to those persons who had not theretofore adjudicated their claims according to the records of the state engineer and to all users who within the preceding calendar year had diverted water according to a list furnished by the water commissioner or division engineer.

The incompleteness and insufficiency of these lists as a means of reaching claimants of water rights is well recognized. Factually, it is impossible to reach all claimants by any means other than publication.

The salient feature of the previous statutory notice provisions to be noted here is that the requisite statutory publication, posting and mailing was confined to the district boundaries, and did not extend to the division of which the district was a part, even though the priority or priorities awarded related to and affected rights in the entire division.

In 1887 the legislature required the division engineers to treat priorities awarded in the districts on a division-wide basis. The claim was made in O’Neil v. Northern Colorado Irrigation District, 56 Colo. 545, 139 P. 536 1914, that if retrospective effect was given this statute allowing curtailment of plaintiffs’ priority awarded subsequent to 1887 in favor of defendants’ priority entered before 1887 without notice to the plaintiff but in another water district within the division, it resulted in a taking of plaintiffs’ property without due process of law. The challenge was made more than four years after entry of defendants’ decree. The Court held the four year statute effectively barred the suit irrespective of the 1887 statute. This result was affirmed by the Supreme Court of the United States in an opinion by Mr. Justice Holmes, 242 U.S. 20, 37 S. Ct. 7, 61 L. Ed. 123 1916.

We are not unmindful of the service of process requirement of due process in other types of litigation condemnation and have considered other cases very kindly furnished by interested members of and advisors to the committee as a whole. Neither are we unmindful of Rule 4 of our Rules of Civil Procedure which by the statute and the rule here under consideration would have no application to notice requirements in water courts. We believe O’Neil followed by Eagle County n2 169 Colo. 555, 458 P.2d 760, 401 U.S. 520, 28 L. Ed. 2d 278, 91 S. Ct. 998 1971. and Darrow n3 #24821, 401 U.S. 527, 28 L. Ed.2d 284, 91 S. Ct. 1003 1971. control.

Mr. Justice Holmes in O’Neil held that due process requirements were met when a party, though not entitled to be heard in the first instance, was allowed by statute a reasonable time thereafter to be heard. This was predicated on the fact that a decree regarding water priorities was a public fact. The fact that rights might be lost by inaction on the part of a claimant was likewise considered immaterial by Mr. Justice Holmes because the rule of limitation applied to him was likewise consistently applied by Colorado Courts to all similar situations. Plaintiff in O’Neil could not have been misled by contradictory rulings regarding applications of the rule.

Eagle County, of course, holds that the McCarren Amendment allows joinder the United States in adjudication proceedings under the 1943 Act. Darrow goes even farther and says such joinder can effectively be made under other but dissimilar state adjudicatory procedures. The key is the presence of a state statute providing the procedure for adjudication. The procedural steps themselves are a matter of state concern and need only be equally and fairly applied. n4 Ft. Lyon Canal Co. v. Arkansas Sugar Beet & Irrigated Land Co., 39 Colo. 332, 34 P. 278 1907. At page 344 thereof the court said:

All persons are bound to take notice of a public law. The irrigation statutes are public, and apply to all persons taking water from the same source. The waters of the state belong to the public, and, as we said, in substance, in the original opinion, the state in its sovereign capacity had the right to provide a reasonable method whereby such rights might be adjudicated and settled, and to require claimants of such rights to present them in a prescribed manner, within a prescribed time, and unless the law in this respect was obeyed, that all claims not thus presented should be barred. That is what the statutes on the subject of the use of water for irrigation have provided. All persons are bound to take notice of these provisions.

The Supreme Court of Colorado in its review in Eagle County held the trial court had the power to require the giving of whatever additional notice of the claim of right to antedate previous decrees it deemed necessary.

The 1969 Act gives notice by requiring publication of the resume in one or more newspapers within the division as will give general circulation to water claimants in each county in the division. We do not believe this requires publication in every county which has a newspaper, but rather requires publication in a newspaper of general circulation in such county even if published elsewhere in the division. Thus publication in but one newspaper in the division might be found by the water court to be sufficient general circulation to meet due process requirements. Under this 1969 Act a well owner seeking his actual date of priority without prejudice because of his failure to participate in earlier adjudications antedates prior decrees. The only notice required is publication. Personal service is not required. The proposed rule is consistent with this procedure.

The additional statutory requirement of mailing to those requesting a copy of the resume relates not to the jurisdiction of the court or due process, but is for informational purposes only.

The final and important safeguard regarding notice is met when the statute requires the referee to direct mailing to those he deems affected by a particular claim.

On the surface O’Neil dealt with a statute of limitations, and in Eagle County and Darrow the problem of notice was not directly involved. But in O’Neil the only notice which could have possibly reached the adjacent district, other than the important notice the statute itself gave, was the publication. The same is true in Eagle County. In Darrow, however, as the rule herein under consideration will require, the notice was given division wide, and this was more effective as notice in the area affected than any previous statutory notice requirements.

We thus conclude that publication once in a newspaper or newspapers of general circulation within the division as required by statute and the proposed rule meets the requirements of due process, because:

1 Three years is a reasonable time for anyone to establish the error, if any, in the decree and judgment. n5 This limitation was increased from two to three years by the 1970 amendment, section 37-92-30410 , C.R.S. 1973.

2 In this day and age of rapid communication and transit, many newspapers are in general circulation throughout the state and not just a division.

3 The system has been effectively in force and in operation for nearly two years with relation to well owners and is the accepted state method of giving notice.