The Jones Ditch decision (Central Colorado Water Conservancy Dist. v. City of Greeley) is, in our view, the worst decision ever handed down by our Supreme Court, for several reasons. We won’t go into those now, but we want to make it clear to everyone who is to blame. Think you know?
P. Andrew (Andy) Jones. Central’s attorney. Surprised? Here’s the real story…
Along with everything else that was going on, namely the positioning leading up to the Central WAS trial, Central was working on a relatively straight-forward change of some share on the Jones Ditch – a small, very senior right on the Poudre just upstream of Greeley. The case was heading towards trial and negotiations on a decree were proceding reltatively smoothly.
Except that Central wouldn’t budge on a couple of provisions in the decree which were somewhat controversial. Our recollection was that the provisions had to do with Central’s ability to aggregate replacements over the winter.
Boulder essentially gave Central the change to get their decree: remove the provisions and Boulder would stipulate. Central refused, and they were headed to trial.
Boulder took the gloves off. That’s when they went to the attic of the Weld County courthouse and pulled the original testimony given in the adjudication of the Jones Ditch water right. Though not entirely clear on its face, the testimony indicated that there was an expansion of the Jones Ditch right, and most if not all of Central’s historical acreage was located outside of the intended area (hence, the expansion).
It’s important to note at this point, that the law is fairly clear on this point: illegal expansions are not entitled to credit. There’s a few nuances that are worth arguing, but any reasonable attorney would see the problem.
Which is why when, in the middle of trial, it was becoming increasingly clear that Central would lose and get virtually nothing out of the case, and a compromise settlement was still available, Andy Jones should have settled. He didn’t. Central got virtually nothing from the trial court.
The appeal taken by Andy Jones for Central would be worse. Justice Eid had only recently been appointed to the Supreme Court and this would be one of her first opinions. Characteristic of opinions by Justice Hobbs, Justice Eid’s opinion said that shareholders are entitled to a pro-rata portion of the ditch-wide historical consumptive use, and expansions that occurred long ago which no one has complained about are not entitled to any credit.
We’ll explore the real problems caused by the Jones Ditch decision, but the lesson here is that as an attorney representing a client, you need to evaluate your position and advise and do what’s best for your client. Andy Jones didn’t. A settlement that would have preserved at least some water for Central he rejected when it was clear he had a losing position.
Even seen in the most favorable light – that Andy Jones was ‘fighting’ for what he and his client saw as ‘right’ – he did so poorly. Even before trial, the Court issued a ruling that largely destroyed the case for Central. The trial was, in effect, a fight for just a few acre-feet of water at that point. In the end of course, Central got nothing – tens of thousands of dollars of Central’s members’ money wasted tilting at windmills.
It wasn’t Boulder’s fault; Boulder will be Boulder, and Boulder had precedent on its side. Andy Jones – and perhaps Tom Cech – made a poor decision, and didn’t recognize this. It was Andy Jones’ fault.
I don’t know how important the issue of aggregated depletions was to Central, but it seems the Jones Ditch case might just backfire on some of those objectors who wanted the case to turn out the way it did, they just love it when Central loses.
I was at a ditch meeting once and it was explained that the ditch company would not try to get its shares changed, shares that it owned in another company that was going though a certain change of use case because there was some controversy over its century long use of yet another company’s decree.
Upon being asked why the members of this ditch company weren’t warned of this problem before getting so deep into the change case, one of the directors said “ it wasn’t clear until the Jones Ditch case.”
Well, there it is, a hundred years of historical use means nothing if the use is outside of the limits of the decree. So I hope this ditch company and its attorney are happy about this, because they have been one of Central’s biggest opponents and as for the attorney, literally the biggest opponent.
It appears there is going to be another water war fought, the river still isn’t running better even after thousands of wells are either shut off or severely restricted, but people want still want to see the river run better. This time the war’s going to be over expanded use and the Jone’s ditch case is just the first battle.
Andy Jones took his client’s position, and argued it very well. He is not to blame.
Central managers and Board of Directors took a position that was consistent with many years of Water Court findings. They are not to blame.
Mr. Bill Jones simply irrigated as much land as he could to make a living. He is not to blame.
Boulder has taken a hardline, gloves off position; ditch companies sometimes do this too. They’re not to blame.
The Supreme Court was doing their job (i.e., there factually was expansion of use over what Mr. Jones testified to). How could you blame them for their interpretation of the law?
Getting the point? (it is irresponsible to blame anyone!)
Whether the expansion issue “surfaced” in the Jones Ditch trial, or another case litigated, the issue was there (examine FRICo’s recent experience in Court), and needed to be addressed.
Why spend the energy assigning blame? Instead, move forward with what we’ve got to deal with – we’re trying to irrigate in a desert, and by the way, we’re still in a drought.
Hard lessons learned
The attorneys for the mutual ditch company, irrigation district, or conservancy districts that I happen to belong to do not represent me. Once at a water hearing I introduced myself to a lawyer I’d never met before and told him that I belonged to three different entities involved in the proceedings. He said, “oh, you’re represented by ……., by…….., and by………,” naming them off one by one.
Later it hit me like a sledgehammer on a thumbtack that none of those lawyers represent me. They represent the entities they work for, but certainly not me. For if they did, they wouldn’t be fighting one another and instead be looking for ways to work together for my benefit and that of their many constituents with likewise overlapping membership.
And while I understand that my interests aren’t always the same of the broader entity I might belong to, it is impossible to me to understand how the lawyer for one of the ditch companies can represent at once both the ditch company and a public utility it is deeply involved with and collect attorney’s fees from both. Why should the utility district’s interests be any less or any more closely aligned with the ditch company’s than my own?
But unlike the utility district, I will need to get to my own lawyer to protect my interests. I just wish I had the funds to employ this professional every bit as effectively as Boulder or Centennial.
Also, I have learned that our public and quasi public institutions certainly do not deserve the great amount of trust I had in them. Let’s start with the Div. One water court: its presiding judge is the one who appoints directors to the Conservancy District I belong to. Now were it so crystal clear that the District should have gotten a court approved augmentation plan so long ago, why did the judge not have as a prime criterion that the appointee desire to immediately get to work on acquiring such a plan? Or would it have been a conflict of interest for the judge to rule on a plant put forth by his appointee? Anyway, he appointed mostly spineless directors who don’t have the guts to run off the District’s attorneys that have been there way too long and in large part got us in this mess.
wonder why we despair to mention all the illegal, unlawful and expanded use on the South Platte. Does anyone really think we can just shut our collective eyes and the issue will go away? After several years of watching the goings on in Colorado’s Water Courts and the current tact the State Engineers Office is taking on the Arkansas I can guarantee it’s not over.
Cities, and all governments deal in the long view, with the wells gone there are that many less farmers left out there to fight what Justice Hobbs and Northern Colorado Water Conservation District believe is ultimately the best use of our States water, municipal and industrial. Agriculture is not a serious concern for Colorado any longer. This is evidenced by the way the law is manipulated to achieve the ends supported by the Hobbsifiles. Agriculture cannot afford the long view; it never could, for many only one bad year is needed to destroy a lifetime’s work.
Expanded and unlawful use probably would be safe for the near future, after all the people that really went after the wells, Boulder, Highlands Ranch, FRICO, Ft. Morgan Ditch, Bijou Irrigation District, Sterling, and North Sterling Reservoir all certainly have from a little to a lot of potential for loss. When it actually comes down to it, they will lose their unlawful use and it won’t help to have one of their fold judging the case, Roger Kline. The law is too clear on this issue and no matter how many of his buddies plead in front of him even the Sperling loving Roger Kline will have to follow the law in this case.
An important question is why doesn’t the State clean its own laundry? Why does the water is question have to be in front of a court for something else before these questions are addressed? The Superintendent of a major ditch company recently said “we aren’t the water cops; it’s not our job to police the stockholders”. Is this so? Well owners were expected to not only understand the law and police, for example Central, but we were expected to police the State engineers Office as well. Our failure to do so has resulted in owing for past depletions for up to fifty years. It’s not rocket science for the River Commissioner to drive the ditches in his district and decide where the pump is sending the water.
I am aware that this issue will hurt more farmers and I’m sorry for them, but well owners can ill afford sympathy for anyone let alone the group they should have been able to count on in these terrible times. When some of these surface users that were pumping illegally uphill were leading the charge against ground water they should have thought of the ramifications.
What about the Lupton Bottom Ditch, was it an expansion of use when it sold part of its rights so others could create the Lupton Meadows? It appears to be awful close to the Jones Ditch case, or maybe a legal loophole will save them. The Farmers Extension portion of the Highland system was created many years after the Highland, isn’t it also an expansion of use? All are fellow farmers that just stood by and watched us swing in the wind. How can irrigation wells owe past depletions to ditch companies that didn’t even police themselves?