White Jankowski Lawyers

New Colorado Supreme Court decision re: corrections to water decree

January 22, 2013

The Colorado Supreme Court opinion in Town of Minturn v. Tucker involved the issue of whether the trial court could correct substantive errors in a decree regarding consumptive use factors, and whether correction of those errors was an improper modification of a stipulation entered into with opposers of Minturn’s application.  Minturn had stipulated (agreed without a trial) to a decree that contained certain consumptive use factors used to limit diversions of Minturn’s water rights to new uses.  After entry of the decree, Minturn realized that some of the factors were incorrect, and petitioned the water court to correct the errors.  Only one opposer to Minturn’s application, Tucker, objected to the proposed correction, arguing that the change violated its stipulation with Minturn because it modified the stipulated terms.  The water court corrected the decree and Tucker appealed.

 The Colorado Supreme Court upheld the water court’s decision and concluded that a “no less restrictive” clause in a stipulation did not prohibit the water court from entering a decree with terms and conditions differing from those in the stipulation.  The Colorado Supreme Court held that the intent of the stipulation was to prevent injury by using consumptive use factors predicated on Minturn’s actual usage, so the correction of the factors to correspond to that actual usage was consistent with the stipulation.  Under this opinion, water courts may consider the intent of the parties in determining whether a decree is contrary to a stipulation and will not automatically find a violation if the decree differs from the stipulation.  Read the full court opinion here.

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