St. Jude’s v. Roaring Fork

The Colorado Supreme Court’s June 29, 2015, opinion in St. Jude’s Co. v. Roaring Fork Club, L.L.C. (2015 CO 51), has significant ramifications for many Colorado water right owners. Specifically, despite the existence of numerous prior decreed water rights for such purposes throughout Colorado, a 5-2 majority of the Court held that the diversion of water from a stream for off-channel direct flow use for aesthetic, recreation and piscatorial purposes does not constitute a beneficial use of water for which an appropriative right may be decreed.

The complete opinion is available at: St. Jude’s v. Roaring Fork opinion

The present case arose following a history of litigation between two neighboring landowners. Roaring Fork Club owns and operates a private golf and fishing resort near Basalt, Colorado, along the Roaring Fork River. St. Jude’s own a contiguous parcel down-gradient of the Club’s property. Certain ditch structures cross the Club property, delivering water diverted from the Roaring Fork for use on both properties. In 2007, the Club filed an application in the Division 5 Water Court seeking to confirm an appropriation of 21 c.f.s. from the Roaring Fork River, for diversions into the RFC Ditch for aesthetic, recreation and piscatorial uses. This new appropriation was in addition to other water rights existing in the RFC Ditch, including irrigation water rights.

Following a trial on the Club’s application, and additional claims, the court approved the application and entered a decree awarding an absolute water right for the aesthetic, recreation and piscatorial uses. The Water Judge found that, beginning in June of 1999, the Club had diverted water through the RFC Ditch, which was used by Club members as a visual aesthetic amenity, in addition to facilitating fishing in the Ditch.

An appeal ensued, and, following briefing and oral argument, the Colorado Supreme Court requested supplemental briefing to address the issue of whether diversions for direct flow aesthetic, recreation and piscatorial purposes constitute a beneficial use of water. A number of parties filed amicus briefs concerning the supplemental issue, including a collective of private land owners located throughout Colorado with existing decreed water rights for such purposes.

Justice Coats wrote the opinion for the majority, reversing the decree for aesthetic, recreation and piscatorial uses. In doing so, the majority found that the Colorado Constitution guarantees “the right to divert the unappropriated waters of any natural stream to beneficial uses,” but does not define beneficial use. Therefore, Colorado’s legislature has the authority to define and expand the concept of beneficial use. The majority next concluded that the current statutory definition of beneficial use merely defines the characteristics necessary to qualify as a beneficial use, while providing three specific examples (including storage of water for purposes including recreational and fishery purposes). Upon determining that the Club’s claimed aesthetic, recreation and piscatorial purposes did not comport with any of the express statutory examples (as the appropriation at issue did not involve the storage of water), Justice Coats further concluded that such purposes also do not satisfy the characteristics of beneficial use. In particular, the majority held that diversions of water for aesthetic, recreation and piscatorial purposes are too “passive” and “subjective” to constitute an actual beneficial use.

Justice Marquez and Justice Hood dissented on the issue of beneficial use, stating that the majority mistakenly characterized recreational and fishery uses as purely “passive” uses of water. The dissent also took issue with the majority’s apparent creation of a requirement that a water right is valid only if the intended use is achieved through an “objectively-active” means of production. Finally, the dissent noted the many existing water rights decrees for such purposes, the prior certainty of which is now called into question by the majority opinion.