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                                                        ADVANCE SHEET HEADNOTE
                                                                  February 19, 2019

                                       2019 CO 12

No. 16SA256, Well Augmentation Subdist. v. Centennial Water & Sanitation Dist.—
Water Law—Burden of Proof.

       Centennial appealed from an order of the water court dismissing its objection to

the Well Augmentation Subdistrict’s proposal to use additional sources of replacement

water for its previously decreed augmentation plan. Centennial had asserted that WAS

failed to comply with the notice requirements of the decree itself and that this failure

amounted to a per se injury, for which it was entitled to relief without any further

showing of operational effect. The water court heard Centennial’s motion objecting to

WAS’s proposed addition of new sources of replacement water and, without requiring

WAS to present evidence, found that Centennial failed to establish prima facie facts of

WAS’s inability to deliver augmentation water in quantity or time to prevent injury to

other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the

water court dismissed Centennial’s objection.

       The supreme court affirms, holding that because exercise of the water court’s

retained jurisdiction was statutorily limited to preventing or curing injury to other water

users, and because the evidence presented by Centennial failed to establish that WAS
would be unable, under the conditions imposed by the Engineer for approval of the

additional sources of replacement water, to deliver augmentation water sufficient to

prevent injury to other water users, the water court’s dismissal of Centennial’s objection

was proper.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                      2019 CO 12

                        Supreme Court Case No. 16SA256
                           Appeal from the District Court
           Weld County District Court, Water Division 1, Case No. 03CW99
                   Honorable James F. Hartmann, Water Judge

Concerning the Application for Water Rights of Well Augmentation Subdistrict of the
Central Colorado Water Conservancy District and South Platte Well Users Association,

                                Applicants-Appellees:

Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and
                      South Platte Well Users Association,

                                           v.

                                 Opposer-Appellant:

                       Centennial Water and Sanitation District,

                                          and

                                 Opposers-Appellees:

    Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users
 Association; City of Aurora; City of Black Hawk; City of Boulder; City and County of
 Denver acting by and through its Board of Water Commissioners; City of Englewood;
City of Greeley acting by and through its Water and Sewer Board; City of Sterling; City
of Thornton; City of Westminster; Ducommun Business Trust; East Cherry Creek Valley
Water and Sanitation District; Farmers Reservoir and Irrigation Company; Fort Morgan
   Reservoir and Irrigation Company; Harmony Ditch Company; Henrylyn Irrigation
     District; Irrigationists’ Association, Water District 1; Jackson Lake Reservoir and
     Irrigation Company; Lower Latham Reservoir Company; Lupton Bottom Ditch
     Company; Lupton Meadows Ditch Company; New Cache La Poudre Irrigating
 Company; Cache La Poudre Reservoir Company; North Poudre Irrigation Company;
   Pawnee Well Users, Inc.; Public Service Company of Colorado; Riverside Irrigation
   District; Riverside Reservoir and Land Company; South Adams County Water and
Sanitation District; State Engineer and Division Engineer; United Water and Sanitation
                              District; and Westfarm, LLC,

                                   and concerning

                          Appellee Pursuant to C.A.R. 1(e):

                 David Nettles, Division Engineer, Water Division 1.

                                 Judgment Affirmed
                                       en banc
                                  February 19, 2019


Attorneys for Opposer-Appellant:
Buchanan Sperling & Holleman PC
Veronica A. Sperling
Paul F. Holleman
       Boulder, Colorado

Attorney for Applicants-Appellees:
Lawrence Jones Custer Grasmick LLP
David P. Jones
      Johnstown, Colorado

Attorneys for Opposer-Appellee State Engineer and Division Engineer and Appellee
Pursuant to C.A.R. 1(e) David Nettles, Division Engineer, Water Division 1:
Philip J. Weiser, Attorney General
Paul L. Benington, First Assistant Attorney General
       Denver, Colorado

Attorneys for Amicus Curiae City of Colorado Springs:
City of Colorado Springs Attorney’s Office
Michael Gustafson
       Colorado Springs, Colorado

Hill & Robbins, P.C.
David W. Robbins
Matthew A. Montgomery
       Denver, Colorado

No appearance by or on behalf of Bijou Irrigation Company; Bijou Irrigation District;
Cache La Poudre Water Users Association; City of Aurora; City of Black Hawk; City of

                                          2
Boulder; City and County of Denver acting by and through its Board of Water
Commissioners; City of Englewood; City of Greeley acting by and through its Water
and Sewer Board; City of Sterling; City of Thornton; City of Westminster; Ducommun
Business Trust; East Cherry Creek Valley Water and Sanitation District; Farmers
Reservoir and Irrigation Company; Fort Morgan Reservoir and Irrigation Company;
Harmony Ditch Company; Henrylyn Irrigation District; Irrigationists’ Association,
Water District 1; Jackson Lake Reservoir and Irrigation Company; Lower Latham
Reservoir Company; Lupton Bottom Ditch Company; Lupton Meadows Ditch
Company; New Cache La Poudre Irrigating Company; Cache La Poudre Reservoir
Company; North Poudre Irrigation Company; Pawnee Well Users, Inc.; Public Service
Company of Colorado; Riverside Irrigation District; Riverside Reservoir and Land
Company; South Adams County Water and Sanitation District; United Water and
Sanitation District; or Westfarm, LLC.




CHIEF JUSTICE COATS delivered the Opinion of the Court.




                                         3
¶1     Centennial appealed from an order of the water court dismissing its objection to

the Well Augmentation Subdistrict’s proposal to use additional sources of replacement

water for its previously decreed augmentation plan. Centennial had asserted that WAS

failed to comply with the notice requirements of the decree itself and that this failure

amounted to a per se injury, for which it was entitled to relief without any further

showing of operational effect. The water court heard Centennial’s motion objecting to

WAS’s proposed addition of new sources of replacement water and, without requiring

WAS to present evidence, found that Centennial failed to establish prima facie facts of

WAS’s inability to deliver augmentation water in quantity or time to prevent injury to

other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the

water court dismissed Centennial’s objection.

¶2     Because exercise of the water court’s retained jurisdiction was statutorily limited

to preventing or curing injury to other water users, and because the evidence presented

by Centennial failed to establish that WAS would be unable, under the conditions

imposed by the Engineer for approval of the additional sources of replacement water, to

deliver augmentation water sufficient to prevent injury to other water users, the water

court’s dismissal of Centennial’s objection is affirmed.

                                             I.

¶3     In 2003, the Well Augmentation Subdistrict of the Central Water Conservancy

District and South Platte Well Users Association applied for approval of a plan for

augmentation to replace out-of-priority well depletions to the South Platte River, and

Centennial Water and Sanitation District, the appellant before this court, was one of the

                                             4
opposers to that application. In 2008, the water court for Division 1 entered a decree

approving WAS’s augmentation plan, subject to the conditions specified in the decree. In

2015, WAS proposed to add certain sources of replacement water, as expressly permitted

by the initial decree, by giving written Notice of Use of Water Rights for Augmentation

to the water court, the Division Engineer, and all the objectors.

¶4     Centennial filed an objection to the addition of one particular category of

replacement water in WAS’s proposal, designated “Category 2” water, but that objection

was dismissed on the ground that the decree permitted a challenge in the water court to

a proposed additional or alternative source of replacement water only after that

additional source had been approved by the Division Engineer, and only then by

invoking the statutorily retained jurisdiction of the water court. After entertaining the

objections of Centennial, the Engineer approved the use of WAS’s proposed Category 2

water, subject to six specified conditions. Centennial again filed an objection, this time

invoking the retained jurisdiction of the water court in reliance on the provisions of

paragraph 45.2 of the decree and asserting that WAS’s Notice of Use failed to fully

comply with the requirements of paragraph 13.1 of the decree by failing to specify the

available amount, location of delivery, and method of accounting for the use of its

Category 2 water.

¶5     Over the objection of the Engineer, the court permitted Centennial to proceed

under the court’s retained jurisdiction, despite there not yet having been any operational

experience with the additional sources, as approved by the Engineer; and after also

granting Centennial’s request for an evidentiary hearing on its motion objecting to the

                                             5
additional sources of replacement water, the court ordered discovery and expert

disclosures, and ultimately heard the motion. At the hearing, Centennial presented

testimony, based on the report of its expert, to the effect that the notice provided by WAS

failed to comply with paragraph 13.1, and therefore should be denied, and that if the

Category 2 replacement water were permitted without requiring a separate notice

complying with paragraph 13.1, additional terms and conditions would be required, to

include a requirement that all available paragraph 13.1 information be provided to

Centennial at least thirty days in advance of projection and use of any new Category 2

recharge accretions. At the close of Centennial’s evidence, the water court made findings

and concluded that Centennial had failed to factually establish that any injury would

occur if the Category 2 sources of water were added to the augmentation plan under the

conditions approved for administration by the Engineer, and it dismissed Centennial’s

objection.

¶6     In its ruling, the water court articulated more specifically its understanding of the

controlling statutes, rules of procedure, and provisions of the decree, and how those

authorities dictated its conclusion. With regard to its dismissal at that stage of the

proceedings, the court found that C.R.C.P. 41 applied to this type of retained jurisdiction

proceeding, and that in a proceeding to add a source of replacement water which the

applicant had a legal right to use, Centennial, as the objector to the proposal, bore an

initial burden of establishing prima facie facts proving that injury would occur under the

conditions imposed by the Engineer. In light of Centennial’s failure to even attempt to

prove facts indicating that WAS would be unable to deliver augmentation water in

                                             6
quantity and time to prevent injury to other water users under those conditions, the water

court found that, as a matter of law, Centennial failed to establish a prima facie case of its

entitlement to relief and, therefore, that dismissal was proper without requiring any

further showing by WAS.

¶7     With regard to Centennial’s continuing assertion that injury was sufficiently

established by proving WAS’s failure to comply with the notification procedures of the

decree alone, the water court first found that for recharge credits that would only accrue

from future diversions like the Category 2 water at issue here, estimates based on past

deliveries would be sufficient to comply with the notice requirements of the decree. In

any event, however, the water court interpreted the procedures of the decree, as left to

the discretion of the water court by section 37-92-305(8) of the revised statutes, to allow

for the addition of new sources of replacement water, without applying to the water court

for a change in the plan, as long as WAS gave the required notification to the court, the

Engineer, and objectors; objectors were afforded time to comment to the Engineer; the

Engineer determined the conditions under which the additional proposed source could

be used without causing injury to other water users and approved use of the additional

source subject to those conditions; and any objectors were then permitted a challenge to

the operational effect of the Engineer’s decision by invoking the statutorily retained

jurisdiction of the water court. On the grounds that the court retained jurisdiction only

for the purpose of preventing or curing injury to other water rights resulting from

implementation of a plan for augmentation, the water court found that even a violation



                                              7
of the notification requirements of the decree, had one occurred, would be insufficient to

entitle Centennial to relief.

¶8     Centennial appealed to this court from the water court’s ruling.

                                            II.

¶9     A plan for augmentation is to be approved if it will not injuriously affect the owner

of or persons entitled to the use of water under a vested water right or a decreed

conditional water right. § 37-92-305(3)(a), C.R.S. (2018). More particularly, a plan for

augmentation must be considered sufficient to permit the continuation of diversions

when curtailment would otherwise be required to meet a senior call for water, to the

extent that the applicant provides replacement water necessary to meet the lawful

requirements of a senior diverter at the time and location and to the extent the senior

would be deprived of his or her lawful entitlement by the applicant’s diversion.

§ 37-92-305(8)(c). With regard to the decree approving such a plan, section 37-92-305(8),

as amended in 2003, authorizes a plan for augmentation to provide procedures to allow

additional or alternative sources of replacement water to be used in the plan after the

initial decree is entered if, among other reasons, those sources have been decreed for such

use. Ch. 204, sec. 5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. The amendment does

not dictate more specifically any particular requirements for using additional or

alternative sources of replacement water without formally amending its augmentation

plan. See id.

¶10    As contemplated by statute, a decree for a plan for augmentation is effectively a

prediction of how the plan can operate without causing injury to existing water rights.

                                             8
See § 37-92-305(3)(a); Farmer’s Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d

799, 811 (Colo. 2001). Section 37-92-304(6), C.R.S. (2018), expressly requires that any

decision of the water judge dealing with a plan for augmentation include the condition

that approval of the plan be subject to reconsideration on the question of injury to the

vested rights of others, for whatever period after entry as is necessary or desirable to

preclude or remedy any such injury. We have previously characterized this retained

jurisdiction as functioning as a test period for the operation of the augmentation plan,

during which the water court may test the prediction and finding of non-injury it made

in its judgment and decree. See Farmer’s Reservoir & Irrigation Co., 33 P.3d at 811.

¶11    In pertinent part, the 2008 decree at issue in this case provides for the use of

additional sources of various kinds, with the approval of the Division Engineer. In re

Application for Water Rights of Well Augmentation Subdist. of the Cent. Colo. Water

Conservancy Dist. & S. Platte Well Users Ass’n, No. 03CW99 (Dist. Ct. Water Div. 1 May 14,

2008) (Findings of Fact, Conclusions of Law, and Decree of the Water Court). As

applicable to WAS’s notification, section 13.1 permits the use of a water right not already

approved for use under the decree, if that water right has been decreed for or is lawfully

available for augmentation use; if WAS gives notice of its proposed use to the court, the

Division Engineer, and all of the objectors; and if the Division Engineer approves that

use. Notice of Use of Water Right for Augmentation must be given in writing, at least

thirty days in advance, and must describe: (1) the water right, (2) the amount of water

available to WAS from the water right, (3) the location the water will be delivered to the



                                             9
stream, (4) evidence that the water will not be used by anyone else, and (5) how WAS will

account for the use of the water.

¶12    In addition, section 45 of the decree indicates that the decreed Plan for

Augmentation shall remain subject to perpetual general retained jurisdiction, pursuant

to section 37-92-304(6), permitting any person, including the State and Division

Engineers, to invoke retained jurisdiction by filing a motion with the court. It further

requires that any motion to invoke retained jurisdiction set forth with particularity the

factual basis and the alleged injury upon which the requested reconsideration is

premised, together with proposed decree language modifications offered by the moving

party to remedy the alleged injury. In language not dissimilar to holdings of this court

dictating the relative burdens in a proceeding invoking the retained jurisdiction of a

water court, see Upper Eagle Reg’l Water Auth. v. Wolfe, 230 P.3d 1203, 1216–17 (Colo. 2010),

the section also specifies that the moving party shall have the initial burden of going

forward to establish the prima facie facts and the existence of the injury alleged in the

motion, but that WAS shall have the ultimate burden of proof to show either that the

alleged injury has not occurred or will not occur, or to propose additional terms and

conditions which will prevent the injury from occurring.

                                            III.

¶13    Despite the absence of any factual dispute concerning the actual content of WAS’s

notification, the water court found that Centennial failed to meet its burden for two

different reasons. First, interpreting the decree as a whole to require no more than

estimates with respect to sources as to which credits would continue to accrue pursuant

                                             10
to a lease agreement, the court found that the notice given by WAS actually was sufficient

to satisfy the decree. In this regard, it observed that elsewhere in the decree, other water

users were adequately protected by limiting WAS’s projections to credits that had already

accrued. Second, interpreting the decree to permit additional sources of water upon

approval of the Engineer, subject to challenge by invoking the court’s retained

jurisdiction to prevent or cure injury to other water users, just as would be the case with

respect to the operational effect of the plan had no new source of replacement water been

added, the court found that Centennial’s objection failed, as a matter of law, because

Centennial offered no evidence that injury to other water users had or would result from

operation of the plan. We find it unnecessary to review the water court’s interpretation

of the decree concerning the required specificity because, at the very least, the court

properly held Centennial to proof that more specific notice than that provided was

necessary to prevent injury to other water users.

¶14    Centennial’s assertions that strict compliance with the notice provisions of section

13.1 is required, that a failure to strictly comply constituted a per se injury, and that the

water court erred in finding that Centennial did not meet its burden of proof, all appear

to stem from a fundamental misconception about the meaning of the General Assembly’s

2003 amendment to section 37-92-305(8).         Centennial expressly asserts that a party

seeking to add a new source of replacement water to an existing augmentation plan, as

now permitted by statute, necessarily bears the same burden to prove that its plan will

not injure other water users as was imposed on it for approval of its augmentation plan

in the first instance. It reasons, therefore, that a failure to strictly comply with the notice

                                              11
requirements of section 13.1 demonstrates a sufficient likelihood of injury to other users,

in and of itself, and that by demonstrating a failure by WAS to comply, Centennial met

its burden, which WAS should have been forced to rebut.

¶15    The 2003 amendment, however, authorizes decrees for plans for augmentation to

include procedures to add replacement sources after a final decree entered, without

requiring an applicant to seek a change of right or new augmentation plan. Ch. 204, sec.

5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. Nothing in section 37-92-305(8)(c)

purports to require specific notification or other procedures for such an addition of

replacement sources to the existing decree, and nothing in the statute suggests an

expansion of the jurisdiction of the water court to entertain challenges to compliance with

the terms of the decree once it has entered. Not only is the imposition of any such

requirement not implied in the language of the statute itself, but to impute such a

requirement would be little short of mandating a court-approved change to the water

right, effectively nullifying the 2003 amendment.

¶16    Rather, in addition to the seemingly unambiguous language of the amendment

permitting the original decree to provide for the addition of new sources of replacement

water not originally included, the historical context in which the amendment originated

provides a strong motivation for the legislature to have intended precisely what it said.

The General Assembly enacted SB 03–073 on the heels of two decisions from this court

determining that, with limited statutory exceptions, it is the province of the water courts,

not the Engineer, to approve and decree augmentation plans allowing for out-of-priority

diversions. See Simpson v. Bijou Irrigation Co., 69 P.3d 50, 63 (Colo. 2003); Empire Lodge

                                            12
Homeowner’s Ass’n v. Moyer, 39 P.3d 1139, 1153 (Colo. 2001). Those decisions vitiated

efforts by the Engineer to authorize out-of-priority pumping in the South Platte Basin and

elsewhere through replacement plans and substitute supply plans in lieu of a decreed

augmentation plan from the water court. See Simpson, 69 P.3d at 56; Empire Lodge

Homeowner’s Ass’n, 39 P.3d at 1144–45. Senate Bill 03–073 affirmed those holdings and

specifically required groundwater users in the South Platte Basin to file for an

augmentation plan in water court by 2006 or face curtailment. See Ch. 204, sec. 5,

§ 37-92-308, 2003 Colo. Sess. Laws 1446, 1446–47.

¶17    At the same time, SB 03–073, in its amendment to section 37-92-305(8), restored

some authority to the Engineer by allowing decree holders, if so permitted in the decree,

to add new replacement water sources without returning to water court. See Ch. 204, sec.

5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. Instead, the procedures imparted into

the decree would condition when and how new sources could be added to the plan. See

id. In this way, SB 03–073 contemplated that for this process, the Engineer, not the water

court, would function as the primary safeguard for ensuring that the decree holder has

followed those procedures and could add those sources to its plan without injury, sparing

the decree holder from the kind of cumbersome water court process SB 03–073

specifically sought to avoid.

¶18    Understood as a process to allow for the use of new sources of replacement water,

in accordance with conditions determined by the Engineer to be sufficient to prevent

injury to other users, section 13.1 does not purport to duplicate the burden of proof

required for a new augmentation plan, nor does section 37-92-305(8)(c) contemplate as

                                           13
much. In the absence of expanded jurisdiction for review, the information to be provided

the Division Engineer, and objectors with an interest in avoiding injury, is clearly

mandated to facilitate the inclusion of conditions designed to minimize the risk of injury

in actual operation. Once approved by the Engineer, the operational effect of including

additional sources of replacement water remains subject to review, pursuant to the water

court’s retained jurisdiction, to the extent it has or will cause injury, just as any other

aspect of the augmentation plan. See Upper Eagle Reg’l Water Auth., 230 P.3d at 1215–16;

Farmer’s Reservoir & Irrigation Co., 33 P.3d at 810–11 (citing § 37-92-304(6)).

¶19    Finally, Centennial objects to reliance on C.R.C.P. 41 as the appropriate analog for

proceedings under the water court’s retained jurisdiction. Consistent with its view that

an applicant for an augmentation plan retains an obligation to prove that other water

users will not be injured by its addition of a new source of replacement water, Centennial

characterizes the applicant as occupying the position of a plaintiff in a civil proceeding,

the party against whom rather than in favor of whom Rule 41 provides for a judgment to

be rendered. See C.R.C.P. 41(b)(1). For the reasons we have explained, this is simply a

misreading of section 37-92-305(8)(c).

¶20    Relying in addition on the decree’s insertion of the term “prima facie,” Centennial

also misreads section 45.2 to deviate from our prior apportionment of the relative burdens

of proof in a proceeding under the court’s retained jurisdiction. See Upper Eagle Reg’l

Water Auth., 230 P.3d at 1216 (“[T]he persons seeking to invoke reconsideration of the

injury question under the decree’s retained jurisdiction provision have the initial burden

of establishing that injury has occurred . . . .” (quoting Farmer’s Reservoir & Irrigation Co.,

                                              14
33 P.3d at 812)) (emphasis omitted). The decree assigned Centennial, as the objector

invoking the court’s retained jurisdiction, the initial burden of “establish[ing] the prima

facie facts and the existence of the injury alleged in [its] motion” before WAS would have

“the ultimate burden of proof to show either that the alleged injury ha[d] not occurred or

[would] not occur, or to propose additional terms and conditions which [would] prevent

the injury from occurring.” Although Centennial concedes that this burden requires it to

“establish” facts and the “existence” of injury sufficient to sustain a judgment in its favor

unless contradictory evidence is produced by WAS, as a result of the decree’s reference

to “prima facie facts,” it appears to understand its burden as merely requiring the

production of evidence from which a reasonable trier of fact could find in its favor in the

absence of contradictory evidence.

¶21    As Centennial argues, we have commonly used the term “prima facie” in

distinguishing the plaintiff’s burden in overcoming a motion for directed verdict in a jury

trial from its burden to survive a motion to dismiss in a trial to the court pursuant to

C.R.C.P. 41(b), see, e.g., Teodonno v. Bachman, 404 P.2d 284, 285 (Colo. 1965); and we have

similarly applied that distinction in cases governed by the water rules, where the water

court is the trier of fact. See City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d

595, 615 (Colo. 2005); Public Serv. Co. of Colo. v. Bd. of Water Works, 831 P.2d 470, 480 (Colo.

1992). In that context, we have juxtaposed making a prima facie case, meaning producing

evidence from which a reasonable jury could find in the plaintiff’s favor, from proving to

the satisfaction of the trial court that the plaintiff should prevail, in the absence of

evidence subsequently offered by the movant proving the contrary. See City of Aurora ex

                                               15
rel. Util. Enter., 105 P.3d at 615; Public Serv. Co. of Colo., 831 P.2d at 480. The term itself is,

however, not so limited, and there is no indication in the decree of any intent to alter the

relative burdens required in a retained jurisdiction proceeding.

¶22    Although the term “prima facie case” now commonly appears in distinguishing

the relative burdens dictated by Rules 50 and 41 of the federal and state rules of civil

procedure, see J.R. Kemper, Comment Note, Power of Court Sitting as Trier of Fact to Dismiss

at Close of Plaintiff’s Evidence, Notwithstanding Plaintiff Has Made Out Prima Facie Case, 55

A.L.R. 3d 272 (1974), its meaning is not limited so narrowly. Cf. 1 Clifford S. Fishman &

Anne T. McKenna, Jones on Evidence § 3:6 (7th ed. 2017) (explaining that “prima facie case”

simply means “a party’s obligation to produce sufficient evidence to move the

proceeding on to the next stage”). Indeed, when used as a modifier, “prima facie” can

also mean “[s]ufficient to establish a fact or raise a presumption unless disproved or

rebutted.” Prima facie, Black’s Law Dictionary (10th ed. 2014). Courts have regularly used

the term in this broader sense to refer to the quantum of evidence necessary to establish

the proponent’s cause of action, unless rebutted or proved to the contrary. See, e.g., Del.

Coach Co. v. Savage, 81 F.Supp. 293, 296 (D. Del. 1948); State ex rel. Herbert v. Whims, 38

N.E.2d 596, 599 (Ohio Ct. App. 1941); Pac. Tel. & Tel. Co. v. Wallace, 75 P.2d 942, 947 (Or.

1938); In re Fink’s Estate, 21 A.2d 883, 888 (Pa. 1941); see generally 9 John Henry Wigmore,

Evidence in Trials at Common Law § 2494 (3d ed. 1940) (explaining that courts use “prima

facie case” to indicate either “the duty of producing evidence to get past the judge to the

jury” or, alternatively, “a general mass of strong evidence” entitling the proponent to a

favorable ruling “if [the opponent] does nothing more in the way of producing

                                                16
evidence”). Especially where, as here, “prima facie” is used to modify the term “facts,”

rather than “case,” and requires that those facts and the existence of injury be

“established” by the proponent, the term is more naturally understood, as the water court

understood it, in this broader sense, which is consistent with the burdens articulated in

C.R.C.P. 41(b).

¶23    As importantly, however, the water court made clear its conclusion that

Centennial failed to meet its burden of proof was not based on its assessment of the

weight and credibility of Centennial’s evidence at all but was instead dictated by its legal

determination of the meaning of “injury” in the context of its retained jurisdiction. The

water court found that even if the evidence presented by Centennial were fully credited,

it nevertheless failed, as a matter of law, to evidence “injury.” This ruling effectively

amounted to a determination that Centennial failed even to make a “prima facie case” in

the narrower sense in which it is typically used with reference to jury trials.

¶24    Rather than offering evidence of a likelihood of future injury, Centennial asserted,

and continues to assert, that without access to the specific information describing the

proposed replacement supply, as delineated in section 13.1, it is not possible to evaluate

whether the proposed source can be used without causing injury, and therefore WAS’s

failure to strictly comply amounts to a per se injury. As did the water court, referencing

in particular other provisions of the decree further protecting objectors by prohibiting

reliance on WAS’s projections to withdraw until replacement water was actually

available, as well as the terms and conditions devised by the Engineer to prevent injury,

we reject this assertion. See Simpson v. Yale Invs., Inc., 886 P.2d 689, 696 (Colo. 1994)

                                             17
(“[I]njury must be demonstrated by evidential facts and not by potentialities.”) (internal

quotation marks omitted).

¶25    Following the adoption of amended section 37-92-305(8), the recourse for other

water users objecting to added sources of replacement water is to invoke the retained

jurisdiction of the water court to demonstrate that the plan for augmentation, as decreed

and as administered by the Engineer, nevertheless is unlikely to prevent injury to their

senior rights. See § 37-92-304(6).

                                            IV.

¶26    Because exercise of the water court’s retained jurisdiction was statutorily limited

to preventing or curing injury to other water users, and because the evidence presented

by Centennial failed to establish that WAS would be unable, under the conditions

imposed by the Engineer for approval of the additional sources of replacement water, to

deliver augmentation water sufficient to prevent injury to other water users, the water

court’s dismissal of Centennial’s objection is affirmed.




                                            18
