Water judges, water masters, and qualifications...

At the last meetings of the New Mexico Acequia Commission (in November), I was asked by several of the Board Members to inquire about the knowledge and background of water judges in my home state of Colorado. I wrote the following e-mail to the water court contact person, who then forwarded this to Judge Kuenhold who presides in the San Luis Valley (Water division 3, based in Alamosa, CO). Basically, this translates to the upper Rio Grande Basin in Colorado (see the map).

 

I attach below the questions I sent on to the "Dividing the Waters" project, which focuses on training and uniting water judges/attorneys to discuss interstate water issues, then I include the Judge's response. If New Mexicans are rightly concerned about "who rules" on water regulations, adjudication, and rules, it's no less disconcerting that there are no statutory requirements for actual water knowledge to be a Colorado water judge. Many have legal background related to water issues, but it is not a requirement. Please read on if this is of interest...

 

original e-mail sent 11/28/09:
"I am trying to acquire some basic information on the qualifications of water judges in Colorado (and elsewhere around the Western U.S.). I am currently engaged in water rights research here in New Mexico, while on sabbatical, even though I teach in Colorado. I am to appear before the New Mexico Acequia Commission in December (09) and have been asked by them what the standards are in Colorado; I must admit, I have no idea. These are the principal concerns:

 

What is the basis for being selected as a water judge in Colorado?

How much training and preparation does any single judge receive in water law, before being assigned to a state water court?

Are there requirements for on-going education/training/updates on law?

How do judges pick "water referees" in their districts and what are the qualifications for referees?

I appreciate any insight or answers, or if someone else is more appropriate, please feel free to forward this e-mail to the respected authority on this topic.
My very best, Eric Perramond"

 

And here's the response from Judge Kuenhold (my emphases in bold):

 

"Dear Eric,

 

Carolyn Brickey asked me to respond to your questions.

 

The appointment of water judges in Colorado is pursuant to statute.

 

The state has seven water divisions based upon the seven river basins. All matters pertaining to appropriation/change of tributary water rights are handled by the water courts in these divisions. As you may know, the 1969 Water Right Determination and Administration Act addresses all tributary water rights including ground water. Section 37-92-203(2) authorizes the chief justice to appoint water judges in each division selected from the district judges in that division. I have attached the list of current water judges as the chief justice has just reappointed them. Each water judge is also a chief judge for a judicial district within or overlapping the basin. Thus a water judge meet the qualifications of a district judge which include being a licensed attorney and having practiced five years. The selection of chief judges is really a reflection of experience and hopefully some experience with water as an attorney or as an alternate water judge or referee.

 

In addition to the seven water divisions for tributary water, Colorado has five ground water basins which address allocation of nontributary ground water under the Colorado Ground Water Management Act. All but one of these judges is also a chief judge and Judge Hartmann is both water judge for Division 1 and for Upper Crow Creek!

 

To address the question you sent Carolyn, I think I have partially answered the “experience” question. Specific water law experience is not a prerequisite nor is it assured by the process in the statute. The Dividing the Waters programs now under the umbrella of the National Judicial College are a partial response to the lack of formal training as well as an opportunity to share across state lines. The water judges and referees meet once a year in Colorado in conjunction with the annual judicial conference. There are no formal requirements for training or education in the law but it is safe to say the water judges understand the critical importance of water in our state and these cases are prioritized by statute as well as by the judges. As chief judges, the freeing of time for these cases is a matter in their own hands.

 

The 1969 act provides for the water judge to hire a referee subject to the approval of the State Engineer. Some referees have been engineers and others attorneys and retired water judges. During the years of general well adjudication following the 1969 Act, there was a great deal of field work while now it is more administrative and adjudicative. There is no consensus as to whom is better in this role but the trend is toward attorney-referees. Referees who are attorneys have generally practiced some water law. There is no training beyond the annual meeting and efforts to build working groups around our recent rule changes.
Your questions expose the weakness of our present situation. Since we have not had a judicial conference in 2009 and will not have one in 2010 due to financial crisis in Colorado, the situation would be worse than described but for the pretty constant exchanges of information by the judges and referees.

 

I would be happy to talk with you by phone if you would like to follow up on this email.

I know several of the water judges in New Mexico and I know that they also are general jurisdiction judges.

 

Judge Kuenhold
Chief Judge
12th Judicial District &
Water Division 3
702 4th Street
Alamosa, CO 81101"

 

Bottom Line: I think this is a good first step in my comparative interests on water law and adjudication procedures, but it certainly leaves a lot of room for doubt in the actual process. Sure, Colorado has been comparatively speedier in its pursuit of adjudication (since the code really didn't exist until 40 years ago, as compared to 100+ years as a directive to the New Mexico OSE), but it does not guarantee better "judgment" on water decisions. Thanks to Judge Kuenhold for sharing his views, and for answering the questions directly.

Happy holidays. EPP