Waste-Prevention Statutes in Title 37 Create No Private Cause of Action and Do Not Confer Water-Court Jurisdiction Over Flooding Torts

A. Precedents Cited

1) Statutory interpretation and standard of review

• In re Application for Water Rts. of Town of Firestone, 2025 CO 33: cited for the bifurcated review standard—legal conclusions reviewed de novo; factual findings accepted unless clearly erroneous. This framed the Court’s willingness to overturn the water court on purely legal questions of standing, statutory meaning, and jurisdiction without reweighing evidence of runoff or flooding.
• People in Int. of B.C.B., 2025 CO 28: supplied the Court’s interpretive methodology—plain meaning, whole-statute harmony, avoiding surplusage and absurdity, and respecting legislative word choice. The Court applied this to the “upon his land” phrasing in sections 37-84-124 and -125 and to the express remedial structure in section 37-84-109.
• Frazier v. People, 90 P.3d 807 (Colo. 2004): cited for the limited but legitimate use of statutory titles as interpretive aids. The Court used (i) the title of the 2015 amendments to section 37-84-108 and (ii) the 1887 title for sections 37-84-124 and -125 to confirm a water-rights-protection (not flooding-tort) focus and a state-administration (not private enforcement) design.

2) Standing and “legally protected interest”

• League of Women Voters of Greeley, Weld Cnty., Inc. v. Bd. of Cnty. Comm'rs, 2025 CO 8: provided the baseline test—injury in fact to a legally protected interest.
• Farmers Ins. Exch. v. Dist. Ct., 862 P.2d 944 (Colo. 1993): applied standing principles to declaratory judgment actions: a plaintiff must allege an injury in fact to a legally protected or cognizable interest.
• Ainscough v. Owens, 90 P.3d 851 (Colo. 2004): defined what qualifies as a legally protected interest—one grounded in the constitution, common law, statute, rule, or regulation. This set up the Court’s pivot: if the “waste” statutes do not confer a private right, they do not supply the “legally protected interest” needed for standing.

3) Implied private rights of action and legislative remedies

• City of Arvada ex rel. Arvada Police Dep't v. Denver Health & Hosp. Auth., 2017 CO 97: supplied the key rule: when the legislature includes a remedy in a statute, courts generally infer the legislature did not intend others. The Court treated section 37-84-109 (state-brought penalty actions for willful violations) as that express remedy.
• Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992): provided the factors used only when a statute is “totally silent” on remedy; the Court held Parfrey’s implied-remedy analysis was unnecessary because section 37-84-109 is not silence—it is an enforcement choice.
• United States v. Sineneng-Smith, 590 U.S. 371 (2020): invoked to reject Plaintiffs’ attempt on appeal to re-label a statutory claim as “negligence per se” when that theory was not pleaded. The Court emphasized party presentation and refused to reconstitute claims to salvage them.

4) Scope of sections 37-84-124 and -125

• Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981), overruled in part on other grounds by Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (Colo. 1999): Rich was used for the proposition that sections 37-84-124 and -125 are directed at preventing diversions that exceed the decreed rate of diversion. That framing supported the Court’s conclusion that the statutes protect water-right priorities/quantification interests, not land-damage claims from runoff and flooding.

5) Water court jurisdiction and ancillary jurisdiction

• Farmers Reservoir & Irrigation Co. v. Pub. Serv. Co. of Colo., 2022 CO 22: cited for the proposition that water courts have exclusive jurisdiction over water matters.
• In re Tonko, 154 P.3d 397 (Colo. 2007): used to define “water matters” as determinations about the right to use water, quantification, or changes to decreed rights.
• Crystal Lakes Water & Sewer Ass'n v. Backlund, 908 P.2d 534 (Colo. 1996), quoting Humphrey v. Sw. Dev. Co., 734 P.2d 637 (Colo. 1987): supplied the classic distinction between the legal right to use water (appropriation) versus ownership of a water right, and articulated the ancillary jurisdiction test: ancillary issues must directly affect the outcome of a water matter. It also cautioned water courts lack jurisdiction over real property issues only tangentially related to a water matter.
• Glover v. Serratoga Falls LLC, 2021 CO 77: reinforced the limit that ancillary jurisdiction does not extend to non-water matters once all water matters are dismissed prior to trial.
• Sheek v. Brooks, 2019 CO 32M: provided the close analogue: where the predicate water-matter theory falls away (or no longer affects the water decree’s validity), remaining claims like trespass and injunctive relief belong in district court because they do not directly affect the outcome of the water matter. The Court treated Plaintiffs’ runoff tort claims the same way once the statutory water-matter hooks failed.

6) Preservation and post-trial motion practice

• United States v. City of Golden, 2024 CO 43M: cited for the rule that raising new legal arguments for the first time in a motion for reconsideration is improper, supporting the refusal to entertain a late-requested quantification/limitation on the Lower Gaskill Ditch easement.

B. Legal Reasoning

1) Standing tied to enforceable legal interests

The Court accepted that Plaintiffs pleaded an injury in fact (flooding), but held standing requires more: injury to a legally protected interest. Plaintiffs conceded they were not relying on constitutional or common-law protection against “waste” as such. That forced the inquiry to statutory protection: do the cited statutes give private persons enforceable rights that can be vindicated in court? If not, Plaintiffs’ “waste” theory cannot support declaratory relief.

2) Section 37-84-108: no implied private enforcement where the legislature chose a public remedy

The heart of the decision is the Court’s remedial-structure analysis. Section 37-84-108 imposes a duty not to run more water than “absolutely necessary” to prevent “wasting and useless discharge.” But section 37-84-109 supplies an enforcement mechanism: willful violations are punishable by a fine, and “Suits for penalties … shall be brought in the name of the people of the state of Colorado.” Because the legislature provided a remedy and designated the enforcing plaintiff (the People), the Court applied City of Arvada ex rel. Arvada Police Dep't v. Denver Health & Hosp. Auth. to conclude courts should not create an additional private right of action.

The Court reinforced this conclusion with (i) comparative statutory drafting within the same article—highlighting section 37-84-111 as an example where the legislature expressly preserved special-damages actions—and (ii) legislative history/context of the 2015 amendments, emphasizing “State Engineer administration” and sponsor comments indicating the engineer “always had the authority” to prevent waste. Together, these points framed the statute as an administrative/public enforcement tool, not a private litigation vehicle.

Finally, Plaintiffs’ effort to recast the case as negligence per se failed because that theory was not pleaded; under United States v. Sineneng-Smith, courts do not rewrite the parties’ case on appeal.

3) Sections 37-84-124 and -125: water-right infringement, not land-damage from runoff

The Court read the repeated phrase “upon his land” as a textual boundary: these provisions require irrigators to avoid receiving more water than entitled onto their own land and to prevent continued receipt, with liability to others “injured by such extra appropriation.” The Court held that “injury” refers to injury from the extra appropriation itself—i.e., infringement of others’ water rights—rather than consequential property damage like flooding downstream or downhill. The Court cited Se. Colo. Water Conservancy Dist. v. Rich for the statutes’ purpose (preventing diversions exceeding decreed rates), and the 1887 act’s title as confirming a water-right protection aim.

Result: Plaintiffs’ runoff/flooding theory could not proceed under sections 37-84-124 and -125, and the fee award under section 37-84-125 necessarily fell.

4) Jurisdictional domino effect: no “water matter,” no ancillary tort jurisdiction

After rejecting the statutory claims, the Court treated the case as lacking any remaining “water matter” concerning waste or flooding. Without a water matter to which tort claims could be ancillary, trespass and nuisance became, at most, tangentially related real-property disputes, which Crystal Lakes Water & Sewer Ass'n v. Backlund says are outside water court jurisdiction.

The Court also rejected an alternative anchor: the water court did have jurisdiction over separate Roaring Fork Club, L.P. v. St. Jude's Co. ditch-alteration claims, but those were “separate and unrelated” to runoff/flooding. Because resolving trespass/nuisance about flooding would not “directly affect” the Roaring Fork water-matter outcome, the tort claims could not ride along. This reasoning closely tracked Sheek v. Brooks: when the predicate water issue does not require resolution of the tort claim, ancillary jurisdiction fails.

5) Injunctive relief falls with the claims supporting it

The operational injunction restricting diversions (including in free river conditions and with notice requirements) was issued as a remedy for the statutory waste/flooding findings and the related tort claims. Once those claims were ordered dismissed (for lack of standing, lack of cause of action, and lack of jurisdiction), the injunction lacked a lawful foundation and was vacated—without reaching the constitutional argument under Colo. Const. art. XVI, § 6.

6) Procedural discipline: easement-limitation theory raised too late

Defendant sought post-trial to limit Plaintiffs’ use of the Lower Gaskill Ditch (essentially a quantification/necessity limitation). The Court held the water court acted within its discretion in refusing to entertain a new legal argument first advanced in a motion for reconsideration, relying on United States v. City of Golden. The Court thus left the easement’s extent unresolved in this proceeding.

C. Impact

1) Clear separation between public “waste” enforcement and private damages litigation

The opinion establishes that section 37-84-108 is not privately enforceable, and that standing cannot be manufactured by pairing a private injury (like flooding) with a public enforcement statute that confers no private right. Practically, parties alleging harm from “wasteful” diversions cannot sue under section 37-84-108; their options are to: (i) pursue appropriate administrative avenues through the State Engineer’s authority to prevent waste, and/or (ii) bring common-law claims (trespass, nuisance, negligence) in district court where jurisdiction lies.

2) Constrains fee-shifting under section 37-84-125

By confining sections 37-84-124 and -125 to protection against water-right infringement (rather than property flooding), the Court sharply limits when section 37-84-125’s attorney-fee provision is available. Litigants alleging runoff/flooding damages should not expect statutory fees under section 37-84-125 absent a true “extra appropriation” injury to water rights as the statute contemplates.

3) Narrows the path to water-court adjudication for tort claims

The decision reinforces that ancillary jurisdiction is not a convenience doctrine; it is tethered to whether an issue “directly affect[s]” the outcome of a water matter. When the asserted water-matter claims are legally defective, water courts may be required to dismiss related tort claims—even if they are factually intertwined—sending property-damage disputes to district court.

4) Injunctions affecting diversions require a valid jurisdictional and substantive predicate

The vacatur of the operational injunction signals that water-court orders regulating day-to-day diversion operations (including during free river conditions) must rest on properly pleaded, legally viable claims within the court’s jurisdiction. Although the Court did not decide the constitutional question, the opinion increases pressure on future litigants to ground operational restrictions in valid water-matter determinations (or in district-court tort remedies), not in misapplied waste statutes.

5) Litigation strategy: pleading and preservation matter

Plaintiffs could not retroactively convert statutory claims into negligence per se on appeal, and Defendant could not introduce a new limitation theory in a reconsideration motion. The opinion thus functions as a practical warning: jurisdictional theory, cause-of-action theory, and remedial theory must be correctly pleaded and tried, not improvised post hoc.