v.

JUSTICE SAMOUR delivered the Opinion of the Court.

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Contempt—Acts or Conduct Constituting Contempt of Court.

In this direct appeal, the supreme court reviews the water court's contempt order, which imposed punitive and remedial sanctions on the defendant. The water court determined that the defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from the defendant's ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The supreme court concludes that the water court had ample evidence to find that the defendant is the owner of the Sease Ranch. Further, the supreme court determines that the water court did not shift the burden of proof to the defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without the defendant's authorization.

Accordingly, the water court's judgment is affirmed. Appeal from District Court
Alamosa County District Court, Water Division 3, 07CW53
Honorable Pattie P. Swift, Water Judge Judgment Affirmed
en banc
Attorneys for Plaintiffs-Appellees:
Cynthia H. Coffman, Attorney General
Paul L. Benington, First Assistant Attorney General

Denver
, Colorado Attorneys for Defendant-Appellant:
Erich Schwiesow, P.C.,
Erich Schwiesow

Alamosa
, Colorado JUSTICE SAMOUR delivered the Opinion of the Court. ¶1 Who diverted water from Sheep Creek? The water court concluded Robert Gregg Sease did—in violation of a 2013 order, which forbade him to use out-of-priority water from Sheep Creek on his Saguache County property ("the Sease Ranch"). Thus, the water court found Sease in contempt of court and imposed both punitive and remedial sanctions on him. ¶2 Sease now seeks review of the water court's contempt order. He advances two arguments in this direct appeal. First, he contends that the water court had no basis to find that he owns the Sease Ranch. This finding was significant because the water court inferred from it that Sease, rather than anyone else, was responsible for the contemptuous work performed on the Sease Ranch that caused water to be diverted from Sheep Creek. Second, Sease maintains that the water court improperly shifted the burden of proof to him when it noted that there was a lack of evidence in the record that "someone else came on the premises and did [the contemptuous] work without [his] authorization or against his will." ¶3 Because we disagree with Sease on both fronts, we affirm the water court's contempt order. The matter is therefore remanded to the water court for enforcement of its punitive and remedial sanctions.

I. Procedural History

¶4 This case has a tortuous procedural history. However, because it is relevant to Sease's assertions on appeal, we detail it here. ¶5 Sheep Creek flows through the Sease Ranch. The construction of various structures on the Sease Ranch caused out-of-priority depletions of water from Sheep ¶14 But this strange saga did not end with the 2013 Order. In 2015, the State filed its seventh contempt motion, the one that led to the order Sease challenges in this appeal. In the seventh contempt motion, the State claimed that Sease had violated the 2013 Order in five different ways: (1) building a new impoundment area, new ditches, and two new ponds; (2) installing a new water tank and a metal gate at one end of a ditch; (3) altering two existing ponds; (4) creating a ditch to bypass a pipeline he was estopped from using; and (5) altering parts of Sheep Creek by dredging it, widening a channel, changing the course of its water flow by filling one bank, and placing large rocks within its high-water line. The water court ordered Sease to show cause as to why he should not be held in contempt of the 2013 Order. A hearing was then scheduled. ¶15 Thereafter, the water court held a two-day evidentiary hearing ("the contempt hearing" or "the hearing"). At the end of the hearing, it determined that the State had established the following facts beyond a reasonable doubt:

• The 2013 Order was lawfully issued;
• Sease had knowledge of the 2013 Order, as evidenced by the sixth stipulation and Sease's personal statements to the water court that he was aware of the order;
• Sease had the ability to comply with the 2013 Order, as it required either doing nothing or merely asking permission of the State before taking any action that impacted Sheep Creek; and
• Sease willfully and knowingly violated the 2013 Order in seventeen ways, including by erecting new water structures, placing boulders within the ordinary high-water mark, and dredging material in seven sites along Sheep Creek.

Thus, the water court found Sease in contempt of the 2013 Order. ¶16 After a series of sentencing hearings, the water court ultimately imposed punitive and remedial sanctions on Sease. As punitive sanctions, it ordered Sease to serve a ninety-day jail sentence and to pay a $10,000 punitive fine. As remedial sanctions, it ordered Sease to: (1) hire contractors to prepare a plan to remediate all water structures in accordance with the June 2008 Order and the 2013 Order; (2) obtain the State's approval of that plan; (3) pay for all the work required to effectuate the plan; (4) pay $100 per day until certain upland violation sites are brought into compliance with the plan; (5) pay $100 per day until certain stream and wetland restoration is completed; and (6) pay $5,000 each day his contractors have scheduled work on the Sease Ranch and the State supervisors are available to supervise such work, but the work is not completed. The water court also awarded the State the attorney fees and costs incurred in connection with the remedial aspect of the seventh contempt motion. This appeal followed.

The record does not reflect whether Sease ever filed an appeal.

Sease's current appeal stems from the water court's determination that he violated the 2013 Order.

Sease appeared in the water court as the 2013 Order was issued and confirmed that he was aware of its terms, including the injunction.

II. Analysis

¶17 The water court inferred from Sease's ownership of the Sease Ranch that he either completed the contemptuous work himself or authorized others to do it. Sease argues that the water court erred in drawing that inference because there was no evidence that he owns the Sease Ranch. Further, asserts Sease, the water court improperly shifted the burden of proof to him when it buttressed that inference by pointing to the lack of evidence in the record that "someone else came on the premises and did [the contemptuous] work" without his authorization or against his will. ¶18 We have little difficulty disposing of Sease's contentions. We conclude that the water court had ample evidence to find that Sease is the owner of the Sease Ranch, and we reject Sease's contention that the water court shifted the burden of proof to him by noting the absence of evidence that someone else is responsible for the contemptuous work in question. We therefore affirm the water court's contempt order. ¶19 We first discuss the legal principles that are relevant to Sease's appeal. We then apply those principles to address the merits of Sease's arguments.

Sease does not dispute that if the State proved that someone else performed the contemptuous work on the Sease Ranch with his authorization, he should be held in contempt of the 2013 Order. Cf. Vaughn v. People ex rel. Simpson, 135 P.3d 721, 725 (Colo. 2006) (upholding the trial court's finding that the landowner was responsible for diverting ground water, in violation of an order of the division engineer, where the well was operated either by the landowner or by an authorized member of his family).

A. Relevant Legal Principles

¶20 Courts have "inherent authority to use all powers reasonably required to protect the[ir] efficient function, dignity, independence, and integrity." People v. Aleem, 149 P.3d 765, 774 (Colo. 2007). This authority includes the power to "hold a party in contempt for any conduct which interferes with the court's administration of justice, is derogatory to the dignity of the court, or tends to bring the judiciary into disrespect." Id. We have recognized the power of contempt as "absolutely essential to the duties imposed upon ¶25 Whether the water court improperly shifted the burden of proof is a question of law. As we have explained, we review questions of law de novo. Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff's Dep't, 196 P.3d 892, 897-98 (Colo. 2008).

We focus on the punitive sanctions imposed by the water court because remedial sanctions are subject to less rigorous legal requirements. See generally In re Marriage of Cyr and Kay, 186 P.3d 88, 92 (Colo. App. 2008) (contrasting remedial sanctions and punitive sanctions). Unlike punitive sanctions, which must be supported by proof beyond a reasonable doubt, remedial sanctions are "civil in nature." Id. Additionally, since "the power to punish for contempt should be used sparingly," before punitive sanctions may be imposed, "the contemnor's mental state of willful disobedience must be shown." Id. at 91-92. This requirement does not apply to remedial sanctions. Id. at 92. Rather, in a contempt proceeding involving remedial sanctions, the moving party must simply make "a prima facie showing" that an order existed and that the contemnor violated it; if a prima facie showing is made, "the burden . . . shifts to the alleged contemnor to show an inability to pay" or to otherwise purge himself of the contempt. In re Marriage of Lamutt, 881 P.2d 445, 447 (Colo. App. 1994).

B. Application 1. There Was Sufficient Evidence That Sease Owns the Sease Ranch

¶26 The water court found that Sease, not someone else, performed the contemptuous work on the Sease Ranch. It did so by drawing a reasonable, commonsense inference from Sease's ownership of the Sease Ranch. Sease insists, however, that no evidence was presented during the contempt hearing to prove he owns the Sease Ranch. We disagree. ¶27 Sease forgets that he has repeatedly admitted in pleadings, stipulations, and through his counsel that he is the owner of the Sease Ranch. He did so from the get-go, in his answer to the State's complaint: "Defendant admits that he is the owner of the property that is the subject matter of this Complaint, being the Sease [R]anch as described." He did so again just months later, when he acknowledged in the first stipulation that he "is the owner and user of . . . 'Sease Ranch Property.'" In the same stipulation, Sease conceded that he "owns and uses many structures located on the Sease Property Ranch" that the State asserts "divert, impound and/or store waters of the state . . . out of priority and to the detriment of senior water rights." Sease's attorney party." The same plan confirmed that the land on which the work would occur was the same property subject to the 2013 Order. ¶31 In sum, our review of the record demonstrates that there was overwhelming evidence that Sease owns the Sease Ranch. Therefore, we conclude that the water court did not err in finding that there was "no question" about such ownership or in deducing from it that Sease, as opposed to someone else, was responsible for the contemptuous work performed on the Sease Ranch.

In a verified application for approval of a plan for augmentation filed with the water court in January 2009, Sease stated that he "is the owner of all land upon which all new or modified structures referenced in this application are located." Although this amended water court application was filed in a separate case, it was admitted into evidence without objection at the contempt hearing.

The 2013 Order, which incorporated by reference the sixth stipulation, was admitted into evidence at the contempt hearing.

Relying on CRE 404(b), Sease avers that the water court improperly relied on the parties' stipulations and the orders adopting those stipulations as evidence of his ownership of the Sease Ranch. Rule 404(b) is inapposite. That rule simply "prohibits the use of evidence to show a person acted in conformity with a certain character." People v. Segovia, 196 P.3d 1126, 1129 (Colo. 2008). The stipulations and orders about which Sease protests say nothing about his character or whether he has ever acted in conformity with any character trait.

Sease makes a halfhearted argument that, even if the State had proven his ownership of the Sease Ranch, "that alone could not constitute sufficient evidence to support the inference that . . . he must have been responsible for the [contemptuous] actions." Someone else could have undertaken the contemptuous actions, posits Sease. Because the circumstantial evidence of property ownership did not eliminate "every other reasonable hypothesis," Sease maintains that it was insufficient. There is no authority for this proposition. Sease relies exclusively on Diaz v. People. 420 P.2d 824, 826 (Colo. 1966) ("[e]xclusion of every other Rational hypothesis, which means Reasonable hypothesis, is the test" for evaluating the sufficiency of circumstantial evidence) (quotation marks omitted). But the test discussed in Diaz is no longer good law. Nearly half a century ago, we "cast aside as outmoded and as confusing the requirement that the prosecution's evidence, when wholly circumstantial, must exclude every reasonable hypotheses [sic] other than that of guilt." People v. Bennett, 515 P.2d 466, 469 (Colo. 1973). --------

2. The Water Court Did Not Shift the Burden of Proof to Sease

¶32 After finding that Sease owns the Sease Ranch and inferring from such ownership that he was responsible for completing the contemptuous work or authorizing others to do it, the water court buoyed that inference by observing that there was no evidence in the record indicating that someone other than Sease had entered the Sease Ranch and performed the work without his authorization or against his will. Sease relies on this comment to argue that the water court improperly shifted the burden of proof to him. Sease is mistaken. ¶33 The water court's oral ruling and written orders clearly show that it placed the burden of proof squarely on the State and kept it there throughout the hearing. At no point did the water court require Sease to prove anything or present any evidence. ¶34 The remark Sease focuses on was made after the water court had already inferred that he was responsible for the contemptuous work because he is the owner of the Sease Ranch. Indeed, it was on the heels of drawing that inference that the water court acknowledged that, "obviously, one could argue maybe someone else came on the premises and did that work instead without Mr. Sease's authorization or against his will." However, the water court wisely dismissed that possibility, explaining that, "if that were the case, [it] would have expected to hear [such evidence] as part of the defense, and that was not presented to the [c]ourt." Thus, the water court confirmed the reasonableness of "the inference that it was Mr. Sease who either completed the work himself or authorized others to do it because he is the owner of those premises." ¶35 Far from shifting the burden of proof to Sease, the water court simply reasoned, after thinking about the evidence further and considering the possibility of an alternate suspect, that the inference it had previously drawn from Sease's ownership of the Sease Ranch was justified:

Given that Mr. Sease owns the Sease Ranch and has previously, in this case, been involved in the construction of numerous water features and structures on the property, it is reasonable to infer that he was aware of such obvious and visible work being done on his property. Furthermore, it is highly unlikely that an unknown person would bring in heavy

equipment to dig a ditch and place and remove pipelines and create and remove an impoundment on Mr. Sease's land without being paid to do it. In addition, it is highly unlikely that an unknown person would pay for [other work] on Mr. Sease's property without being reimbursed for the materials and without being paid for the installation work. Thus, it is highly unlikely that someone would cause all of this work to be done on Mr. Sease's property without his permission and agreement to pay for the work. . . . Accordingly, the court finds that the evidence in this case leads to the conclusion that Mr. Sease himself, or through his agents and/or employees, installed [several] . . . pipelines, constructed . . . [an] impoundment, increased the size of [a] ponded area[,] . . . installed [a] slide gate to work in conjunction with [one of the newly-constructed pipelines], and made the numerous changes in Sheep Creek.

In our view, the water court properly relied on the circumstantial evidence before it, including the improbability that someone else could have entered the Sease Ranch and performed the contemptuous work without Sease's authorization. See Vaughn, 135 P.3d at 725 (concluding that the water court could hold the landowner responsible for violating a division engineer's order based on the circumstantial evidence presented, including "the improbability of the well water having been used for any other purpose without leaving signs that could go unnoticed"). ¶36 In any event, in finding that Sease was responsible for the contemptuous work completed on the Sease Ranch, the water court did not rely on the observation Sease complains about. As mentioned, the water court had already found Sease responsible when it made the observation. Hence, the observation was inconsequential.

III. Conclusion

¶37 We conclude that the water court did not err in finding Sease in contempt of the 2013 Order. Therefore, we affirm the contempt order and remand the case for 19 enforcement of the punitive and remedial sanctions imposed. The State's request for an award of the attorney fees incurred on appeal is denied.