Rule 89 NOTICE WHEN PRIORITY ANTEDATING AN ADJUDICATION IS SOUGHT.

• Jurisdiction: Colorado

Rule 89. Notice When Priority Antedating an Adjudication Is Sought.

Whenever a claimant makes application for the determination of a water right or a conditional water right and claims that his date of priority will antedate any earlier adjudication or claims a priority date earlier than the effective date of one or more priorities awarded by a previous decree or decrees within the water division in which the application is filed (except when provision for such antedation or earlier priority is made by statute), in order not to be forever barred, the owners of affected rights must object and protest within the times and in the manner provided by statute, and the water clerk shall include in the resume required by statute a specific notification in boldface type substantially as follows:

"The water right claimed by this application may affect in priority any water right claimed or heretofore adjudicated within this division and owners of affected rights must appear to object and protest within the time provided by statute, or be forever barred."

COMMENT

Following the announcement on March 24, 1971, of United States v. District Court in and for the County of Eagle, 401 U.S. 520, 91 S. Ct. 998, 28 L. Ed. 2d 278 (1971), and United States v. District Court in and for Water Division Number 5, 401 U.S. 527, 91 S. Ct. 1003, 28 L. Ed. 2d 284 (1971). The Colorado Supreme Court appointed a water advisory committee for study and recommendations as to the necessity and possible content of rules of court as a result of the two United States Supreme Court opinions. An attempt was made to have the membership of this committee representative of the different interests that might be affected by proceedings conducted in the light of these opinions and United States v. District Court, 169 Colo. 555, 458 P.2d 760 (1969), which was affirmed by the first mentioned United States Supreme Court opinion. After conferences and study the committee established tentative guidelines and recommended that a 5-man briefing and drafting committee be appointed for performance under the guidelines. Accordingly, a briefing and drafting committee was appointed, consisting of the following attorneys: Kenneth Balcomb, Glenwood Springs, Colorado; Charles J. Beise, Denver, Colorado; Kenneth L. Broadhurst, Denver, Colorado; Gene Alan Erl, Washington, D.C.; and Donald H. Hamburg, Denver, Colorado, with Mr. Beise acting as chairman. Early in the work of the briefing and drafting committee, Messrs. Beise and Balcomb prepared a memorandum which is set forth later herein.

After the briefing and drafting committee completed its work, it submitted proposed rules to the entire water advisory committee which, after some revision, unanimously approved them and recommended their adoption by the Colorado Supreme Court. The seven water judges of the state (Fred Calhoun, Donald A. Carpenter, Richard E. Conour, C.H...