DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADO



DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADO

TO: ALL PERSONS INTERESTED IN WATER APPLICATIONS FILED IN WATER DIVISION 3.

Pursuant to C.R.S. 37-92-302(3), you are notified that the following is a resume in Water Division 3, containing notice of applications and amended applications or requests for correction filed in the office of the Water Clerk during the month of June, 2012.

The names and addresses of applicants, description of water rights, or conditional water rights involved, and description of ruling sought, are as follows:

Case No. 2012CW16, Willard L. Mix and Ora E. Mix Testamentary Trust, 4511 East Road 3 North, Monte Vista, CO 81144, 719-852-2957, Application for Change of Water Right in Saguache County

Decreed name of structure for which change is sought: Well No. 4, Case No. W-504, Registration No. 6465-R Date entered: December 28, 1973 Case no. W-504 Court: Water Division No. 3 Decreed point of diversion: Well No. 4: NE¼ NW¼ Section 12, Township 41 North, Range 8 East, NMPM, with no defined distances from Section lines Source: Unconfined Aquifer Appropriation date and amount: July 31, 1940 for 2000 gallons per minute (4.46 cfs) Historic use: Well No. 4 has been historically used to flood and/or sprinkler irrigate the N½ SW¼ and the NW¼ of Section 12, Township 41 North, Range 8 East, NMPM in conjunction with Well No. 1, Case No. W-3782 (drilled 1972) and Well No. 1, Case No. 80CW73 (drilled 1980) and the Farmers Union Ditch water Proposed change: This change of water right requests only to correct the decreed location of Well No. 4 from the NE¼ NW¼ Section 12, Township 41 North, Range 8 East, NMPM, to the: NW¼ SW¼ Section 12, Township 41 North, Range 8 East, NMPM at a point approximately 1300 feet from the North Section line and 15 feet from the West Section line in Saguache County. Location verified by DWR GPS location at UTM NAD 83, Zone 13S: 407037 mE, 4185291 mN. The original registration of the irrigation well by Willard L. And Ora E. Mix placed the well in the NE¼ NW¼ Section 12. This registration was given no. 6465-R in 1958. And eventually the well was decreed at that same location in Case No. W-504. However, field verification and testimony of the family finds that no irrigation well ever existed in the NE¼ NW¼ Section 12. Rotating the map included with the original registration by 90 degrees gives the correct orientation of the well. The well was always located at the southwest corner of the property that includes the N½ SW¼ and the NW¼ of Section 12, Township 41 North, Range 8 East, NMPM (240 acres). The applicants request that the Court correct the location of Well No. 4, Case No. W-504, Registration No. 6465-R. The Applicants are the owners of the property upon which water will be placed to beneficial use.

(2 Pages)

Case No. 12CW20, Richard L. Benton, 4494 W. 8N., Del Norte, CO 81132, (719)-754-3551 Application for Change of Water Right in Alamosa County

Name of structure: 02CW057 Well No 1-R, Water District Identification Number (“WDID”) 2013858 Legal description of structure: Center of the NE1/4 NW1/4 of Section 29, T40N, R7E, NMPM, at a point 1,300 feet from the North Section line and 1,500 from the West Section line. Date of original and all relevant subsequent decrees: 1. Original appropriation date June 30, 1947 for irrigation. 2. Case No. W-461, Well Permit No. 6817, adjudicated and decreed by Colorado District Court, Water Division Three on January 16, 1975 for 1,000 gallons per minute (“gpm”) from the unconfined aquifer. 3. Case No. 02CW57, Well Permit No. R-6817-RF, adjudicated and decreed by Colorado District Court, Water Division Three on July 7, 2003 for 1,000 gpm from the unconfined aquifer, the average annual amount of ground water to be appropriated shall not exceed 300 acre-feet with continued diversion of recharged Rio Grande Canal and Santa Maria Reservoir share water associated with the land. Decreed source of water: Unconfined Aquifer with continued diversion of recharge Rio Grande Canal and Santa Maria Reservoir share water associated with the land. Appropriation date and amount: June 30, 1947, 1,000 gpm from the unconfined aquifer, with the average annual amount of ground water to be appropriated not exceed 300 acre feet. Historic use: Irrigation Detailed description of proposed change: Applicant seeks to change the point of diversion of Well. No. 1-R Case No. 02CW57 from its current depth of 100 FT to a new depth of 250 FT. Applicant will drill a new well located less than 200 feet from the current location of 02CW057 Well No 1-R to the depth of 250 FT. Case No. 02CW57 ruled and decreed that applicant should continue to divert or recharge Rio Grande Canal and Santa Maria Reservoir share water associated with the land. Applicant owns shares of the Rio Grande Canal Water Users Association (“Rio Grande Canal”) and shares of the Santa Maria Reservoir Company (“Santa Maria”). Both the Rio Grande Canal shares and the Santa Maria shares are tied to the NE1/4 NW1/4 of Section 29, T40N, R7E, NMPM. The water was appropriated and decreed for use by shareholders to recharge the unconfined and confined aquifers in case No. W-3979 on December 27, 1984. The Rio Grande Canal Water Users Association leases shares from the Santa Maria Reservoir Company. In Case No. W-3979, the court confirmed and decreed the following: 1. The historical irrigation practice of recharging the underground aquifers by the application of direct flow water rights to the surface and utilizing the water from the recharged underground aquifers for irrigation purposes. 2. The right of Rio Grande Canal Water Users Association (“RGCWUA”) Shareholders reclaim through well withdrawals from the underground aquifers an amount of water equivalent to that applied on the surface to recharge those aquifers. 3. Extraction of water from the wells of RGCWUA shareholders shall not be limited to the amount of water applied to recharge. The owners of these wells may also be entitled to extract additional water under each well’s own independent priority. In order to produce the entire decreed 300 AF in Case No. 02CW57, a deeper replacement well is required. To comply with State Engineer Policy 2003-3, Applicant must apply for a change in water right. Applicant’s shares in the Rio Grand Canal and in the Santa Maria will continue to augment water pumped from the changed point of diversion as applicant has previously done under the Decree entered in Case No. 02CW57. Name and address of owner of the land on which new diversion or storage structures, or modifications thereto, are located: Applicant

(18 pages with attachments)

THE WATER RIGHTS CLAIMED BY THESE APPLICATIONS MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT WITHIN THE TIME PROVIDED BY STATUTE OR BE FOREVER BARRED

You are further notified that you have until the last day of July, 2012, to file with the Water Clerk, a verified statement of opposition setting forth facts as to why a certain application should not be granted or why it should be granted only in part or on certain conditions or a protest to the requested correction. A copy of such a statement of opposition or protest must also be served upon the Applicant or the Applicant’s attorney and an affidavit or certificate of such service must be filed with the Water Clerk. A $130.00 filing fee is required.

PROTESTS TO THE ABANDONMENT LIST

Case No. 2012CW13, Smith and Wakasugi, RLLLP, P.O. Box 189, Blanca, CO 81123 (John C. McClure, McClure & Eggleston, LLC, 1401 17th Street, #660, Denver, CO 80202, 303-294-0822) Protest to Revised Abandonment List in Costilla County

Name of structure: Well No. 8, Case No. W-332 (Permit No. 14222). Date of original decree: August 1, 1974. Case No.: W-332. Court: Water Court, Division No. 3. Location of point of diversion: Northing 4142914 Easting 0453733. Source of water: Unconfined aquifer. Decreed use or uses: Domestic and commercial. Appropriation date: June 8, 1955. Decreed amount: 0.78 c.f.s. Amount listed as having been abandoned: 0.78 c.f.s. Former district number and page number where listed on Abandonment List: Page 3 of 5 of Revised Abandonment List of Water Rights in Water Division 3. State factual and legal basis for this Protest: Well No. 8 should not be administratively abandoned as there is, and has been, no intent to abandon Well No. 8 by the owner Smith and Wakasugi, RLLLP. Well No. 8 is adjudicated for both domestic and commercial purposes. It is located in the NW 1/4 NW 1/4 Section 23, Township 30 S, Range 73 W, 6th PM. Prior to the Well No. 8 owner acquiring it, it was used for commercial purposes at another packing shed on the site. Well No. 8 is available to the owner of it, or an affiliated entity, for use at an existing packing shed that processes potatoes, and is physically located approximately one-half mile from the existing packing shed.

The adjudicated commercial use of this well is consistent with the owner’s contemplated future use of the well. Well No. 8 was acquired for supplemental use purposes, if and when needed. The owner considers this well to be a valuable asset in its ongoing commercial operations.

(5 pages with attachments)

Case No. 2012CW14, Jerry W. Smith, P.O. Box 189, Blanca, CO 81123 (John C. McClure, McClure & Eggleston, LLC, 1401 17th Street, #660, Denver, CO 80202, 303-294-0822) Protest to Revised Abandonment List in Costilla County

Name of structure: Well No. 2, Case No. W-332 (Permit No. 14237). Date of original decree: August 29, 1974. Case No.: W-332. Court: Water Court, Division No. 3. Location of point of diversion: NE-1/4 NW-1/4, Section 36, Township 30 South, Range 74 West, 6th P.M., at a point 570 feet from the North section line and 2,590 feet from the East section line. Source of water: Unconfined aquifer. Decreed use or uses: Irrigation. Appropriation date: August 15, 1956. Decreed amount: 2.44 c.f.s. Amount listed as having been abandoned: 2.44 c.f.s. Former district number and page number where listed on Abandonment List: Page 3 of 5 of Revised Abandonment List of Water Rights in Water Division 3. State factual and legal basis for this Protest: Well No. 14237 should not be administratively abandoned as there is, and has been, no intent to abandon it by the owner Jerry W. Smith. Well No. 14237 is decreed for irrigation purposes. Waters from Well No. 14237 have been physically pumped from another well structure – Case No. W-332, Well No. 3, Permit No. 14238 (“Well No. 14238”). Well No. 14238 is located in the NW 1/4 of S 36, T 30 S, R 74 W, 6th PM, with the waters piped from that well structure for the purpose of irrigating the NW 1/4 of S 36, T 30 S, R 74 W, 6th PM, SW-1/4 of S 36, T 30 S, R 74 W, 6th PM, and NE 1/4 of S 35, T 30 S, R 74 W, 6th PM. Waters from Well No. 14237 have been continually used for farming purposes.

Case No. W-332, Well No. 4, Permit No. 14239 (“Well No. 14239”) is located in the NE 1/4 of S 35, T 30 S, R 74 W, 6th PM. Well No. 14239 is part of a three well/three quarter section farming unit and used in conjunction with Well Nos. 14237 and 14238 on the above three quarter sections. Well Nos. 14237, 14238, and 14239, along with the aforementioned three quarter sections, are owned by the undersigned owner or an affiliated person or entity.

Since approximately 1977, after center pivot irrigation systems were installed on three quarter sections – NW 1/4 S 36, T 30 S, R 74 W; SW 1/4 S 36, T 30 S, R 74 W; and NE 1/4 S 35, T 30 S, R 74 W – the waters from the Well No. 14238 well structure have been used to service each of the three quarter sections. Well No. 14238 provides the physical source of supply of waters for each of the three quarter sections, in part, due to physical limitations associated with Well No. 14237.

(5 pages with attachments)

Case No. 2012CW15, Jerry W. Smith and Barbara J. Smith Family Limited Partnership, P.O. Box 189, Blanca, CO 81123 (John C. McClure, McClure & Eggleston, LLC, 1401 17th Street, #660, Denver, CO 80202, 303-294-0822) Protest to Revised Abandonment List in Costilla County

Name of structure: Well No. 4, Case No. W-332 (Permit No. 14239). Date of original decree: August 29, 1974, Case No. W-332. Court: Water Court, Division No. 3. Location of point of diversion: SE-1/4 NE-1/4, Section 35, Township 30 South, Range 74 West, 6th P.M., at a point 410 feet from the North section line and 150 feet from the East section line. Source of water: Unconfined aquifer. Decreed use or uses: Irrigation. Appropriation date: September 30, 1956. Decreed amount: 2.67 c.f.s. Amount listed as having been abandoned: 2.67 c.f.s. Former district number and page number where listed on Abandonment List: Page 3 of 5 of Revised Abandonment List of Water Rights in Water Division 3. State factual and legal basis for this Protest: Well No. 14239 should not be administratively abandoned as there is, and has been, no intent to abandon it by the owner Jerry W. Smith and Barbara J. Smith Family Limited Partnership. Well No. 14239 is decreed for irrigation purposes. Waters from Well No. 14239 have been physically pumped from another well structure – Case No. W-337, Well No. 3, Permit No. 14238 (“Well No. 14238”). Well No. 14238 is located on adjacent lands in the NW 1/4 of S 36, T 30 S, R 74 W 6th PM with waters piped for irrigation from Well No. 14238 to the NW 1/4 of S 36, T 30 S, R 74 W, 6th PM, SW-1/4 of S 36, T 30 S, R 74 W, 6th PM, and the NE 1/4 of S 35, T 30 S, R 74 W, 6th PM. Waters from Well No. 14239 have been continually used for farming purposes.

Case No. 332, Well No. 2, Permit No. 14237 (“Well No. 14237”) is located in the NW 1/4 of S 36, T 30 S, R 74 W. Well No. 14237 is part of a three well/three quarter section farming unit and used in conjunction with Well Nos. 14238 and 14239 on the above three quarter sections. Well Nos. 14237, 14238, and 14239, along with the aforementioned three quarter sections, are owned by the undersigned owner or an affiliated person or entity.

Since approximately 1977, after center pivot irrigation systems were installed on three quarter sections – NW 1/4 S 36, T 30 S, R 74 W; SW 1/4 S 36, T 30 S, R 74 W; and NE 1/4 S 35, T 30 S, R 74 W – the waters from the Well No. 14238 well structure have been used to service each of the three quarter sections. Well No. 14238 provides the physical source of supply of waters for each of the three quarter sections, in part, due to physical limitations associated with Well No. 14239.

(5 pages with attachments)

Case No. 2012CW17; Robert Fiorito, 3758 Hoffman Road, Oak Harbor, WA 98277; rjjfsrforvets@; 909-260-8992; Protest to Revised Abandonment List in Rio Grande County

Name of structure: W2537 #1 & #2, WDIDs 2012535 & 2012536 Date of original decree: 13 December 1979 Case no.: W-2537 Court: Water Division 3 Location and legal description: SW¼ of the SW¼, SW¼ Section 31 Township 37N Range 8E NMPM Distance from section lines: 60 Feet from South Section Line and 300 Feet from West Section Line & 65 Feet from South Section Line and 250 Feet from the West Section Line Street address: 0469 East County Road South, Monte Vista, CO 81144 Subdivision: Monte Vista Source of water: T Rio Grande Decreed use or uses: Irrigation Appropriation date: W2357-1 May 1, 1963 & W2537-2 June 1, 1963 Decreed amount: W2537-1 350 gal per min (.78 Cubic Ft per second being 1.56 acre feet of water in a 24 hour period) & W2537-2 100 gal per min (.223 Cubic Ft per second being .446 acre feet of water in a 24 hour period). Amount listed as having been abandoned: W2357-1 (.7800) & W2357-2 (.2230) Former district number and page number where listed on Abandonment List: Division 3 and Page 5 of 5 State factual and legal basis for this Protest: In 1996 My son Robert Jr. (While he was on active duty in the Navy and he served 20 years) and I purchased the property and the wells that are part of this protest. We purchased this property for the purpose to build a boarding horse ranch upon his retiring from military service. We never had any intent to abandon our water rights. In fact we need our water rights to fulfill our plans. We had no idea of the possibility the government would take this step to abandon our water rights. We quick deeded the land in 2001 just before one of his deployments. He has served in the current wars seven times. Approximately 2005 I had Valley Pump & Drilling Company dismantle the Pumps and guts of the wells to cap them due to numerous vandalisms on my property in my absence. January 2010 My son put his home (in Oak Harbor, Wa.) up for sale in anticipation of his retirement from military service on October 1, 2010. The proceeds were to be used to develop our plan for the Colorado Property. Then in a letter from Division Engineer dated July 16, 2010, we were notified that our wells were put on the Abandonment list. Upon this notification from the Division engineer My son has now taken his house off the market awaiting the outcome of this protest. For more clarification; Please see attached Letters dated September 19, 2010 & June 22, 2012. Again we “NEVER HAD ANY INTENT TO ABANDON OUR WELLS, WE WERE JUST WAITING FOR MY SON TO COMPLETE HIS MILITARY CAREER” to begin our plans to build our ranch !!! AS IN C.R.S. §37-92-103(2); Abandonment of a water right requires a finding of non-use coupled with an intent to abandon the water right. Nonuse alone will not establish abandonment where the owner introduces sufficient evidence to show that during the period of nonuse there never was any intention to permanently discontinue the use of the water. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

(12 pages)

12CW18. SAGUACHE COUNTY. LA GARITA CREEK. Wagon Tracks West, LLC., c/o Patrick, Miller & Kropf, P.C., c/o Kevin L. Patrick, Esq. and Laura C. Makar, Esq., 730 E. Durant Ave., Suite 200, Aspen, CO 81611, (970) 920-1025. PROTEST TO REVISED ABANDONMENT LIST. Describe the Water Right: Name of structure: Curby Ditch No. 1. Date of original Decree: March 23, 1882. Case No.: CA601. Court: Saguache County District Court. Decreed legal description: Ditch heads on the South side of and takes water from the La Garita Creek situated in Saguache County in said Water District at a point on the lands of Jesus Gomes. Source of water: La Garita Creek. Decreed use or uses: Irrigation. Appropriation date: February 28, 1879. Decreed Amount: 0.78 c.f.s., absolute. Former District Number: 14, now District 27. Page Number where listed on Abandonment List: Page 2, Division 3 Revised Abandonment List, December 19, 2011.

(6 pages with attachments)

Case No. 2012CW19, V. W. Ellithorpe, P.O. Box 489, Center, CO 81125, 719-754-3649, (Stéphane Walter Atencio, S. W. Atencio & Assoc., PC, 601 Third Street, Alamosa, CO 81101, 719-589-6005) Protest to Revised Abandonment List in Saguache County.

Water Right: Name of Structure: Well No. N19 (WDID 2705242). Date of original Decree: April 23, 1982. Case No. 81CW89. Court: Water Div. 3. Location and legal description: Center of NE1/4, Sec. 13, T42N, R7E, NMPM. Source of water: unconfined aquifer. Decreed use: irrigation. Appropriation date: August 8, 1979. Decreed amount: 550 gpm; 1.22 cfs. Amount listed as having been abandoned: 1.22 cfs. Former District number and page number where listed on Abandonment List: District 27; page 2. State factual and legal basis for this Protest: Prior to the administrative deactivation of this well in 2007, Protestant used this well on an annual basis for the irrigation of the NE¼ of Section 13, T42N, R7E, NMPM. Protestant has not abandoned this water right or any portion of this water right.

(3 pages)

2012CW21 Alan Miller, 20758 County Road 10, La Jara, CO 81140, alanmiller@, 719-274-5430; Elena Miller-ter Kuile, 11150 FRD 255, La Jara, CO 81140, emillerterkuile@, 719-849-9164; Protest to Revised Abandonment List in Conejos County

Name of structure: Rivera Ditch, Alamosa River, District 21, Division 3 Date of original decree: 1887 Case no.: 2100585 Court: Alamosa Location and legal description: NW¼ of the SW¼ Section 8 Township 35N Range 8E NMPM GPS location information in UTM format: Northing 4127451.04, Easting 400325.07, Zone 13 Source of water: Alamosa River Decreed use or uses: Agricultural Appropriation date: 1887 Decreed Amount: 28.8 feet Amount listed as having been abandoned: 8.8 feet State factual and legal basis for this protest: There are several reasons that the 8.8 feet of the Rivera Ditch should not be abandoned. Firstly, of the last 10 years, the ditch was only able to open 4 of those years. It is important to note that for the years 2006, 2007, 2008 the diversion structure had a large log accumulation that was caused by a faulty erosion control structure. This accumulation would not allow sufficient water into the headgate. Additionally, there have been improvements made to the ditch as of 2000, including new culverts and a new diversion structure. The ditch has also been cleaned several times since 2000. These improvements were intended to enhance the carrying capacity of the ditch to accommodate the full appropriation. The recent improvements on the ditch show the ditch owners have not intended to abandon, but with a ditch that does not open every year, maintenance and organization of ditch owners is difficult. The County has been informed that their culvert under County Road 8 would not carry the full stream of water, but this culvert has not been replaced. In 2009, ditch owners tried to open the headgate to the full 28.8 foot appropriation. Unfortunately, the ditch was not able to pass through the culvert under County Road 8. There is also the issue of the Terrace Reservoir headgate that does not open up over 950 cfs unless there is enough pressure behind the dam. This has made it difficult to calculate when the river will turn on. The Rivera Ditch has depended on being in priority when senior water rights turn off. Finally, there is the task of maintaining the ditch through Paul Faucette’s property. Paul Faucette and the previous owner on that property have abused the ditch by allowing his sprinkler to run through the ditch and also by deliberately filling in the ditch (photos and description attached). This section of ditch has taken significant efforts to maintain for a ditch that does not open every year. We now have an agreement with Paul Faucette and he has agreed to work with us to develop the ditch to carry its full capacity. Remarks: This ditch has never meant to abandon any of its appropriated water. We have made many improvements on the ditch since it was last up for abandonment. The ditch owners are working with landowners to improve the ditch so that it can take its full appropriation. There are some serious issues that this ditch system faces, but the ditch owners are taking action to remedy these issues and develop this water right. There needs to be a discussion with the State Division of Water Resources about the issues of the Terrace Reservoir release gates being designed to only let out up to 960 cfs, except when there is significantly greater pressure behind the gate.

(6 pages with attachments)

2012CW22, Bowsher Farms, LLC (Gary Mix), 4511 E Road 3 N, Monte Vista, CO 81144, 719-852-2957; Protest to Revised Abandonment List in Rio Grande County

Name of structure: W2012, Well #21 (WDID 2005085) Date of original decree: 09-08-1977 Case no.: W2012 Court: District Location and legal description: NW¼ of the SW¼ Section 15 Township 40N Range 8E NMPM; Distance from the section lines: 2200 Feet from the South and 10 Feet from the West. Source of water: unconfined aquifer, closed basin Decreed use or uses: domestic & irrigation Appropriation date: 09/08/1977 Decreed amount: 2200 gpm Amount listed as having been abandoned: total amount Former district number and page number where listed on Abandonment List: State Eng. List page 4 State factual and legal basis for this Protest: Russel Bowsher died in August, 1976 while in the early stages of some well changes and adjudications. As his son in law I became the default designee to finish what he had begun. At that time new wells had to be drilled to serve the many new center pivots going in; well drillers were very busy and as I found out, their paperwork suffered. The pivot well in the center of SW¼ Sect. 15 had already been in use before I was made aware it violated some regulations. I made many trips to Denver and many more phone calls and the outtake was that we were allowed to abandon the south well on that qtr. sect. instead of the north well. My logic was that both wells were close to neighbor’s wells, but the neighbor well to the north was idle whereas the one to the south was active. This plan was verbally agreed to by the state engineer’s office and they further agreed to waive their requirement of the plugging the well so that the Rio Grande Water Conservation District could use that south well (Water Division 3, case W2012 well #20) as a ground water observation point. This well is now RGWCD #39-1 on the attached Exhibit A and was first used 03-06-1980. Now I don’t have any written verification from the engineer’s office as most of this was verbal. However I assumed they had tracked these changes and I was unaware they had not until I was notified of this abandonment. I have attached, as Exhibit B some copies of communications with the state’s office.

(13 pages including attachments)

2012CW23 PROTEST TO REVISED ABANDONMENT LIST - W0966 WELL NO. 01 | 1. Name, mailing address, email address and phone number of Protestant/Owner: Gallagher Oil Co., Inc., C/O Alan G. Hill, Yates Law Firm, LLC, 1900 Wazee Street, Suite 208, Denver, CO 80202, (303) 722-2810, ahill@. 2. Describe the Water Right: a. Name of Structure: W0966 Well No. 01 b. Date of Original Decree: December 31, 1972 Case No.: W-966 Court: District Court, Water Division No. 3, State of Colorado c. Location and legal description (PLSS): NW ¼, SW ¼, Section 11, Township 37 North, Range 10 East, NMPM d. Source of Water: Confined Aquifer e. Decreed use or uses: Irrigation and Commercial f. Appropriation Date: September 5, 1960 Decreed Amount: 60 gallons per minute, being .134 cubic feet of water per second of time, being .268 acre feet of water in a period of twenty-four hours, from confined aquifer g. Amount listed as having been abandoned: .134 cubic feet of water per second h. Former District Number and Page Number where listed on Abandonment List: Believed to be in former Water Dist. No. 20, Page 3 3. Factual and legal basis for this Protest: This well was originally decreed in Case No. W-966, Water Division No. 3, on June 6, 1974, for irrigation and commercial uses, with an appropriation date of September 5, 1960. Gallagher Oil Co., Inc. has monitored and carefully evaluated the Rules Governing New Withdrawals of Ground Water in Water Division 3 Affecting the Rate or Direction of Movement of Water in the Confined Aquifer System, and the ligation regarding these rules. Gallagher Oil Co., Inc. has never intended to abandon the water rights decreed to this well, and does not now intend to abandon these rights. Gallagher owns property surrounding the well, and intends to use the water in the near future. 4. Remarks: None.

(2 pages)

Case Number 12 CW24. IN ALL COUNTIES LOCATED WITHIN WATER DIVISION NO. 3, COLORADO. PROTEST TO THE REVISED ABANDONMENT LIST . CONCERNING THE REVISED ABANDONMENT LIST OF WATER RIGHTS IN WATER DIVISION NO. 1, IN ALL COUNTIES LOCATED WITHIN WATER DIVISION NO. 3, COLORADO. DISTRICT COURT, WATER DIVISION NO. 3, STATE OF COLORADO. Alamosa County Courthouse, 702 4th Street, Alamosa, Colorado 81101. 1. Name, mailing address, and phone number of Protestants/Owners: Gary and Joanne Boyce, 17425 County Road 66-T, Moffat, CO, 81143, 719-256-4613. Direct all pleadings to: Kevin J. Kinnear, Porzak Browning & Bushong LLP, 929 Pearl Street, Suite 300, Boulder, CO, 80302, Tel: 303-443-6800, Email: kkinnear@ 2. Description of Water Rights: Protestants/Owners (the “Boyces”) protest the inclusion of the following water rights (the “Subject Water Rights”) on the Revised Abandonment List for Water Division No. 3: a. Hills Ditch #1. i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the south bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the NW corner of the NE¼ NE¼ of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears N. 72( 53’ E. a distance of 307 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: April 15, 1874. vi. Decreed Amount: 0.72 c.f.s., absolute. vii. Amount listed as abandoned: 0.72 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. b. Hills Ditch #2. i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the north bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the NW corner of the NE¼ NE¼ of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears S. 59( 23’ W. a distance of 445 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: June 1, 1874. vi. Decreed Amount: 0.3 c.f.s., absolute. vii. Amount listed as abandoned: 0.3 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. c. Hills Ditch #3. i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the north bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the NW corner of the NE ¼ NE ¼ of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears N. 82( 20’ E. a distance of 75 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: June 10, 1874. vi. Decreed Amount: 0.16 c.f.s., absolute. vii. Amount listed as abandoned: 0.16 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. d. Hills Ditch #4. i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the north bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the NW corner of the NE ¼ NE ¼ of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears N. 76( 4’ E. a distance of 300 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: June 1, 1874. vi. Decreed Amount: 0.08 c.f.s., absolute. vii. Amount listed as abandoned: 0.08 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. e. Hills Ditch #5 (Priority No. 63). i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the south bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the W ¼ corner of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears N. 1( 31’ E. a distance of 156 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: September 15, 1878. vi. Decreed Amount: 2.26 c.f.s., absolute. vii. Amount listed as abandoned: 2.26 c.f.s. vii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. f. Hills Ditch #5 (Priority No. 94). i. Original Decree: District Court, Saguache County, dated March 28, 1890. ii. Location: On the south bank of Kerber Creek, tributary to San Luis Creek in Saguache County, Colorado, at a point whence the W ¼ corner of Section 15, T. 46 N., R. 9 E. of the N.M.M. bears N. 1( 31’ E. a distance of 156 feet. iii. Source: Kerber Creek. iv. Decreed Uses: Irrigation. v. Appropriation Date: February 22, 1884. vi. Decreed Amount: 1.0 c.f.s., absolute. vii. Amount listed as abandoned: 1.0 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. g. Barsch-Miller Well No. 2 (W2219 Well No. B-MLR 02). i. Original Decree: Case No. W-2219, District Court in and for Water Division No. 3, dated March 31, 1980. ii. Location: SW ¼ SW ¼ of Section 26, T. 47 N., R. 9 E., N.M.P.M., Saguache County, Colorado, at a point 1,200 feet from the South Section line and 50 feet from the West Section line. iii. Source: Unconfined aquifer. iv. Decreed Uses: Irrigation. v. Appropriation Date: May 5, 1954. vi. Decreed Amount: 1.99 c.f.s., absolute. vii. Amount listed as abandoned: 1.99 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. h. Barsch-Miller Well No. 3 (W2219 Well No. B-MLR 03). i. Original Decree: Case No. W-2219, District Court in and for Water Division No. 3, dated March 31, 1980. ii. Location: NE ¼ NE ¼ of Section 2, T. 46 N., R. 9 E., N.M.P.M., Saguache County, Colorado, at a point 1,300 feet from the North Section line and 1,300 feet from the East Section line. iii. Source: Unconfined aquifer. iv. Decreed Uses: Irrigation. v. Appropriation Date: July 12, 1954. vi. Decreed Amount: 2.56 c.f.s., absolute. vii. Amount listed as abandoned: 2.56 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. i. Barsch-Miller Well No. 4 (W2219 Well No. B-MLR 04). i. Original Decree: Case No. W-2219, District Court in and for Water Division No. 3, dated March 31, 1980. ii. Location: NW ¼ NW ¼ of Section 12, T. 46 S., R. 9 E., N.M.P.M., Saguache County, Colorado, at a point 400 feet from the North Section line and 1,200 feet from the West Section line. iii. Source: Unconfined aquifer. iv. Decreed Uses: Irrigation. v. Appropriation Date: March29, 1955. vi. Decreed Amount: 2.73 c.f.s., absolute. vii. Amount listed as abandoned: 2.73 c.f.s. viii. Former District Number & Page Number where listed: Water District 25, Division No. 3, Revised Abandonment List page 2. 3. Legal Basis for Protest. A. Abandonment requires the concurrence of two elements: “a sustained period of non-use and an intent to abandon.” East Twin Lakes Ditches & Water Works Inc. v. Bd. of County Comm’r of Lake County, 76 P.3d 918, 921 (Colo. 2003). “Intent is the critical element in determining abandonment.” City & County of Denver v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990); See also C.R.S. § 37-92-103(2) (2010) (“’Abandonment of a water right’ means the termination of a water right in whole or in part as a result of the intent of the owner” to permanently discontinue use). B. For purposes of the Division Engineer listing, a “failure for a period of ten years or more to apply to a beneficial use the water available under a water right when needed by the person entitled to use same” may create a rebuttable presumption of abandonment. C.R.S. § 37-92-402(11). This requires 10 years of nonuse when water is available under a water right when needed. C. Even if such a presumption of abandonment is satisfied, it is rebutted when the owner “establish[es] some fact or condition that excuses the nonuse or shows the owner’s intent not to abandon the water right.” Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo. 2000); see also People ex rel. Danielson v. City of Thornton, 775 P.2d 11, 18 (Colo. 1989) (“In order to rebut a presumption of abandonment it is necessary to adduce evidence that the water right owner did not intend to abandon the water right notwithstanding the long period of nonuse that gave rise to the presumption”). D. In determining whether an owner intended to abandon his water right, Colorado Courts have looked to factors such as: (1) repair and maintenance of structures; (2) attempts to put the water to beneficial use; (3) active diversions and prior non-appearance of the water right on abandonment list; (4) efforts to sell the water right or a sale of the water right; (5) filing documents to protect, change, or preserve the right; and (6) leasing the water right; and (7) economic or legal obstacles to exercising the water right. E. Twin Lake, 76 P.3d at 922 (Colo. 2003).  “[I]f these factors are insufficient or nonexistent, only then is the failure to put the water to a beneficial use enough by itself to sustain a finding of abandonment.  Id. 4. Factual Basis for Protest. The Boyces own the Subject Water Rights, and they have had an interest in the Subject Water Rights since 1994. Subsequent to 1994, the Subject Water Rights were involved in foreclosure proceedings involving the Boyce’s cotenants’ interests. All or portions (undivided interests) of the Subject Water Rights have been the subject of several conveyances between 1994 and 2011, which conveyances alone evidence an intent to not abandon the Subject Water Rights. In addition to the foregoing, however, the Subject Water Rights have been in continuous use since 1994. Beginning in 1995 and continuing through 2005, the Subject Water Rights were leased to Mr. Art Rivale and Mr. Henry Lamm. During portions of that time, Mr. Rivale and Mr. Lamm were each the Water Commissioner for Water District No. 25 (the district in which the Subject Water Rights exist). Both Mr. Lamm and Mr. Rivale diverted water under all of the Subject Water Rights every year during that period. Since 2005, the Subject Water Rights have been used directly by the Boyces. The Boyces have no intent to abandon any portion of the Subject Water Rights. The Boyces intend to continue to use the Subject Water Rights to irrigate as much of the historically irrigated land as possible to the extent water is legally and physically available. In addition, the Boyces have prepared and filed an application to change a portion of the Subject Water Rights to be diverted at alternate points of diversion. WHEREFORE, the Boyces request that the Court remove the Ditch water rights from the revised abandonment list.

(10 pages with attachments)

Case number 2012CW25, Stephen A. Valdez, 20600 Co Road 14, La Jara, CO 81140, Stephen.valdez@stores.; 719-588-0430; Protest to Revised Abandonment List in Conejos County

Name of structure: North Alamosa Priority #77 Date of original decree: 07-11-1888 Location and legal description: SW¼ of the SW¼ Section 6 Township 35N Range 9E NMPM Source of water: Alamosa River Decreed use or uses: Irrigation Appropriation date: 03-13-1887 Decreed amount: 14.83 Amount listed as having been abandoned: 10.00 Former district number and page number where listed on Abandonment List: 2 of 5 State factual and legal basis for this Protest: The delivery system for the North Alamosa water right have been hampered due to the fact the culverts on County Road B are in poor shape and rotten on the underneath. Since 2008 we have asked Conejos County to join us in (next word undecipherable) to replace them. Until recently county funds have been an issue. Remarks: It was never our intention to abandon the said surface water rights. With the proposed improvement in regards to the water culverts on County Road B, the ditch will carry the full appropriation.

(12 pages with attachments)

Case No. 2012CW26. /AK Lone Pine Ranch, LLC., PO Box 129, Capulin, CO 81124; (Attorney: Gordon J. Bosa, PO Box 58, Alamosa, CO 81101; 719-589-6603)

Protest to Revised Abandonment List in Conejos County

Protestant/Owner: /AK Lone Pine Ranch, LLC, c/o Byron Quintana. Description of Water Right: WDID #2100604, Water Dist. 21. Name of Structure: Valdez Ditch (two priorities #9 and #90). Date of Original Decree: 7/11/1888; Case No.: General Adjudication; Court: Conejos. Location: SW1/4, S26, T36N, R7E, NMPM. Source: Alamosa River; Decreed use: Irrigation. Appropriation Date: 9/23/1887; Decreed Amounts:

Pri 9 - 14 cfs.

Pri. 90 - 72.63 cfs.

-15.00 cfs. abandoned 2003

57.63 remaining.

State factual and legal basis for this Protest: There has been no intent to abandon. In 2003, the Division of Water Resources (DWR) attempted to abandon the same water right. At that time, the DWR indicated that 31.23 cfs. was proposed to be abandoned. A disposition was worked out between the parties where 15.00 cfs. was abandoned and the balance 16.23 was kept active. Immediately after entering into agreement, J. Andres Quintana had to have a triple by-pass surgery performed. Shortly after that, he learned he had contracted prostate cancer. In 2004, Mr. Quintana passed away. His widowed wife, Lucy Quintana, attempted to keep the ranch going but her son Byron was not available at that time to help and she did not have a good relationship with her other son, Frederick. Nevertheless, she attempted to hire neighbors for a time but that did not work out well and they did not know how the water worked on the ranch. As a result, the ranch deteriorated. In 2011, Lucy Quintana passed away. Since that time Bryon Quintana, who is the sole member-manager has been able to return to the ranch and has begun rehabilitating it. The ranch had deteriorated somewhat after Andres' death and before Byron returned. In other words, no one was available to make the improvements necessary to use the additional water, but there was no intent to abandon on the part of the Protestant. Remarks: The Valdez Ditch is listed in the DWR (Div. 3) Abandonment list. However, the priorities within the water rights are not listed. The assumption is that the junior water right or priority no. 90 is the target of the abandonment but as an abundance of caution all priorities are listed.

(3 pages)

Case No. 2012CW27. Henry and Rock Southway, 117 White Pine Drive, Alamosa, CO 81101; (Attorney: Gordon J. Bosa, PO Box 58, Alamosa, CO 81101; 719-589-6603)

Protest to Revised Abandonment List in Costilla County

Protestants/Owners: Henry and Rock Southway. Description of Water Right: Well No. 1, Case No. W-3320. Date of original decree: 3/11/1976 and Amended 4/6/1978; Case No. W-3320; Water Div. 3. Location: SE1/4 SW1/4, S35, T1N, R73W, 6th PM, at a point 50 ft. from the South Section Line and 2000 ft. from the West Section Line. Source of water: Unconfined aquifer. Decreed use: irrigation. Appropriation Date: 8/31/1963; Decreed amount: 1250 gpm, being 2.78 cfs. Amount listed as having been abandoned: 2.78 cfs. Former District Number where listed on Abandonment List: District 24. State factual and legal basis for this Protest: There has been no intent to abandon. This well, which is classified for irrigation purposes, was nevertheless purchased by Protestant in 1986 for the express purpose of being run in conjunction with an aggregate pit. Since that purchase date, there has been no business in that area which would justify the use of the pit and/or the expense of the change of water right proceeding. It is the Protestants' intent to place this well on the inactive list until such time and business conditions reverse.

(3 pages)

PLEASE NOTE: WATER DIVISION 3 HAS MANDATORY E-FILING FOR ALL PARTIES REPRESENTED BY AN ATTORNEY.

You can review the complete applications or requests for correction in the office of the Alamosa Combined Court, 702 Fourth St., Alamosa, CO 81101.

Witness my hand and seal of this Court this 13th day of June, 2012.

______________________________________

Shirley Skinner, Clerk of the Court

Alamosa Combined Courts

Water Court, Water Division 3

702 Fourth Street, Alamosa, CO 81101

SEAL

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