Judge O. John Kuenhold

Group seeks

water court

improvements



By RUTH HEIDE

ALAMOSA — Water represents one of the most difficult - and vital - issues in Colorado law.

In an effort to make the water courts more efficient, Chief Justice Mary Mullarkey formed a Water Court Committee last December. The committee provided several recommendations to the courts, legislature and governor last month.

Seeing how much progress the committee made in eight months and realizing that more work needed to be conducted, Justice Mullarkey established the Water Court Committee as a standing committee of the Colorado Supreme Court.

From this point the water committee will work on refinements such as revisions to water court forms to make them clearer and easier to understand.

Two men with longstanding ties to San Luis Valley water issues served on the interim committee and continue to serve on the standing committee that meets today, Sept. 4, in Denver. District Judge O. John Kuenhold, the chief judge of the 12th Judicial District and the water judge for the district, continues to serve on the water committee, as does attorney David Robbins who has represented the Rio Grande Water Conservation District in the Valley for many years.

Robbins headed a subcommittee dealing with expert witnesses in water cases, and Kuenhold served on that committee as well as others who have been involved in legal water issues in the Valley including attorneys John McClure and Bill Hillhouse. “It was quite an outstanding group of people,” Kuenhold said. The subcommittee met about a dozen times in the past eight months.

One of the recommendations the overall water committee made to Mullarkey in its “Timely, Fair and Effective Water Courts” report pertained specifically to expert witnesses in water cases. The committee recommended that the Colorado Supreme Court should consider adopting a declaration for all experts to sign in water court proceedings.

Kuenhold explained that experts in water cases are just as vital to the court proceedings as experts in other types of cases such as criminal cases where a medical expert’s testimony may be crucial to the outcome of the case.

In a water case an expert’s testimony is important in providing accurate scientific information to the decision maker, the judge, Kuenhold explained. Expert witnesses were key factors in the lengthy 2006 state water trial held in the San Luis Valley, for example.

Because expert witnesses can sometimes be perceived as aligning themselves with those who hired them to testify, one proposition that has been suggested is to provide expert witnesses who are independent of either party. Kuenhold said the problem with that would be both sides would probably object to whomever would be selected as that independent witness. “We rejected the suggestion that had been made to have the judge hire a single expert,” he said.

Kuenhold said he believed the parties should present testimony to the court and if they do that well, he as a judge would understand their arguments and be in a position to make an informed decision about their case.

“I think it’s much better for the parties to have their experts but those experts to understand their duty to the court to present their true opinion,” Kuenhold said.

That is the basis for the recommendation for experts to sign a declaration or affidavit.

“We want our courts to be the best,” Kuenhold said.

Kuenhold said the water committee as a whole tried to find ways to streamline the water court process so those involved in water cases would not have to spend as much time and money in court. The cost of water cases was a driving factor in creating the water committee in the first place, Kuenhold explained.

One of the reforms that needed to be made was in the water referee stage where water cases would sometimes linger longer than they should have, Kuenhold said. Cases remained at that level in hopes the parties would be able to resolve them short of an expensive water trial, Kuenhold said.

Attorney Peg Russell serves as water referee in the Valley. She has been working one-fourth time as referee but became full time with the water courts on Sept. 1.

Kuenhold said cases that were destined for trial were not making it into the water courts soon enough and some of the changes proposed by the water committee were designed to move these cases through the water court system more rapidly.

“We certainly want to save litigants costs,” Kuenhold said. “We realize it is expensive to take a case to trial.”

He added, however, that if a case is going to go to trial it should proceed as quickly as reasonably possible through the system.

One water court reform in which the Valley is ahead of its time is electronic filing. The water committee agreed that all water cases should be electronically filed. The 12th Judicial District (the Valley) was the first to do that, Kuenhold said. “Electronic filing works really well for water cases,” he said.

The judge added that the recent drought in Colorado resulted in more water case filings such as filings for replacement wells.

The water committee recommended that staff be added or reassigned where water courts are overloaded throughout the state. Currently that is in the South Platte, Kuenhold said.

He concluded, “It’s a matter of how do we meet our obligation to the public to give them the opportunity to have their cases resolved in a fair and timely manner. It’s a core issue whether it is a domestic case or a water case.”