McKenna v. WitteAnnotate this Case
Applicants-appellants Tom McKenna and McKenna Ranch challenged a water court decision regarding the abandonment list of three of its water rights. The Division Engineer placed applicants' three Sanchez Ditch water rights on the decennial abandonment list because the ditch had not diverted water for several decades. After a hearing in 2013, the water court determined that the Sanchez Ditch water rights had not been applied to beneficial use for the statutory abandonment period, and found applicants had failed to rebut the resultant presumption of intent to abandon the rights. Applicants argued on appeal to the Supreme Court that the water court's judgment was improper because the Division Engineer missed the statutory deadline to prepare the abandonment list by several days, which they claim divested the water court of jurisdiction. The Supreme Court disagreed: the deadline to prepare the list under 37-92-401(1)(a), C.R.S. (2014), was directional and not a jurisdictional mandate. Thus the Division Engineer's failure to prepare the list by the statutory deadline did not divest the water court of jurisdiction. Furthermore, because the record supported the water court's conclusion that applicants intended to permanently discontinue using the Sanchez Ditch water rights, the Supreme Court affirmed the water court's judgment of abandonment.