Trusts Owning Water Rights Can No Longer Appear in Water Court Without an Attorney 10:28, March 7, 2017

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Trusts Owning Water Rights Can No Longer Appear in Water Court Without an Attorney

Over the years the Colorado Supreme Court and the legislature have taken steps to make water court more accessible to pro se applicants, i.e., applicants that are not represented by an attorney. Nonetheless, due to the intricacy of Colorado water law and because the water courts are part of the judicial branch of government, lawyers are often involved in water court proceedings. Indeed, in certain circumstances, an attorney is required.

In a recent Colorado Supreme Court case, the Court determined for the first time that unless a trustee is an attorney, a trustee cannot appear in and proceed through a water court case pro se on behalf of a trust. Application for Water Rights of Town of Minturn, 359 P.3d 29, 32 (Colo. 2015). A fiduciary relationship exists between a trustee and the beneficiary of the trust, meaning that the trustee has a duty to administer the trust and its property to benefit another person. Id. at 31. Effectively, the trustee “acts as a representative of the trust beneficiaries’ interests,” not of his or her own interests. Id. In Colorado, non-lawyers are prohibited from “undertaking activities that require the exercise of legal discretion or judgment on behalf of others.” Id. Accordingly, the Court concluded that the non-lawyer trustee in Town of Minturn could not appear in the water court case on behalf of the trust and its beneficiaries without an attorney. The Court’s holding in Town of Minturn extends to all manner of civil litigation cases. Id. at 32 (“we conclude that a trustee who is not an attorney may not proceed pro se on behalf of a trust in a litigation matter”).

A water right is a unique type of property right that can be of great value to the holder of the right. Because the water within the state of Colorado is the property of the public, owning a water right means owning the right to use a set amount of water for a particular, beneficial purpose, not the water itself. Moreover, owning land through which a stream or creek flows does not necessarily include ownership or unfettered use of that water. But, as with land, existing water rights can be bought, sold, or leased often at a premium, especially in western Colorado.

To obtain a new water right or change an existing water right in any number of ways, Coloradans must proceed through the state’s water court system. This system consists of seven divisions across Colorado, each with a designated water judge, one or more water referees, and a water clerk. A water court case is initiated by filing a water court application in the appropriate division then, depending on the nature of the application and the complexity of the issues involved, the case will proceed in front of the water referee or the water judge. A water court decree from the water judge marks the end of the case and defines the water right in question.

If you have questions about water rights in Colorado, including buying, selling, leasing, changing, or adjudicating water rights, please contact Garfield & Hecht, P.C. attorneys Nicole Garrimone-Campagna (), Mary Elizabeth Geiger (), or Haley Carmer () by e-mail or by calling (970) 947-1936.