St. Jude's Co. v. Roaring Fork Club, L.L.C.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

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2015 CO 51

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Supreme Court Case No. 13SA132
Appeal from the District Court
Garfield County District Court, Water Division 5, Case No. 07CW176
Honorable James B. Boyd, Water Judge

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Plaintiffs-Appellants:
St. Jude’s Co. and Reno Cerise,
v.
Defendants-Appellees:
Roaring Fork Club, L.L.C.; Basalt Water Conservancy District; and Colorado Water
Conservation Board;

and

Appellee Pursuant to C.A.R. 1(e):
Alan Martellaro, Division Engineer, Water Division 5.

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Judgment Affirmed in Part, Reversed in Part, and Remanded with Directions

en banc
June 29, 2015

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Attorneys for Plaintiffs-Appellants:
Law Offices of Gregory J. Cucarola
Gregory J. Cucarola

Sterling, Colorado

Hill & Robbins, P.C.
David W. Robbins
Andrew J. Rottman

Denver, Colorado

Roger T. Williams

Golden, Colorado

Attorneys for Defendant-Appellee Roaring Fork Club, L.L.C.:
Patrick, Miller & Noto, P.C.
Scott C. Miller
Jason M. Groves

Aspen, Colorado

Pryor, Johnson, Carney, Karr, Nixon, P.C.
Bradley N. Shefrin
Marta M. Jucha

Greenwood Village, Colorado

Attorneys for Amicus Curiae Pitkin County Board of County Commissioners:
Moses, Wittemyer, Harrison and Woodruff, P.C.
Timothy J. Beaton
Jennifer M. DiLalla
Andrea A. Kehrl

Boulder, Colorado

Attorneys for Amicus Curiae Colorado Department of Natural Resources:
Cynthia H. Coffman, Attorney General
Susan J. Schneider, First Assistant Attorney General
Derek L. Turner, Assistant Attorney General

Denver, Colorado

Attorneys for Amici Curiae Galloway, Inc. and Thomas Bailey:
Porzak Browning & Bushong LLP
Michael F. Browning
Kevin J. Kinnear

Boulder, Colorado

Attorneys for Amici Curiae Jackson-Shaw / Taylor River Ranch, LLC, a Colorado limited liability company, and Crystal Creek Homeowners Association, Inc., a Colorado non-profit corporation:
Law of the Rockies
Marcus J. Lock
Kendall Burgemeister

Gunnison, Colorado

Attorneys for Amici Curiae Charles E. Nearburg and Catamount Development, Inc.:
Petros & White LLC
David Hayes

Denver, Colorado

Denver, Colorado

Attorneys for Amicus Curiae Ranch at Roaring Fork Homeowners Association, Inc.:
Karp Neu Hanlon, P.C.
Jeffrey J. Conklin
Michael J. Sawyer

Glenwood Springs, Colorado

Attorneys for Amicus Curiae Colorado River Water Conservation District:
Peter C. Fleming Jason V. Turner

Glenwood Springs, Colorado

No appearance by or on behalf of Basalt Water Conservancy District, Colorado Water Conservation Board, and Alan Martellaro, Division Engineer, Water Division 5.

JUSTICE COATS delivered the Opinion of the Court.

JUSTICE MÁRQUEZ concurs in part and dissents in part, and JUSTICE HOOD joins in the concurrence in part and dissent in part.

¶2       Because the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use, as contemplated by either the constitution or statutes of the jurisdiction, the water court’s order decreeing appropriative rights is reversed. Because the water court did not, however, misinterpret the various agreements at issue or other governing law, make any clearly erroneous factual findings, or abuse its discretion concerning discovery matters or the award of attorney fees, the remaining rulings of the water court to which error has been assigned by St. Jude’s Co. are affirmed. The Club’s request for appellate attorney fees expended defending those fees already granted according to the provisions of the settlement agreement is also granted, and the matter is remanded to the water court for a determination of the amount of those fees.

¶3       In March 2007, Roaring Fork Club, L.L.C., the owner of a private golf, fishing, recreational, and residential resort located near the town of Basalt, filed two water applications with the water court for Colorado Water Division 5. In its first application, the Club sought a decree for new appropriative rights and a change in the point of diversion for an existing right. With regard to the former, the Club’s application asserted that the Club had, since 2001, diverted 21 cubic feet per second (“cfs”) from the Roaring Fork River, into the RFC Ditch. The application indicated that the RFC Ditch is a flow-through structure located entirely on Club land, which returns water to the Roaring Fork River approximately one half-mile downstream from its point of diversion, and that the Club used the water in question and the RFC Ditch itself as an “aesthetic and recreational amenity to a golf course development, as well as for fish habitat and as a private fly-fishing stream.” The Club sought a decree for the amount in question for “aesthetic, recreation, and piscatorial uses.” With regard to its application for change of water right, the Club explained that it sought to align the legal description of its point of diversion with the actual location of its structure, for one of its existing water rights in the RFC Ditch, decreed in 1999 in Case No. 95CW356, for 10 cfs conditional, with an appropriation date of December 12, 1995.

¶4       On the same day, the Club filed a second application with the water court, seeking approval of an augmentation plan for the RFC Ditch. This application explained that the Club diverted up to 40 cfs in total through the wider-than-normal RFC Ditch, entailing evaporative losses from its surface area. The application proposed to augment the evaporative depletions associated with all of the Club’s water rights through the RFC Ditch using a combination of previous decrees for water rights and consumptive use credits.

¶5       St. Jude’s Co., an agricultural business, and Reno Cerise, one of two partners of St. Jude’s Co., filed joint statements of opposition in both cases.¹ St. Jude’s Co. alleged that it retained water rights in the Roaring Fork River, that it currently diverted at the RFC Headgate and through the RFC Ditch, and that its rights would be adversely affected if the Club’s applications were granted without the sufficient terms, conditions, and limitations. St. Jude’s Co. therefore requested that the court place the Club on strict proof in its applications.

¶6       The following fall, in October 2007, St. Jude’s Co. and Cerise filed a complaint with the water court naming the Club as defendant. In the complaint, St. Jude’s Co. alleged that while it currently diverted at the RFC Headgate and through the RFC Ditch, it did so on a “temporary basis,” that these rights were actually decreed for a different headgate—the John Cerise Headgate—also on Club property, and that St. Jude’s Co. had suffered curtailment of its rights because the Club refused the Company access to, and use of, the John Cerise Headgate. St. Jude’s Co. further alleged that this denial violated its rights under both Colorado law and a settlement agreement between the parties governing their shared use of the RFC Ditch. The complaint made a number of claims against the Club based on these allegations, including, as relevant here, trespass on the Company’s water rights and easements; a claim for declaratory judgment regarding the rights of St. Jude’s Co. vis-à-vis the Club, the RFC Ditch, and the Company’s ditch water rights, including a declaration of the Company’s right to exercise the power of eminent domain to condemn an easement for an underground pipeline through Club land, in lieu of reliance on the RFC Ditch; breach of the settlement agreement between the parties; and, ultimately, a request to quiet title to Priority 280 (one of the sources of water proposed for the Club’s augmentation plan) in St. Jude’s Co., to the exclusion of the Club.² As remedies, St. Jude’s Co. requested declaratory and injunctive relief, as well as monetary damages.

¶7       Upon motion by St. Jude’s Co., the water court consolidated its lawsuit with the Club’s pending water applications. After extensive proceedings, including an eight-day trial and a site visit, the water court issued a consolidated judgment for the three cases, consisting of its findings of fact and conclusions of law. The court found that St. Jude’s Co. and the Club owned contiguous properties next to the Roaring Fork River, where the Club owned the upstream parcel, upon which it operated a golf club, residential accommodations, and related recreational opportunities, and that St. Jude’s Co. owned the downstream parcel, where it conducted agricultural operations. The court further found that the dispute between St. Jude’s Co. and the Club was shaped by prior litigation, addressed in Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001), in which this court determined that the Club had committed trespass by unilaterally altering irrigation ditches on Club property used by St. Jude’s Co., including by replacing the John Cerise Ditch with the RFC Ditch. The water court noted that the prior litigation had ultimately been resolved by settlement, embodied in two documents: the Settlement Agreement and Mutual Release (“Release Agreement”) and the Ditch Easement, Access, Maintenance, Repair Operation and Settlement Agreement (“Ditch Agreement”), the latter governing the shared use of the RFC Ditch by both St. Jude’s Co. and the Club. The court observed that as a result of the Ditch and Release Agreements, Company water decreed to the John Cerise Ditch was diverted at the RFC Headgate and traveled through the RFC Ditch until a lateral headgate, where it was pulled from the RFC Ditch and channeled to Company land.

¶8       With regard to the Club’s applications, the water court found that the Club had applied its proposed water right in the full amount of 21 cfs to beneficial use, beginning June 15, 1999. In particular, the court found that Club guests and members used the RFC Ditch for fishing, that the Club stocked the Ditch with fish, and that higher flows made fishing more challenging. In addition, the court found that the RFC Ditch was used as an amenity and feature of the Club’s golf course, that all guests and members enjoyed the Ditch as a visual aesthetic amenity, and that higher volumes triggered a better visual quality to the RFC Ditch in support of its aesthetic purpose. As a result, the water court decreed the Club appropriative rights for aesthetic, recreation, and piscatorial uses to 21 cfs absolute with an appropriation date of June 15, 1999. The court also corrected the legal description of the Club’s point of diversion and approved the Club’s augmentation plan.

¶9       With regard to the Company’s claims, apart from ordering the Club to remove vegetation from one particular location along the bank of the RFC Ditch, the court denied the claim for trespass. Similarly, it denied the various breach of contract claims and claims for declaratory judgment, including the private right asserted by St. Jude’s Co. to exercise the power of eminent domain. With regard to Priority 280, the court found that the title dispute of the parties implicated rights described in both Priority 280 and Priority 364, a water right adjudicated in the same decree as Priority 280. The court apportioned the rights in Priorities 280 and 364 between the parties according to an irrigation ratio reflected in court proceedings preceding the 1936 decree of these rights and in subsequent documentary evidence. Finally, the water court awarded attorney fees to the Club pursuant to the provisions of the Release Agreement.

¶10       St. Jude’s Co. appealed, seeking review of all the above rulings, as well as the water court’s refusal to accept certain late disclosures filed by St. Jude’s Co. before trial. After briefing and oral argument, we ordered supplemental briefing on the question whether Roaring Fork’s claim for a diversion into and through a ditch for piscatorial and aesthetic purposes, without impoundment, is a beneficial use under Colorado water law.

II.

¶11       The Colorado Constitution provides, “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” Colo. Const. art. XVI, § 5. It further provides that “[t]he right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied” and that “[p]riority of appropriation shall give the better right as between those using the water for the same purpose.” Colo. Const. art. XVI, § 6 (emphasis added).

¶12       In this way, the constitution guarantees Colorado’s system of prior appropriation as it had developed since territorial days and protects the people of the state from divestment of appropriation. See Dallas Creek Water Co. v. Huey, 933 P.2d 27, 34 (Colo. 1997). Under this system, “[a] water right comes into existence by applying state water to beneficial use.” Id. This system differs dramatically from “the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands,” which was quickly found to be “inapplicable in Colorado.” Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882). In particular, “the right to the maintenance of the ‘flow’ of the stream is a riparian right and is completely inconsistent with the doctrine of prior appropriation.” Colo. River Water Conservation Dist. v.  Rocky Mountain Power Co., 406 P.2d 798, 800 (Colo. 1965).

¶13       Notwithstanding its guarantee of prior appropriation and protection of adjudicated rights, the constitution makes no attempt to define “use” and “beneficial use” as those terms appear in sections 5 and 6 of article XVI. City & Cnty. of Denver v.  Sheriff, 96 P.2d 836, 842 (Colo. 1939). The constitution’s somewhat cursory reference to the right to divert unappropriated waters to beneficial uses offers little insight as to what such uses may be, for the purposes of the constitution’s protection, beyond those uses generally suitable for domestic, agricultural, and manufacturing purposes at the time of the constitution’s enactment. See Colo. Const. art. XVI, § 6 (stating preference among uses for domestic, agricultural, and manufacturing purposes). While the constitution ratifies Colorado’s system of prior appropriation—a system a world apart from Eastern riparian regimes—and protects water rights adjudicated under that system, it leaves to the legislature the details of water rights adjudication under prior appropriation, including any expansion of the concept of beneficial use beyond its strictures at the time of Colorado’s birth. See Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46, 52 (Colo. 1999) (noting that, soon after statehood, the state faced the problems of determination of priorities, distribution of water according to those priorities, and stream measurement, and that the General Assembly adopted the 1879 and 1881 adjudication acts to resolve these problems with a system of judicial adjudication).

¶14       Since Colorado’s early days, the General Assembly has established the procedures of Colorado’s prior appropriation system by enacting water rights adjudication acts. See id. (summarizing progression of adjudication acts); see generally Gregory J. Hobbs, Jr., Colorado’s 1969 Adjudication and Administration Act: Settling in, 3 U. Denv. Water L. Rev. 1 (1999) (reviewing the history of water adjudication legislation in Colorado); James N. Corbridge Jr. & Teresa A. Rice, Vranesh’s Colorado Water Law 139–41 (rev. ed. 1999) (discussing early adjudication statutes). Today, the 1969 Water Right Determination and Administration Act, §§ 37-92-101 to -602, C.R.S. (2014), governs the state’s system of prior appropriation and water rights adjudication. See § 37-92-102(1)(a) (dedicating “all water in or tributary to natural surface streams” of the state to the public “subject to appropriation and use in accordance with sections 5 and 6 of article XVI of the state constitution and this article”). The 1969 Act defines a “water right” as “a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same,” § 37-92-103(12), and defines “appropriation” as “the application of a specified portion of the waters of the state to beneficial use pursuant to the procedures prescribed by law,” § 37-92-103(3)(a). ¶15The 1969 Act also includes a definition of “beneficial use,” but this provision addresses only what it means for a use to be “beneficial,” and then provides three specific examples of applications included within the term “beneficial use.” The Act states, “‘Beneficial use’ means the use of that amount of water that is reasonable and  appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.” § 37-92-103(4) (emphasis added). Notably, this definition echoes the terminological usage of the constitution, by implicitly distinguishing a “purpose,” as the end for which the water is used; a “use,” as an application of water toward a given purpose and the means to that end; and a “beneficial use,” as that use which is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is made. See id.; Colo. Const. art. XVI, § 6. Beyond these rudimentary constraints, the 1969 Act’s definition of beneficial use is expansive, leaving room for new, innovative uses. See, e.g., Vance v. Wolfe, 205 P.3d 1165, 1169 (Colo. 2009) (concluding that, in the terms of the 1969 Act, the coalbed methane process “uses” water to release methane gas—by extracting a particular amount from the ground and storing it in tanks—to “accomplish” a particular mining “purpose”—and that the extraction of water to facilitate coalbed methane production is therefore a “beneficial use”).

¶16       In three subparts of the 1969 Act’s definition of beneficial use, the General Assembly has gone beyond the meaning of “beneficial,” providing legislative approval for three specific applications of water, for specified purposes: (1) the impoundment of water for firefighting or storage for any purpose for which an appropriation is lawfully made, including recreational, fishery, or wildlife purposes; (2) the appropriation by the state of Colorado, for the benefit and enjoyment of present and future generations and in the manner prescribed by law, of such minimum flows between specific points or levels for and on natural streams and lakes as are required to preserve the natural environment to a reasonable degree; and (3) the diversion of water by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district for recreational in-channel diversion purposes. § 37-92-103(4)(a)–(c).

¶17       The latter two beneficial uses, both of which involve the use of water instream, are highly regulated. Instream flows to preserve the natural environment may only be appropriated by the Colorado Water Conservation Board (“CWCB”), a state agency with a “statutory fiduciary duty” to the people of Colorado to both protect the environment and appropriate only the minimum amount of water necessary to do so, § 37-92-102(3); Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1257, 1259–60 (Colo. 1995) superseded by statute on other grounds, ch. 187 sec. 1, § 37-92-102(4)(b)(III), 1996 Colo. Sess. Laws 953–54 as recognized in Colo. Water Conservation Bd. v. Farmers Water Dev. Co., 2015 CO 21, ¶ 28 n.6, 346 P.3d 52, 60 n.6, and these appropriations undergo extensive review by the CWCB, subject to notice and comment, and by an adjudicating water court, see § 37-92-102(3)–(4); see generally  Farmers Water Dev. Co., ¶¶ 10–13, 346 P.3d at 56–57 (reviewing instream flow appropriation procedures in detail); Colo. Water Conservation Bd., 2 Code Colo. Regs. 408-2 (2009) (Rules Concerning the Colorado Instream Flow and Natural Lake Level Program). Similarly, recreational in-channel diversions (“RICDs”), in-channel stream flows appropriated for nonmotorized boating recreation, § 37-92-103(10.1), (10.3), may only be appropriated by certain governmental entities, § 37-92-103(4)(b), are only permitted for the “minimum amount of stream flow . . . for a reasonable recreation experience,” § 37-92-103(10.3), and undergo extensive review by both the CWCB and an adjudicating water court, see § 37-92-102(5)–(6); see generally Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 592–603 (Colo. 2005) (reviewing RICD appropriation procedures in detail) superseded by statute in part, ch. 197, secs. 1–3, §§ 37-92-102(6), -103, -305(13), 2006 Colo. Sess. Laws 906–909; § 37-92-305(13)–(16); Colo. Water Conservation Bd., 2 Code Colo. Regs. 408-3 (2006) (Recreational In-Channel Diversion Rules).

¶18       Notably, the General Assembly enacted the RICD provision after City of Thornton v. City of Fort Collins, 830 P.2d 915, 931, 933 (Colo. 1992), in which this court ruled favorably with respect to a decree by the City of Fort Collins for conditional water rights for recreational, piscatorial, and wildlife uses. In that case, the city used dams to control Poudre River water in its natural channel for development of a fishery, preservation and enhancement of wildlife habitat and aquatic life, and recreational boating. Id. at 921, 932. Despite objections that the city sought a “thinly disguised minimum stream flow,” id. at 921, this court concluded that the city’s uses were “recreational, piscatorial and wildlife uses, all valid under the [1969] Act,” id. at 931, and that “[t]he exclusive authority vested in the CWCB to appropriate minimum stream flows does not detract from the right to divert and to put to beneficial use unappropriated waters by removal or control,” id. at 930.

¶19       After Fort Collins, the legislature enacted the RICD provision, expressly recognizing and curtailing appropriations like those in Fort Collins. Ch. 305, secs. 1–3, §§ 37-92-102, -103, -305, 2001 Colo. Sess. Laws 1187–89. The RICD legislation “was enacted, at least in part, in response to fears that under Fort Collins, appropriators could obtain high recreational in-channel flows, severely hindering Colorado’s future water development by either exporting or just tying up large amounts of water.” Upper Gunnison, 109 P.3d at 599 (internal citation omitted). Since first enactment, the legislature has continued to tighten the controls in the RICD regime. See ch. 197, secs. 1–3, §§ 37-92-102, -103, -305, 2006 Colo. Sess. Laws 906–09 (adding (1) provision for public deliberations; (2) definition of “reasonable recreation experience”; (3) presumption that RICDs include water for recreation occurring only between April 1 and Labor Day; (4) presumptions against injury of RICD rights; and (5) judicial consideration of statutory factors).

¶20       The Club’s diversion of the water in question for its stated purposes simply fails to meet the statutory requirements for an appropriation—the “application of a specified portion of the waters of the state to beneficial use.” § 37-92-103(3)(a). There is not, and clearly could not be, any suggestion that the Club’s practice in this regard is one of the three applications specifically authorized as beneficial uses. With regard to the Act’s general description of the necessary characteristics of both an appropriation and beneficial use, it is hardly apparent that the Club’s usage, as substantiated by the water court, even constitutes a “use” within the contemplation of the statute, much less a beneficial use.

¶21       While the 1969 Act does not define the term “use,” the act of putting, or applying, a portion of the waters of the state to beneficial use clearly contemplates more than simply diverting it from the natural stream. The “uses” delineated by the Club are entirely passive, cf. Webster’s Third New International Dictionary 2523 (2002) (defining “use” as “to put into action or service”), amounting to “uses” only in the sense that someone derives enjoyment from the water in its diverted state. Even the most innovative beneficial uses approved under the Act’s general definition involve more active use than found here. See, e.g., Vance, 205 P.3d at 1169 (emphasizing that coalbed methane process uses a particular quantity of water as is necessary to release methane gas trapped by it).

¶22       Whether or not the Club can be said to put the water in question to a “use” within the contemplation of the Act, however, it clearly cannot be said to apply that water to a “beneficial use.” The Act’s emphasis on reasonableness, efficiency, and avoidance of waste reflects the long-accepted understanding that in order to be beneficial a use must have objective limits, beyond which it becomes unreasonable, inappropriate, inefficient, or wasteful. See § 37-92-103(4). This characteristic is typified in the classic beneficial use of irrigation, in which a given irrigation project necessarily implies a duty of water—a total volume of water reasonably needed for a given use, beyond which that use is no longer beneficial. See Farmers Highline Canal & Reservoir Co. v. City of Golden, 272 P.2d 629, 634 (Colo. 1954); Vranesh’s Colorado Water Law, supra, at 46. This requirement, embodied in the 1969 Act’s use of the term “beneficial,” is integral to the very concept of beneficial use, for without it the requirement of reasonableness, efficiency, and non-wastefulness can have no meaning. § 37-92-103(4). ¶23The Club’s proposed “uses” of the water in question, as expressed in its application, cannot be beneficial within the meaning of the Act because the only purpose they are offered to serve is the subjective enjoyment of the Club’s private guests. The flow of water necessary to efficiently produce beauty, excitement, or fun cannot even conceptually be quantified, and therefore where these kinds of subjective experiences are recognized by the legislature to be valuable, it has specifically provided for their public enjoyment, scientific administration, and careful measurement. See, e.g., § 37-92-102 (restricting appropriation of instream flows and in-channel diversions to particular purposes and amounts as determined by a state agency bound by fiduciary duty, and with public participation). Without describing a purpose for the accomplishment of which a measurable amount of water, however approximate, must be used, the Club, by definition, fails to articulate an intent to put the specific amount of water it claims to a beneficial use.

¶24       In this regard, the Club’s asserted “piscatorial” use differs crucially from that in Faden v. Hubbell, 28 P.2d 247, 250–51 (Colo. 1933), where this court recognized as beneficial the use of water in hatcheries for fish culture. While in Faden (and other hatchery applications, see, e.g., In re Proposed Initiative on “Trespass—Streams with Flowing Water”, 910 P.2d 21, 27 (Colo. 1996) (referencing state hatchery program)), the appropriators used water for fish production, yielding measurable results and thus implying objective limits to reasonable use of water, see Faden, 28 P.2d at 248–49; the Club’s asserted “piscatorial” use entails the application of water for a more challenging recreational fishing experience or, in other words, subjective enjoyment of its guests.

¶25       Recognition of the Club’s proposed uses would substantially undermine the intent evident in the legislature’s instream flow and RICD provisions. The General Assembly has taken great care to limit recreational and environmental uses of water in-channel, largely to deal with the potential dangers and excesses inherent in capturing the flow of the stream. The Club would indisputably be barred from appropriating rights for its asserted uses were the water in question to remain in the natural course of the Roaring Fork River. See §§ 37-92-102(3), -103(4). In effect, the Club seeks to accomplish by virtue of diversion what the legislature has expressly prohibited instream: By using a diversion to effectively change the path of a natural stream or a significant portion of it, the Club seeks approval for re-creating a natural stream on its private property and adjudicating the rights to enjoy the flows therein. This appropriation is tantamount to a “forbidden riparian right.” See Colo. River Water Conservation Dist. v. Colo. River Water Conservation Bd., 594 P.2d 570, 574 (Colo. 1979). Because an appropriation requires actual application of a portion of the waters of the state to a beneficial use, the Club cannot acquire such a forbidden right simply by virtue of diversion.

¶26       For these reasons, the Club’s asserted aesthetic, recreation, and piscatorial uses, even when proven as alleged, do not qualify as beneficial uses under the 1969 Act. It is for the General Assembly to approve such unconventional beneficial uses, as it has done with its instream and RICD provisions. See People v. Emmert, 597 P.2d 1025, 1029 (Colo. 1979) (“If the increasing demand for recreational space on the waters of this state is to be accommodated, the legislative process is the proper method to achieve this end.”); Bd. of Cnty. Comm’rs v. United States, 891 P.2d 952, 972 (Colo. 1995) (“We have consistently recognized that the General Assembly has acted to preserve the natural environment by giving authority to the Colorado Water Conservation Board to appropriate water to maintain the natural environment, and we will not intrude into an area where legislative prerogative governs.”).

¶27       The water court’s judgment decreeing the Club’s new appropriative rights must therefore be reversed, and the decree for aesthetic, recreation, and piscatorial uses vacated. Because the Club’s decree for new appropriative rights is vacated, we consider it unnecessary to address the Company’s objections to the court’s failure to attach additional conditions to its decree.

III.

¶28       St. Jude’s Co. also assigns error to a host of rulings, or aspects of rulings, by the water court, ranging from its resolution of disputed issues of fact to its understanding and application of controlling law, including its exercise of discretion concerning discovery and fees matters. We have considered all of these additional assignments of error and find them to be without merit.

A.

¶29       The largest group of these assignments of error involves the interpretation or application of the Ditch Agreement, which settled the issues remaining in the first litigation after this court’s remand order in Roaring Fork Club, L.P., 36 P.3d 1229. There appears to be no dispute that such agreements are to be interpreted according to the principles governing the interpretation of contracts, and therefore the Ditch Agreement has meaning according to the intent of the parties as expressed in the instrument itself. See USI Props. E., Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997). As did the water court, we conclude that the various alternate interpretations advocated by St. Jude’s Co. are disallowed by the unambiguous terms of the Agreement itself.

¶30       With regard to the Company’s access to the John Cerise Headgate and the private right of condemnation it claims, the Release Agreement includes an expansive release:

The Parties shall be deemed to have fully, finally, and forever released, acquitted and discharged each other . . . from any and all past and present actions, causes of action, suits, claims, liens, demands, sums of money, rights, disputes, expenses, attorney fees, damages, injuries, losses, obligations, and liabilities of any kind or any nature whatsoever, known or unknown, asserted or not asserted, accrued or not accrued, whether arising in tort, contract, by statute, or any other legal theory, arising from the various events and claims that are described in the pleadings filed in the [first] Litigation.

The first litigation concerned the Company’s right to convey water across Club land using irrigation structures including the John Cerise Headgate. Concomitantly, the Ditch Agreement expressly grants specific easements for inspection, maintenance, and repair around the RFC Ditch, at its location at the time of signing, as shown by a detailed map attached as an exhibit, and then states that St. Jude’s Co. “waive[s] any right to claim any additional or different easement by statute, use, acquiescence, prescription or otherwise.” The water court correctly concluded that the language above unambiguously waives both the Company’s right to access the John Cerise Headgate and to use the private right of eminent domain to condemn a new easement for underground piping across Club land.

¶31       With regard to the contention of St. Jude’s Co. that the terms of the Ditch Agreement prohibited the Club from seeking a change in the legal description of its point of diversion without first seeking the agreement of St. Jude’s Co., and failing that, consulting a neutral engineer, the Ditch Agreement states, in pertinent part, “Any further improvements, alterations, modifications, and/or realignments of any of the Ditches . . . shall require the parties to first attempt to agree upon the actions to be taken.” The Agreement further states that, in the event of a disagreement, the parties must consult a neutral third-party hydrology engineer who shall render an opinion as to whether the proposed improvements will have an adverse impact of the delivery of water. These provisions unambiguously contemplate physical alterations of the RFC Ditch. Because it is undisputed that the Club did not seek to physically alter the RFC Ditch by its application to change the legal description of its diversion point, the water court correctly concluded that no breach occurred in this respect.

¶32       With regard to the Club’s diversion of an additional 21 cfs through the RFC Ditch, the language of the Ditch Agreement on which St. Jude’s Co. relies as a bar states, “Club shall not be obligated to deliver at its West property boundary . . . more than 16 c.f.s. of water from the [RFC] Ditch . . . unless [St. Jude’s Co.] obtains water court decrees for greater amounts and enlarges the capacity of the Ditches to safely carry such amounts.” By its terms, this provision pertains only to the Club’s obligation to deliver water to St. Jude’s Co. The water court correctly concluded that the language in no way limits the Club’s ability to divert additional water through the RFC Ditch.

¶33       And with regard to the contention of St. Jude’s Co. that the water court erred by finding no breach of the Agreement by the Club’s failure to deliver 16 cfs to St. Jude’s Co. as required, the Ditch Agreement states that “[s]ubject to the physical availability and administration thereof by the Division Engineer, [St. Jude’s Co.] shall be entitled to receive . . . all of its historic water flows” from the RFC Ditch, subject to the 16 cfs limit reproduced above, and that St. Jude’s Co. “shall give Club reasonable advance notice as to the desired water flows.” The water court found, based on ditch logs and witness testimony, that 16 cfs of water was generally available in the RFC Ditch and that St. Jude’s Co. simply failed to request the water. On appeal, St. Jude’s Co. does not contest these factual findings, but instead, simply reiterates that it received less than its allotted water deliveries under the Ditch Agreement, apparently ignoring the notice requirement. The water court’s reading of the Ditch Agreement to require notice as a condition of delivery is accurate, based on the plain language of the Agreement.

¶34       Finally, with regard to violation of the Ditch Agreement, St. Jude’s Co. assigns error to a number of factual findings by the water court. Such findings are binding on appeal unless they are so clearly erroneous as to find no support in the record. Town of Minturn v. Tucker, 2013 CO 3, ¶ 25, 293 P.3d 581, 590. St. Jude’s Co. contends that the water court erred in finding that no locking of the lateral headgate occurred since the signing of the Ditch Agreement. However, the water court relied on uncontested testimony by a Club employee that although a padlock hung from the headgate, it had not been locked since consummation of the Ditch Agreement. In addition, St. Jude’s Co. challenges the water court’s finding that the Club’s alleged flooding of the RFC Ditch, planting of trees, and placement of rocks, decks, and hot tubs did not unreasonably interfere with the Company’s non-exclusive easements around the RFC Ditch. The water court’s judgment relied on witness testimony from both parties, photographs, and a site inspection. These factual findings were in no sense clearly erroneous.

B.

¶35       St. Jude’s Co. also argues that the water court erred in quieting title to Priorities 280 and 364. In its judgment, the water court found that Priority 280 was decreed for 3 cfs in Case No. 3082 on August 25, 1936, with an appropriation date of March 29, 1885, and that Priority 364 was adjudicated in the same decree for 2.25 cfs with a priority date of September 5, 1905. The court further found that although the decree listed the predecessors of St. Jude’s Co. and the Club as claimants, it was silent as to the relative ownership of the predecessors with respect to both quantity and priority. The water court next noted that although the case as pleaded concerned only title to Priority 280 (in dispute because of the Club’s attempt to use the right in its augmentation plan), the case as tried concerned title to both Priority 280 and Priority 364 because the priorities arose from the same decree and, in the case at hand, the parties put forth conflicting arguments concerning their relative ownership of both priorities as set forth in the decree. In particular, St. Jude’s Co. argued that it owned all of the more senior Priority 280 and a small portion of Priority 364, with the Club taking the remainder of Priority 364, while the Club argued that both parties owned 50% of Priority 280 and Priority 364, respectively. In light of the scope of the dispute as tried, the water court concluded that it retained jurisdiction to enter a decree addressing both priorities. Relying on extensive documentary evidence and expert opinion, the water court allocated 61% of each right to St. Jude’s Co. and 39% of each to the Club.

¶36       Judgments based on documentary evidence alone are entitled to no deference by a reviewing court, Colo. Dep’t of Pers. v. Alexander, 970 P.2d 459, 467 (Colo. 1998); however, where the meaning and weight of the evidence is contested and depends on the credibility of witnesses, an appellate court will not substitute its own findings for that of the trial court, see M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382–83 (Colo. 1994).

¶37       The documentary record supports the following findings. In 1925, the Company’s predecessor filed a claim with the State Engineer for the full capacity of the John Cerise Ditch. This claim was not filed in water court or decreed. In 1926, the predecessors of St. Jude’s Co. and Club entered into an agreement which allowed the Club’s predecessor to use the ditch to make a filing for “an additional three feet of water” from the ditch. In 1936, Priorities 280 and 364 were decreed to the predecessors in a single decree, without indication of their relative ownership. In the proceedings leading to the decree, the p