2 Colo. Code Regs. § 410-2-9

Current through Register Vol. 47, No. 16, August 25, 2024

Rule 2 CCR 410-2-9 - Adjudicatory Procedures

A. Scope and Applicability

1. In order to assure that all Parties to any formal Adjudicatory Proceeding are accorded due process of law, the provisions of § 24-4-105(1), C.R.S. shall apply.

2. In general, the Colorado Rules of Civil Procedure shall apply to all adjudicatory hearings. In complex litigation matters, the Commission or Hearing Officer may utilize Water Court Rule 11 of the Uniform Local Rules for All State Water Divisions.

B. Prehearing Procedures

1. Prehearing procedures may be modified as required or approved by the Commission or Hearing Officer.

2. Disclosure and discovery

a. Any deadlines for the Parties' initial disclosures and expert disclosures shall be established by an order of the Commission or Hearing Officer.

b. Parties shall first attempt to utilize discovery through informal methods. When informal attempts fail, further discovery shall be conducted pursuant to the Colorado Rules of Civil Procedure.

c. The Commission or Hearing Officer may allow, upon the motion of any Party for good cause, the taking of depositions or have depositions taken, and fix the time and place for them to be held.

d. Discovery may be requested by any Party including the staff of the Commission. Discovery shall be granted where due process, fairness, and the establishment of an adequate record may be served thereby, and when the timely completion of the proceedings will not be unduly delayed. Discovery timelines shall be set by the Commission or Hearing Officer in accordance with the Colorado Rules of Civil Procedure.

3. Subpoenas

a. The Commission or Hearing Officer shall issue subpoenas in accordance with § 24-4-105(5), C.R.S., on forms provided to the Commission or Hearing Officer by the Party requesting the subpoena.

b. Subpoenas shall be issued without discrimination between Agencies and Persons by the Commission or Hearing Officer. A subpoena shall be served in the same manner as a subpoena issued by a district court. Upon failure of any witness to comply with such subpoena, the Commission or Hearing Officer may petition any district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena; in which event, the district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records, or other evidence, under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court and may award attorney fees under the Colorado rules of civil procedure. A witness shall be entitled to the fees and mileage provided for a witness in a court of record. Section 24-4-105(5), C.R.S.

4. Motions

The Commission or Hearing Officer may require advance submittal of all motions or requests for rulings that any Party intends to request at any hearing. These shall include but are not limited to all motions regarding procedures, the scope and nature of the proceedings, motions for summary judgment or determinations of questions of law, motions in limine, or any other matter that requires a determination prior to final action based on the record.

5. Prehearing Conference

a. A prehearing conference may be held if deemed useful by the Commission or Hearing Officer. Parties may also request a prehearing conference in writing at least twenty (20) days before a scheduled hearing in writing. The scope of issues to be raised at the prehearing conference shall be determined by the Commission or Hearing Officer. Prehearing conferences shall be held in the office of the Division of Water Resources in Denver, Colorado, unless the Commission or Hearing Officer determines the conference should be held at some other location. The Commission or Hearing Officer may hold the prehearing conference by telephone (or other conferencing means) at their discretion for cost-saving purposes or for the convenience of the Parties.

b. The prehearing conference shall be for the purpose of facilitating the adjudication of issues to be determined at the hearing. The purpose of the prehearing conference may include the formulation of stipulations or orders respecting relevant issues to be raised as well as witnesses and exhibits expected to be presented by the Parties.

c. The Parties shall make known at the prehearing conference any objections to the procedures or evidence that may be raised at the hearing. Stipulations are encouraged and may be made at the prehearing conference to reflect any matters that have been agreed to or admitted by the Parties. A prehearing order may be prepared by the Commission or Hearing Officer and shall reflect any rulings made with respect to procedures or any other matters to be followed at the hearing. The Commission or Hearing Officer may also direct a Party to prepare a draft of any order necessary.

6. Prehearing Statement

a. Prior to any prehearing conference or hearing the Commission or Hearing Officer may require all Parties to file a prehearing statement by the date ordered by the Commission or Hearing Officer. Failure to file a prehearing statement or other such documents by any Party as ordered may result in dismissal of that Party's claim if the Commission or Hearing Officer determines such failure results in undue prejudice to the other Parties in the case. If ordered, a signed stipulation between the Parties as to the disputed and undisputed facts may be substituted for the filing of a prehearing statement. Further, if ordered, use of Water Court Rule 11 procedures for the filing of pre-hearing documentation negates the requirement for the filing of prehearing statements.

b. At a minimum, the prehearing statement shall include the following:

i. Specific statements of all factual and legal claims asserted by the Party.

ii. A list of facts the Party believes to be undisputed between the Parties.

iii. A list of all exhibits the Party plans to introduce at the hearing.

iv. A list of witnesses the Party plans to call and a brief summary of their testimony.

C. Conduct of Hearings

1. Unless otherwise agreed to by all Parties or unless ordered otherwise by the Commission or Hearing Officer due to extenuating circumstances, a hearing shall be held within one hundred eighty (180) days after the filing of a request for such a hearing pursuant to § 37-90-113(2), C.R.S.

2. Adjudicatory hearings heard by the Commission or Hearing Officer shall be held within the boundaries of the designated ground water basin and ground water management district, if one exists, in which the water rights or well directly involved are located, or at such other place as may be designated by the Commission or the Hearing Officer for the convenience of, and as agreed to by, the Parties involved. Sections 37-90-107(4) & 37-90-113, C.R.S.

3. In conducting hearings the Commission or Hearing Officer shall, in addition to the authority specified elsewhere, have authority to: Administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other documents; direct the Parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders which shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of Agency jurisdiction over the subject matter or Parties or for any other ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene, procedural requests, or similar matters; reprimand or exclude from the hearing any Person for any improper or indecorous conduct in his presence; award attorney fees for abuses of discovery procedures or as otherwise provided under the Colorado rules of civil procedure; and take any other action authorized by Agency rule consistent with this article or in accordance, to the extent practicable, with the procedure in the district courts. All Parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding. In the event more than one Person engages in the conduct of a hearing, such Persons shall designate one of their number to perform such of the above functions as can best be performed by one Person only, and thereafter such Person only shall perform those functions which are assigned to him by the several Persons conducting such hearing. Section 24-4-105(4), C.R.S.

4. Burden of Proof a. Except as otherwise provided by statute, the proponent of the order shall have the burden of proof. Section 24-4-105(7), C.R.S. "Order" means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) by the Commission in any matter other than rulemaking. Section 24-4-102(10), C.R.S. The Commission or Hearing Officer shall determine the proponent or proponents of orders as appropriate on a case-by-case basis based on the relief requested by the Parties. In making this determination and in holding the proponents of orders to their burdens of proof, the Commission or Hearing Officer shall consider the following general principles:

i. Applicants for well permits, changes of water rights, replacement plans and/or artificial recharge plans shall have the initial burden of proof.

ii. When a Party is requesting that the Commission or Hearing Officer review to either reverse or modify an initial Commission action, the Party seeking reversal or modification of the initial Commission action is the proponent of the order as to the requested relief.

iii. When a Party is requesting any determination by the Commission or Hearing Officer not previously made by the Commission, the Party seeking the determination is the proponent of the order as to the requested determination.

iv. If a proponent of an order presents initial evidence sufficient on its face to satisfy the burden of proof based on the preponderance of the evidence, the burden of proof may be shifted to the opposing Party or Parties to present sufficient evidence to the contrary, but the ultimate burden of proof rests with the proponent of the order to prove its claims based on the preponderance of all of the evidence.

v. The Commission or Hearing Officer shall give effect to any rebuttable presumptions established by statute or other applicable law.

5. All hearings shall be conducted in the following order unless otherwise directed by the Commission or Hearing Officer or as provided for under the Alternative Means for Dispute Resolution requirements set forth in Rule 5:

a. Call to order and introductory remarks;

b. Presentation of any Stipulations or agreements between the Parties;

c. Opening statements by the Party or Parties upon whom the burden of proof rests;

d. Opening statements by all other Parties;

e. Presentation of case-in-chief by the Party upon whom burden of proof rests:

f. Presentations by all other Parties wishing to offer evidence, with the order of presentation to be determined by the Commission or Hearing Officer;

g. Rebuttal by the Party upon whom the burden of proof rests;

h. Closing statement by Party upon whom the burden of proof rests. Closing statements may be provided by written brief if the Commission or Hearing Officer determines it is warranted;

i. Closing statements by all other Parties. Closing statements may be provided by written brief if the Commission or Hearing Officer determines it is warranted;

j. At the conclusion of any witness's testimony, all other Parties may then cross-examine each witness. The order of the cross examination shall be determined by the Person conducting the hearing. The Commission or Hearing Officer may examine any witness at any time.

6. No ex parte Communications with or by the Commission or Hearing Officer may occur during the pendency of any Adjudicatory Proceeding within the scope of the Ground Water Management Act. The Commission or Hearing Officer may, through formal communication with all Parties, request that certain information be provided to him or that certain tasks be performed.

7. Evidence

a. The rules of evidence and requirements of proof before the Commission shall conform, to the extent practicable, with the Colorado Rules of Evidence and the Colorado Rules of Civil Procedure. However, when necessary to do so, in order to ascertain facts affecting the substantial rights of the Parties to the proceedings, the Commission or Hearing Officer may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent Persons in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The Commission or Hearing Officer shall give effect to the rules of privilege recognized by law. Incompetent and unduly repetitious evidence may be excluded. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available, but upon request, the Party shall be given an opportunity to compare the copy with the original. Section 24-4-105(7), C.R.S.

b. Parties may make objections and all witnesses shall be subject to cross-examination. The Commission or Hearing Officer may question any witness that testifies at the hearing and all witnesses shall also be subject to cross-examination by the Commission or Hearing Officer.

8. The Commission or Hearing Officer may allow Parties to submit evidence not previously submitted or disclosed under prehearing procedures for good cause.

9. The Commission or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing procedures for good cause.

10. The Commission or Hearing Officer, after the receipt of the evidence, may allow or require Parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto.

11. Every Party shall have the right to present their case or defense by oral and documentary evidence. They shall also have the right to submit rebuttal evidence and conduct cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights, where a hearing will be expedited and the interests of the Parties will not be substantially prejudiced, the Commission or Hearing Officer may receive all or part of the evidence in written form. Section 24-4-105(7), C.R.S.

12. The Commission or Hearing Officer may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. Section 24-4-105(7), C.R.S.

13. The Commission or Hearing Officer may take notice of general, technical, or scientific facts within their knowledge if the relevant fact noticed is specified in the record or brought to the attention of the Parties before a final decision (or Initial Decision of the Hearing Officer) and all Parties are afforded an opportunity to controvert the fact so noticed. Section 24-4-105(8), C.R.S.

14. Any Party, or the agent, servant, or employee of any Party, permitted or compelled to testify or submit data or evidence, shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense, but a Person may appear on their own behalf. An attorney who is a witness may not act as counsel for the Party calling him as a witness. Section 24-4-105(9)(a), C.R.S.

15. The Commission or Hearing Officer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When requested, the Commission or Hearing Officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the Party requesting the transcription. Any Party, upon payment of a reasonable charge therefor, shall be entitled to procure a copy of the transcript of the record, or any part thereof. If the Commission or Hearing Officer acquires a copy of the transcription, said copy shall be made available to any Party at a reasonable time for inspection and study. If a Party obtains a copy of a transcript paid for by another Party, the receiving Party is required to contribute to the cost for preparation of the transcript. Sections 24-4-105(9)(a) & (13), C.R.S.

16. Prompt notice shall be given of the refusal to accept for filing or the denial in whole or in part of any written applications or other request made in connection with any adjudicatory hearing, with a statement of the grounds for such refusal or denial.

17. In any case where the Hearing Officer has conducted the hearing, the Hearing Officer shall prepare and file an Initial Decision that shall be served upon each Party, except where all Parties with the consent of the Commission have expressly waived their right to have an Initial Decision rendered by the Hearing Officer.

18. These procedures may be modified by the Commission or Hearing Officer if deemed necessary to affect the speedy resolution of the matter without prejudice to the participating Parties before them.

2 CCR 410-2-9