## Facts

- The Moyers owned and operated a ranch with a decreed senior irrigation water right on a creek tributary to the Arkansas River.
- Empire Lodge owned an upstream subdivision and diverted water from the same creek to fill two recreational/fishing ponds.
- While filling the ponds, no water returned to the creek; pond storage and evaporation depleted stream system flows.
- Empire Lodge held a junior decreed right for irrigation and domestic use and was seldom in priority in the overappropriated basin.
- Instead of obtaining a decreed augmentation plan, Empire Lodge relied on State/Division Engineer approvals to divert out of priority, despite being told an augmentation-plan decree was required.
- The Moyers repeatedly placed calls on the creek to curtail Empire Lodge’s out-of-priority diversions.
- After roughly twelve years without seeking an augmentation-plan decree, Empire Lodge sued alleging the Moyers enlarged their use and wasted water, and argued the futile-call doctrine barred enforcement of the Moyers’ calls.
- The Moyers counterclaimed for an injunction to stop Empire Lodge’s out-of-priority pond diversions due to injury to senior rights and the river system; the Division Engineer testified the pond-filling reduced system flows.

## Issues

1. Whether the State/Division Engineer may authorize or effectively permit out-of-priority diversions that cause injury without a decreed augmentation plan, and whether such approvals can legalize the diversions.
2. Whether the futile-call doctrine can be used by a junior appropriator to avoid curtailment of out-of-priority diversions absent a decreed augmentation plan and despite evidence of system depletions.
3. Whether the water court properly dismissed Empire Lodge’s claims and enjoined the out-of-priority pond-filling diversions.

## Decision

- The Colorado Supreme Court affirmed the water court’s judgment for the Moyers (as modified on rehearing).
- The Court upheld dismissal of Empire Lodge’s complaint.
- The Court upheld the injunction prohibiting Empire Lodge’s out-of-priority pond-filling diversions without a decreed augmentation plan.
- The Court held that administrative approvals did not substitute for the statutory requirement of a decreed augmentation plan when out-of-priority diversions cause injury.
- The Court rejected Empire Lodge’s futile-call argument because curtailment would reduce depletions and was not shown to be futile.

## Legal Principles

- Under Colorado’s prior appropriation system, decreed priorities must be administered as written unless changed through an adjudicated mechanism recognized by statute.
- Engineers’ administrative actions cannot create a lawful, ongoing right to divert out of priority when the diversion injures vested senior rights; authorization for such diversion must come through water-court adjudication.
- Augmentation plans are the statutory method for allowing continued out-of-priority diversions by preventing injury, typically through replacement water or enforceable conditions.
- The futile-call doctrine is limited to circumstances where curtailment cannot provide a usable benefit to the senior; it does not excuse unadjudicated out-of-priority depletions shown to reduce system flows.

## Conclusion

The Court enforced senior priority administration by enjoining a junior’s injurious out-of-priority pond diversions, holding that repeated administrative approvals could not replace a decreed augmentation plan and that the futile-call doctrine did not bar curtailment where the diversions depleted the stream system.


Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001)