dissenting.
While I consider it a generous reading of the water court's order, I agree with the majority that the stipulated decree in this case contemplated a two-year filing requirement only with regard to water already appropriated, by actual diversion and application to a beneficial use. Largely for that reason, however, I disagree that the stipulation's silence as to late filing implies complete abandonment of the conditional right and its accompanying priority date. Because I believe not only that the majority's rationale (ostensibly construing only the unique stipulation in this case) has important implications for the cancellation of conditional water rights in this State generally, but also that the majority far too lightly deprives the applicants of important statutory rights, I respectfully dissent.
As the majority finds, the stipulation at issue here does not purport to shorten the time for demonstrating reasonable diligence or otherwise alter the statutory requirements for Cherokee's completion of its appropriations. Paragraph 10.f adds additional conditions, not included in the statute, requiring Cherokee "to seek to perfect," within two years of first diversion, its conditional rights with regard to groundwater it has already diverted and put to beneficial use and, in any event, subjecting such appropriated groundwater to regulation by the State and District one year after first diversion. Although the effect of this provision may be to compel Cherokee to perfect its conditional rights piccemeal as groundwater from its wells is put to its decreed beneficial use, the unmistakable point of paragraph 10.f is to expeditiously subject groundwater of this description to regulation upon the completion of its appropriation and to formally make the conditional right to its use absolute.
In addition to the stipulation's silence on the matter, inferring abandonment as the intended consequence for failing to timely seek judicial confirmation of a completed appropriation is, at least to my mind, the very height of hyper-technicality. Even though the failure to demonstrate reasonable diligence in completing an appropriation, every six years as statutorily required, results in a conditional right being considered abandoned, see § 87-92-301(4)(@)(D), CRS. (2010), we have held that prior to judicially cancelling or declaring that right expired, a court must nevertheless give the grantee at least sixty-days notice by certified or registered mail, see § 37-92-305(7), C.R.S. (2010). In re Water Rights of Double RL Co., 54 P.3d 908, 912 (Colo.2002). Despite directly conflicting statutory language, we there found significant (and quoted) the comments of a state senator lamenting as tragic the loss of such an important right as a consequence of merely missing a filing date. Id. at 912. How much more pointless, and for that reason probably not contemplated by the parties, would be the loss of important groundwater rights that have already been perfected to the extent of completing an appropriation, for simply missing a filing date *577to have the completed appropriation evidenced by formal judicial decree.
Whether or not the legislature's superimposition of this notice requirement actually bars, in all cases, judicial cancellation of conditional water rights without advance notice, I consider it far more reasonable to understand the stipulation in this case as setting a point after which Cherokee's conditional rights would become cancelable, should it continue to fail to seek a judicial declaration making them absolute. If, as even the majority appears to acknowledge, paragraph 10.f merely accelerates the time within which Cherokee was obligated to seek judicial recognition that it had completed the appropriation of some portion of its conditional right, then no harm could come from requiring, as does the statute, that Cherokee be prompted before suffering such a harsh penalty. Permanent loss of Cherokee's valuable priorities for merely failing to timely request something that (under the terms of the stipulation) amounts to little more than a ministerial act is so far out of proportion as to make its inference from complete silence virtually unthinkable.
This is not the first time we have construed, to the advantage of the State Engineer, provisions of this stipulation left openly (and perhaps intentionally) ambiguous. See Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 152 (Colo.2006) (Coats, J., dissenting). I do not consider it the role of the courts to supply missing terms to any stipulation by parties, much less to infer from their absence a waiver of express statutory protections against precisely this kind of inadvertent loss. Because I believe that the unduly harsh result sanctioned by the majority was never contemplated by the parties and that the stipulated decree in this case cannot fairly be read to suggest that it was, I respectfully dissent.
I am authorized to state that Justice EID and Justice MARQUEZ join in this dissent.