¶1specially concurring.
¶2I agree with the majority that the application of issue preclusion by the water court in this case was improper because the district court's prior dismissal was based on its lack of subject matter jurisdiction. Here, the district court examined the 1908 decree and properly concluded that (1) the decree gave no water rights, on its face, to the Tonkos or their predecessors-in-interest, and (2) the only place that the Tonkos could obtain an adjudication of such rights would be from a water court. See § 87-92-208(1), CRS. (2006) (giving water courts exclusive jurisdiction over water matters). The water court, in its decision below, could not rely on issue preclusion because there had been no decision by a "court of competent jurisdiction." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
¶3The majority's opinion, however, goes beyond this essential conclusion. See, eg., maj. op. at 405 and 407 n. 5 (describing the legal standards by which the Tonkosg' claim under the rotational water use agreement should be judged). In my view, the water court on remand should start from a clean slate when considering the merits of the Tonkosg' claim. I therefore concur only in the judgment that the water court's reliance on issue preclusion in this case was erroneous.
¶4I am authorized to state that Justice COATS joins in this special concurrence.