City and County of Denver, Acting By and Through Bd. of Water Com'rs v. Bergland

• Decision Date: 09 December 1982
• Docket Number: No. 81-1852,81-1852
• Parties: CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Plaintiff-Appellant, and Mountain States Legal Foundation, Plaintiff-Intervenor, v. Robert BERGLAND, Secretary of the United States Department of Agriculture, John R. McGuire, Chief, United States Forest Service, Craig W. Rupp, Regional Forester, Rocky Mountain Region, United States Forest Service; Cecil D. Andrus, Secretary of the United States Department of the Interior; Dale D. Andrus, State Director, Bureau of Land Management of the Department of the Interior, and the United States of America, Defendants-Appellees, and Sierra Club; American Wilderness Alliance; and the Board of County Commissioners of the County of Grand, Colorado, Defendants-Intervenors Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 465

695 F.2d 465

19 ERC 1443

CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Plaintiff-Appellant and Mountain States Legal Foundation, Plaintiff-Intervenor, v. Robert BERGLAND, Secretary of the United States Department of Agriculture, John R. McGuire, Chief, United States Forest Service, Craig W. Rupp, Regional Forester, Rocky Mountain Region, United States Forest Service; Cecil D. Andrus Secretary of the United States Department of the Interior Dale D. Andrus, State Director, Bureau of Land Management of the Department of the Interior, and the United States of America, Defendants-Appellees and Sierra Club; American Wilderness Alliance; and the Board of County Commissioners of the County of Grand, Colorado, Defendants-Intervenors Appellees.

No. 81-1852.

United States Court of Appeals, Tenth Circuit.

Dec. 9, 1982.

Wayne D. Williams, Denver, Colo. (Michael L. Walker, Henry C. Teigen and Maurice Lyle Dechant, Denver, Colo., with him on brief), for plaintiff-appellant.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., Michael J. Gippert, Atty., Dept. of Agriculture, Denver, Colo., and Edward J. Shawaker, Atty., Dept. of Justice, Washington, D.C., with him on brief), for defendants-appellees.

H. Anthony Ruckel, Denver, Colo., for defendant-intervenor appellee Sierra Club.

Henry W. Ipsen, Denver, Colo. (Charles B. White of Kirkland & Ellis, Denver, Colo., and Gerald E. Dahl, Frisco, Colo., with him on the brief), of Kirkland & Ellis, Denver, Colo., for defendants-intervenors appellees Bd. of County Com'rs of the County of Grand, Colorado.

Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

This appeal involves a right of way owned by appellant, the Denver Water Board (Denver), across federal lands managed by appellee, the United States Forest Service (USFS). The right of way was granted for canals on a certain alignment. Denver actually constructed a part of its project with steel conduits which followed a different alignment, and plans to continue the project with conduits on the new alignment. The USFS determined that both the conduits and the new alignment constituted deviations from the right of way as granted and ordered Denver to halt construction until it obtained further authorization from the USFS and complied with other conditions. Denver sought judicial review of those decisions in the federal district court for the District of Colorado, 517 F.Supp. 155. Denver also sought to quiet title to the right of way and to obtain compensation for a taking under the Fifth Amendment. The district court upheld the orders of the USFS and dismissed the other actions for lack of subject matter jurisdiction. Denver brings this appeal. The controlling issues are whether the USFS had the authority to take any action on Denver's right of way, and whether Denver is indeed beyond the scope of its right of way grant.

FACTUAL BACKGROUND

The City of Denver is located on the eastern side of the Continental Divide in the South Platte River drainage basin. For many years now, all of the available water in that drainage has been appropriated completely. As a result, and as a result of its continued growth, Denver has developed several projects to transport water from the western side of the Continental Divide into the South Platte drainage. One of those projects is the Williams Fork Diversion Project, which was intended to convey water from the Williams Fork drainage, west of the Continental Divide, through canals and tunnels into the drainage of Clear Creek, east of the Continental Divide, where the water could become part of Denver's municipal water supply system.

The area in which Denver planned to collect, divert, and transport the water lay within Arapahoe National Forest, almost wholly within Grand County, Colorado. To build its reservoirs, canals, and tunnels Denver needed a right of way across the national forest lands. On February 11, 1922, Denver filed an application for a right of way under the acts of March 3, 1891, 26 Stat. 1095, 1101; May 11, 1898, 30 Stat. 404; and February 1, 1905, 33 Stat. 628. On June 13, 1923, the General Land Office of the Department of the Interior dismissed the application because the various acts authorized rights of way for different purposes and types of grantees. Thus, Denver could not qualify under all three acts at the same time. Denver submitted an amended application on December 12, 1923, pursuant only to the act of February 1, 1905.

The 1905 act provided:

SEC. 4. That rights of way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and Pub.L. No. 58-34, Sec. 4, 33 Stat. 628 (1905), 16 U.S.C. Sec. 524 (1976), partially repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, Title VII, Sec. 706(a), 90 Stat. 2743, 2793 (1978). Thus, the Secretary of the Interior, not the USFS, was charged with the granting and administration of Denver's right of way.

across the forest reserves of the United States, are hereby granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said reserves are respectively situated.

Under the authority granted by the act, the Secretary of the Interior immediately promulgated regulations establishing the procedure for filing applications. 33 Pub.Lands Dec. 451-53 (1905). These regulations explicitly incorporated by reference certain regulations issued under the General Right of Way Act of 1891, 26 Stat. 1095, 1101, 43 U.S.C. Secs. 946-949 (1976), partially repealed by Federal Land Policy and Management Act of 1976, supra, Sec. 706(a). The regulations in effect when Denver applied for its right of way in 1923 can be found at 36 Pub.Lands Dec. 584-86 and 567-574 (1908). ¹ In essence, the regulations required an applicant to submit accurate survey field notes and maps showing the definite location and extent of the proposed project that required the right of way.

Denver's amended application was submitted in conformance with the regulations. The application consisted of field notes of a survey conducted by George M. Bull, a prominent engineer and surveyor, and a map accurately reflecting those notes. On the map, in accordance with the regulations, was a sworn statement by Mr. Bull that a survey was made under his direction, beginning on March 21, 1914, and completed on September 1, 1921, and that the "survey accurately represents a proper grade line for the flow of water which is the proposed line of said canals and that said survey is accurately represented upon this map and by the accompanying field notes...." [Joint App., Vol. III, p. 326]. Also on the map, and pursuant to the regulations, was a sworn statement by Frank L. Woodward, the president of the Denver Water Board at that time, that the Board had adopted the survey of the canals and tunnels "as accurately represented on this map and by the accompanying field notes" as the location of the proposed canals and tunnels. [Joint App., Vol. III, p. 326].

The Secretary of the Interior inquired of the USFS whether it had any objection to the approval of Denver's application. The USFS and Denver thereafter executed stipulations for the protection of the national forest. On May 5, 1924, under Section 4 of the act of 1905, the Secretary of the Interior approved Denver's application, consisting only of field notes, map, and affidavits, subject to those stipulations. Denver thereby obtained a right of way across national forest lands, identified as Denver (or D)-27915, subject to the limitation of beneficial use, and the regulations of the Department of the Interior (Interior).

Between 1924 and 1929 Denver did not begin any actual construction on the right of way. Although the 1905 act contained no provision for construction within a specific period of time, prior right of way acts, such as the General Right of Way Act of 1891, supra, required construction within five years of the date of approval. Consequently, the Interior decided that five years was a reasonable period of time within which to construct and put to beneficial use any project approved under the act. Denver had filed no evidence of construction, so the Interior directed Denver to file proof that the project had been constructed in substantial compliance with the approved map and was being put to beneficial use, or On July 26, 1929, Denver filed its "Answer Showing Cause Why Cancellation of the Grant Herein Should not be Recommended", relating that Denver was planning to construct three transmountain diversion projects, of which the Williams Fork Project was one, and was unsure which project would first be constructed, though all three were considered necessary. The Interior accepted the show cause report and suspended further action regarding cancellation of the right of way until January 1, 1931. This was the first "show cause" or "progress" report of the many that were routinely required, filed, and accepted through Denver's thirty-seventh such report, dated December 9, 1975. All of these reports were forwarded to the USFS, which routinely recommended their approval.

to show cause why the Interior should not institute a judicial proceeding to cancel the grant.

Denver did not commence actual construction of the Williams Fork Project until 1937. Between 1937 and 1940, Denver constructed a three-mile long tunnel under Jones Pass, approximately one and one-half miles of its North Canal Line between the west portal of the tunnel and McQueary Creek, and a little over one and...