CITY & COUNTY OF DENVER, ETC. v. Bergland
| Decision Date | 02 June 1981 |
| Docket Number | Civ. A. No. 79-K-611. |
| Parties | CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Plaintiff, and Mountain States Legal Foundation et al., Plaintiffs-Intervenors, 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 Interior; Dale D. Andrus, State Director, Bureau of Land Management of the Department of the Interior; and the United States of America, Defendants, and Sierra Club, American Wilderness Alliance, and the Board of County Commissioners of the County of Grand, Colorado, Defendants-Intervenors. |
| Court | U.S. District Court — District of Colorado |
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Wayne D. Williams, Michael L. Walker, Denver, Colo., for plaintiffs.
Joseph F. Dolan, U. S. Atty., Hank Meshorer, Atty., Dept. of Justice, Land and Natural Resources Div., Denver, Colo., for Dept. of Justice, Land & Natural Resources Div.
John R. Little, Regional Sol., Dept. of the Interior, Denver, Colo., Nancy Stanley, Trial Atty., Dept. of Justice, Land and Natural Resources Div., Washington, D. C., Jack E. Hanthorn, Regional Atty., Michael J. Gippert, Dept. of Agriculture, Denver, Colo., for defendants.
H. Anthony Ruckel, Denver, Colo., for Sierra Club.
Kea Bardeen, Denver, Colo., for Mountain States Legal Foundation.
Henry W. Ipsen, Kirkland & Ellis, Denver, Colo., Gerald E. Dahl, Frisco, Colo., for Board of County Com'rs of Grand County.
This is an action arising out of a dispute between the Denver Water Board and the United States Forest Service regarding Denver's right-of-way over national forest lands in the Williams Fork Basin, Arapahoe National Forest. The right-of-way was granted to Denver in 1924 by the federal government pursuant to the Act of 1905, 33 Stat. 628, 16 U.S.C. ? 524. Denver had conducted minimal construction on the right-of-way to develop its water resources since the granting of the right-of-way. The central issues of the dispute are whether Denver has constructed off its right-of-way, and, if so, whether it must forfeit its existing right-of-way, whether it may continue construction under a theory that the federal government approved construction off the right-of-way, or whether it must file an amendment requesting a change or extension of its right-of-way, and in doing so comply with federal environmental regulations, in order to continue construction off the right-of-way. Ancillary to these issues is the issue of whether Denver is required to comply with state and county land use control statutes and regulations as part of the process of obtaining a right-of-way permit from the Forest Service, if such is required, and whether and to what extent federal environmental laws mandate compliance with such statutes and regulations.
The parties involved in the litigation are the City and County of Denver, acting by and through its Board of Water Commissioners, a municipal corporation of the State of Colorado authorized and created by Article XX of the Constitution of the State of Colorado; plaintiff-intervenor Mountain States Legal Foundation, a non-profit membership corporation of the State of Colorado; defendant Bergland, the Secretary of Agriculture of the United States acting in his official capacity; defendant McGuire, the Chief of the United States Forest Service acting in his official capacity; defendant Rupp, the Regional Forester, Rocky Mountain Region of the United States Forest Service acting in his official capacity; defendant Cecil D. Andrus, the Secretary of the Interior of the United States acting in his official capacity; defendant Dale Andrus, the State Director of the Bureau of Land Management of the Department of the Interior acting in his official capacity; defendant-intervenor Board of County Commissioners of the County of Grant, a governmental subdivision of the State of Colorado, created by Article XIV of the Constitution of the State of Colorado; defendant-intervenor Sierra Club, a non-profit corporation of the State of California; defendant-intervenor American Wilderness Alliance, a non-profit corporation of the State of Colorado.
On March 3, 1891, the Congress of the United States approved the Creative Act of 1891, 26 Stat. 1103, 16 U.S.C. ? 471, which provided, in pertinent part:
Sec. 24. The President of the United States of America may, from time to time set apart and reserve, in any State or Territory having public lands bearing forests, in any part of the public lands ... as national forests, and the President shall by public proclamation declare the establishment of such forests and the limits thereof.
On June 4, 1897, Congress approved the Organic Administration Act, 30 Stat. 35, 16 U.S.C. ? 551, which provided, in pertinent part:
The Secretary of Interior1 shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said Act of March 3, 1891, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.
On February 1, 1905, the Congress of the United States approved "An Act providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture." 33 Stat. 628. Section 4 of the Act, codified at 16 U.S.C. ? 524, provided as follows:
That rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and 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 purpose 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.
Section 1 of the Act of 1905 transferred the powers over national forest lands hitherto exercised by the Secretary of the Interior to the Secretary of Agriculture. See 16 U.S.C. ? 472. Section 3 of the Act initiated the creation of a specific arm within the Department of Agriculture to be known as the "Forest Service." 16 U.S.C. ? 554.
On March 1, 1905, the Secretary of the Interior promulgated certain regulations under Section 4 of the Act of 1905, which were first published at 33 Pub.Land Dec. 451-453 (1905)2 Volume 36, pp. 584-86, Decisions Relating to the Public Lands (1908), with only slight variation, and subsequently amended by the Department of Interior circulars.3
The City and County of Denver, acting by and through its Board of Water Commissioners, initiated its survey for the Williams Fork Diversion Project on March 21, 1914, and completed the survey on September 1, 1921. The noted and distinguished engineer and surveyor, George M. Bull, conducted the survey during a period of seven and one-half years. At trial, testimony was heard and I find that the survey was "an excellent survey," definitely relocatable which "could be put back upon the ground with the accuracy of the original survey." Such accuracy was tested by running all of the bearings and distances stated in Bull's field notes through a computer and determining the amount of misclosure, which "is the only way that relative accuracy can be expressed."
After completion of the survey work, Denver submitted its initial filing for a right-of-way across national forest lands for its Williams Fork project on February 11, 1922, under the Acts of March 3, 1891, 26 Stat. 1101, 43 U.S.C. ?? 946-49; May 11, 1898, 30 Stat. 404; and February 1, 1905, 33 Stat. 628, 16 U.S.C. ? 524. On June 13, 1923, the General Land Office of the Department of the Interior denied the initial filing due to its submittal under all three of the above referenced Acts.
Denver submitted an amended filing on December 12, 1923, under only Section 4 of the Act of 1905. The amended filing consisted of a map and plat showing the location of certain proposed tunnels and canals of Denver's Williams Fork project and accompanying field notes. The field notes accompanying the final application stated that
George M. Bull, the engineer employed by Denver to conduct the survey for its Williams Fork project, stated on the amended filing that "said survey accurately represents a proper gradeline 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; ...." Frank L. Woodward, the then president of the Denver Water Board, stated on the amended filing that:
the survey of the said canals and tunnels as accurately represented on this map and by the accompanying field notes was made under the authority of the Board; ... and that said canals, tunnels, etc., as represented on this map and by said field notes were adopted by the Board by resolution on the 3rd day of May, A.D. 1921, as respective locations of the said canals and tunnels as described....
As written and submitted to the Secretary of the Interior, the amended application specifically called for a gravity flow system...
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