City and County of Denver By and Through Bd. of Water Com'rs v. Colorado River Water Conservation Dist., 36

• Decision Date: 21 January 1985
• Docket Number: No. 36,No. 52,I,No. 37,S,No. 5,No. 82SA259,36,5,37,52,82SA259
• Citation: 696 P.2d 730
• Parties: In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes in Water Districtrrigation Divisiontate of Colorado. In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes in Water Districtrrigation Divisiontate of Colorado. In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes In Water Districtrrigation Divisiontate of Colorado. CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Appellant, v. COLORADO RIVER WATER CONSERVATION DISTRICT, United States of America, Northern Colorado Water Conservancy District, Municipal Subdistrict Northern Colorado Water Conservancy District, City of Colorado Springs, City of Aurora, and Central Colorado Water Conservancy District, Appellees.
• Court: Colorado Supreme Court

Page 730

696 P.2d 730

In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes in Water District No. 36, Irrigation Division No. 5, State of Colorado In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes in Water District No. 37, Irrigation Division No. 5, State of Colorado In the Matter of the Adjudication of Priorities to the Right to the Use of Water For All Beneficial Purposes In Water District No. 52, Irrigation Division No. 5, State of Colorado CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Appellant, v. COLORADO RIVER WATER CONSERVATION DISTRICT, United States of America, Northern Colorado Water Conservancy District Municipal Subdistrict Northern Colorado Water Conservancy District, City of Colorado Springs, City of Aurora, and Central Colorado Water Conservancy District, Appellees.

No. 82SA259.

Supreme Court of Colorado, En Banc.

Jan. 21, 1985.

As Modified on Denial of Rehearing

March 11, 1985.

Wayne D. Williams, Michael L. Walker, Henry C. Teigen, Anne R. McGee, Casey S. Funk, Saunders, Snyder, Ross & Dickson, P.C., Glenn G. Saunders, Jack F. Ross, Denver, for appellant.

Donald H. Hamburg, Leavenworth, Patrick & Lochhead, P.C., Loyal E. Leavenworth, Kevin L. Patrick, James L. Lochhead, Peter A. Milwid, Glenwood Springs, for appellee Colorado River Water Conservation Dist.

Davis, Graham & Stubbs, John M. Sayre, Robert V. Trout, Denver, for appellees Northern Colorado Water Conservancy Dist. and Municipal Subdistrict Northern Colorado Water Conservancy Dist.

Broadhurst & Petrock, Kenneth L. Broadhurst, J.J. Petrock, Frederick A. Fendel, Baker & Cazier, Stanley W. Cazier, Granby, for amicus curiae Middle Park Water Conservancy Dist.

III, Denver, for appellee City of Aurora and for amici curiae Bear Creek Water and Sanitation Dist., Bennett Bear Creek Farm Water & Sanitation Dist., Board of County Commissioners of Adams County, Castlewood Water Dist., Cherryridge Water & Sanitation Dist., City of Lafayette, City of Littleton, City of Thornton, Consolidated Mutual Water Co., Dolly-O-Denver Water & Sanitation Dist., East Cherry Creek Valley Water & Sanitation Dist., Grant Water & Sanitation Dist., Green Mountain Park Water & Sanitation Dist., Greenwood Plaza Water Dist., Havana Water & Sanitation Dist., Inverness Water & Sanitation Dist., Lakehurst Water & Sanitation Dist., Meadowbrook Water Dist., North Side Water & Sanitation Dist., North Washington Street Water & Sanitation Dist., Platte Canyon Water & Sanitation Dist., Pleasant View Water & Sanitation Dist., Southwest Metropolitan Water & Sanitation Dist., Southwest Water & Sanitation Dist., Willowbrook Water & Sanitation Dist., and Willows Water Dist.

Gerald E. Dahl, Frisco, for amicus curiae Northwest Colorado Council of Governments.

Calkins, Kramer, Grimshaw & Harring, James S. Bailey, Jr., Wayne B. Schroeder, David C. Hallford, Betty J. Bona, Denver, for amicus curiae Vail Valley Consolidated Water Dist.

No appearance for appellee U.S.

LOHR, Justice.

The City and County of Denver, acting by and through its Board of Water Commissioners (Denver), appeals from a judgment of the water judge for Water Division 5 denying Denver's claims for certain conditional water rights. In resolving this appeal, we: (1) reverse the trial court's ruling that Denver lacked authority to make the claimed appropriations of water for use outside its boundaries, (2) reverse in part that court's determination that Denver did not form the requisite intent to effect any of the claimed appropriations, (3) determine that Denver performed the necessary overt acts to initiate some but not all of its claims, and (4) conclude that the trial court must conduct further proceedings to resolve whether Denver had the necessary firm contractual commitments or agency agreements to supply water to users outside its boundaries in order to satisfy the requirements of Colorado River Water Conservation District v. Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979). Therefore, we affirm in part, reverse in part, and remand for further proceedings.

I.

We begin with a review of the claims asserted by Denver, and of the procedural history of this litigation.

Judicial proceedings in this matter were commenced in the summer of 1968 when Denver filed statements of claim for those portions of its Roberts Tunnel Collection System water rights that had not yet been adjudicated. These claims for conditional water right decrees were filed in two supplemental water right adjudication suits pursuant to section 7 of what was commonly known as the Adjudication Act of 1943 (1943 Act), then codified as section 148-9-7, 7 C.R.S. (1963). ¹ Thereafter, Denver filed an additional statement of claim in one of those suits, and yet another such statement in a third supplemental water adjudication suit, seeking conditional water right decrees for its proposed Eagle-Colorado Collection System. Separate descriptions of these two groups of claims and a summary of the progress of the resulting litigation

will facilitate an understanding of the issues to be resolved by this court.

A. Roberts Tunnel Collection System Claims.

Denver proposes to use the Roberts Tunnel Collection System to divert water from tributaries of the Blue, Eagle and Piney Rivers and from the Piney River itself, all of which are tributaries of the Colorado River. The water from the drainages of the Eagle and Piney Rivers will be carried through a series of tunnels, conduits and canals across Vail Pass to Ten Mile Creek and thence to Dillon Reservoir. The water from the Blue River drainage will flow through conduits and canals to that reservoir. From Dillon Reservoir, the water will be transported through the Harold D. Roberts Tunnel under the Continental Divide and deposited in the North Fork of the South Platte River near Grant. From there, the water will travel down the South Platte to Denver's intake structures. Denver also plans to store water in the proposed Piney Reservoir on the Piney River and in the proposed Two Forks Reservoir near the confluence of the North Fork and the South Fork of the South Platte River, and in Marston Reservoir, farther down the South Platte River. In addition, Denver proposes to store water, by exchange, in three existing reservoirs on the South Fork of the South Platte River--Cheesman, Eleven Mile Canon and Antero Reservoirs. Denver has sought decrees for both storage and direct flow water rights for the Roberts Tunnel Collection System. Denver proposes to use the water from the Roberts Tunnel Collection System for "all municipal uses," including a number of specifically designated uses.

Denver has already received either conditional or absolute decrees for the Roberts Tunnel and Dillon Reservoir and, in a subsequent and separate proceeding, for the Eagle River Unit of the Roberts Tunnel Collection System. See Metropolitan Suburban Water Users Association v. Colorado River Water Conservation District, 148 Colo. 173, 365 P.2d 273 (1961) (Metropolitan Suburban ). See also People ex rel. City & County of Denver v. District Court, 154 Colo. 84, 388 P.2d 403 (1964) (directing the district court to enter a decree in accordance with the order of the court in Metropolitan Suburban ). In the statements of claim here, Denver seeks conditional decrees for the rest of the Roberts Tunnel Collection System, as follows:

1. Straight Creek Conduit. The Straight Creek Conduit is to be a series of canals and conduits, a diversion dam, and other water carrying and control devices that will divert water at the rate of 115 cubic feet per second (cfs) from Straight Creek and its tributary drainage and transport it approximately 2 1/2 miles to Dillon Reservoir. Straight Creek is a tributary of the Blue River.

2. East Gore Range Canal. The East Gore Range Canal is to consist of a series of conduits, canals, diversion dams and other water carrying and control devices that will extend along the west side of the Blue River for approximately 40 miles at or above an elevation of 9017 feet and will terminate in Dillon Reservoir. Denver intends that this canal will intercept various tributaries of the Blue River lying west of that river and north of Dillon Dam up to and including Cataract Creek. The streams and the claimed amounts to be diverted are the following: Saltlick Gulch (30 cfs), Willow Creek (100 cfs), Maryland Creek (25 cfs), South Rock Creek (65 cfs), North Rock Creek (95 cfs), Pebble Creek (15 cfs), Boulder Creek and tributary drainage (90 cfs), Harrigan Creek (two branches) (10 cfs), Slate Creek (100 cfs), Hay Camp Creek, Squaw Creek, South Brush Creek and Brush Creek (35 cfs total), Black Creek (two branches) (205 cfs), Otter Creek (three branches) (35 cfs), and Cataract Creek (100 cfs), for a total diversion of 905 cfs.

3. Storage Rights Incident to Straight Creek Conduit and East Gore Range Canal Claims. Storage rights claimed by Denver for the water from the Straight Creek Conduit and the East Gore Range Canal consist of Dillon Reservoir (254,036 acre feet), Two Forks Reservoir (600,000 acre feet), Marston Reservoir (19,800 acre 4. Piney River Unit. The Piney River Unit is described by Denver as a series of conduits and tunnels that will collect water from various tributaries of the Piney River and will transport the water to the proposed Piney Reservoir, which will be constructed on the Piney River. From that point, a tunnel will carry the water from the Piney River drainage southerly into the Eagle River drainage and into the tunnels, canals and conduits of the Eagle River Unit of the Roberts Tunnel Collection System. Water from the Eagle River and Piney River Units will then be taken by the Vail Pass Tunnel eastward into the Blue River drainage basin and, eventually, into Dillon Reservoir and through the Roberts Tunnel. Denver proposes to divert the...