City of Aspen v. Colorado River Water Conservation Dist., 82SA478

• Decision Date: 21 January 1985
• Docket Number: No. 82SA478,82SA478
• Parties: CITY OF ASPEN and Board of County Commissioners of Pitkin County, Applicants- Appellants, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Objector-Appellee, and United States of America and Exxon Company, U.S.A., Appearants-Appellees.
• Court: Colorado Supreme Court

Page 758

696 P.2d 758

CITY OF ASPEN and Board of County Commissioners of Pitkin County, Applicants- Appellants, v. COLORADO RIVER WATER CONSERVATION DISTRICT, Objector-Appellee and United States of America and Exxon Company, U.S.A Appearants-Appellees.

No. 82SA478.

Supreme Court of Colorado En Banc.

Jan. 21, 1985.

Rehearing Denied Feb. 11, 1985.

Musick and Cope, John D. Musick, Jr., Robert F. Wigington, Boulder, Paul Taddune, City Atty., City of Aspen, Wesley A. Light, County Atty., Pitkin County, Aspen, for applicants-appellants.

Donald H. Hamburg, Glenwood Springs, for objector-appellee.

Carol E. Dinkins, Asst. U.S. Atty. Gen., Robert L. Klarquist, Thomas H. Pacheco, Attys., U.S. Dept. of Justice, Washington, D.C., John R. Hill, Jr., Atty., U.S. Dept. of Justice, Denver, for appearant-appellee United States of America.

Holme Roberts & Owen, Glenn E. Porzak, Denver, for appearant-appellee Exxon Company, U.S.A.

LOHR, Justice.

The City of Aspen and the Board of County Commissioners of Pitkin County ("Aspen" and "Pitkin County," or "Applicants") appeal from a judgment of the water judge for Water Division 5 dismissing their application for a decree of a conditional water storage right. We reverse the judgment and remand for further proceedings.

I.

We summarize the facts as stipulated by the parties, found by the water judge, or otherwise established by the record.

Aspen and Pitkin County filed a joint application on December 31, 1980, for a conditional decree of a right to store 102,400 acre feet of water in a refill of Ruedi Reservoir, the water to be taken from the Fryingpan River and its tributaries. The proposed uses of the water included hydropower, fish culture, recreation and other beneficial uses. Ruedi Reservoir is an existing reservoir with a capacity of approximately 102,400 acre feet located on the Fryingpan River in western Colorado. Ruedi Dam, which forms the reservoir, was constructed by the United States Bureau of Reclamation as a component of the Fryingpan-Arkansas Project, and storage was initiated in 1968. The dam and reservoir continue to be owned by the United States and are administered by the Water and Power Resources Service (WPRS), a part of the United States Department of the Interior.

The Colorado River Water Conservation District filed a statement of opposition to the application. The United States of America and Exxon Company, U.S.A. entered appearances before the water judge.

Based upon a stipulation of facts by the parties, the water judge found that the applicants had the intent to appropriate water as set forth in their application and that water was available in the Fryingpan River for appropriation and refill of Ruedi Reservoir. ¹ On the basis of that same stipulation, the trial court also found the following facts:

c. The applicants performed the following acts upon which the date of appropriation might be based:

(1) Notice of intent to file an application for preliminary permit on Project No. 3225 (Ruedi Dam and reservoir) dated September 30, 1980, and filed with the United States Federal Energy Regulatory Commission (FERC) on October 2, 1980;

(2) Application for a preliminary permit on Project No. 3225, dated and filed with the FERC on October 23 and 24, 1980, respectively; the notice of the pendency of the application was published in the Federal Register January 12, 1981 and in the Aspen Times December 25, 1980;

(3) Application for water right in Case No. 80CW565 filed in Water Division No. 5 on December 30, 1980.

d. The parties have performed additional acts leading up to [these three findings] which are represented by Applicant's Exhibits I, J, K, HH, [and] JJ.

The applicants' exhibits representing the "additional acts" referred to by the court consist of copies of correspondence and other information sent by the WPRS to the applicants concerning the present and historical operation of the reservoir (exhibits I, J and K), ² minutes of certain joint public meetings of the Pitkin County Commissioners and the Aspen City Council from July 28, 1980, through January 26, 1981 (exhibit HH), ³ and a copy of a letter from an attorney for the applicants to a citizen of Pitkin County dated November 4, 1980, accompanied by various written materials that had been submitted to the City Council at these public meetings (exhibit JJ). These materials contain discussions of hydropower development at Ruedi Dam as well as the projected regional needs for power and water and the possible impact of Ruedi Dam water and power operations on the city and the county.

The court found, finally, that the applicants had not performed any surveys, construction, or other work at the site of Ruedi Dam and Reservoir. It based this finding upon evidence in the record, including admissions by the applicants during oral argument.

Upon the basis of the stipulated and found facts, the parties' oral arguments on questions of law, ⁴ and a conclusion that prior decisions of this court require that "in order to obtain a conditional decree for a water right there must be an intent to appropriate water and an open physical act on the land sufficient to constitute notice to third parties of the intent to apply water to beneficial use," the water judge concluded that Aspen and Pitkin County were not entitled to a conditional decree due to a failure by the applicants to perform any open physical act on the land. The water judge therefore dismissed the application. Aspen and Pitkin County appeal from this judgment of dismissal.

II.

Section 37-92-103(6), 15 C.R.S. (1973), defines a conditional water right as "a right to perfect a water right with a certain priority upon the completion with reasonable diligence of the appropriation upon which such water right is to be based." Conditional water right decrees are designed to establish that the "first step" toward the appropriation of a certain amount of water has been taken and to recognize the relation back of the ultimate appropriation to the date of that first step. See § 37-92-305(1), 15 C.R.S. (1973); Lionelle v. Southeastern Colorado Water Conservancy District, 676 P.2d 1162, 1168 (Colo.1984) (Lionelle ). The burden of proving that the first step has been completed on a particular date is on the applicant for the conditional decree. § 37-92-304(3), 15 C.R.S. (1973 and 1984 Supp.). The determination whether the requisite first step has been taken must be made on an ad hoc basis, taking into account the particular facts in each case. Lionelle, 676 P.2d at 1168.

We have held that the "first step" required for the initiation of an appropriation and relation back of a priority date must consist of the concurrence of the intent to appropriate water for application to beneficial use with an overt manifestation of that intent through physical acts sufficient to constitute notice to third parties. Lionelle, 676 P.2d at 1168; Colorado River Water Conservation District v. Vidler Tunnel Water Co., 197 Colo. 413, 416, 594 P.2d 566, 568 (1979); Fruitland Irrigation Co. v. Kruemling, 62 Colo. 160, 164-65, 162 P. 161, 163 (1916) (Fruitland ). The parties' dispute centers around whether those "physical acts" must be performed, at least in part, "on the land." Aspen and Pitkin County concede that they performed no physical acts "on the land," i.e., at the site of Ruedi Dam and Reservoir.

Over the span of a century, this court has issued numerous opinions concerning conditional water rights, from Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1884), to Fort Lyon Canal Co. v. Amity Mutual Irrigation Co., 688 P.2d 1110 (1984). Out of those many opinions, only four have included an explicit "on the land" statement in describing the "first step" requirements: Twin Lakes Reservoir & Canal Co. v. City of Aspen, 192 Colo. 209, 214-15, 557 P.2d 825, 829 (1976); Bunger v. Uncompahgre Valley Water Users Association, 192 Colo. 159, 166-67, 557 P.2d 389, 393-94 (1976); Central Colorado Water Conservancy District v. City & County of Denver, 189 Colo. 272, 275, 539 P.2d 1270, 1272 (1975) (Central Colorado ); and Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 445, 484 P.2d 1211, 1214 (1971) (Elk-Rifle ).

The first decisions by this court articulating the requirements for a decree relating an appropriation back to the date of the "first step" did not include an express statement that overt acts constituting notice of the requisite intent must be performed on the land. See Fruitland; Larimer County Reservoir Co. v. People ex rel. Luthe, 8 Colo. 614, 616-17, 9 P. 794, 796 (1886); Sieber v. Frink, 7 Colo. 148, 153, 2 P. 901, 903 (1884). Any conclusions to be derived from the absence of such a statement must be tempered by the realization that not one of these cases involved an issue as to whether overt acts not performed on the land might be sufficient to satisfy the requirements for a conditional decree. In fact, as will be shown below, this court has never been presented squarely with an issue concerning overt acts not performed on the land in a case that did not also involve failure to satisfy other requirements for establishing a conditional water right.

Fruitland is instructive in its analysis of the purposes and content of the "first step" test. In Fruitland, Emmet and George Gould visited the site of what was to become the Onion Valley Reservoir in the spring of 1900. The Goulds examined the site, paid a man $5.00 to perform "token" work on the land in the form of moving earth and rock, and made known to a local resident their intent to acquire his land for use as a reservoir site. The land was purchased by the Goulds later in 1900. Not until May of 1901 did the Goulds direct a "detailed survey of the reservoir and ditches." The survey was begun on May 17, 1901, and the resulting maps were filed with the state engineer. 62 Colo. at 162-63, 162 P. at 162.

This court affirmed the trial court's decree recognizing an appropriation date of May 17, 1901, for the...