Dominguez Reservoir Corp. v. Feil

• Decision Date: 07 June 1993
• Docket Number: No. 92SA101,92SA101
• Citation: 854 P.2d 791
• Parties: In the Matter of the Application for Water Rights of the United States of America in Water Division 4, State of Colorado. DOMINGUEZ RESERVOIR CORPORATION, Assignee of the Water Rights of the United States of America, Appellant, v. Arlan W. FEIL and Edwin A. Hintz, State of Colorado State Engineer and Division Engineer For Water Division 4, Southeastern Colorado Water Conservancy District, City and County of Denver, Acting by and through Its Board of Water Commissioners, Upper Gunnison River Water Conservancy District, Board of County Commissioners of the County of Arapahoe, Leroy Harris, City of Grand Junction, Northern Colorado Water Conservancy District and Municipal Subdistrict, and Tri-State Generation and Transmission Association, Inc., Appellees.
• Court: Colorado Supreme Court

Page 791

854 P.2d 791

In the Matter of the Application for Water Rights of the

United States of America in Water Division 4,

State of Colorado.

DOMINGUEZ RESERVOIR CORPORATION, Assignee of the Water

Rights of the United States of America, Appellant, v. Arlan W. FEIL and Edwin A. Hintz, State of Colorado State

Engineer and Division Engineer For Water Division 4,

Southeastern Colorado Water Conservancy District, City and

County of Denver, Acting by and through Its Board of Water

Commissioners, Upper Gunnison River Water Conservancy

District, Board of County Commissioners of the County of

Arapahoe, Leroy Harris, City of Grand Junction, Northern

Colorado Water Conservancy District and Municipal

Subdistrict, and Tri-State Generation and Transmission

Association, Inc., Appellees.

No. 92SA101.

Supreme Court of Colorado,

En Banc.

June 7, 1993.

Sabey, Epstein, Ordelheide & Smith, P.C., Melvin B. Sabey, Mark L. Sabey, Denver, for appellant.

Moses, Wittemyer, Harrison and Woodruff, P.C., Charles N. Woodruff, Steven P. Jeffers, Boulder, for appellees Arlan W. Feil, Edwin A. Hintz, and Tri-State Generation and Transmission Ass'n, Inc.

Van C. Wilgus, Denver, for appellee Tri-State Generation and Transmission Ass'n, Inc.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Steven O. Sims, Asst. Atty. Gen., Natural Resources Section, Denver, for appellee State Engineer and the Div. Engineer for Water Div. 4.

Fairfield and Woods, P.C., Howard Holme, Stephen H. Leonhardt, Miriam S. Mazel, Denver, for appellee Southeastern Colorado Water Conservancy Dist.

Patricia L. Wells, Michael L. Walker, Henry C. Teigen, Casey S. Funk, Mary K. Brennan, Denver, for appellee the City and County of Denver, acting by and through its Board of Water Com'rs.

Bratton and Associates, L. Richard Bratton, John H. McClow, Gunnison, for Upper Gunnison River Water Conservancy Dist.

Krassa, Lindholm, Kumli & Madsen, Robert F.T. Krassa, Boulder, for appellee Board of County Com'rs of the County of Arapahoe.

No Appearance on Behalf of appellee Leroy Harris.

No Appearance on Behalf of appellee City of Grand Junction.

Hobbs, Trout, & Raley, P.C., Gregory J. Hobbs, Jr., Robert V. Trout, Denver, for appellee Northern Colorado Water Conservancy Dist. and Mun. Subdistrict.

Justice VOLLACK delivered the Opinion of the Court.

The Dominguez Reservoir Corporation (the DRC), as assignee of the water rights of the United States of America (the United States), appeals the ruling of the water court that the United States lacked the requisite intent to appropriate water, and the order of the water court granting various objectors' motions for summary judgment. We reverse and remand for further proceedings consistent with this opinion.

I.

On December 28, 1971, the United States of America (the United States) filed an application seeking water rights in connection with the following: (1) the West Divide Project; (2) the Dallas Creek Project; (3) the Fruitland Mesa Project; (4) the Upper Gunnison Project; (5) the Uncompahgre Extension Project; (6) the Grand Mesa Project; and (7) the Uncompahgre Valley Project. The application was filed in Water Division No. 4. The Uncompahgre Extension Project was subsequently renamed "the Dominguez Reservoir Project."

On July 2, 1973, the United States filed an amended application and statements of claims. The United States sought to establish the above-mentioned rights in addition to other rights at issue in separate application proceedings. ¹ The United States also sought to modify the priority dates of some of the water rights.

On November 2, 1987, the United States executed an assignment of its application for conditional water rights for the Dominguez Reservoir Project to the Colorado River Water Conservation District. ² Approximately two years later, on January 23, 1989, the Colorado River Water Conservation District assigned the application for conditional rights back to the United States. On April 26, 1989, the United States assigned its application for conditional water rights regarding the Dominguez Reservoir Project to the City of Grand Junction. On May 9, 1989, the City of Grand Junction transferred its rights to the DRC.

On July 25, 1991, the DRC filed a motion pursuant to C.R.C.P. 25(c), ³ asking the court to substitute the DRC for the United States as the applicant with respect to the following water rights: (1) the Dominguez Reservoir; (2) the Dominguez Penstock and Power Plant; (3) the Gibbler Reservoir; and (4) the Gibbler Power Plant and Pump Unit. ⁴ In a brief filed in support of the motion, the DRC noted that the claimed date of appropriation for the Dominguez Project water rights was July 8, 1948, but, due to "subsequent negotiations," the United States amended its application to seek a priority date of December 29, 1971. The DRC subsequently stipulated that it would not seek a priority date earlier than December 29, 1971. The DRC noted that the United States claimed to have initiated the rights because it possessed the requisite intent and took the requisite actions to create a conditional water right.

On September 3, 1991, various objectors ⁵ filed a motion for summary judgment contending that the United States lacked the necessary intent to initiate the claimed appropriations under Colorado law. The objectors alternatively claimed that, even if the United States did initiate valid appropriations, it failed to prosecute the claims with reasonable diligence. Lastly, the objectors argued that the DRC could not revive the claims that the United States had abandoned. The objectors filed a second motion on that date, alleging that the DRC could not proceed in the name of the United States.

In support of its summary judgment motion, the objectors attached a copy of a report dated April, 1984, wherein the Bureau of Reclamation (the Bureau) prepared a planning report for the Dominguez Reservoir Project, which presented the results of the Bureau's feasibility investigations. The report noted that a 1981 study indicated that

[s]everal other projects in the market area could provide peaking power at earlier dates and at lower installed costs per k[w]h than the Dominguez [Reservoir Project].... and [that] the Dominguez [Reservoir Project] not be implemented until the power became more marketable, or until it became more competitive in terms of cost.

The report discussed numerous general plans based on their completeness, effectiveness, efficiency, and acceptability. The report concluded that "[t]he investigations were concluded since, based on the above discussion of [the] plans, it was not possible for [the Bureau] to recommend [a] plan for construction."

A letter subsequently written by the regional director of the Bureau to the director of the Colorado Water Conservation Board was also attached to the objectors' summary judgment motion. The regional director stated in the letter that the Bureau "studied the Dominguez Project for several years and was unable to formulate a viable project." A second letter, authored by a regional director of the Bureau stated that "[r]eclamation studies on the proposed Dominguez Project were discontinued in 1984." The memorandum additionally noted that the "Dominguez Advisory Council" renewed investigations on the project in 1986.

On October 17, 1991, the DRC filed a cross-motion for summary judgment, alleging that, among other things, the intent to appropriate water existed on the date that the application for the conditional water rights was filed. The DRC filed a motion opposing the objectors' motion for summary judgment. The DRC attached the affidavit of J.F. Rinckel to its motion. The affidavit established that Rinckel was an employee of the Bureau from 1954 through 1985. The affidavit reviewed several reports that were attached to the affidavit as exhibits. The affidavit noted that a March 1964 report titled "The Colorado River" identified the Dominguez Project as one of 134 potential projects. According to the affidavit, after the Bureau prepared a series of maps and reports from 1948 through 1950, the Bureau prepared a project planning report in July of 1950 and a river storage project and planning report in December of 1950. Both reports recommended that a dam and reservoir be constructed. Specifically, the report stated that

[t]he dam would be a rolled, earth-filled embankment with a volume of 6,656,000 cubic yards. It would rise 255 feet above stream bed and 335 feet above bedrock. The crest would be at elevation 4,890 feet, 10 feet above the normal water surface elevation. The crest would be 1,830 feet in length. To complete the reservoir basin three dikes would be constructed in low saddles on the north side of Kannah Creek about 4 miles upstream from the dam.

The reservoir formed by the dam and dikes would have a total initial capacity of 880,000 acre-feet, including an active capacity of 470,000 acre-feet and an inactive capacity of 410,000 acre-feet. In 200 years silt deposits would reduce the active capacity to 326,000 acre-feet and the inactive capacity to 92,000 acre-feet. When filled to capacity, the reservoir would have a water surface area of 10,250 acres and would extend about 35 river miles upstream to a point about 4 miles west of Delta, Colo[rado].

A proposed map of the reservoir and dam was also attached to the affidavit.

Several objectors filed a response to the DRC's cross-motion for summary judgment, to which was attached a report dated January, 1972. The January, 1972, report stated that

[t]he extension plan would involve the construction of the Dominguez Dam forming a 298,000 acre-foot lake on the Gunnison River downstream from the existing project area....

The extension plan would offer potentialities for hydroelectric power development that are not evaluated in the present report. A small powerplant located at the toe of Dominguez...