Four Counties Water Users Ass'n v. Colorado River Water Conservation Dist.

• Decision Date: 11 April 1966
• Docket Number: No. 20943,20943
• Citation: 159 Colo. 499,414 P.2d 469
• Parties: FOUR COUNTIES WATER USERS ASSOCIATION, Plaintiff in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT and Town of Steamboat Springs, Defendants in Error.
• Court: Colorado Supreme Court

Page 469

414 P.2d 469

159 Colo. 499

FOUR COUNTIES WATER USERS ASSOCIATION, Plaintiff in Error, v. COLORADO RIVER WATER CONSERVATION DISTRICT and Town of

Steamboat Springs, Defendants in Error.

No. 20943.

Supreme Court of Colorado, En Banc.

April 11, 1966.

Rehearing Denied June 6, 1966.

Ireland, Stapleton, Pryor & Holmes, D. Monte Pascoe, Denver, for plaintiff in error.

Frank Delaney, Glenwood Springs, for defendant in error Colorado River Water Conservation Dist.

DAY, Justice.

The parties in this writ of error will be referred to as follows: Plaintiff in error--Four Counties Water Users Association--as Four Counties or claimant; defendants in error Colorado River Water Conservation District and the Town of Steamboat Springs as objectors.

Four Counties expressed a desire and intention to put to beneficial use waters in Routt County and in Grand County to be diverted, through a system of exchange, to counties east of the divide. Claimant filed in the district court in each of the counties its Statement of Claims, asserting that appropriations had been made and due diligence demonstrated commencing on and continuously from June 2, 1958. Claimant prayed for the entry by the court of a conditional decree fixing and determining the priority rights of the appropriation of the water claims and establishing the date from which reasonable diligence had been shown to have been exercised and fixing the maximum amount of water which the claimant shall be entitled to divert under the aforementioned priority.

The claims in both of the counties were interrelated and constituted an integral collection storage and diversion system. Both counties are within the Fourteenth Judicial District, and it was therefore stipulated by the parties that the testimony introduced at the hearing in the district court of Grand County and the testimony given in the adjudication proceedings in Routt County would be considered together by the court.

Identical orders, denominated 'Findings and Conclusions,' were entered by the court in each of the cases denying claimants their request for a conditional decree. To those orders writ of error issued in this case and in the companion case Colo., 414 P.2d 478. This opinion must be read in conjunction with the opinion in that case announced this date, as both cases were consolidated for oral argument; and it was agreed that the decision in this case is dispositive of questions raised in the other.

By its Statement of Claims and the evidence presented at the hearings in support thereof, Four Counties seeks to appropriate water from Walton and Fish Creeks in Water District 58 and on Muddy Creek and its tributary in Water District 50--all in the Yampa River Water shed. The plans include storage for these waters in a reservoir on Rabbit Ears Pass. From there, at the first stage of the proceeding, a portion of the water collected would be delivered to Grizzly Creek, a tributary of the North Platte River arising in the northwest corner of North Park. By exchange an equal amount of water would be taken from the Illinois and Michigan Rivers, arising in the northeast corner of North Park and delivered by ditch to Willow Creek Pass. The remainder of the water is contemplated to be transported to Willow Creek Pass by pipe line or channel, and then to Grandy Reservoir by use of the Colorado Big Thompson Conservation facilities on Willow Creek. The waters would then be transported via the Adams Tunnel to the Eastern Slope for water users in the counties of Adams, Boulder, Weld and Larimer.

Absent the requisite consent and agreement from the federal government for the use of the Adams Tunnel, the plans call for an extension of the Fourth of July Mine Tunnel on Arapahoe Pass and transportation and storage on the Eastern Slope.

Objections were filed in Grand County in the adjudication proceedings there by the Middle Park Water Conservancy District in which the Colorado River Water Conservation District joined. The Town of Steamboat Springs and the Colorado River Water Conservation District joined in filing the protest and objections in the adjudication proceedings in Routt County. The protests filed by all of the objectors are identical, and the court, in denying the conditional decree in both proceedings, adopted in toto all of the points and all of the arguments raised by the objectors to the granting of the decree.

In entering its order, the court first announced a general observation which formed the background for and provided the dominant theme in more specific findings. The court said:

'Claimant at the outset of its reply brief offers the idea that 'claimant wants to first emphasize * * * that entry of a conditional decree is mandatory upon showing an appropriation has been initiated and has been pursued with diligence.'

This has the merit of brevity but its sweeping consequences if it is adopted should have some place in the consideration. In this constricted framework, need and necessity for and amount of the water are irrelevant. The claimant need only claim. It imports that a claimant is empowered to segregate and place beyond the reach of others who may be in dire need of the water, an amount and volume limited only by the notions of the claimant and for an indefinite period, whether the claimant be a speculator, an entrepreneur or a self-styled 'water users association'. That the claim here is completely speculative is clear from the record. Neither Mr. Elliott nor any of the other members of the claimant corporation intend to 'use' so much as a pint of water. The sole intention is to hold and control the water and sell it to various areas and municipalities none of whom are obliged to purchase any part of it and whether any of them will meet the claimant's terms and requirements when and if they need and desire the water is unknown.'

The court recited the details of the project as shown by various maps, plans and filings in the office of the State Engineer. (They are not necessary for purposes of this opinion to be recited in detail here.) The court then found:

'The scheme variously referred to as the Four Counties Project and as the Rabbit Ears Project, as a whole, consists of many separate units and is not one project.'

Other findings--eight in number--were as follows:

'2. The claimant has not arrived at any definite intention to divert or appropriate water for any given beneficial purpose or use. The claimant does assert that the water mentioned in the claim and which it proposes to appropriate is for municipal purposes, but whether such water is needed or will be used by the municipalities or organizations for which the claim is made is purely speculative and conjectural.

'3. The details of the structures necessary to divert or appropriate water have not been formulated or crystalized to the extent necessary to constitute the first part of an appropriation; namely, a definite intention to divert a maximum amount of water or to determine how such water is to be diverted.

'4. To the extent that the claimant had any plan or intention to appropriate water, such intention was indicated by the reconnaissance surveys, which, even up to the time of the hearing herein, were being radically changed and modified so as to constitute an abandonment of the earlier tentative plans, and successive changes to other structures and features were being made which constituted a material departure from the earlier proposals.

'5. That the claim of said Association is speculative, not feasible, fantastic, and without reasonable promise of accomplishment.

'6. Such a claim of appropriation if merged into a conditional decree will recognize expressly or by necessary implication as due diligence in the continuance of said decree reconnaissance surveys and exploratory work of the same kind as said claimant relies on as the steps necessary to initiate and constitute an appropriation. The result would be earmarking water for speculative purposes. As to other bona fide appropriators on the streams, the right to appropriate water would be so clouded that the further appropriation of the waters of the streams involved would be made impossible.

'7. The claims of the said Four Counties Association are insufficient and should be denied for the following reasons:

(a) There is no sufficient evidence to show that water exported to the tributaries of the North Platte River will not be used in whole or in part outside of the State of Colorado. The evidence does not show that after said water is diverted into the tributaries of the North Platte River that the same will be so controlled that said water, or a corresponding amount of water, may be used in the State of Colorado.

(b) The evidence is insufficient to show that the claimant can acquire the right to divert and utilize water through the Adams Tunnel, or by means of other facilities of the Colorado-Big Thompson Project.

(c) The undisputed evidence shows that the cost of water to be conveyed through the proposed work and project, if otherwise physically or legally possible, would be so expensive as to be impossible of accomplishment.

(d) The claimant has shown no plan or intention whereby Highway No. 40, which now extends through the proposed site of Rabbit Ears Reservoir, is to be or can be re-routed.

(e) No definite intentions or plans have been formulated as to the manner in which any water which the claimant proposes to export from the tributaries of the North Platte to the tributaries of the Colorado River Basin or from any other source to Willow Creek, a tributary of the Colorado River, is to be transported or conveyed to the Granby Reservoir.

'8. It appears that the claims in Water District No. 50 are limited to two headgates on Muddy Creek and that the Rabbit Ears Reservoir is an on-stream reservoir on Muddy Creek itself. Except for this the claims are in District No. 58. There are also claims, said to be a part of the projects of the claimant, or one or...