Hyrup v. Kleppe

Decision Date14 January 1976
Docket NumberCiv. A. No. 74-M-689.
Citation406 F. Supp. 214
PartiesJohn V. HYRUP, Plaintiff, v. Thomas S. KLEPPE, Defendant.
CourtU.S. District Court — District of Colorado

Frank Delaney, Glenwood Springs, Colo., for plaintiff.

James L. Treece, U. S. Atty., Denver, Colo., and Hank Meshorer, Trial Atty., Dept. of Justice, Land and Natural Resources Division, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The plaintiff seeks judicial review of a decision of the Department of the Interior Board of Land Appeals, dated June 12, 1974, under the Administrative Procedure Act, 5 U.S.C. §§ 701 to 706. The entire administrative record has been filed with the court and the matter is now ready for disposition.

John Hyrup is the owner of land in Eagle County, Colorado in Section 8, Township 8 South, Range 86 West of the 6th P.M. Near that land, in Section 9, there is a spring in a precipitous area of the public land. In January, 1969, Mr. Hyrup began a survey of a proposed pipeline to appropriate the waters of that spring and on March 15, 1969, he filed a map and statement with the office of the Colorado State Engineer. Thereafter, on or about June 3, 1969, the plaintiff filed a statement of claim and applied to the District Court of Garfield County, Colorado, for a decree of appropriation of the waters of that spring. On November 5, 1971, Mr. Hyrup obtained a conditional decree from that court for the appropriation of 1.71 cubic feet of water per second of time with a priority right dating from January 25, 1969, designated as priority No. 874.

On April 10, 1972, Mr. Hyrup filed an application with the Bureau of Land Management for a right of way for a pipeline across public land to convey water from that spring to the plaintiff's land. Mr. Hyrup had previously obtained an easement from Eagle County, Colorado, to run a pipeline along the borrow pit of a road connecting the public land to the site, near Basalt, Colorado where Mr. Hyrup was to make beneficial use of the water. Mr. Hyrup supplemented his application on June 21, 1972. Meanwhile, on April 25, 1972, he applied to the water court to establish a determination that he had used due diligence to perfect his conditional appropriation of water under the law of the State of Colorado. On June 30, 1972, the United States filed a statement of opposition in the water court. In that statement, the United States asserted that the water of the subject spring was not subject to appropriation under state law because the United States had reserved that water under an Executive Order of April 17, 1926. The United States did not pursue this issue in the water court. Having received no decision from the Bureau of Land Management on his application for right of way, Mr. Hyrup began construction of a pipeline in early April, 1973. A few days later, a cease and desist order was issued by the bureau and on April 18, 1973, it rejected his right of way application. While it is not very clear, it appears that the primary ground for rejection was that the spring was considered to have been withdrawn for public watering purposes under the Executive Order of April 17, 1926.

Mr. Hyrup continued construction and connection of the pipeline and made use of the water. The bureau considered that to be a trespass and on April 23, 1973, a written environmental report was made by the district engineer. In his statement the district engineer determined that the water supply was not needed for public purposes. He also determined that it was not needed for recreation, wildlife or any other bureau program. In the report, the district engineer discussed the spring as being a part of the drainage area of the Frying Pan River.

Mr. Hyrup appealed the rejection of his right of way application to the Office of Hearings and Appeals.

The final decision affirming the denial of the application for a right of way contained an extensive discussion of the effect of the Executive Order of April 17, 1926. The administrative law judge then said:

Appellant's contention that the spring was not withdrawn by the 1926 order could, absent other considerations, raise an issue of fact regarding whether the spring is really of the character contemplated by the order and the regulation, and a hearing might be necessary to resolve this issue. However, this will not be required in light of our resolution of the issue of the right of way.

The administrative law judge then determined that Mr. Hyrup had sought a right of way under the Act of July 26, 1866, 43 U.S.C. § 661. He concluded that that statute was no longer in effect, having been superseded by the Act of March 3, 1891, 43 U.S.C. § 946, and the Act of February 15, 1901, 43 U.S.C. § 959. In short, the final decision was that Mr. Hyrup's application should be denied because he was proceeding under the wrong statute.

Upon the administrative record reviewed and the statements of counsel at the hearing on the defendant's motion for summary judgment, the conclusion is that the final decision made was an arbitrary one and an abuse of discretion and remand is required. While the final decision in this case was based upon the facile analysis that the application was made under the wrong statutory authority, it is apparent that the pivotal issue is the effect of the Executive Order of April 17, 1926 designated as Order of Withdrawal — Public Water Reserve No. 107. That order, pursuant to statute, withdrew from location, sale or entry

. . . every smallest legal subdivision of the public land surveys which is vacant unappropriated unreserved public
...

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12 cases
  • U.S. v. City and County of Denver, By and Through Bd. of Water Com'rs
    • United States
    • Colorado Supreme Court
    • November 29, 1982
    ...they may not be fenced and the public excluded therefrom."State of Utah, 45 Pub.Lands Dec. 551, 554 (1916).51 Compare Hyrup v. Kleppe, 406 F.Supp. 214 (D.Colo.1976), which held that tributary waterholes are not within the scope of Public Water Reserve No. 107. We are convinced that nothing ......
  • People v. Lesh, 82SA316
    • United States
    • Colorado Supreme Court
    • August 29, 1983
    ...personally served upon the driver. In construing these two statutes, we are required to give effect to both enactments. Hyrup v. Kleppe, 406 F.Supp. 214 (D.Colo.1976); Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); Lini......
  • Western Watersheds Project v. Matejko
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 24, 2006
    ...the 1891 Act, and a similar 1901 Act, did not supercede or amend the 1866 Act. See Grindstone Butte, 638 F.2d at 103; Hyrup v. Kleppe, 406 F.Supp. 214, 217 (D.Colo.1976). 5 As set forth earlier, the BLM rights-of-way regulations were amended wholesale effective June 21, 2005—after the distr......
  • Western Watersheds Project v. Matejko
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 24, 2006
    ...the 1891 Act, and a similar 1901 Act, did not supercede or amend the 1866 Act. See Grindstone Butte, 638 F.2d at 103; Hyrup v. Kleppe, 406 F.Supp. 214, 217 (D.Colo.1976). 5. As set forth earlier, the BLM rights-of-way regulations were amended wholesale effective June 21, 2005—after the dist......
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