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United States v. Northern Colorado Water Conservancy District

United States District Court, D. Colorado

March 22, 2017

NORTHERN COLORADO WATER CONSERVANCY DISTRICT, et al., Defendants. Consolidated with Water Division No. 5, No. 2006CW255


          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to the Applicant's (“Denver”) Unopposed Motion for Entry of Decree (# 402).

         The Court foregoes an extensive recitation of the facts and procedural history of this aged case.[1] It is sufficient to note that this action concerns various parties' rights to the water that flows in the Blue River. Some of that flow is captured in the Green Mountain and Dillon Reservoirs, and some of the captured water is put to various uses by federal, state, and local entities. The case was initially commenced in 1949, the original claims to water rights were resolved by settlement in 1955, and the terms of that settlement were reduced to a decree over which the Court has since continued to exercise its jurisdiction. Pursuant to the decree and the Court's continuing exercise of jurisdiction, holders of water rights occasionally return to this Court to reaffirm or contest such rights.

         1. Denver's Motion

         As part of the decree, Denver was granted conditional rights to take 788 cubic feet per second (“cfs”) of water from Dillon Reservoir through a diversion project known as the Roberts Tunnel. In prior proceedings, the Court has made absolute - that is, converted those conditional rights to the water to permanent rights -- Denver's appropriation of 520 cfs of the flow through the Roberts Tunnel. In the instant motion, which was initially filed in 2006 and most recently amended in 2013, Denver seeks to make absolute its rights to an additional 134 cfs, increasing the total amount of its absolute rights to 654 cfs.

         Several state and municipal entities initially filed objections to Denver's motion. Over the ensuing years, Denver has reached various agreements with the objectors and, at this point in time, all objections to Denver's motion have been withdrawn. Thus, the motion is presently unopposed. Denver has filed a proposed decree granting its motion. That 45-page document purports to have this Court make extensive findings of fact about Denver's conduct, both historically and presently, about the nature of Denver's agreements with other entities, about the capacity of the Roberts Tunnel and other components of the diversion project, and numerous other matters.

         The Court declines to approve the proposed decree as written. This Court makes findings of fact in only where there is a live dispute as to the existence of a given fact and the Court is called upon to receive and weigh evidence in order to resolve the factual dispute. No party is contesting the facts recited in Denver's proposed decree, and thus, there is no factual dispute that requires (or even permits) this Court to make any findings. Instead, the Court is left with a situation in which all parties agree that a given set of facts is present. The most the Court can say that the parties agree that the facts recited in the proposed decree are true, and that they further agree that such facts warrant granting Denver the relief it requests. Accordingly, the Court finds and decrees as follows:

1. The parties - meaning Denver, any entity that previously lodged an objection to Denver's motion, and any individual or entity with actual or constructive notice of Denver's application and who has not appeared herein and lodged any timely objection or disputed any representation -- agree that Denver has been reasonably diligent in the development of the conditional water rights described in its motion and proposed decree for the period of December 14, 2000 to December 26, 2006, and that such conditional rights shall continue in effect;
2. The parties agree that Denver lawfully diverted 654 cfs, in compliance with prior orders and legal obligations, and put that water to beneficial use during the period referenced above; and
3. The parties herein are bound by that agreement and are hereafter estopped from acting or asserting otherwise.

         Denver's motion (# 402) is thus GRANTED IN PART and DENIED IN PART on these terms.

         2. Termination of jurisdictional reservation

         The foregoing decree brings to the Court's attention, a fundamental question of whether it should exercise jurisdiction over issues of priority and use of water rights which are customarily and expertly handled by Colorado water courts. Indeed, since 1977, this Court and the Colorado Water Court District #5 have both been considering such issues. Review of the history of this case offers some explanation, but also points to the need to avoid requiring parties to seek relief in two fora.

         This action was originally initiated by the United States for determination of its water interests under federal law. But in its first few years, the case collected a number of companion cases, petitions for adjudication of water rights of other non-federal entities. It appears that by 1955, the main action had been consolidated with petitions for “adjudication of priorities of water rights in Water District No. 36” both for purposes of irrigation (Civil No. 5016)[2] and non-irrigation (Civil No. 5017). Largely by virtue of an August 4, 1977 Order issued by Judge Arraj, even after the United ...

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