C.
Condemnation Authority
¶11
VIMA Partners contends, among other things, that section
37-45.1-103(4) of the water activity enterprise statutes and
section 37-45-118(1)(c) of the Water Conservancy Act, when
read together and narrowly construed, do not grant NISP
Enterprise the power of eminent domain. We disagree.
¶12
As noted above, Northern Water, the parent district of NISP
Enterprise, is a water conservancy district. Prior to the
passage of Colorado's Taxpayer's Bill of Rights
("TABOR"), Colo. Const. art. X, § 20, the
General Assembly enacted the Water Conservancy Act of 1937,
§§ 37-45-101 to -153, C.R.S. (2025), which allowed
for the organization of water conservancy districts to
provide for the conservation of the state's water
resources and to ensure the greatest beneficial use of water
within this state. To that end, the General Assembly provided
water conservancy district boards a variety of powers.
See § 37-45-118.
¶13
One of these powers is the power of eminent domain. Thus,
section 37-45-118(1)(c) provides:
The board has power on behalf of said district . . . [t]o
have and to exercise the power of eminent domain and dominant
eminent domain
and in the manner provided by law for the condemnation of
private property for public use to take any property
necessary to the exercise of the powers granted in this
article, [subject to an exception not pertinent here].
¶14
Accordingly, the General Assembly expressly granted water
conservancy districts the power of eminent domain to take
private property when necessary for the exercise of the
districts' powers. Id. Indeed, VIMA Partners
does not contest Northern Water's authority to condemn
its lands.
¶15
Following the passage of TABOR, taxing, revenue, and spending
limitations were applied to state and local governmental
entities, including water conservancy districts. See,
e.g., Colo. Const. art. X, § 20(1), (4), (7)-(8).
To address these limitations and provide for the continued
beneficial use of all waters originating in Colorado, the
General Assembly enacted water activity enterprise statutes
to allow for the establishment of water activity enterprises,
within or by water conservancy districts, water conservation
districts, and other state and local governments, to pursue
or continue "water activities." §
37-45.1-101(1), C.R.S. (2025); § 37-45.1-103(1). See
generally Gregory J. Hobbs, Jr., Water Activity
Enterprises, 22 Colo. Law. 2555 (Dec. 1993) (discussing
the legislative creation of and purposes for water activity
enterprises under TABOR's enterprise exception). Such
enterprises are government-owned businesses within the
meaning of TABOR but are excluded from certain limitations
that TABOR otherwise places on state and local governmental
entities. See Colo. Const. art. X, § 20(2)(b),
(d)
(defining "[district" as excluding enterprises and
"[enterprise" as "a government-owned business
authorized to issue its own revenue bonds and receiving [sic]
under 10% of annual revenue in grants from all Colorado state
and local governments combined").
¶16
Each water activity enterprise is wholly owned by a single
district, and the governing body of the water activity
enterprise is either the governing body of the district that
owns it or such governing body as may be prescribed by
applicable laws; local charters, resolutions, or ordinances;
or intergovernmental agreements. § 37-45.1-103(2)(a),
(3). Moreover, the General Assembly expressly authorized the
governing body of each water activity enterprise to exercise
its parent district's legal authority relating to water
activities. § 37-45.1-103(4). Thus, section
37-45.1-103(4) provides, "The governing body of each
water activity enterprise may exercise the district's
legal authority relating to water activities, but no
enterprise may levy a tax which is subject to section 20(4)
of article X of the state constitution."
¶17
Because NISP Enterprise is a water activity enterprise and
its parent district is Northern Water, we conclude that, read
together, the plain and unambiguous language of sections
37-45.1-103(4) and 37-45-118(1)(c) allows NISP Enterprise to
exercise Northern Water's legal authority, including the
power of eminent domain, provided that this authority is
exercised in relation to "water activities."
§ 37-45.1-103(4). The question thus becomes whether NISP
Enterprise exercised its eminent domain authority here in
relation to such "water activities."
¶18
Section 37-45.1-102(3), C.R.S. (2025), defines "[w]ater
activity" to include, without limitation, "the
diversion, storage, carriage, delivery, distribution,
collection, treatment, use, reuse, augmentation, exchange, or
discharge of water." The definition further provides
that a "[w]ater activity" includes "the
provision of wholesale or retail water or wastewater or storm
water services and the acquisition of water or water
rights." Id.
¶19
In this case, NISP Enterprise initiated the condemnation
proceedings at issue in connection with the construction and
maintenance of pipelines and related infrastructure for the
NISP, which, as noted above, is a water delivery and
distribution project. Under section 37-45.1-102(3)'s
plain language, such pipelines and infrastructure are
directly related to "water activities" because the
pipelines and infrastructure are indisputably related to the
acquisition, carriage, delivery, and distribution of water.
¶20
For these reasons, we conclude that under the express
language of sections 37-45.1-103(4) and 37-45-118(1)(c), NISP
Enterprise may exercise the power of eminent domain related
to the construction and maintenance of these pipelines and
their related infrastructure.
¶21
Our reading of these statutory provisions is confirmed by
section 38-1-202, C.R.S. (2025), in which the General
Assembly provided a list of entities authorized to exercise
the power of eminent domain under Colorado law. As pertinent
here, section 38-1-202(1)(f)(XXX) provides:
The following governmental entities, types of governmental
entities, and public corporations . . . may exercise the
power of eminent domain: . . . A water activity enterprise,
as defined in section 37-45.1-102(4), C.R.S., exercising the
legal authority to exercise the power of eminent domain of
the district that owns it in relation to a water activity, as
defined in section 37-45.1-102(3), C.R.S., as authorized in
section 37-45.1-103(4), C.R.S.
¶22
Just as we read the plain language of sections 37-45.1-103(4)
and 37-45-118(1)(c) together to grant water activity
enterprises the power of eminent domain in relation to water
activities, so, too, does our General Assembly.
¶23
Notwithstanding the plain language of the above-described
statutes, VIMA Partners argues that, for a number of reasons,
a water activity enterprise does not have condemnation
authority. We address and reject each of these arguments in
turn.
¶24
First, VIMA Partners contends that because Colorado case law
dictates that statutes granting condemnation authority must
be narrowly construed, sections 37-45.1-103(4) and
37-45-118(1)(c) cannot be read to grant NISP Enterprise the
power of eminent domain.
¶25
As VIMA Partners asserts, we construe eminent domain statutes
narrowly, and we resolve any ambiguities in favor of the
condemnee landowner. Bly v. Story, 241 P.3d 529, 533
(Colo. 2010). Accordingly, the power of eminent domain cannot
be implied from doubtful or vague language in a statute, but
rather the authority to condemn must be provided expressly or
by necessary implication. Mack v. Town of Craig, 191
P. 101, 101 (Colo. 1920); accord Bd. of Cnty. Comm'rs
of Arapahoe Cnty. v. Intermountain Rural Elec.
Ass'n, 655 P.2d 831, 833-34 (Colo. 1982). Despite
VIMA Partners' assertions to the contrary, for the
reasons set forth above, the General Assembly did
expressly authorize water activity enterprises like NISP
Enterprise to exercise the power of eminent domain in
relation to water activities.
¶26
The cases on which VIMA Partners relies to argue that a
narrow construction precludes such a conclusion are
distinguishable. In each of those cases, a party sought to
find condemnation authority in vague or broad statutory
language that did not specifically identify either the power
of eminent domain or the class of persons or activities for
which that power may be exercised. See, e.g.,
Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d
519, 521-22 (Colo. 1982) (concluding that a federal oil and
gas lessee did not have the power to condemn under general
constitutional and statutory provisions authorizing the
taking of private property in certain circumstances because
those provisions did not unambiguously grant to federal oil
and gas lessees the right to condemn);
Town of Eaton v. Bouslog, 292 P.2d 343, 344 (Colo.
1956) (concluding that the power of eminent domain cannot be
implied from the word "otherwise" in a statute
granting incorporated towns the power to acquire lands for
cemeteries "by purchase or otherwise"); Akin v.
Four Corners Encampment, 179 P.3d 139, 144-46 (Colo.App.
2007) (concluding that the authority to condemn private
property for a natural gas pipeline could not be implied from
a grant of condemnation authority for "private ways of
necessity" because that phrase had been construed
narrowly to encompass only passageways or roadways that were
indispensable to the practical use of a property). Here, in
contrast, the statutory language identifies the power of
eminent domain, § 37-45-118(1)(c), and the General
Assembly granted water activity enterprises authority to use
that power in relation to water activities, §
37-45.1-103(4).
¶27
Second, and related to its first point, VIMA Partners
contends that our obligation to construe narrowly statutes
granting the power of eminent domain precludes us from
interpreting sections 37-45-118(1)(c) and 37-45.1-103(4) so
broadly as to encompass a right to condemn in this case. As
discussed above, however, these statutes, when read together,
authorized NISP Enterprise to exercise condemnation authority
relating to "water activities," which are defined
to include activities such as those involved here. §
37-45.1-102(3). Contrary to VIMA Partners' suggestion,
our duty to construe condemnation statutes narrowly
does not authorize us to ignore express statutory language
that grants the power of eminent domain to an entity for what
might be deemed a broad set of purposes. See Dep't of
Transp. v. Stapleton, 97 P.3d 938, 943-45 (Colo. 2004)
(interpreting a statute that granted the Colorado Department
of Transportation the power of eminent domain for "state
highway purposes" to include condemnation authority not
only for the acquisition of the land strictly necessary for a
highway's construction, but also for purposes
"integral to the construction, maintenance, and
improvement of state highways," including a parking and
transit facility).
¶28
Third, VIMA Partners argues that because the definition of
"water activity" does not include the phrase
"eminent domain" or similar language referencing
the taking of private property, section 37-45.1-103(4)'s
grant of authority "relating to water activities"
does not include the power of eminent domain. This argument,
however, fails to consider the statutory scheme as a whole,
as we must do. See Byers Peak Props., ¶ 24, 583
P.3d at 103.
¶29
As discussed at length above, water activity enterprises'
condemnation power is rooted in the statutory language
establishing that such entities "may exercise the
district's legal authority," § 37-45.1-103(4),
and water conservancy districts indisputably have the power
of eminent domain, § 37-45-118(1)(c). Accordingly, these
statutes establish water activity enterprises' power of
eminent domain. The phrase "relating to water
activities," in turn, describes the purposes
for which water activity enterprises may exercise their
condemnation authority. See § 37-45.1-103(4).
Thus, the definition of "water activity" is
pertinent to determining the scope of a water activity
enterprise's condemnation authority, not the existence of
that authority.
¶30
Finally, VIMA Partners contends that NISP Enterprise cannot
exercise the power of eminent domain in relation to its
pipeline and infrastructure work because the statutory
definition of "water activity" does not
specifically identify pipelines or infrastructure projects.
Again, VIMA Partners' interpretation ignores statutory
language, which we may not do. See Byers Peak
Props., ¶ 24, 583 P.3d at 103.
¶31
Specifically, section 37-45.1-103(4) does not grant legal
authority to water activity enterprises solely for defined
water activities under section 37-45.1-102. To the contrary,
section 37-45.1-103(4) grants legal authority for purposes
"relating to water activities." (Emphasis
added.) Thus, water activity enterprises may exercise legal
authority for actions taken in connection with its water
activities, even if the action itself is not expressly
identified as a water activity under the statute. See
Related, Black's Law Dictionary (12th ed. 2024)
(defining "related" as "[c]onnected in some
way; having relationship to or with something else");
see also Woodrow v. Wildlife Comm'n, 206 P.3d
835, 837 (Colo.App. 2009) (defining "related
activity" to mean having a "connection, relation,
or reference" or being "connected; associated"
with the activities listed in the statute).
¶32
Moreover, section 37-45.1-102(3) provides that the term
'"[w]ater activity' includes but is not
limited to" the illustrative list of activities
provided in the definition. (Emphasis added.) We read the
phrase "includes, but is not limited to" as an
"expansion or enlargement" and a "broader
interpretation" of the statutory definition. People
v. Roggow, 2013 CO 70, ¶ 20, 318 P.3d 446, 451
(quoting Ruff v. Indus. Claim Appeals Off., 218 P.3d
1109, 1113 (Colo.App. 2009), aff'd in part and
rev'd in part sub nom., City of Manassa v. Ruff. 235
P.3d 1051 (Colo. 2010)).
¶33
Notwithstanding the foregoing, VIMA Partners attempts to
bolster its reading of "water activity" as
excluding pipeline and infrastructure projects by pointing to
the existence of a separate definition in the statutory
scheme, namely, section 37-45.1-102(5)'s definition of
"[w]ater project or facility," which defines that
term to include "a dam, storage reservoir, compensatory
or replacement reservoir, canal, conduit, pipeline,
tunnel, power plant, water or wastewater treatment facility,
and any and all works, facilities, improvements and property
necessary or convenient for the purpose of conducting a water
activity." (Emphasis added.) As VIMA Partners sees it,
because the statutory definition of "[w]ater project or
facility" includes "pipeline" and other
infrastructure projects, a pipeline must be something other
than a "water activity." Again, however,
VIMA Partners does not read the statutory language as a
whole, as we are required to do. See Byers Peak
Props., ¶ 24, 583 P.3d at 103.
¶34
Although the General Assembly included different statutory
definitions to distinguish between general water activities
and water projects and facilities, we do not read the former
as mutually exclusive of the latter. Indeed, in section
37-45.1-103(1), the General Assembly made clear that water
activity enterprises may be established "for the purpose
of pursuing or continuing water activities,
including water acquisition or water project or
facility activities." (Emphasis added.) The statutory
scheme thus describes "water project or facility
activities" as a subset of "water
activities," not as a wholly separate category under the
statutory language.
¶35
In sum, we conclude that under sections 37-45.1-103(4) and
37-45-118(1)(c), NISP Enterprise has the authority to condemn
easements on VIMA Partners' land to construct and
maintain pipelines and related infrastructure for the NISP.
In light of this conclusion, we need not decide whether
article XVI, section 7 of the Colorado Constitution or
sections 37-86-102 and -104(1) independently provide NISP
Enterprise with condemnation authority.