United States v. Northern Colorado Water Conservancy District

251 F.R.D. 590, 2008 U.S. Dist. LEXIS 23526
CourtDistrict Court, D. Colorado
DecidedMarch 25, 2008
DocketCivil Action Nos. 2782 (EWN), 5016, 5017
StatusPublished
Cited by2 cases

This text of 251 F.R.D. 590 (United States v. Northern Colorado Water Conservancy District) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Northern Colorado Water Conservancy District, 251 F.R.D. 590, 2008 U.S. Dist. LEXIS 23526 (D. Colo. 2008).

Opinion

[592]*592ORDER AND MEMORANDUM OF DECISION

EDWARD W. NOTTINGHAM, Chief Judge.

This is a water rights case. Petitioner Climax Molybdenum Company (hereinafter “Climax”) seeks leave to intervene to petition for a declaratory judgment announcing the relative priority of its water rights on the Blue River vis-a-vis those rights decreed by this court to other parties in the Blue River Decree. This matter comes before the court on “Motion to Intervene by Climax Molybdenum Company,” filed April 5, 2007. Jurisdiction is premised upon United States of America v. Northern Colorado Water Conservancy District, consolidated civil action numbers 2782, 5016, and 5017, Final Decree at 17 (D.Colo. Oct. 12,1955) (hereinafter the “Blue River Decree”), Supplemental Order Dismissing Reserved Question and Amending Decree at 2 (D.Colo. Oct. 29,1957), 43 U.S.C. § 620j, and 28 U.S.C. § 1331.

FACTS

1. Factual Background

This litigation has been on this court’s docket for nearly sixty years, and, as this court has repeatedly observed, “it will likely remain here so long as the Continental Divide partitions Colorado into western and eastern watersheds.” (See, e.g., Order and Mem. of Decision at 2-3 [filed Aug. 5, 2004] [hereinafter “2004 Order”].) As recounted by the Tenth Circuit in a decision now nearly [593]*593two decades old, the essential facts of the underlying litigation are as follows:

The controversy centers around water rights to the Blue River, a tributary of the Colorado River, located on the Western Slope of the Continental Divide in Colorado. In 1937, Congress authorized a multimillion dollar reclamation effort known as the Colorado-Big Thompson Project (“CBT”). Among other things, the CBT involved construction of a reservoir and power plant on the Blue River. This facility, known as Green Mountain Reservoir and Power Plant, was completed in 1942. The purpose of the CBT is set forth in Senate Document No. 80, 75th Cong., 1st Sess. (1937), which reveals that Green Mountain’s main purpose is to store replacement water for the Western Slope to compensate for other Colorado River water diverted to the Eastern Slope as part of the CBT. It was also intended, however, to generate hydroelectric power and supply additional water for agricultural and industrial uses on the Western Slope.
The litigation began in 1949, when the United States brought an action in United States District Court for the District of Colorado for a determination of its rights in connection with the CBT, and for a declaratory judgment defining its operational obligations under Senate Document No. 80 with respect to Green Mountain Reservoir. The United States sought to quiet title to water rights in the Blue River against Denver, Colorado Springs, and others. These parties maintained their own claims to Blue River water. Denver claimed the right to divert Blue River water upstream from Green Mountain and transport it to the Eastern Slope to augment its municipal water supply.
On October 12, 1955, the court entered [the Blue River Decree which] incorporated a stipulation executed by the parties. The incorporated stipulation recognized Denver’s right to divert Blue River water, subject, however, to the federal government’s senior right to fill and utilize Green Mountain Reservoir. Thus, according to the incorporated stipulation, Denver could divert Blue River water if the Secretary of the Interior determined that the diversion would “not adversely affect the ability of Green Mountain Reservoir to fulfill its function as set forth in [Senate Document No. 80]____” In return, Denver agreed to deliver to the United States electrical energy “in substantially the same amounts, at approximately the same hours and at substantially the same rates of delivery that would have been generated by the Green Mountain Powerplant had it not been for the diversions____” Denver also agreed to bypass water in quantities sufficient to meet all downstream water rights on the Blue River and the downstream segment of the Colorado River having priorities superior to Denver’s.

In re Application of City & County of Denver Acting by & Through Its Bd. of Water Comm’rs with Respect to Its Water Rights in the Blue River and Its Tributaries in Summit County, Colo., 935 F.2d 1143, 1145-46 (10th Cir.1991) (internal citations omitted).

The instant motion centers upon the relative priority of certain water rights decreed to the United States (hereinafter the “Green Mountain Hydroelectric Right”) and Denver (hereinafter the “Blue River Diversion Project Rights”) in the Blue River Decree and exercised pursuant to the stipulation incorporated therein (hereinafter the “Power Interference Agreement”) vis-d-vis separate water rights decreed to Climax by the Summit County District Court in 1937. (See generally Mot. to Intervene by Climax Molybdenum Co. [filed Apr. 5, 2007] [hereinafter “Climax’s Br.”]; Climax Molybdenum Co.’s Petition on Intervention for Declaratory Relief [filed Apr. 5, 2007] [hereinafter “Decl. J. Pet.”].) I first discuss the facts relevant to Climax’s water rights and its historic use of these rights, and then describe the alleged nexus between Climax’s proposed petition for declaratory judgment and the rights and obligations embodied in the Blue River Decree.

a. Climax’s Water Rights and Historic Use

Climax owns and operates the Climax Mine located in Summit, Lake, and Eagle Counties, and owns water rights that divert from Tenmile Creek, a tributary of the Blue [594]*594River. (See Climax’s Br. at 3.) In 1937, the Summit County District Court decreed various water rights to Climax in a supplemental water rights adjudication, giving these rights priority dates ranging from August 15, 1935, to June 4, 1936, and priority numbers ranging from 99-C to 105-C. (See id.; Decl. J. Pet. at 5-6, Ex. 2 at 10, 12 [1937 Decree].)

From 1937 until 1984, Climax Mine was in full operation, and Climax asserts that its water rights were never administered as junior to either the Green Mountain Hydroelectric Right or the Blue River Diversion Project Rights. (See Climax Br. at 12.) From 1984 until the present, with a few sporadic exceptions, Climax Mine was not in operation due to insufficient demand for molybdenum. (See id.)

During the late 1990s, the Colorado State Engineer’s (hereinafter “State Engineer”) tabulation of water rights allegedly listed Climax’s rights as subordinate to the Green Mountain Hydroelectric Right, but senior to the Blue River Diversion Project Rights. (See id.) On February 18, 2005, the State Engineer allegedly informed Climax that it intended to administer Climax’s rights as junior to both the Green Mountain Hydroelectric Right and the Blue River Diversion Project Rights when Denver diverts or stores water pursuant to the Power Interference Agreement. (See id. at 8.)

Climax plans to resume operations at Climax Mine in 2009, and asserts that it will need to exercise its full water rights in-priority as of that date. (See id.

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Bluebook (online)
251 F.R.D. 590, 2008 U.S. Dist. LEXIS 23526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-northern-colorado-water-conservancy-district-cod-2008.