Water Rights, et al v.
OPINION AND ORDER granting in part 402 Unopposed Motion for Entry of Decree, and administratively closing this case, by Chief Judge Marcia S. Krieger on 3/22/17. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 49-cv-02782-MSK-CBS
Consolidated with District Court, Water Division No. 5, Case No. 2006CW255
UNITED STATES OF AMERICA,
NORTHERN COLORADO WATER CONSERVANCY DISTRICT, et al.,
OPINION AND ORDER GRANTING, IN PART, MOTION FOR ENTRY OF DECREE,
VACATING ORDER RESERVING FUTURE JURISDICTION, AND CLOSING CASE
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
For those who desire a comprehensive historical context, the Court refers readers to the
10th Circuit’s abbreviated historical retelling of the dispute in City of Colorado Springs v. Climax
Molybdenum Co., 587 F.3d 1071 (10th Cir. 2009) and U.S. v. Northern Colorado Water
Conservancy Distr., 608 F.2d 422 (10th Cir. 1979), among others.
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
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
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
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 nonirrigation (Civil No. 5017). Largely by virtue of an August 4, 1977 Order issued by Judge Arraj,
even after the United States’ water rights were determined, the “companion cases” remained in
this Court. Denver’s instant motion is brought pursuant to a companion case.
When this case was first filed, Colorado had no water courts to adjudicate and enforce
appropriative rights. But in 1969, Colorado established a system of state Water Courts in which
disputes over water rights and priorities could be efficiently litigated before judges with
particular expertise. One would expect that the “companion cases” that had been consolidated
into this case would have been returned to supervision by the Colorado Water Courts. But in
1977, Judge Arraj issued an Order declaring that, for purposes of “quadrennial showing of due
diligence and applications for making absolute conditional decrees or portions thereof” in
connection with Civil Actions 5016 and 5017, the federal court would “act as the Water Judge”
applying state law. Since then, the two courts have worked in tandem, requiring parties to file
notices and pleadings in both courts and obtain orders from both.
The full case numbers for these companion actions are not immediately ascertainable
from this Court’s review of handwritten docket sheets dating back to the 1950s.
This Court has concluded that, the merits of Judge Arraj’s August 1977 Order are no
longer operative. From a theoretical perspective, showings by state or municipal entities of due
diligence or applications to make conditional decrees absolute are not within the limited scope of
federal subject-matter jurisdiction conferred on this Court by Congress. From a policy
perspective, such proceedings, involving competing rights among Colorado entities to the use of
water within Colorado, involve matters of state concern and state law and thus, are properly
adjudicated by Colorado Water Courts. Judge Arraj, who took over management of this case in
1960, may have had more familiarity with the Blue River Decree and Colorado water law than
judges in Colorado’s nascent Water Courts. This may have made the exercise of federal
jurisdiction for adjudication as to showings of diligence or applications to make conditional
allocations absolute an efficient use of judicial resources. But almost 40 years have passed since
Judge Arraj’s order was issued, and no federal district judge presiding over the case has been the
beneficiary of his expertise or institutional knowledge. In contrast, for almost 50 years,
Colorado Water Courts have been providing skilled and efficient determinations of the types of
issues reflected in the “companion cases”. This Court’s continued exercise of jurisdiction over
these types of collateral issues arising in the companion cases results in duplicative judicial
supervision and unnecessary costs to the parties. It is not necessary and no longer reflects a
prudent allocation of judicial or party resources, particularly when Colorado already provides a
forum that is ready, willing, and able to make such adjudications.
Accordingly, this Court vacates Judge Arraj’s August 4, 1977 Order, thereby bifurcating
the “companion cases” from the underlying case, and discontinuing this Court’s exercise of
jurisdiction over issues of showing of due diligence or applications to make conditional decrees
absolute. Such proceedings shall hereafter be pursued by the affected parties exclusively in the
Colorado Water Court for District No. 5, and on such schedule as that court may direct.
The fact that conditional allocations arise, in part, from the Blue River Decree shall not,
by itself, suffice to vest jurisdiction in this Court. Indeed, to the extent that the decree reserves
exclusive federal jurisdiction to hear and resolve suits that arose among exclusively state and
local entities concerning the decree’s terms, this Court vacates such provision. The Water Court
is certainly familiar with the decree, the circumstances that led to it, and its subsequent
interpretations to effectively assume the mantle of interpreting and applying its terms as among
state and local entities. The only future proceedings that this Court anticipates in this action
would be those in which the United States asserts a claim such that this Court would exercise
subject-matter jurisdiction over it pursuant to 28 U.S.C. § 1345.
There being no further proceedings to conduct in this action, the Clerk of the Court shall
administratively close this case, subject only to a motion by the United States to reopen it.
Dated this 22nd day of March, 2017.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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