KANE, District Judge.
This is an action arising out of a dispute between the Denver Water Board and the United States Forest Service regarding Denver's right-of-way over national forest lands in the Williams Fork Basin, Arapahoe National Forest. The right-of-way was granted to Denver in 1924 by the federal government pursuant to the Act of 1905, 33 Stat. 628, 16 U.S.C. § 524. Denver had conducted minimal construction on the right-of-way to develop its water resources since the granting of the right-of-way. The central issues of the dispute are whether Denver has constructed off its right-of-way, and, if so, whether it must forfeit its existing right-of-way, whether it may continue construction under a theory that the federal government approved construction off the right-of-way, or whether it must file an amendment requesting a change or extension of its right-of-way, and in doing so comply with federal environmental regulations, in order to continue construction off the right-of-way. Ancillary to these issues is the issue of whether Denver is required to comply with state and county land use control statutes and regulations as part of the process of obtaining a right-of-way permit from the Forest Service, if such is required, and whether and to what extent federal environmental laws mandate compliance with such statutes and regulations.
The parties involved in the litigation are the City and County of Denver, acting by and through its Board of Water Commissioners, a municipal corporation of the State of Colorado authorized and created by Article XX of the Constitution of the State of Colorado; plaintiff-intervenor Mountain States Legal Foundation, a non-profit membership corporation of the State of Colorado; defendant Bergland, the Secretary of Agriculture of the United States acting in his official capacity; defendant McGuire, the Chief of the United States Forest Service acting in his official capacity; defendant Rupp, the Regional Forester, Rocky Mountain Region of the United States Forest Service acting in his official capacity; defendant Cecil D. Andrus, the Secretary of the Interior of the United States acting in his official capacity; defendant Dale Andrus, the State Director of the Bureau of Land Management of the Department of the Interior acting in his official capacity; defendant-intervenor Board of County Commissioners of the County of Grant, a governmental subdivision of the State of Colorado, created by Article XIV of the Constitution of the State of Colorado; defendant-intervenor Sierra Club, a non-profit corporation of the State of California; defendant-intervenor American Wilderness
I. FINDINGS OF FACT
History of the Legislation
On March 3, 1891, the Congress of the United States approved the Creative Act of 1891, 26 Stat. 1103, 16 U.S.C. § 471, which provided, in pertinent part:
On June 4, 1897, Congress approved the Organic Administration Act, 30 Stat. 35, 16 U.S.C. § 551, which provided, in pertinent part:
On February 1, 1905, the Congress of the United States approved "An Act providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture." 33 Stat. 628. Section 4 of the Act, codified at 16 U.S.C. § 524, provided as follows:
Section 1 of the Act of 1905 transferred the powers over national forest lands hitherto exercised by the Secretary of the Interior to the Secretary of Agriculture. See 16 U.S.C. § 472. Section 3 of the Act initiated the creation of a specific arm within the Department of Agriculture to be known as the "Forest Service." 16 U.S.C. § 554.
On March 1, 1905, the Secretary of the Interior promulgated certain regulations under Section 4 of the Act of 1905, which were first published at 33 Pub.Land Dec. 451-453 (1905)
Denver's Application for a Right-of-Way Under the 1905 Act
The City and County of Denver, acting by and through its Board of Water Commissioners, initiated its survey for the Williams Fork Diversion Project on March 21, 1914, and completed the survey on September 1, 1921. The noted and distinguished engineer and surveyor, George M. Bull, conducted the survey during a period of seven and one-half years. At trial, testimony was heard and I find that the survey was "an excellent survey," definitely relocatable which "[c]ould be put back upon the ground with the accuracy of the original survey." Such accuracy was tested by running all of the bearings and distances stated in Bull's field notes through a computer and determining the amount of misclosure, which "is the only way that relative accuracy can be expressed."
After completion of the survey work, Denver submitted its initial filing for a right-of-way across national forest lands for its Williams Fork project on February 11, 1922, under the Acts of March 3, 1891, 26 Stat. 1101, 43 U.S.C. §§ 946-49; May 11, 1898, 30 Stat. 404; and February 1, 1905, 33 Stat. 628, 16 U.S.C. § 524. On June 13, 1923, the General Land Office of the Department of the Interior denied the initial filing due to its submittal under all three of the above referenced Acts.
Denver submitted an amended filing on December 12, 1923, under only Section 4 of the Act of 1905. The amended filing consisted of a map and plat showing the location of certain proposed tunnels and canals of Denver's Williams Fork project and accompanying field notes. The field notes accompanying the final application stated that "[t]he center lines of canals and tunnels were staked; angles being turned by
George M. Bull, the engineer employed by Denver to conduct the survey for its Williams Fork project, stated on the amended filing that "said survey accurately represents a proper gradeline for the flow of water which is the proposed line of said canals and that said survey is accurately represented upon this map and by the accompanying field notes; ...." Frank L. Woodward, the then president of the Denver Water Board, stated on the amended filing that:
As written and submitted to the Secretary of the Interior, the amended application specifically called for a gravity flow system utilizing canals and tunnels.
On May 5, 1924, the Secretary of the Interior approved the amended filing in accordance with Section 4 of the Act of 1905, subject to certain stipulations between the United States Forest Service and Denver. Denver thereby obtained a right-of-way across national forest lands, subject to beneficial use and the regulations of the Department of the Interior, such right-of-way being identified as Denver [or D]-027915.
Construction on the Right-of-Way: 1924-78
On June 28, 1929, after five years of inactivity upon the right-of-way, the Department of Interior, through the Commissioner of the General Land Office directed the Register of the Denver, Colorado, District Land Office to notify Denver to file proof of construction of the Williams Fork project. The letter stated, inter alia:
The commissioner directed that Denver file proof "showing the project to be constructed ... and [that it] is now being devoted to beneficial use or relinquish the [right-of-way] grant or show cause why this office should not recommend the cancellation of the grant by judicial proceeding."
On July 26, 1929, Denver filed its "Answer Showing Cause Why Cancellation of the Grant Herein Should Not be Recommended." Denver's answer was accepted by the Commissioner of the General Land Office and further action looking toward cancellation of the 1924 grant was suspended until January 1, 1931. Denver did not seek, and has not sought, any administrative or judicial review of the Department of Interior's decision that five years was deemed a reasonable period of time within which to put to beneficial use any right-of-way approved under the Act of 1905.
Beginning with the 1929 show cause report referenced above, the Department of the Interior made periodic requests that Denver show cause why cancellation of the 1924 right-of-way should not be recommended and Denver responded in each instance by filing a report. These documents were reviewed by the Department of the Interior and the Forest Service, with the Department of the Interior suspending further action regarding cancellation of the right-of-way for an additional period of time. This procedure continued until December 30, 1976, when Denver filed its thirty-seventh document. These "progress reports"
Actual construction of the Williams Fork project did not begin until 1937, culminating in 1942 with completion of a three-mile tunnel and partial completion of two conduits. This construction consisted of the Gumlick (Jones Pass) Tunnel and a collection system from the mouth of the tunnel to McQueary Creek and from the mouth of the tunnel to Steelman Creek. The construction utilized buried steel conduit on a grade and center line alignment designed for utilization of conduit and different from that originally set forth on the survey map upon which the 1924 right-of-way was granted. Denver has indicated that the change in alignment was necessary because the survey alignment was "unbuildable."
During the 1937-1942 construction period, the Public Works Administration, directed by George M. Bull at that time, participated in the construction of the Williams Fork project. The PWA was created under the Emergency Relief Appropriation Act of 1935 for the purpose of employing the unemployed and stimulating construction during the depression of the 1930's. Neither Bull nor the PWA had the power or duty to authorize the transfer of Forest Service lands or construction off Denver's original right-of-way. During this period the PWA allocated $1,230,750 for "aid in financing the construction of a sewage disposal system and appurtenances embracing a sewage treatment plant." The exact percentage of this funding spent on the construction of the conduits and other diversion work is unclear. However, with PWA financial assistance, approximately 15-17 percent of the total project as now envisioned by Denver was constructed.
In its seventh report dated June 26, 1941, Denver advised the Department of the Interior that installation of the first segment of the Williams Fork project had been accomplished utilizing steel cylinder pipe conduit, contrary to the specifications under the original right-of-way plan. Denver also advised the Department as follows:
By decision dated July 24, 1941, the General Land Office approved as satisfactory Denver's seventh report and suspended further action on the cancellation of the right-of-way until December 31, 1942. Although subsequent actions by Denver indicate that it intended to file an amended application, such application was never filed with the Department of the Interior.
Both a subsequent letter from Denver to the Office of the Register, District Land Office, Denver, Colorado, and its eighth report recognized deviations of the construction in location and mode of construction. The letter, dated February 5, 1942, from Glenn S. Saunders, an attorney for Denver, was in response to the Register's letter of February 3, 1942, directing Denver to file certain reports. The Saunders letter stated in part:
(Emphasis added). The letter continued to assure the Office of the Register that a resurvey would be conducted and completed in the summer of 1942, or if such a resurvey could not be completed, a limited showing would be provided and a further extension requested.
I find that the above-quoted portions of the letter were in response to Denver's reports of deviation from the original plan for the Williams Fork Project. The statements establish Denver's acknowledgment of the need for an amended application.
By Denver's admission at trial, the Williams Fork project as constructed in 1942 and preceding years deviates as much as 1,800 linear feet and 65 vertical feet from the 1924 survey alignment. The Department of Interior or Forest Service had no knowledge of these deviations during the construction period. Denver, however, became aware of the deviations in location and mode of construction during the construction period. After notification of the deviation, the Department of the Interior informed Denver thirty-seven years ago that an amended application was necessary. Nonetheless Denver has never asked for any authorization from the Secretary of the Interior or the Secretary of Agriculture to continue with its deviations as to location or mode of construction.
From 1942 to 1978 there was no significant construction on the Williams Fork project. On June 30, 1955, the portion of the project constructed in the years 1937-42 was conveyed by deed by the City and County of Denver to the City and County of Denver acting by and through its Board of Water Commissioners.
The Blue River Decree
Pursuant to the "Blue River Decree," entered in United States of America v. Northern Colorado Water Conservancy District, et al., Civ. Nos. 2782, 5016 and 5017 (D.Colo. 1955), the City and County of Denver has a priority date of 1921 in the waters of its "Williams Fork Diversion Unit." This decree was approved by congress in Section 11 of the Colorado River Storage Project and Participating Projects Act, Pub.L. 485, 70 Stat. 105, 43 U.S.C. § 620 et seq.
The Blue River Decree does not indicate any specific diversion points for the proposed and yet unbuilt portions of the Williams Fork project. The decree states that "[n]o part of this decree shall in any case be taken, deemed or held to confirm, impair, or in any manner affect any claim of right or property claimed or held by any person, ... to any land...." Blue River Decree, No. 657, pp. 1, 2 (1937). The decree further states that "[t]his decree shall [only] be taken, deemed and held as determining and establishing the several priorities of right by appropriation to the use of water...." Id. at 4 (emphasis added). At page 724 of the same decree the court stated that the "locations of the several points of diversion of the canals" either were located according to the same United States Location Monument Wilson used by George Bull in his
Developments After Passage of the National Environmental Policy Act of 1969 and the Federal Land Policy and Management Act of 1976
In 1969 congress enacted the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., which became effective January 1, 1970. NEPA, as the act is known, empowers the federal government to use all practicable means available to carry out the policies of protecting and preserving the environment. Beginning with its December 12, 1973, recommendation that Denver's Thirty-Fourth report dated December 29, 1972, be accepted, the Forest Service recommended such action "subject to compliance with the requirements of the National Environmental Policy Act...."
Denver's Thirty-Fourth report was accepted by the Department of the Interior on March 12, 1975.
As early as 1973, in reviewing Denver's reports, the Forest Service began to consider various alternatives to continued construction of the gravity-flow system on which construction had commenced in 1937. Denver began to conduct various design and environmental studies concerning the development of its water rights in the Williams Fork valley. Such studies and other planning activities were reflected in Denver's reports, commencing with its Thirty-Fifth such report, dated December 29, 1973. On August 24, 1976, Denver informed the Forest Service that additional alternatives to continuation of the past development of the Williams Fork project were under consideration. Discussions regarding these alternatives were held by the parties involved in this litigation from the fall of 1976 until this action was filed in 1979; the alternatives were first formerly proposed after the passage of the Federal Land Policy and Management Act of 1976.
The FLPMA, 43 U.S.C. §§ 1701 et seq., was enacted by congress on October 21, 1976, providing in Subchapter V, 43 U.S.C. §§ 1761 et seq., for rights-of-way concerning the public lands and national forest lands, and transferring to the secretary of agriculture the authority to grant, issue or renew right-of-way concerning national forest lands. Section 706(a) of the act, 90 Stat. 2793, repealed the Act of February 1, 1905, 16 U.S.C. § 524, but § 701, 90 Stat. 2786, expressly stated that "Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act."
Meanwhile the Department of the Interior and the Forest Service initiated plans to either secure an amendment from Denver to continue construction off its right-of-way and relinquish the unconstructed portion of the right-of-way, or adopt an alternative to the 1924 plan.
Andrus further noted that under the Act of 1905 rights-of-way were granted only for a period of beneficial use and that
He indicated also that the granting of the special use permits would obviate the need for construction as planned under the 1924 grant. Andrus concluded that Denver had thirty days within which to submit a satisfactory showing to preclude the suspension of the right-of-way, that such a suspension would be terminated if a viable alternative were selected and that, in any event, a hearing would be allowed if an order of suspension were issued.
This decision by Denver to discontinue consideration of water diversion project alternatives was apparently prompted by its realization that the adoption of a new alternative would require amendment to its existing right-of-way and compliance with federal statutory and regulatory environmental standards. I note also that at this time the Department of the Interior and the Forest Service were unaware of the location deviations which occurred during the construction between 1937-42. Nevertheless, the two agencies gave confused responses to Denver's announced intention to continue construction on or, as the case may be, off its right-of-way.
The Forest Supervisor, Routt National Forest, in a letter dated June 8, 1977, refused permission for Denver to proceed with construction pending the resolution of a challenge to the validity of Denver's 1924 right-of-way in administrative proceedings before the Department of the Interior, of questions under federal law concerning the validity and width of the right-of-way claimed by Denver, and any necessary satisfaction of the provisions of the National Environment Policy Act and related Forest Service Requirements. Defendant Dale Andrus, however, having discussed the dispute with Denver's director, James L. Ogilvie, issued a letter dated June 21, 1977, to Mr. Ogilvie stating:
Regardless of the apparent inconsistent positions of these two federal agencies, Denver was aware that construction was to be delayed pending the outcome of environmental studies.
Grand County Involvement in NEPA Scheme
At all times relevant to this action the lands upon which Denver intends to construct its Williams Fork Diversion Project have been lands lying wholly within the unincorporated territory of Grand County, except for the eastern segment of the Gumlick
The testimony at trial showed that the Forest Service takes cognizance of Grand County's land use regulations and ordinances in the administration of the national forests located within Grand County. For example, in the issuance of special use permits, the Forest Service, as a matter of administrative practice, requires that a permittee abide by all laws, orders and regulations of state and local government. Grand County has adopted such regulations which will be discussed hereafter.
Administrative Decisions and Appeals
The Forest Service proceeded with the development of the Williams Fork Land Management Plan and the environmental statement concerning the plan during 1978.
Denver responded to the Forest Service in a letter dated October 6, 1978, stating that the Forest Service and the Department of Agriculture had no authority over its
On October 6, 1978, the Regional Forester, Craig W. Rupp, requested Denver to submit complete plans for its continued construction of the Williams Fork project, both on and off the 1924 right-of-way, and a timetable for that construction, so that the Forest Service could adequately assess and evaluate any additional facilities that might be needed by Denver in order to install the project as described in the 1924 grant document. The Regional Forester also requested confirmation from Denver that all current work was specifically related to the authorized right-of-way. At this time the Regional Forester had knowledge of only the conduit deviation and not the alignment deviation which had occurred during the construction in 1937-42. By letter dated October 9, 1978, Denver informed the Forest Service that it had not yet developed complete plans for the Williams Fork project.
On October 19, 1978, the Regional Forester informed Denver that "to change from canals and tunnels to another structural form would require an amendment to the right-of-way" and that such amendment could not be accomplished under the Act of February 1, 1905, since that Act had been repealed by the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq. Denver was further advised that any change from the 1924 right-of-way could only be authorized after compliance with the National Environmental Policy Act and the FLPMA. The Regional Forester cautioned Denver that he was not requiring Denver to build canals and tunnels rather than conduits, but that he was requiring compliance with the FLPMA and NEPA regarding any change from the 1924 right-of-way as he was authorized to do under Subchapter V of the FLPMA, 43 U.S.C. § 1761 et seq.
Denver appealed the Regional Forester's October 19, 1978, decision on November 9, 1978, to John R. McGuire, Chief of the Forest Service. On December 11, 1978, the Regional Forester filed his Responsive Statement, which again concluded that the grant issued in 1924 was specifically limited to "canals" and "tunnels," and that construction of closed conduits would require amendment of the 1924 right-of-way and an environmental assessment. Denver replied to the Regional Forester's Responsive Statement on December 27, 1978. On February 13, 1979, Denver's appeal was denied by the Chief of the Forest Service for lack of timeliness. On March 5, 1979, Denver requested reconsideration. This request was denied on April 18, 1979. Therefore, the February 13, 1979, decision by John R. McGuire, Forest Service Chief, constitutes the final decision of the Department of Agriculture that the closed conduit construction is outside the scope of the 1924 right-of-way.
On December 4, 1978, Denver provided the Forest Service with additional partial plans and maps for the Williams Fork project. Denver also indicated that it would continue its practice of simultaneous planning and construction. It was upon the receipt of such plans and maps that the Forest Service realized that Denver had already constructed off the 1924 alignment. On January 5, 1979, while Denver's appeal on the question of closed conduit construction was pending, District Ranger Roger M. Corner informed Denver by letter that environmental damage was being caused by Denver's continued forest clearing and preliminary road construction and that Denver's map of October 12, 1978, showed that planned construction would take place a substantial distance off the 1924 right-of-way. Because of these concerns, the District Ranger directed Denver immediately to stop construction until measures could be taken to mitigate environmental damage and "until you can satisfactorily assure me that planned construction does not deviate from the approved right-of-way."
On February 5, 1979, the Commissioners of Grand County formally entered the picture. By letter of that date addressed to William Miller of the Denver Water Department the Board of County Commissioners of Grand County advised the department that before it could commence construction on the Williams Fork Diversion Project, it would be required to comply with the land use regulations of Grand County, to-wit:
No further action which might be pertinent to this litigation other than the independent Forest Service proceedings occurred regarding the application of the Grand County regulations to the Williams Fork Diversion Project.
On February 14, 1979, Denver appealed the January 12, 1979, order to the Forest Service Chief in Washington, D.C. The Regional Forester filed his responsive statement on March 14, 1979, and on April 2, 1979, Denver replied.
The decision of the Forest Service Chief constituted the final agency decision of the Department of Agriculture, subject to discretionary review by the secretary of that department. On May 23, 1979, the secretary indicated that he would not exercise such review.
In response to Denver's May 21, 1979, letter, Forest Supervisor Jack Weissling, countered that it was apparent from discussions between Denver and the Forest Service that Denver's proposed activities would not be restricted to the 1924 right-of-way, and that a special use permit would be required for any activities beyond the right-of-way that involved surface or vegetative disturbance. Weissling warned that the Forest Service would not allow any activity "which might alter the wilderness character of the RARE II further planning area which is contiguous to your right-of-way grant." The Forest Supervisor requested that Denver "consider survey and drilling techniques which would minimize impacts on the further planning area," and provided Denver with the necessary special use permit application.
Denver countered the Forest Supervisor's letter by informing the Forest Service by letter dated June 20, 1979, that the work proposed by Denver would be "carried out on the Board's right-of-way, as constructed and as planned;" that "[t]hese activities will not involve structures, or soil and vegetation disturbances of any more than miniscule proportions;" and that, "[f]or these reasons, we must decline to file an application for any special permit and will proceed with the work outlined as soon as weather permits." Denver also indicated its intention "to proceed as soon as possible with the work of establishing the final grade of the Pioneer Road which has already been constructed."
Meanwhile, on June 12, 1979, the Forest Service Chief issued a revised decision of his May 8, 1979, decision affirming the Regional Forester's January 12, 1979, Stop Order.
The Department of Justice then entered the scene on June 28, 1979, by informing Denver "[t]o the extent your contemplated activities will occur or have effect beyond the limitation of the 1924 right-of-way, and pursuant to Forest Service regulations. 26
Nevertheless, on July 9, 1979, at the site of project construction, Denver, without obtaining the additional authorization requested by the Forest Service and the Department of Justice, operated two bulldozers on the Pioneer Road of the Williams Fork project. As reflected in a memorandum dated July 16, 1979, and a letter dated July 17, 1979, from Forest Supervisor Weissling to Denver, both Weissling and District Ranger Corner were at the site of Denver's July 9, 1979, construction activity. They concluded at that time that the activity was in violation of the January 12, 1979, Stop Order and the June 12, 1979, revised decision of Forest Service Chief John R. McGuire. They also concluded that the construction was located beyond the 1924 right-of-way and constituted a trespass on federal lands and a violation of Forest Service regulations at 36 C.F.R. § 251 and 261. The Forest Supervisor and District Ranger therefore ordered that all work cease, and Denver halted its construction.
On July 10, 1979, Denver filed a motion for a temporary restraining order and preliminary injunction to prevent federal defendants from further interfering with Denver's construction activity. After a hearing on August 3, 1979, the motion was denied. At this hearing I also considered ab initio Grand County's motion to intervene formerly granted on June 15, 1979. I held that Grand County may intervene as a party defendant as a matter of right pursuant to Fed.R.Civ.P. 24(a),
II. CONCLUSIONS OF LAW
Denver maintains this action as one seeking review of final administrative action by the United States Forest Service regarding Denver's location of and mode of construction on its 1924 right-of-way over national forest lands under 28 U.S.C. § 1331(a) and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. At the outset I note that Denver has also characterized this action as one to quiet title to its "property rights" pursuant to 28 U.S.C. § 2409a and as one seeking redress for an unconstitutional taking of its property in violation of the Fifth Amendment. I will first address these latter two bases for jurisdiction.
Quiet Title Action
28 U.S.C. § 1346(f) provides for exclusive jurisdiction in the district court over actions brought under section 2409a.
In order for Denver to state a claim "[t]he complaint ... [must] ... set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property...." 28 U.S.C. § 2409a(c). Although a right-of-way, easement, implied easement of necessity or other "estate less than a fee simple" may properly be the subject of a quiet title action against the United States, Kinscherff v. United States, 586 F.2d 159, 160-61 (10th Cir. 1978), See H.Rep.No. 1559, 92d Cong., 2d Sess., reprinted in,  U.S.Code Cong. & Admin.News, pp. 4547, 4552, the complaint must state with more particularity than Denver's claim to "whatever land is necessary in the Williams Fork Basin ... along an alignment comparable to and in general conformity" with the survey indicated on the 1924 application may. Particularity is required, Buchler v. United States, 384 F.Supp. 709, 712 (E.D.Calif. 1974), otherwise district courts would be empowered to quiet title to undefined lands.
Denver has admitted that it does not seek to quiet title to its original right-of-way under the 1924 grant but that it seeks title to some ill-defined public lands based upon adverse possession, a notion specifically rejected by Congress in 28 U.S.C. § 2409a(g) which states "[n]othing in this section shall be construed to permit suits against the United States of America based upon adverse possession." The forest lands off the right-of-way have not been deeded to the Denver Water Board, nor has Denver been given a right-of-way to use the lands off the 1924 right-of-way.
In addition, the statute of limitations imposed by § 2409a(f) bars an action by Denver. The twelve year limitation period begins to run on the date Denver knew or should have known of the "claim" of the United States. Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980); Stubbs v. United States, 620 F.2d at 779-80; Amoco Production Co. v. United States, 619 F.2d 1383, 1837-88 (10th Cir. 1980). See also Hart v. United States, 585 F.2d 1280, 1283-85 (5th Cir. 1978) cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); Grosz v. Andrus, 556 F.2d 972, 974-75 (9th Cir. 1977); Hatter v. United States, 402 F.Supp. 1192, 1193-94 (E.D.Cal.1975). Denver knew or should have known that the federal government retained a claim of interest for the public in the forest lands off Denver's right-of-way during and after the construction ending in 1942. If a dispute to the "title" of that property or any other forest lands off the right-of-way existed, it should have been resolved within twelve years from that date. To allow an assertion of title now under section 2409a is inconsistent with congress' intent to prevent the bringing of stale claims against the government.
Unconstitutional "Taking" Claim
Regarding Denver's claim that the federal government has taken its "property" rights in violation of the Fifth Amendment, the "Blue River Decree" (United States v. Northern Colorado Water Conservancy District, Civ. Nos. 2782, 5016, 5017 (D.Colo.1955), and the Act of Congress implementing that decree (43 U.S.C. § 620j, April 11, 1956, 70 Stat. 110), I find that I lack subject matter jurisdiction. Although I disagree with the description of this suit as a "taking" of property,
A claim "founded upon the Constitution" against the United States is within the jurisdiction of the federal courts under the Tucker Act. United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946); Whiskers v. United States, 600 F.2d 1332, 1335 (10th Cir. 1979) cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); United States v. Wald, 330 F.2d 871, 872 (10th Cir. 1964). Subject matter jurisdiction for an action alleging a governmental taking of property without due process of law in violation of the Fifth Amendment, where the amount in controversy exceeds $10,000, rests exclusively with the Court of Claims. United States v. Causby, 328 U.S. at 267, 66 S.Ct. at 1068. See also United States v. Wald, 330 F.2d at 872; Smith v. United States, 458 F.2d 1231 (9th Cir. 1972). The "property" involved here on which Denver seeks to develop its valuable water rights is clearly of value exceeding $10,000.00.
The claim advanced by Denver is more like one seeking possession of the right to use property
I find that jurisdiction exists under 28 U.S.C. § 1331(a) and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq.
As will be discussed more fully, infra, the Secretary of Agriculture and the Forest Service have acted in this matter regarding national forest lands pursuant to their authority under the Federal Land Policy and Management Act of 1976, Pub.L. 94-579 (1976), 90 Stat. 2744, 43 U.S.C. §§ 1701 et seq., "to grant or renew rights-of-way over, upon or through lands within the National Forest System." 43 U.S.C. § 1761 (emphasis added). The FLPMA specifically provides for judicial review of "public land adjudication decisions." 43 U.S.C. § 1701(a)(6).
Although congress did not expressly waive sovereign immunity under section 1331, I find first that the federal question statute and the APA taken together provide a basis for jurisdiction to review this agency action and second that congress intended for sovereign immunity to be waived in situations such as this where aggrieved parties seek review of federal agency action. See Jaffee v. United States, 592 F.2d 712, cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir. 1980). It would be anomalous for judicial review of federal
Jurisdiction Over State Claims
At the hearing on August 3, 1979, I ruled that Grand County could intervene in this litigation as a matter of right. Rule 24(a) of the Federal Rules provides intervention of right if (1) [the party] claims as an interest relating to the property or transaction that is the subject of the action, and (2) [the party] is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest...." Fed.R.Civ.P. 24(a). I also ruled that I had pendent jurisdiction over the commissioners' state claims. Where the state and federal claims derive from "a common nucleus of operative fact," the court must consider matters of "judicial economy, convenience and fairness to litigants" in determining whether to exercise pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Accord Sanchez v. Marquez, 457 F.Supp. 359, 364 (D.Colo.1978). I find such to be the case here. Grand County's regulations are imminently at issue here as part of the federal environmental regulatory scheme. Its interests are affected by this litigation and its intervention does not impede the efficiency of adjudication of the issues.
Authority of the Department of Agriculture and the Forest Service
The authority of the Secretary of Agriculture and the Forest Service to supervise and protect the national forest lands is beyond challenge. The Property Clause of the Constitution provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S.Const. Art. IV, § 3, cl. 2. See Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 20 L.Ed. 534 (1872). See also Kleppe v. New Mexico, 426 U.S. 529, 535, 96 S.Ct. 2285, 2289, 49 L.Ed.2d 34 (1976); Alabama v. Texas, 347 U.S. 272, 274, 74 S.Ct. 481, 482, 98 L.Ed. 689 (1954); Sabin v. Bergland, 585 F.2d 955, 957-58 (10th Cir. 1978). This power granted to congress has been given an expansive interpretation by the courts. In Kleppe the Supreme Court indicated that the power over public lands is without limitation. 426 U.S. at 539-40, 96 S.Ct. at 2291-92. Accord Jette v. Bergland, 579 F.2d 59, 65 (10th Cir. 1978). A necessary ancillary to this power is the authority to "protect [public lands] from trespass and injury and to prescribe the conditions upon which others may obtain rights...." Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 389, 61 L.Ed. 791 (1917).
Congress may delegate these powers to control and protect the public lands to the executive. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911). See also Best v. Humbolt Placer Mining Co., 371 U.S. 334, 336-338, 83 S.Ct. 379, 382-383, 9 L.Ed.2d 350 (1963); Sabin v. Bergland, 585 F.2d at 958. This power has been further delegated to the Department of Agriculture and its subagency, the Forest Service, pursuant to 16 U.S.C. § 551 which states that:
In exercising its authority to control the national forest lands the Forest Service, under the supervision of and in conjunction with the Department of Agriculture, may issue stop orders against persons trespassing on national forest lands, including those performing construction on those lands without permission, 36 C.F.R. §§ 261.50(a), (b), 261.6, 261.9, 261.19(a),
The Forest Service does not have authority to interfere unreasonably with an existing right-of-way. Section 701 of the FLPMA, Pub.L.No.94-579, 90 Stat. 2743 (1976),
However, whereas the authority to issue and manage rights-of-way across the public domain including national forests had hitherto been the sole responsibility of the Secretary of the Interior, with the passage of section 501(a) of the FLPMA, 43 U.S.C. § 1761(a), that authority and responsibility for national forests and in this case the use of rights-of-way now rests exclusively with the Secretary of Agriculture. Section 1761(a) states:
Therefore the Forest Service, as an agency of the Department of Agriculture has authority to determine if one is trespassing on national forest lands, and to issue special use permits to use those national forest lands or to grant amended rights-of-way or renew existing rights-of-way. In determining whether to renew a right-of-way the Secretary of Agriculture, acting through the Forest Service:
I conclude that the Forest Service and the Department of Agriculture have authority to act regarding Denver's right-of-way.
Standard and Scope of Judicial Review of Forest Service Decisions
Denver is essentially seeking judicial review of two agency decisions — the February 13, 1979, decision of the Forest Service Chief that the closed conduit construction is outside the scope of the 1924 right-of-way and that amendment to the right-of-way is necessary, and the June 12, 1979, revised decision of the Forest Service Chief affirming the January 12, 1979, Stop Order requiring Denver to discontinue construction off the location of the original right-of-way and on national forest lands until it achieves compliance with environmental planning requirements. The standard and scope of judicial review of this informal agency action is governed by the APA which provides that agency decision must be sustained unless it is demonstrated to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. §§ 704, 706(2)(A), 706(2)(C); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); CF&I Steel Corp. v. Economic Development Administration, 624 F.2d 136, 139 (10th Cir. 1980). Denver has recognized and conceded that the Overton Park standard is applicable here and it alleges that the federal defendants' actions were "arbitrary and capricious." My function in applying the arbitrary and capricious standard is to determine the authority of the agency, whether the agency complied with prescribed procedures in performing the actions in question, id., whether the administrative decisions were based on a consideration of all relevant factors and whether there was a clear error of judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823; Sabin v. Butz, 515 F.2d at 1067.
I have already determined that the Forest Service was within its statutory authority to make the decisions and to issue the stop order regarding changes in the mode and operation of construction on Denver's right-of-way where such affects national forest lands. I further find that the procedures followed by the Forest Service are proper in making decisions based upon its regulations. Neither rule-making nor action taken after an adjudicatory hearing is involved here. The Forest Service Chief and other officials acted properly within the scope of their authority. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 415, 91 S.Ct. at 823; CF&I Steel Corp. v. Economic Development Administration, 624 F.2d at 139.
In determining whether an agency decision or action is arbitrary and capricious, I am on one hand limited in my role and on the other hand required to engage in a
Defendants in this action have objected to my admitting into evidence exhibits which they claim are outside the two administrative records.
However, it is also clear that in reviewing administrative decisions I may consider supplemental evidence, i. e., testimony or exhibits, for explanatory purposes — "such additional explanation of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. at 1244. Accord, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825; CF&I Steel Corp. v. Economic Development Administration, 624 F.2d at 141. See Also Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 480 (D.Kan.1978), aff'd, 602 F.2d 929 (10th Cir. 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34-37 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976); Asarco, Inc. v. Environmental Protection Agency, 616 F.2d 1153, 1159 (9th Cir. 1980). While I am aware the additional explanatory material cannot constitute post hac rationalizations, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 419, 91 S.Ct. at 825, and I should uphold agency action on the basis of the reasons supplied by the Forest Service and not the court, Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. at 286, 95 S.Ct. at 442; Securities and Exchange Commission v. Chenery, 332 U.S. at 196, 67 S.Ct. at 1577, I may uphold a decision of "less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. at 285-286, 95 S.Ct. at 441-442.
The federal defendants correctly cite the Tenth Circuit's admonition in Roberts that judicial review under the substantial evidence standard of the APA, 5 U.S.C. § 706(2)(E), should be confined to the agency record and additional evidence excluded. Roberts v. Morton, 549 F.2d at 160.
I note that in Hallenback v. Kleppe, 590 F.2d 852 (10th Cir. 1979), the Tenth Circuit accepted the district court's entrance of findings and conclusions in a judicial review of an administrative record, although there was no trial de novo, in order "to indicate how the court arrived at its conclusions and the operative facts for which it found that there was substantial evidentiary support." Id. at 855 n.3 (citing Nickol v. United States, 501 F.2d 1389, 1391 (10th Cir. 1974)). In Hallenback the court concluded that the agency had not acted arbitrarily or capriciously and that the agency action was based on substantial evidence. In a more recent Tenth Circuit case, CF&I Steel Corp. v. Economic Development Administration, 624 F.2d at 141, the court approved of the trial court's conduct of discovery beyond the administrative record by which plaintiff had sought to show fraud, bad faith or bias on the part of the agency — all explanatory discovery material within the Overton Park exception. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825.
Keeping all these principles in mind I am cognizant that if the Forest Service's inquiry was insufficient or inadequate and the support for its decisions exiguous, I must remand the case and not "compensate for the agency's dereliction by undertaking [my] own inquiry into the merits." Asarco, Inc. v. Environmental Protection Agency, 616 F.2d at 1160. However, I find that based on the administrative records and with the aid of the supplemental informational evidence proffered by Denver, the Forest Service's actions were rational. The parties are correct in asserting that the central issue in this case is what Denver received in 1924. It is to this issue that I now turn.
Denver's 1924 Right-of-Way Grant
The primary question in this case is the nature and scope of the interest that Denver received upon approval of its right-of-way application in 1924. The answer must begin with the language of the Act of 1905 itself:
Act of February 1, 1905, ch. 288, § 4, 33 Stat. 628, 16 U.S.C. § 524 (repealed October 21, 1976, Pub.L.No.94-579, 90 Stat. 2793). The language of the statute, however, is only partly instructional. It does not specify
The legislative history of the Act provides additional help. The Conference Report on House Bill 8460 indicates that certain changes were made by the Senate and agreed to by the House conferees.
Conference Report, H.R.Rep.No.3975, 58th Cong., 3d Sess. (1905) (emphasis added). Congressman Lacy, a manager of the bill, explained the report as follows:
39 Cong.Rec. 1370 (1905) (emphasis added).
Being "in the nature of an easement" does not mean that rights-of-way are exactly like an easement. Determining the exact character of rights-of-way for watercourses and for railroads has troubled the courts for years.
In Townsend the Supreme Court characterized a right-of-way under an early railroad act as "a limited fee, made on an implied condition of reverter," id. at 271, 23 S.Ct. at 672, and the court continued this characterization in Stringham. Rio Grande Western Ry. Co. v. Stringham, 239 U.S. at 47, 36 S.Ct. at 6. In the 1942 Great Northern decision the court found that the Stringham Court had relied on Townsend without recognizing certain changes in right-of-way legislation since 1871. Great Northern Ry. Co. v. United States, 315 U.S. at 274, 62 S.Ct. at 534. The court stated that a railroad right-of-way under an 1875 Act "grant[ed] only an easement, and not a fee [interest]." Id. at 271, 277, 62 S.Ct. at 532, 535.
In 1957 the cases were summarized by the Supreme Court in Union Pacific where the court stated that "[t]he most that the `limited fee' cases decided was that the railroads received all surface rights to the right of way and all rights incident to a use for railroad purposes." United States v. Union Pacific R.R. Co., 353 U.S. at 119, 77 S.Ct. at 688. This case law is reflected in Tenth Circuit decisions. See, e. g., Energy Transp. Syst., Inc. v. Union Pacific R.R. Co., 606 F.2d 934, 936-37 (10th Cir. 1979); Wyoming v. Udall, 379 F.2d 635, 638-640 (10th Cir.), cert. denied, 389 U.S. 985, 88 S.Ct. 470, 19 L.Ed.2d 479 (1967). In Udall, the Tenth Circuit was "not impressed" with the problem of labels:
Id. at 640 (footnote omitted) (emphasis added).
A similar pattern can be observed in the cases regarding rights-of-way for watercourses. In Kern River Co. v. United States, 257 U.S. 147, 42 S.Ct. 60, 66 L.Ed. 175 (1921), the court stated that a right-of-way under the Act of March 3, 1891, ch. 561, 26 Stat. 1101, as amended, "was neither a mere easement nor a fee simple absolute, but a limited fee on an implied condition of reverter in the event the grantee ceased to use or retain the land for the purposes indicated in the act." Id. at 152, 42 S.Ct. at 62, (citing Rio Grande Western Ry. Co. v. Stringham, 239 U.S. at 47, 36 S.Ct. at 6) (emphasis added). Some cases quote Kern River to characterize a right-of-way under the 1891 legislation as a "limited fee," See e. g., Verde River Irrigation & Power Dist. v. Salt River Valley Water Users' Ass'n, 94 F.2d 936, 940 (9th Cir. 1938); others characterize a right-of-way under the act as an easement, See, e. g., Uhrig v. Crane Creek Irrigation Dist., 44 Idaho 779, 781, 260 P. 428, 430 (1927), Whitmore v. Pleasant Valley Coal Co., 27 Utah. 284, 285, 75 P. 748, 749 (1904); and at least one case discussing
The most recent case that I have found that discusses a right-of-way under the 1891 legislation is Wiltbank v. Lyman Water Co., 13 Ariz.App. 485, 477 P.2d 771 (1970), petition granting review vacated, 107 Ariz. 252, 485 P.2d 822 (1971). The Arizona court followed the "limited fee" concept in Wiltbank, at least in distinguishing the right-of-way from an ordinary easement. The court stated:
13 Ariz.App. at 490, 477 P.2d at 774.
The first regulations under the 1905 Act were promulgated only one month after its passage, on March 1, 1905. The administrative view was that the Act did not make a grant of lands, but only "a base or qualified fee."
33 Pub.Land Dec. 452 (1905).
While the concept of a "limited fee" may have been useful in distinguishing a particular sort of right-of-way from an easement at common law, I question whether it has any continuing vitality, especially given the railroad cases. A right-of-way that is not a grant of lands is more like an easement than a fee. The answer is that the proprietor of the subject lands is also the sovereign and the right-of-way over the lands is a creation of positive law. The right-of-way granted to Denver under the 1905 Act is a right to use the surface of certain federal lands on a route approved by the federal government during the period of its beneficial use for the purpose originally granted.
Denver contends that the 1905 Act was an in praesenti grant of rights-of-way to those parties and for those purposes set out in the Act. Whether in praesenti or not, it is clear that the 1905 legislation was a general grant and that additional steps were necessary in order to realize the benefits
Id. at 231.
The case law is clear that a right-of-way under the 1891 Act did not vest or accrue until a proper application was made and approval received — the application consisting of an endorsed map showing location of the proposed right-of-way and the accompanying field notes. See, e. g., id., United States v. Tujunga. Water & Power Co., 48 F.2d 689, 690-691 (9th Cir. 1931), United States v. Big Horn Land & Cattle Co., 17 F.2d at 363-365, Nippel v. Forker, 26 Colo. 74, 77, 56 P. 577, 578-579 (1899). While it might be argued that the filing and approval requirements that are expressed in the 1891 Act are absent from the 1905 legislation, it is fairly clear that the two acts are similar and related. Both say that rights-of-way are "hereby granted" and both place responsibility for their administration with the Secretary of the Interior.
The 1905 regulations
The sixth regulation, id. at 453, required a stipulation, under seal, incorporating the conditions set forth in paragraph 3 of the Circular of June 26, 1902, to-wit:
31 Pub. Land Dec. 503, 506-507 (1903). The applicant was required to post bond to the United States stipulating that the applicant would pay to the United States for damage to the public lands, timber, natural curiosities, or other public property on such reservation or other United States lands by reason of the applicant's use and occupation of the right-of-way, regardless of the cause or circumstances under which the damage occurred. 33 Pub.Land Dec. at 453, ¶ 6. Further the regulation specifically stated that "[n]o construction can be allowed on the reservation until an application for right of way has been regularly filed in accordance therewith and has been approved by the Department, or has been considered and permission specifically given by the Secretary of the Interior." Id. The final regulation stated that upon approval of the map by the secretary, the local land office would mark upon township plats the lines of the right-of-way as laid down on the map and note the approval in ink on the tract books with reference to the Act mentioned on the map. Id. at ¶ 8.
In United States v. Henrylyn Irrigation Co., 205 F. 970 (D.Colo.1912), this federal district recognized the above procedure for obtaining a right-of-way under the 1905 Act and enjoined the construction of canals and tunnels on national forest lands. The court stated:
Id. at 972.
The regulations in effect at the time of Denver's amended filing on December 12, 1923, are found at 36 Pub.Land Dec. 584 (1908), as amended by Circular No. 479 dated May 24, 1916, reported at 45 Pub.Land Dec. 91 (1917). Some point has been made that the 1924 right-of-way involved unsurveyed
45 Pub.Land Dec. 91 (1917). Accordingly, Denver's application for a right-of-way was subject to the same approval procedure, whether on surveyed or unsurveyed land.
Clearly under the regulation the 1924 grant to Denver was not for some ephemeral project of unlimited proportions but was for specifically enumerated activities on the exact location as stated in both the application and the grant. In compliance with the strict and detailed surveying requirements found in paragraphs 4 to 23, inclusive. Circular of June 26, 1902, 31 Pub.Land Dec. at 503-515 (1903). George M. Bull performed an accurate survey for the proposed water project.
I recognize as a matter of substantive law that any and all laws, statutes or regulations which either grant privileges or relinquish rights to federally-owned lands "are to be strictly construed; or, to express the rule more directly, ... such grants must be construed favorably to the Government and nothing passes but that which is conveyed in clear and explicit language — inferences being resolved not against but for the Government." Caldwell v. United States, 250 U.S. 14, 20-21, 39 S.Ct. 397, 398, 63 L.Ed. 816 (1919). Accord United States v. Union Pacific Ry. Co., 353 U.S. at 116, 77 S.Ct. at 687. Andrus v. Charlestone Stone Products, 436 U.S. 604, 617, 98 S.Ct. 2002, 2009, 56 L.Ed.2d 570 (1978); Walton v. United States, 415 F.2d 121, 123 (10th Cir. 1969). Any ambiguity or disagreement here must be resolved in favor of the government. I conclude that the application consisting of the plan and survey notes accurately depicted what Denver received in 1924.
Denver's Existing Rights in the Right-of-Way
The residual questions are what does Denver now possess and has it retained the benefits realized in 1924 by putting its right-of-way to beneficial use and by complying with federal and state law. Admittedly Denver constructed off its easement during the period from 1936-42 and changed the mode of construction. The Forest Service entered the picture when in 1978 Denver sought to continue its deviations in construction. Denver, as noted above, claims an indefinite right of usage on national forest lands. The federal government counters that Denver is in trespass and the right-of-way must be forfeited. Denver recounters that the federal government during the 1936-42 period acquiesced to Denver's unlimited right-of-way and thus the government is estopped from asserting any rights in its "right-of-way."
I have already determined that the right-of-way in which Denver has rights is at present only that which the 1924 grant document evidences. I conclude, however, that while trespass is perhaps a near-appropriate characterization of Denver's actions it does not trigger forfeiture nor does estoppel or laches run against the government in this instance.
The 1905 Act states that rights-of-way are granted for a particular purpose, during the period of their beneficial use and under the rules and regulations of the Department of the Interior. The 1905 regulations provide that the right granted gives "possession and right of use of the land for the purpose contemplated by the act during the period of the beneficial use. When the use ceases, the right terminates, and thereupon proper steps will be taken to revoke the grant." 33 Pub.Land Dec. 451 (1905) (emphasis added). The Act itself does not indicate what period of time is sufficient to establish beneficial use nor does it prescribe procedures for revocation of a grant given failure to conform with the conditions of the grant.
However, on June 28, 1929, the Department of the Interior indicated to Denver that it had no proof of construction on its right-of-way and informed it that "five years is deemed a reasonable period of time within which to construct and put to beneficial use any project approved under said Act of February 1, 1905."
The federal defendants' position now is that Denver has forfeited its right-of-way by having failed to construct in a beneficially useful way and for constructing contrary to the purposes and approved alignment of the original grant. Further, the government contends that Denver is in trespass as to the constructed portion off the original right-of-way and also as to its original right-of-way because of its alleged abandonment. The government asserts, however, that it does not seek removal of structures built in 1937-42 or cessation of the use but rather it seeks only to prevent new and additional trespass. Notwithstanding its assertion, during March and April of 1977 the Bureau of Land Management and the Forest Service initiated attempts to secure
As discussed above, Denver's right-of-way is the right to use the surface of particular lands on an alignment approved by the Department of the Interior, during the period of its beneficial use, for the purpose of developing a water project. This right of use is conditional and is burdened by a reversionary interest in the federal government. In the context of rights-of-way granted for irrigation purposes under the Act of March 3, 1891, as amended by the Act of May 14, 1896,
Forfeitures are regarded as harsh and oppressive and are not favored by the law. Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 11 S.Ct. 691, 35 L.Ed. 332 (1891), cited in Union Land & Stock Co. v. United States, 257 F. 635, 637 (9th Cir. 1919). See also Carns v. Idaho Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071 (1921). Failure to perform the conditioned construction does not ipso facto divest the right of the grantee; the right granted can only be terminated by some legislative or judicial proceeding. Id. at 333, 202 P. 1073. See also Wiltbank v. Lyman Water Co., 13
The federal government had not at any time sought forfeiture of all or part of Denver's right-of-way by judicial proceedings.
It is ludicrous for the government to suggest that Denver has abandoned all of its rights in the 1924 grant. Although Denver has completed only minimal construction, it has expended in excess of seven million dollars on development work related to the Williams Fork Diversion Project, some of which was expended on development work in the Williams Fork Basin. Abandonment is a question of intention, Hurst v. Idaho-Iowa Lateral & Reservoir Co., 42 Idaho 436, 246 P. 23 (1926); Denver has manifested no intention to relinquish its right-of-way. Negotiations have been conducted between Denver and the government to resolve its use of the right-of-way given the passage of years and changes in water use technology. Further, the government has accepted Denver's show cause reports for some fifty years. Although this does not estop the federal government, it does evidence both a recognition that Denver did not at any time relinquish its right-of-way and a preference on the part of the government of suspension of forfeiture and amendment to the original right-of-way grant over a judicially-obtained relinquishment.
Forfeiture would be improvident here; a simple, more expedient, and wise resolution of this whole issue requires a recognition by the government that Denver has a right to develop its water rights with all environmentally permissible uses of its right-of-way, and Denver's recognition that it must comply with environmental laws in order to continue and complete development of its water diversion project on a course inconsistent with its original grant of right-ofway.
Denver contends that the federal government, more particularly the Bureau of Land Management and the Forest Service, acquiesced and consented to the construction off its original grant of right-of-way in the late 1930's and early 1940's and it therefore estopped from objecting to its construction of a water collection system upon a continuation of the alignment and gradient employed in the first segment of construction, in using the cut and fill method of construction, and in designing and using closed conduit for the continuation of the project. Specifically Denver makes two claims: (1) that the involvement of the Public Works Administration and George Bull, first as Colorado State Administrator and later as Regional Administrator of the Public Works Administration, constituted approval by the United States of its construction off the original right-of-way, and (2) because the government did not immediately stop Denver after the 1937-42 construction, seek forfeiture or demand an immediate amended application, the government cannot now impose some control over its project as to future location and mode of construction.
It is true that Denver utilized funding from the Federal Emergency Administration of the Public Works Administration to construct part of its project then titled "Municipal Sewage Treatment Works, City and County of Denver, Colorado." However, the participation of Bull and use of PWA funds does not amount to approval of Denver's deviation from the original grant. Bull was not acting on behalf of the United States to condone the unauthorized use of national forest lands; he had no authority to do so. The PWA was created to take persons off the relief rolls and put them to useful work. Its powers and duties in no way involved or contemplated transfer or disposition of national forest lands.
In Utah Power & Light Co. v. United States, 243 U.S. at 409, 37 S.Ct. at 391, a case involving public lands, the Supreme Court said that "the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit." Accord United States v. Browning, 630 F.2d 694, 702-703 (10th Cir. 1980); Albrechtsen v. Andrus, 570 F.2d 906, 909-910 (10th Cir.), cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978); Atlantic Richfield Corp. v. Hickel, 432 F.2d 587, 591-92 (10th Cir. 1970); The Oil Shale Corp. [TOSCO] v. Morton, 370 F.Supp. 108, 125 (D.Colo.1973).
Regarding this last point and Denver's second claim, I am aware that the law is unsettled as to whether equitable estoppel is a viable doctrine against the government and if so under what circumstances. See generally Comment, Emergence of An Equitable Doctrine of Estoppel Against the Government — The Oil Shale Cases, 42 Colo. L.Rev. 433 (1975). Until recently it was rubric that the government cannot be estopped. See Hansen v. Harris, 619 F.2d 942, 948 (2d Cir. 1980), Albrechtsen v. Andrus, 570 F.2d at 910. However, the law has changed, see K. Davis, Administrative Law of the Seventies, § 17.01, at 399 (1976), and the doctrine applied in cases "where justice and fair play require it." United States v. Ruby, 588 F.2d 697, 703 (9th Cir. 1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979). See also United States v. Georgia-Pacific Co., 421 F.2d 92 (9th Cir. 1970); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973).
In Ruby, the Ninth Circuit reviewed decisions since the Utah Power & Light enunciation of the general rule and concluded that exceptions do exist.
588 F.2d at 703. The court noted that these policy factors may militate against estoppel even though the technical elements of the doctrine are present. The traditional elements of estoppel require that:
(1) The party to be estopped must know the facts;
(2) He must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended;
(3) The latter must be ignorant of the true facts; and
Id. The Ninth Circuit, however, adopts the position that regarding the government the necessary elements must be modified to include "affirmative misconduct" in order to trigger estoppel. Id.
Under the first element, although Denver advised the Department of the Interior in 1941 of deviations in construction along the alignment and indicated that it would amend its application, it also submitted conflicting information in its affidavit dated December 28, 1942 stating that construction conformed with the approved map.
The evidence also supports a finding that the government did not intend to permit the deviations to continue. After being informed that the construction utilized conduits and a possibly deficient alignment, the BLM promptly informed Denver in 1943 that an amendment was necessary. The "show cause" reports were accepted with the expectation that Denver would file an amended application indicating further deviations in construction which might be necessary to complete the water diversion project. Such acceptance does not constitute approval of the deviations.
Under the third element Denver was not ignorant of its deviations or the necessary procedure to amend its application, but was
Under the fourth element, I find that the government's conduct was not such that Denver could have relied upon it to its detriment. The government never approved the deviation. Estoppel cannot be found where "actions complained of are a result of the complainant's own actions." C.F. Lytle v. Clark, 491 F.2d 834, 838 (10th Cir. 1974). Finally, the evidence in this case demonstrates no "affirmative misconduct," or any attempts by the Forest Service or the BLM after becoming aware of the facts "affirmatively to conceal or to misrepresent the true facts." See United States v. Ruby, 588 F.2d at 703-704.
Therefore, balancing the equities in this case and considering the constitutional precept that public lands are held in trust by the federal government for all the people and should therefore be protected from involuntary alienation, I conclude that estoppel does not apply and that the Forest Service was within its authority to protect the national forest lands by issuing the stop work orders.
Application of Federal Environmental Laws
Until October 21, 1976, the enactment date of the FLPMA, rights-of-way issued under the 1905 Act and applicable regulations could be changed or amended upon application to and at the direction of the Secretary of the Interior. After October 21, 1976, the FLPMA, 43 U.S.C. § 1770(a), required that an application for change or amendment to a right-of-way issued under the 1905 Act be made to the Secretary of Agriculture.
As the Supreme Court recently recognized in Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979), the National Environmental Policy Act of 1969 sets forth its purposes in "bold strokes." Id. at 349, 99 S.Ct. at 2236-37.
Id. 42 U.S.C. § 4321 (emphasis added).
Sections 101(a) and (b) of NEPA articulate these purposes with even greater particularity:
42 U.S.C. § 4331(a) (emphasis added).
42 U.S.C. § 4331(b).
NEPA contains "action-forcing" procedures which will help assure that the policies of NEPA are implemented. See S.Rep. No.91-296, p. 19 (1969); Andrus v. Sierra Club, 442 U.S. at 350, 99 S.Ct. at 2337; Kleppe v. Sierra Club, 427 U.S. 390, 409, 96 S.Ct. 2718, 2729, 49 L.Ed.2d 576 (1976). The Supreme Court has recognized that one of the procedures is an environmental impact statement (EIS) required in 42 U.S.C. § 4332(2)(C). Andrus v. Sierra Club, 442 U.S. at 350, 99 S.Ct. at 2337. Section 102, 42 U.S.C. § 4332, sets out this procedure:
42 U.S.C. § 4332(2)(C). In addition to the EIS, however, NEPA provides for other measures by which an agency may consider environmental impacts. See e. g., 42 U.S.C. § 4332(2)(A), (B), and (E). Subsection (2)(A) requires government agencies to "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the
At the outset I note that the threshold decision of whether an EIS need be filed lies with the agency. Jette v. Bergland, 579 F.2d 59, 62, 63 (10th Cir. 1978); Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm'n, 598 F.2d 759, 778 (3d Cir. 1979); 40 C.F.R. § 1500.6(c). See also Vermont Yankee Power v. Natural Resources Defense Council, 435 U.S. 519, 550-555, 98 S.Ct. 1197, 1215-1217, 55 L.Ed.2d 460 (1978); Kleppe v. Sierra Club, 427 U.S. at 412, 96 S.Ct. at 2731. However, an EIS is clearly required only in the event of proposed federal action that has a significant impact on the environment. Andrus v. Sierra Club, 442 U.S. at 355, 99 S.Ct. at 2340; 40 C.F.R. § 1506.8(a).
The Tenth Circuit has applied a unitary standard, as opposed to a dual standard, in determining whether an EIS is required, i. e., federal action is "major" where it has a significant impact upon the environment. Compare Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973); Davis v. Coleman, 521 F.2d 661, 673 n.15 (9th Cir. 1975); Minnesota Public Interest Group v. Butz, 498 F.2d 1314 (8th Cir. 1974) (en banc), subsequent decision, 541 F.2d 1292 (8th Cir. 1976) (en banc), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977), with NAACP v. Medical Center, Inc., 584 F.2d 619 (3d Cir. 1978); Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972); Scherr v. Volpe, 466 F.2d 1027, 1032-33 (7th Cir. 1972). The Tenth Circuit's interpretation is consistent with the Council on Environmental Quality's (CEQ) definition of major federal action as including "actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly...." 40 C.F.R. § 1508.18.
Further the Tenth Circuit has required an EIS to be filed even where only non-discretionary ministerial agency action has occurred which enabled another to impact significantly on the environment. See e. g., Davis v. Morton, 469 F.2d 593, 596 (10th Cir. 1972); Scenic Rivers Ass'n of Oklahoma v. Lynn, 520 F.2d 240 (10th Cir. 1975), rev'd on other grounds sub nom. Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, 426 U.S. 776, 96 S.Ct. 2430, 49
Regardless of whether one characterizes the granting of or renewal of a right-of-way, or the granting of special use permits, as a major or ministerial act, courts have uniformly held that NEPA's EIS procedure applies where the federal government grants a lease, Cady v. Morton, 527 F.2d 786 (9th Cir. 1975), Davis v. Morton, 469 F.2d at 597; issues a permit or license, Greene County Planning Bd. v. Federal Power Comm'n, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); or grants a right-of-way, Upper Pecos Ass'n v. Stans, 452 F.2d 1233, 1237 (10th Cir. 1971), vacated as moot, 409 U.S. 1021, 93 S.Ct. 458, 34 L.Ed.2d 313 (1972), South Dakota v. Andrus, 614 F.2d at 1194. These are major federal actions because they enable a private party to act so as to affect significantly the environment. See also National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). In addition, I note that CEQ regulations define major federal actions as including "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities." 40 C.F.R. § 1508.18(b)(4) (emphasis added).
Irrespective of whether major federal action is actually involved here and thus an EIS necessary before the Forest Service may issue an amended right-of-way or special use permits to Denver for the development of its water project, the Forest Service at this stage is merely requiring the preparation of an environmental assessment to determine whether an EIS is necessary. The Forest Service therefore seeks information regarding Denver's proposed plans to study the possible impacts on the environment and the ecological system of the Williams Fork Basin. This approach is consistent with the Forest Service's procedures developed in consultation with the Council on Environmental Quality (CEQ) pursuant to 42 U.S.C. § 4332(2)(B) and the study and development procedures mandated by 42 U.S.C. § 4332(2)(E). I recognize that CEQ's interpretation of NEPA is entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. at 358, 99 S.Ct. at 2341.
Specifically the CEQ guidelines require an agency to "prepare an environmental assessment on any account at any time in order to assist agency planning and decision making." 40 C.F.R. § 1501.3(b). The environmental assessment report (EAR) is not necessarily in lieu of an EIS but rather is a planning device for determining if further impact studies are required. CEQ's regulations define an environmental assessment as:
40 C.F.R. § 1508.9(a). The EAR should "include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(3), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b).
I conclude that the EAR required by the Forest Service in this instance is a "practicable means and measure" to carry out the stated policies of NEPA. The use of such environmental assessments has been recognized and approved by this court. See
Therefore, I conclude that NEPA does apply and that Denver is required to cooperate with the Forest Service in the preliminary evaluation of environmental impacts arising from the further development of its proposed project. In reaching this decision, however, I do not decide the question whether an EIS should be required in the future. While the Forest Service need not prepare an EIS during the "germination process" of a potential proposal or plan for further development, this is not to say that at some later date an EIS will not be necessary. Kleppe v. Sierra Club, 427 U.S. at 401-406, 96 S.Ct. at 2726-2728. Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm'n., 598 F.2d at 778.
Denver brings into issue whether an EIS is required for a continuing project assisted in some way by the federal government. Again I emphasize that the decision to formulate an environmental impact statement and the scope thereof is within the discretion of the agency. "Of course, an EIS need not be promulgated unless an agency's planning ripens into a `recommendation or report on ... major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(c)." Andrus v. Sierra Club, 442 U.S. at 350 n.2, 99 S.Ct. at 2337 n.2. See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Environmental Defense Fund, Inc. v. Andrus, 619 F.2d at 1377; Manygoats v. Kleppe, 558 F.2d 556, 560 (10th Cir. 1977). The CEQ regulations provide:
40 C.F.R. § 1502.5 (emphasis added).
The fact that the Forest Service may be only contemplating further involvement in Denver's water project development by the granting of an amended right-of-way or special use permits certainly does not preclude the formation of an environmental assessment report and perhaps not a more detailed environmental impact statement. The Forest Service must consider environmental factors to some degree during the evolution of plans which will impact on the
Although in the abstract Denver's Williams Fork Basin project is a "continuing" project, in reality little has been done since the early 1940's. Any new action taken by Denver which requires approval by the Forest Service might severely alter the environment thus requiring consideration of environmental factors. CEQ guidelines specify that major federal action requiring an EIS includes "new and continuing activities, including project and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies. ..." 40 C.F.R. § 1508.18 (emphasis added).
It is undisputed that federal agencies are not precluded from assessing in the first instance programs continually assisted by the federal government yet initiated prior to NEPA's enactment, or from re-assessing programs which are continuing in nature and yet require further federal approval. See, e. g., Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1180-1182 (10th Cir. 1977); National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971), aff'g. 326 F.Supp. 151 (D.Kan.1971); Steubing v. Brinegar, 511 F.2d 489 (2d Cir. 1975); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Environmental Defense Fund, Inc. v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972); Swain v. Brinegar, 517 F.2d 766 (7th Cir. 1975); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972), aff'g. 325 F.Supp. 728 (E.D.Ark.1971); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973). The legislative history indicates that major federal actions include the "expansion or revision of ongoing programs." S.Rep.No.91-296, p. 20 (1969) (quoted in Andrus v. Sierra Club, 442 U.S. at 363 n.21, 99 S.Ct. at 2344 n.21).
Although an EIS may not be required for a specific site where comprehensive studies have already taken place, Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980); Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368 (10th Cir. 1980), an environmental assessment of some degree is required where none has been developed. If an EIS is prepared for a project which contains a reasonable, good faith discussion of NEPA requirements applicable to future actions contemplated in order to implement the program, supplemental assessments still may be required if a significant change occurs in the interval. Id. at 1377, Manygoats v. Kleppe, 558 F.2d at 560-61. As the Tenth Circuit stated in Hart, a continuing project is subject to NEPA's requirements "until it reaches `that stage of completion where the cost of abandoning or altering the proposed project clearly outweigh [sic] the benefits [of] compliance.....'" Hart v. Denver Urban Renewal Authority, 551 F.2d at 1181, citing Arlington Coalition on Transportation v. Volpe, 458 F.2d at 1331, and Swain v. Brinegar, 517 F.2d at 773.
Denver essentially conceded the need for an environmental assessment of the Williams Fork Basin project by its actions prior to this lawsuit. Between 1973 and 1977 Denver, or its consultants, completed no less than five separate environmental reports of its own, each of which acknowledged the applicability of NEPA to the project. Denver was aware of the Forest Service's intention to subject further development to NEPA requirements. In its recommended acceptance of Denver's thirty-third progress report, the Forest Service specifically indicated that "an updated environmental analysis of [the Williams Fork Basin] project is necessary, particularly since this project has been so long in construction...." And the evidence shows that the two parties communicated the need to study environmental effects. In the Forest Service's December 12, 1973, letter to the BLM regarding further suspension of action on Denver's right-of-way based on its thirty-fourth report, the Forest Service noted that "the City is in the process of re-evaluating its entire diversion system plan for this area and has, at the
Despite Denver's objections, the Forest Service may be required by NEPA to assess environmental impacts by use of an EIS before authorizing further development of its water project plants — whether by granting an amended right-of-way or by issuing special use permits which will substantially alter the project's existing scope. In any event the use of an EAR at this stage is an appropriate means by which the Forest Service can comply "to the fullest extent possible" with its "continuing responsibility" to its mandate to manage the national forests.
As asserted in Grand County's motion to intervene and counterclaim, its position in this litigation is that in addition to the application of federal environmental law to Denver's Williams Fork Diversion Project, its land use regulations promulgated pursuant to state law are applicable, at least to the extent the proposed project is to be located within the territorial boundaries of Grand County. I agree that because Denver is required to obtain a Forest Service right-of-way permit or extension for the project that Denver's compliance with Grand County land use regulations is a prerequisite, but to what extent compliance is necessary I need not dwell on in detail. Throughout this litigation, I have been cautious to avoid crossing the line into legal territory which is properly for determination by state courts. But as a matter of federal law the FLPMA requires "compliance with state standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards," 43 U.S.C. § 1765, and NEPA requires that in the environmental assessment of projects which will have an impact upon the environment the federal government must, "in cooperation with State and local governments ... use all practicable means and measures ..." to protect the environment. 42 U.S.C. § 4331(a) (emphasis added). Federal regulations implementing NEPA equally mandate involvement of state and local authorities. See e. g., 40 C.F.R. §§ 1501.2(d)(2); 1501.5(b), (d); 1501.7(a)(1); and 1605.2. Further, the Forest Service expressed its duty to consult with Grand County in its document dated December 14, 1973.
The federal laws and the agreement between the Forest Service and Grand County Commissioners make clear that local authorities must be entitled to involvement in any further proceedings concerned with Denver's proposed development of the Williams Fork Diversion Project and its compliance with the requirements of the FLPMA and NEPA. Whether in the context of an EAR or an EIS, federal agencies are required to take into consideration substantive provisions of county land use regulations. The scope of that consideration is another matter. It is clear that where conflicts arise between federal regulations and state and local regulations regarding public land the latter are preempted. Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), Ventura Co. v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979), aff'd, 445 U.S. 947, 100 S.Ct. 1593, 63 S.Ct. 782 (1980). As the Supreme Court stated in Kleppe:
426 U.S. at 543, 96 S.Ct. at 2293 (citations omitted). At this point, it is premature to determine the consonance of the federal and Grand County regulations. That is a matter for initial determination by the federal agencies involved once they determine the degree and kind of federal environmental regulation which is appropriate for Denver's proposed project.
However, as an ancillary claim, Grand County seeks a determination from this court whether the county regulations are applicable as a matter of Colorado law to Denver's Williams Fork Diversion Project. At the outset, I find that many of the state questions are intermeshed with controlling federal law questions. In addition, I asserted pendent jurisdiction over these claims and testimony and evidence were presented regarding them during trial. The parties have fully briefed the factual and legal disputes. Having considered the claims, I find no novel state law question requiring certification to the Colorado Supreme Court for resolution pursuant to provisions of Colorado Appellate Rule 21.1, or requiring abstention on my part, although I am aware that some of the issues are being litigated in state court. I conclude that in the interest of judicial economy the matters should be resolved as expeditiously as possible.
I hold that Denver is not immune from regulation by Grand County in the development of its water project without its local boundaries and on national forest lands within Grand County. Denver asserts that as a home-rule city pursuant to Article XX of the Colorado Constitution it has the eminent domain authority to regulate matters of local concern.
While Colorado law holds that the development of water works systems is a constitutionally mandated right that the legislature cannot abrogate, City of Thornton v. Farmers' Reservoir & Irrigation Co., 194 Colo. 526, 535, 575 P.2d 382, 389 (1978),
Further, Colorado law makes clear that while Denver has the constitutional power to condemn and construct, such power does not render it immune from statutory regulation of the physical impact of such construction. See Town of Glendale v. City and County of Denver, 137 Colo. 188, 195, 322 P.2d 1053, 1057 (1958), People of Lakewood v. Haase, 596 P.2d 392, 394 (Colo. 1979). In Town of Glendale the Colorado Supreme Court recognized Denver's Article XX right to condemn land and to construct a sewer line through Glendale territory however not without regard to Glendale's local ordinances.
137 Colo. at 195, 322 P.2d at 1057. Denver, in operating a water works system, acts in a proprietary capacity and not a governmental capacity. In so acting it is governed largely by the same rules that apply to a private corporation such as police power regulation. Colorado Open Space Council, Inc. v. City and County of Denver, 190 Colo. at 125, 543 P.2d at 1260 (citing County of Larimer v. City of Fort Collins, 68 Colo. 364, 189 P. 929 (1929)).
I note that the regulation of land use granted to county governments by Colorado's Local Government Land Use Control Enabling Act of 1974, Colo.Rev.Stat. § 29-20-101 et seq., part of the statutory authority under which Grand County adopted its administrative regulations, has been the subject of little judicial interpretation by the state courts. While the intent of the act was "to clarify and provide broad authority to local governments to plan for and regulate the use of the land within their respective jurisdictions," Colo.Rev.Stat. § 29-20-102, there is some uncertainty as to the significance of the act with respect to constitutionally empowered home-rule municipalities. Commentators have, however, suggested that the regulation of land use has regional and statewide consequences and therefore might more properly be a matter of statewide concern and control rather than a matter of sovereign control by local municipalities. The act is a constitutional "attempt by the state to prompt restrictions on land use powers contained in the charters of home rule cities." White and Petros, Land Use Legislation: H.B. 1034 and H.B. 1041, 6 Colo.Law. 1687, 1688 (1977).
I note further that the second statute under which Grand County promulgated its administrative regulations, the Colorado Land Use Act, Colo.Rev.Stat. § 24-65.1-101 et seq., delegates to the counties power to supervise land use with regard to areas and activities of "state interest", i. e., which may have an impact on the people of the state beyond the immediate scope of the project. Colorado Land Use Comm'n v. Board of County Comm'rs of Larimer County, 604 P.2d 32, 34 (Colo.1979). Section 24-65.1-101(1)(c) of the Act declares that "[i]t is the intent of the general assembly that land use, land use planning, and quality of development are matters in which the state has responsibility for the health, welfare, and safety of the people of the state and for the protection of the environment of the state."
Without passing on the interpretation and constitutionality of the two laws I recognize that Colorado law provides for concurrent state and municipal power to regulate where areas of "mixed" state and local concern exist, Pierce v. City and County of Denver, 193 Colo. 347, 349, 565 P.2d 1337, 1338 (1977); City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973), and preemption of local rule in areas of exclusive state-wide concern, Century Elec. Service &
I have indicated that the Williams Fork Diversion Project is not only to be developed on national forest lands but also to be developed exclusively outside Denver's territorial limits. In ruling on the scope of Article V, § 35 of the Colorado Constitution, which prohibits state regulation or interference with municipal property of home-rule cities,
Application of Specific Regulations
A question remains whether the specific regulations as promulgated by Grand County apply. These regulations pertain to comprehensive land use, subdivisions, zoning, buildings, and major extension of existing domestic water and sewage treatment systems. Simply put Denver argues that the specific regulations do not legally apply to the Williams Fork Diversion Project; that the subdivision regulations, zoning regulations, building code, and comprehensive land use plan on their face do not apply; that the regulations are confiscatory in nature and deprive Denver of its water rights; that the building code exceeds its statutory authority; that the comprehensive land use plan is without discernible standards; that Denver is exempt from the Colorado Land Use Act; that the administrative regulations were not promulgated according to procedural requirements; and that the specific regulations conflict with Denver's power of eminent domain granted pursuant to Article XX. I believe I have sufficiently addressed the last point. Regarding the legal authority and application of the Grand County regulations to the Williams Fork Diversion Project I note that the regulations are typical exercises of police powers delegated to counties in their capacity as regulatory arms of the state. See Asphalt Paving Co. v. Board of County Comm'rs, 162 Colo. 254, 425 P.2d 289 (1967). The regulations are consistent with the county's broad discretionary powers to classify and regulate uses of land. See Board of County Comm'rs of Boulder v. Echternacht, 194 Colo. 311, 314, 572 P.2d 143, 145 (1977). Pursuant to Colo. Rev.Stat. §§ 30-28-101 et seq., 30-28-106, 30-28-201, and 30-28-203, Grand County has exercised its statutorily delegated power by the adoption of the Comprehensive Land Use Regulations. Pursuant to the
Regarding the application of specific regulations to the Williams Fork Diversion Project, I agree with Denver that the subdivision regulations do not on their face apply. Clearly Denver has no plans nor has made application to build apartments, condominiums, dwelling units, or any other construction activities or division of property which fall within the purview of the regulations. Denver is correct that Grand County has the cart before the horse on this matter. Until such time as plans are developed, if at all, to subdivide, resubdivide or replat lots, tracts or parcels of lands, and application is made therefor pursuant to the regulations, their applicability is not ripe for determination.
The application of Grand County's zoning regulations to the Williams Fork Diversion Project requires a request for a special permit by Grand County after a "special review" since the development of the project will occur in the Forestry & Open Zoning District within the county and will involve transbasin diversion. In order to receive the permit, information must be submitted regarding environmental impacts. See note 13, supra. On the regulations face they are applicable but only to the extent they do not conflict with federal regulation or Denver's vested water rights. I emphasize this point because Denver has alleged that the county regulations seek in sum to regulate to the extent of precluding any transbasin diversion of water within the county and thus they are confiscatory in nature. Grand County counters that the regulations merely attempt to mitigate adverse environmental impacts on the construction and operation of transbasin diversion projects.
Although Article XVI, § 6 of the Colorado Constitution confers a right to divert and appropriate unappropriated water of the state this right is not absolute. The manner and method of appropriation of water may be reasonably regulated. See White v. Farmers' Highline Canal & Reservoir Co., 22 Colo. 191, 43 P. 1028 (1896); Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794 (1885). See also, Weibert v. Rothe Bros., 618 P.2d 1367 (Colo.1980), Kuiper v. Warren, 195 Colo. 541, 580 P.2d 32, cert. denied, 439 U.S. 984, 99 S.Ct. 575, 58 L.Ed.2d 656 (1978). Essentially the arguments here mirror the federal claims. Denver is clearly the holder of water rights in the Williams Fork Valley, both conditional and absolute dating back to a priority of July 4, 1921. See United States of America v. Northern Colorado Water Conservancy District, et al., Civ.Nos. 2782, 5016 and 2017 (D.Colo.1955) ("Blue River Decree"), and Colorado River Storage Project and Participating Projects Act, § 11, Pub.L. 485, 70 Stat. 105, 43 U.S.C. § 620j. However, as in the federal case, the water entitlement does not carry with it absolute rights of access to build and operate.
Denver asserts its absolute right to appropriate and divert water is grounded in Article XVI, §§ 5 and 6 of the Colorado Constitution which makes water of the Colorado streams public, dedicated to the use of the people of the state. The article expresses the right to divert unappropriated water for beneficial use as one which shall never be denied. Domestic purposes are given priority in appropriation. See also Colo.Const., art. XVI, § 7. The Colorado Water Rights Determination and Administrative Act of 1969, Colo.Rev.Stat. § 37-92-101 et seq., establishes a regulatory scheme for the administration, determination, and adjudication of water rights. The act sets forth the duties and responsibilities of the state engineer with respect to determination and administration of water rights, establishes
Serious questions are raised as to both the appropriateness of Grand County zoning regulations within this scheme of state regulation and the possible prohibited interference with vested water rights. Grand County argues, however, that its regulations do not usurp the state's role in the adjudication and administration of water rights in accordance with decreed priorities but rather only the environmental impacts caused by large diversions of water in accordance with the land use laws. The two are not necessarily inconsistent. At this stage, it is impossible to ascertain whether the application of the county regulations conflicts with state regulation of diversion thus requiring preemption or whether they are in harmony with state law in regard to matters of mixed state and local concern. See Pierce v. City and County of Denver, 193 Colo. at 349, 565 P.2d at 1338; Century Elec. Services & Repair, Inc. v. Stone, 193 Colo. at 183-184, 564 P.2d at 955; Vela v. People, 174 Colo. 465, 466-67, 484 P.2d 1204, 1205 (1971); Davis v. City and County of Denver, 140 Colo. 30, 35, 342 P.2d 674, 674 (1959).
Denver asserts that the Grand County Building Code does not on its face apply to the Williams Fork Diversion project and that in trying to apply it Grand County has exceeded its statutory authority. The county code, adopted pursuant to Colo.Rev.Stat. § 30-28-201 et seq., is applicable to the Williams Fork Diversion project only to the extent Denver makes application for the construction of dwellings, buildings, and structures. A structure is defined by state statute as "a combination of roof and supporting walls and columns." Colo.Rev.Stat. § 30-28-201. The code does not pertain to the construction of diversion boxes, conduits, check dams, bypasses, flumes, or similar appurtenances of the project.
Comprehensive Land Use Regulations
As to the application of Grand County's comprehensive land use regulation and its component parts previously addressed, I find that the regulations on their face apply to the Williams Fork Diversion Project to the extent consistent with this opinion. Denver argues that the comprehensive land use plan is without discernible standards for compliance and is therefore void. At this point, Denver has the cart before the horse. No application has been made and no compliance sought with the regulations. In addition, the regulations are quite specific as to procedure. Whether a specific regulation cannot be complied with upon application must be determined at a later date if such disputes become ripe for determination. However, on their face, the regulations are reasonable and not arbitrary or capricious. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Colby v. Board of Adjustment, 81 Colo. 344, 255 P. 443 (1927). Even if standards do not exist, precise and unvarying in form but rather general and indefinite, such may be necessary with respect to a regulatory enactment such as Grand
Denver makes two arguments regarding the administrative regulations for major extensions of existing domestic water and sewage treatment systems — first, that Denver falls within the exemptions to the Colorado Land Use Act, Colo.Rev.Stat. § 24-65.1-101 et seq., and second, that due to procedural defects, the Grand County regulations are null and void. Denver claims exemption from the act under section 24-65.1-105 which provides:
(emphasis added). The Denver Water Board is not a public utility in the provision of extra-territorial water services; this was stipulated by the parties in their pretrial order and Denver concedes this has been its legal position for the last thirty years. This is also the position of the Colorado Supreme Court. See City of Englewood v. City and County of Denver, 123 Colo. 290, 229 P.2d 667 (1951). I cannot agree that the exemption refers to public utilities in the "generic sense", i. e., municipal utilities serving outside their territorial boundaries.
Second, Denver claims that it is exempted by section 24-65.1-106 which provides that "[n]othing in this Article shall be construed as: (a) enhancing or diminishing the rights of owners of property as provided by the state constitution or the constitution of the United States; (b) Modifying or amending existing laws or court decrees with respect to the determination and administration of water rights." Again Denver's argument mirrors that of the federal government. As discussed above, the Grand County regulations on their face do not amend or modify the Blue River Decree or diminish Denver's water rights. Rather they address the environmental impacts of water diversion and carriage structure, and ancillary features such as access roads. The Blue River Decree and the Colorado River Storage Project and Participating Projects Act, 43 U.S.C. § 620 et seq., do not give Denver free rein to construct its project irrespective of applicable federal, state and local law. Denver has failed to show it is accorded exemption under this provision.
The third statutory exemption asserted is based upon section 24-65.1-107 which provides in part:
On November 6, 1973, the people of the City and County of Denver voted for and approved a bond issue in the amount of $160,000,000.00 "for the purposes of constructing or otherwise acquiring improvements, extensions, or additions to the municipal water work systems and plant." Denver claims the Williams Fork Diversion Project and extensions thereto was one of the projects "approved" in this bond election. I hold that the lack of reference to the Williams Fork Diversion Project in the bond election ballots compels my finding that the Denver electorate did not "approve" the specific project. A bond question must be
Finally, Denver argues that the administrative regulations are procedurally deficient because Grand County failed to notify the Colorado Land Use Commission of a public hearing on the regulations.
The evidence showed that on October 25, 1979, the Land Use Commission had not in fact received a copy of the public notice of hearing and that it would not approve the regulations until notice was received. The commission, however, approved the regulations on October 26, 1979. Public notice of the hearing was indeed published and mailed to all interested persons on the county's mailing list pursuant to Colo.Rev.Stat. § 24-65.1-404(1) and (2)(a).
I find that any failure to give formal notice to the Land Use Commission, although not definitively shown by Denver, is a minor defect which cannot render the regulations void. As with zoning laws, minor technical defects are not sufficient to invalidate the regulations which are presumptively valid absent a showing of substantial noncompliance with statutory authority. See City of Commerce v. Cooper, 609 P.2d 106 (Colo.1979); cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 265 (1980); Hopkins v. County Comm'rs, 193 Colo. 230, 564 P.2d 415 (1977); City of Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974). Further, the purpose of the notice to the Land Use Commission is to prompt recommendations regarding the regulations; its function is advisory only. Colo. Rev.Stat. § 24-65.1-406(3). The commission obviously fulfilled its purpose of a recommendation of approval without the written notice. The procedural defect, if any, is de minimis and does not invalidate the regulations.
I emphasize that my ruling is narrow in scope and applies only to the Grand County regulations as they apply to the Williams Fork Diversion Project. This is not a comprehensive opinion on the validity of the Colorado land use laws. In the context of this case, the regulations apply in accordance with federal law and to the extent
I hold that the administrative decisions of the Forest Service, including the February 13, 1979, order and the May 8, 1979, order of the Forest Service Chief affirming the January 12, 1979, order were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. The decisions were based on a consideration of all relevant factors, were not a clear error or judgment, and the conclusions drawn therefrom were rationally-based. See Bowman Transp., Inc. v. Arkansas-Best Freight Systs., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Denver has constructed off its 1924 right-of-way grant. In order to complete its proposed course of construction onto national forest lands for the Williams Fork Diversion Project it must make appropriate application for special use permits or an amended right-of-way in compliance with existing federal law and state law where consistent with federal standards. Therefore it is
ORDERED that Judgment be and hereby is entered for the defendants United States of America and the federal defendants, and defendant-intervenors Sierra Club, American Wilderness Alliance and Grand County Commissioners; further it is
ORDERED that plaintiff's Complaint be and hereby is dismissed; and further it is
ORDERED that Judgment consistent with this opinion be and hereby is granted for the defendant-intervenor on its counterclaims.
Paragraphs 4 to 23, inclusive circular of June 26, 1902, found at 31 Pub.Land Dec. 503-515 (1903) explicitly referred to in the 1905 regulations as equally applicable to rights-of-way issued under the Act of February 1, 1905, are quite specific and detailed with regard to, inter alia, the surveying techniques, procedures, and requirements necessary for the issuance of a right-of-way under the Act. In essence, these requirements called for a survey "so complete that from it the surveys could be accurately retraced by a competent surveyor with proper instruments.... The line of survey should be that of the actual location of the proposed ditch...." The survey was even to "state which line of the canal was run — whether middle or a specified side line." Circular of June 26, 1902, at 511, ¶ 8. "The map [was to] bear a statement of width of each canal [or] ditch ... if not of uniform width, the limits of the deviations from it must be clearly defined on the map. The field notes should record the changes in such a manner as to admit of exact location on the ground. In the case of a pipeline, the diameter of the pipe should be stated." Id. at ¶ 19.
The Regional Forester, however, pointed out that consideration of the permit applications would be delayed pending completion of the Environmental Statement for the Williams Fork Land Management Plan scheduled to be finished by July, 1978. He concluded by requesting that "the Bureau of Land Management take whatever steps are necessary to secure a relinquishment of the unconstructed portion of [the subject] right-of-way."
On February 15, 1979, the Grand County Regional Planning Commission adopted Resolution No. 1979-2-11. The Resolution amended and readopted the Grand County Comprehensive Plan, which consists of a base document and three major additions thereto: (1) The Three Lakes Plan; (2) The 208 Water Quality Plan; and (3) The Fraser Valley Comprehensive Land Use Plan. The Comprehensive Plan applies, by its terms, and as authorized by Colo. Rev.Stat. § 30-28-106 (1973), to all of the unincorporated territory of Grand County, Colorado. Pursuant to Colo.Rev.Stat. § 30-28-106, the Grand County Comprehensive Plan is a master plan, and deals with the subjects required by section 30-28-106(3)(a). The Plan forms the basis for implementing land use regulations such as the Grand County Zoning Regulations and Grand County Subdivision Regulations.
The Williams Fork Diversion Project allegedly is governed by the Grand County Zoning Regulations at sections I, II, VI, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII and XXIII. Specifically, the project is proposed to be located in the Forestry and Open Zoning District within the county. See Zoning Regulations, section VI. As a transbasin diversion facility it falls within the definition of the Regulations at section XI, subsection 11.1(10)(a)(i). Such facilities are not within the category of "Uses Permitted" in the Forestry and Open District, but are listed as permissible in all zoning districts by special review. See section XI subsection 11.1(10). In order to obtain a permit to develop a transbasin diversion facility such as the Williams Fork Project, the proponent of the project must make application to the county for a use permitted by special review, bringing into play the various sections of the zoning regulations listed above.
At section XI, subsection 11.1(10), the zoning regulations require submission of information regarding impacts of the proposed transbasin diversion project upon water rights, water quality, including salinity, or total dissolved solids (TDS), agricultural productivity, flooding activity, and significant environmentally sensitive factors.
Article I (Application of Regulations) of the subdivision regulations provides, at Section 1.5 (jurisdiction) that the regulations apply to any of the following activities within the unincorporated areas of Grand County, Colorado:
Section 1.6(4) of the regulations defined "subdivision" or "sub-divided land" in relevant part, as:
While residential development activity is usually the subject of subdivision review, it is the actual dividing property in two or more parcels which triggers specific application of the subdivision regulations.
At Article II, the subdivision regulations set forth required design standards, addressed to such topics, inter alia, as special site considerations (including the prevention of solid debris from being carried downstream, enlargement of a flood plain, or damage to lands other than those being proposed for development), streets, alleys and easements, dedications, and design standards for drainage, sewer and water, flood, fire, geologic and mineral resource areas.
On March 18, 1980, the Grand County Board of County Commissioners adopted Resolution No. 1980-3-1, which adopted the Grand County Building Code. The code is essentially the 1979 Uniform Building Code, with amendments specific to the county. The code applies, by its terms as authorized by Colo.Rev.Stat. (1973) § 30-28-201, to all of the unincorporated territory of Grand County, Colorado. Previous to this adoption, the county had adopted the 1976 Uniform Building Code, with amendments.
The code requires a permit from the building official for every building or structure constructed within the county. Grand County Building Code, Part I, Chapter 3, Section 301. A building is defined in the code as "any structure used or intended for supporting or sheltering any use or occupancy." Part II, Chapter 4, Section 403 (emphasis added). A structure is defined as "that which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner." Part II, Chapter 4, Section 420 (emphasis added). The code contains extensive regulations pertaining to excavation, grading, construction techniques, and quality and design of the materials used, all to the satisfaction of the building official, before a building permit can be issued. See Chapter 17-46. In particular, the Code addresses building (Chapter 17), masonry (Chapter 24), concrete (Chapter 26), steel (Chapter 27), and excavation and grading (Chapter 70).
(a) Site selection and construction of major new domestic water and sewage treatment systems (Regulations, at Chapter Three);
(b) Site selection and construction of major extensions of existing water supply and sewage treatment systems (Regulations, at Chapter Four); and
(c) Municipal and industrial water projects (Regulations, at Chapter Five).
In order to receive approval under the regulations, a project proponent must make application to the Grand County Department of Development, receive advisory approval or disapproval from the Grand County Regional Planning Commission, and have its application granted by the Permit Authority after public hearing.
5 U.S.C. § 702 provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... is entitled to judicial review...." Sovereign immunity of the United States is waived in actions under the APA.
In Jaffee v. United States, 592 F.2d 712, cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), the Third Circuit held to the contrary stating that "section 702, when it applies, waives sovereign immunity in `non-statutory' review of agency action under section 1331." Id. at 718. Accord Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir. 1980). The Ninth Circuit has held that although section 702 is a waiver of sovereign immunity in actions against the government under section 1331, Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978), that waiver does not operate where existing statutes limit the district court's jurisdiction. Lee v. Blumenthal, 588 F.2d 1281 (9th Cir. 1979).
I also note that in addition to 16 U.S.C. § 551 defendants cite 16 U.S.C. §§ 471 and 472 as authority for the Forest Service's supervision of the national forests. Section 471 is inapplicable in that it was repealed by the FLPMA, Pub.L.No.94-579, § 704(a), 90 Stat. 2792 (1976) (no U.S.C. citation). Section 472 provides that "[t]he Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 ...," i. e., existing forest lands. This statute along with § 551 and case law clearly support the authority of the Forest Service with respect to the national forest lands.
Subsection (b) gives the officials the same authority to close or restrict the use of any forest development road or trail within the Forest Service's jurisdiction.
Section 261.6 prohibits generally the cutting, destroying, and removing of timber; section 261.9 prohibits generally the destroying, disturbing, and removing of any property; and section 261.10(a) prohibits construction on national forest lands.
As the Ninth Circuit has further commented on this issue, "[i]t will often be impossible, especially when highly technical matters are involved for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not." Asarco, Inc. v. Environmental Protection Agency, 616 F.2d at 1160. I concur that I cannot adequately discharge my duty to engage in a "substantial inquiry" if I am required to take the agency's word that it considered all relevant matters. Id.
I also concur with the Ninth Circuit's reasoning that the court should be restrained in its approach in considering evidence outside the record. When the reviewing court finds it necessary to go outside the record, "it should consider evidence relevant to the substantive merits of the agency action only for background information ... or for the limited purpose of determining whether the agency considered all the relevant facts or fully explicated its course of conduct or grounds of decision." Id. After a careful study of the evidence, the court must then "step back" from the agency decision to exercise the narrowly defined duty in holding the agency to certain minimum standards of rationality. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d at 36. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823; Asarco, Inc. v. Environmental Protection Agency, 616 F.2d at 1160.
31 Stat. at 791. Specific reference was made to this Act in the initial regulations under the 1905 Act. Paragraph one of the regulations states:
33 Pub.Land Dec. 451 (1905) (emphasis in original). The reference might also concern the Act of May 14, 1896, ch. 179, 29 Stat. 120, which amended the Act of March 3, 1891, ch. 561, 26 Stat. 1095, "to permit the use of a right of way ... upon the public lands and forest reservations ... for the purposes of generating, manufacturing, or distributing electric power."
Kenneth A. Witt, Chief of the Cadastral Study Branch of the Department of the Interior since 1968, with fifteen years in the surveying profession, ran a similar computer study and agreed with Hipp's mathematical findings and conclusions that the survey was excellent. Witt further agreed with Hipp that according to the field notes Bull used a procedure of carrying the true bearing on the plate of the transit and the angles were recorded in the form of a true bearing. The solar observations used by Bull were an accurate method for determining the true bearing and Bull's use of magnetic bearings was an appropriate check on the true bearing and was not necessarily evidence that the survey was only a "reconnaissance" rather than an actual construction survey. Further, Bull used eighteen individual identifiable points, any of which could be used as a starting point for the survey. He identified at least twenty-five prominent monument points in the field notes, although it appears he misnamed Pettingall Peak as Ptarmigan. Both Witt and Hipp concluded that the survey could be reconstructed. I find that the testimony by Denver's expert witnesses, John Land and William Teller, did not refute the fact that the survey was accurate.
Act of March 3, 1901, section 4, 31 Stat. 1084, 25 U.S.C. § 311. Aside from the differing statutory language, the case is distinguishable because the Supreme Court ruled that the statute granting rights-of-way across Indian lands must be interpreted according to state law, "in the absence of any governing administrative ruling, statute, or dominating consideration of Congressional policy to the contrary." 318 U.S. at 210, 63 S.Ct. at 536. As demonstrated by the discussion above, it is manifestly clear that such a lacuna does not exist. State law does not apply in light of the Act of 1905 and the subsequent rules and regulations.
17 F.2d at 363. I, too, am hesitant to accept any good faith substantial compliance argument advanced by Denver. The evidence does not support a conclusion that Denver has diligently pursued the construction of this water project.
147 U.S. at 176, 13 S.Ct. at 274. The Act of 1875 also granted land to the railroads pursuant to reasonable regulation by the Secretary of the Interior. While reasonable regulation encompasses conditions upon the grant of federal lands, it does not contemplate expungement of the grant at the whim of a federal official.
At trial evidence was offered demonstrating that Bull, as Denver's surveyor, originally set out a plan for open canals and later, when Bull was with the PWA, "called for conduit instead of open canals [which] called for a steeper gradient than [Bull] had laid out, and he knew these various details of the plan and approved them." If Bull in fact gave permission, expressly or implicitly, to Denver's actions fifty years ago, such permission is ineffectual; Bull was without authority. See United States v. California, 332 U.S. 19, 39-40, 67 S.Ct. 1658, 1668-1669, 91 L.Ed. 1889 (1947). In addition, even if Bull or agents of the Forest Service or the BLM at that time believed the deviated construction to be within the 1924 grant, such erroneous interpretation of the law under the Act of 1905 will not support estoppel. See e. g., Automobile Club v. Comm'r, 353 U.S. 180, 183, 77 S.Ct. 707, 709, 1 L.Ed.2d 746 (1957); Federal Crop Ins. Corp. v. Merrill, 332 U.S. at 384-385, 68 S.Ct. at 3.
Federal Crop Ins. Corp. v. Merrill, 332 U.S. at 384, 68 S.Ct. at 3. Truly one who deals with the government does so at his own peril. Atlantic Richfield Corp. v. Hickel, 432 F.2d at 592. However, as noted above, estoppel may now apply against the government in certain circumstances regardless of whether it acts in its proprietary or sovereign function. This is, I believe, the better rule.