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CITY & CTY. OF DENVER, ETC. v. BERGLAND

No. 81-1852.

695 F.2d 465 (1982)

CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Plaintiff-Appellant, and Mountain States Legal Foundation, Plaintiff-Intervenor, v. Robert BERGLAND, Secretary of the United States Department of Agriculture, John R. McGuire, Chief, United States Forest Service, Craig W. Rupp, Regional Forester, Rocky Mountain Region, United States Forest Service; Cecil D. Andrus, Secretary of the United States Department of the Interior; Dale D. Andrus, State Director, Bureau of Land Management of the Department of the Interior, and the United States of America, Defendants-Appellees, and Sierra Club; American Wilderness Alliance; and the Board of County Commissioners of the County of Grand, Colorado, Defendants-Intervenors Appellees.

United States Court of Appeals, Tenth Circuit.

Rehearing Denied April 5, 1983.

Attorney(s) appearing for the Case

Wayne D. Williams, Denver, Colo. (Michael L. Walker, Henry C. Teigen and Maurice Lyle Dechant, Denver, Colo., with him on brief), for plaintiff-appellant.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., Michael J. Gippert, Atty., Dept. of Agriculture, Denver, Colo., and Edward J. Shawaker, Atty., Dept. of Justice, Washington, D.C., with him on brief), for defendants-appellees.

H. Anthony Ruckel, Denver, Colo., for defendant-intervenor appellee Sierra Club.

Henry W. Ipsen, Denver, Colo. (Charles B. White of Kirkland & Ellis, Denver, Colo., and Gerald E. Dahl, Frisco, Colo., with him on the brief), of Kirkland & Ellis, Denver, Colo., for defendants-intervenors appellees Bd. of County Com'rs of the County of Grand, Colorado.

Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

This appeal involves a right of way owned by appellant, the Denver Water Board (Denver), across federal lands managed by appellee, the United States Forest Service (USFS). The right of way was granted for canals on a certain alignment. Denver actually constructed a part of its project with steel conduits which followed a different alignment, and plans to continue the project with conduits on the new alignment. The USFS determined that both...

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