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Denver, City & County of v. Bergland

ELR Citation: 12 ELR 20097
Nos. No. 79-K-611, 517 F. Supp. 155/(D. Colo., 05/29/1981)

The court holds that the city of Denver may not deviate from a right-of-way granted in 1924 in constructing a water supply project over national forest lands unless it applies for an amended permit and complies with environmental and land use regulations. The 1924 grant allowed water diverted from the Williams Fork Basin in Grand County, Colorado, to be transported through a system of canals and tunnels over a surveyed route through the Arapahoe National Forest. Prior to 1978, Denver constructed only a minor portion of the project and in doing so deviated from the structural system and route described in the grant. When it attempted to reinstitute work on the project in 1978, the Forest Service ordered it to stop construction pending a determination of the project's consistency with the 1924 grant, an environmental assessment, and prior approval by all federal, state, or county agencies having jurisdiction over the project.

Upon Denver's appeal of the order, the court initially rejects a quiet-title claim under 28 U.S.C. §2409a on three separate grounds: that the property to which Denver claims title is not described with particularity as required by §2409a(c), that suits against the government based on adverse possession are barred by §2409a(g), and that the 12-year limitation period prescribed by §2409a(f) has expired. The court refuses to entertain an allegation of unconstitutional taking of Denver's property, holding that jurisdiction over that claim rests exclusively with the Court of Claims. The court, however, asserts jurisdiction to review the order of the Forest Service under the federal question statute, 28 U.S.C. §1331(a), and the Administrative Procedure Act, 5 U.S.C. §§701 et seq. It also asserts pendent jurisdiction over questions concerning Grand County land use regulations since they derive from "a common nucleus of operative fact" and are at issue as part of the federal environmental regulatory scheme.

The court holds that an "arbitrary and capricious" standard is appropriate for judicial review of the Forest Service order and that evidence outside the agency record may be considered as supplementary information to show whether the agency's action was rational. It finds that the Forest Service's action halting construction of the granted right-of-way was a rational exercise of its authority to protect the national forests under §551 of the Federal Land Policy and Management Act (FLPMA). The 1924 grant was for specifically enumerated activities on the exact location stated, since grants of privileges over federally owned lands pass only what is conveyed in clear and explicit language. Moreover, the government is not estopped from objecting to Denver's activities since it had not been adequately informed of the previous deviation from the granted right-of-way and did not approve it. Under the right of way provisions of FLPMA, §§501 et seq., the court holds that Denver must file an application with the Forest Service for a change in alignment of the right-of-way. Since the Forest Service must comply with the provisions of the National Environmental Policy Act (NEPA) in reviewing the application, Denver is required to cooperate with it in the preliminary evaluation of environmental impacts arising from the further development of its project. Finally, the project must comply with the land use regulations of Grand County. FLPMA's §505 requires compliance with state health, safety, and environmental standards if more stringent than federal standards, while NEPA's §101(a) calls for cooperation with state and local governments in the preparation of environmental assessments. Denver's eminent domain authority as a home-rule city under Article XX of the Colorado Constitution does not confer immunity from regulation of the physical impacts of the project's construction.

The full text of the opinion is available from ELR (57 pp. $7.75, ELR Order No. C-1264).

Counsel for Plaintiffs
Wayne D. Williams
Erickson, Quigley & Goss
1040 Capitol Life Center, Denver CO 80203
(303) 861-5300

Michael L. Walker
Denver Bd. of Water Commissioners
1600 W. 12th Ave., Denver CO 80204
(303) 623-2500

Counsel for Plaintiffs-Intervenors Mountain States Legal Foundation
Kea Bardeen
Mountain States Legal Foundation
1845 Sherman St., Denver CO 80203
(303) 861-0244

Counsel for Defendants
Jack E. Hanthorn, Regional Attorney
Department of Agriculture, 1444 Wazee St., Suite 230, Denver CO 80202
(303) 837-4031

Nancy E. Stanley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2175

Counsel for Defendants-Intervenors Sierra Club et al.
H. Anthony Ruckel
Sierra Club Legal Defense Fund, Inc.
1612 Tremont Pl., Suite 335, Denver CO 80202
(303) 892-6301

Kane, J.