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Judge decides against Pine River District
Rejects its right to construct dam at Emerald Lake
Herald Staff Writer
In a Sept. 18 ruling, U.S. District Court Judge John L. Kane dismissed a claim by the irrigation district that in 1940 it acquired the right build a dam at Emerald Lake. Kane also upheld the federal government's position that heirs of the man who built a dam there about 1895 have no claim, either.
The legal battle started about 2004 when Pine River Irrigation District, which provides Vallecito Reservoir water for irrigators in southeast La Plata County, attempted to resurrect what it alleged was the right to build a water-storage facility at Emerald Lake. The lake and nearby Little Emerald Lake, a total surface of 300 acres, sit at about 10,000 feet elevation in Hinsdale County.
Daniel Israel, a Denver attorney who represents the irrigation district, said Friday that an appeal is possible.
"There's a long history here," Israel said. "We relied on a federal court decision eight or nine years ago, but Judge Kane rejected the court's analysis. We don't agree with his reading."
Israel said the 1891 law on which the early dam builder acted never has been analyzed by a federal court of appeals.
In 1895, W.T. Kirkpatrick applied for an easement across public land to create a reservoir to store water for irrigation and other purposes. Instead, Kirkpatrick created a body of water and started a fish hatchery, stocking it with cutthroat trout. He also treated the facility as a private fishing club, which raised the ire of neighbors who said the application for irrigation water was bogus.
Over the years, Kirkpatrick butted heads with the Forest Service about whether he was living up to the requirements of the easement, which, under some interpretations, was invalid, and whether he had disposed of land he said was irrigated with Emerald Lake water. Other parties, including Pine River Irrigation District, acquired an interest in Emerald Lake.
Fast forwarding to 1940: The district, which operated Vallecito Reservoir, acquired a special use permit from the Forest Service to use Emerald Lake as a reservoir. But in 1949, when it was learned the district had not restored the then-dilapidated Kirkpatrick dam, the federal agency cancelled the special-use permit. In 1973, there was little evidence a dam ever had existed there, Kane wrote in his decision.
In 1987, the Colorado District Court for Water Division 7 found that Pine River Irrigation District had abandoned its water-storage rights at Emerald Lake.
The district and the Southern Ute Indian Tribe in 2002 asked the state for a new water-storage right at Emerald Lake. Two years later, the district filed the "quiet title" action just adjudicated by Kane to remove any cloud about rights.
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