Case No. 90SA514 Thornton v. Fort Collins

Home Browse Search

830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 18 land." Id., at 764. Due to the inadequate arguments and an insufficient record, we left unanswered whether such formal acts as permit applications filed with a regulatory body, correspondence between the applicant and another regulatory body, and especially public meetings held by a board of county commissioners and by a city council, performed one or more of the three required functions under the overt act(s) prong of the first step test. Id., at 765. contrary to the first step test and the requirement that specific acts perform specific functions. FN9. This issue is important because if that preliminary work cannot be deemed to have performed the second required function, then the appropriation date may fall after December 31, 1986, depending on when a substantial measure was taken to apply waters to beneficial use. FN7. That the 1988 amendments relate back_ to the 1986 application does not mean that an appropriation date will automatically fall on or before the date of the original application. Relation back of amendments to original pleadings means only that the third parties were in fact on adequate notice as of the date of the original pleading. That Thornton was on notice that Fort Collins intended to appropriate Poudre River water as of December 31, 1986, does not mean that Fort Collins met all the requirements of the first step test on or before that date. See Part II A, supra. FN8. Fort Collins argues that adoption of the Plan should be taken in the context of years of environmental and land use planning. We decline to take this contextual approach because it is *933_ FN10. The question may arise as to whether an appropriation of 55 cfs of Poudre River water at the Power Dam is required at all. The Power Dam is upstream from the Nature Dam. The record indicates that water called to the Nature Dam necessarily will pass through the Power Dam. Presumably, any water called to the Power Dam will eventually pass the Nature Dam. Thus, the priority date of the downstream structure, here the Nature Dam, effectively guarantees the water use at the upstream structure, here the Power Dam. However, at some point in time the water use at the Nature Dam may be abandoned while the use at the Power Dam may not. Thus, Fort Collins may validly appropriate the same water by separate structures so long as each structure controls and puts water to beneficial use. • .J Copyright (c) West Group 1999 No claim to original U.S. Govt. works