JUDICIAL DEVELOPMENTS

December 2009

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District Court in Colorado Finds 1891 Act Right of Way For Reservoir Does Not Vest upon Construction
Pine River Irrigation District v. U.S., ___F.Supp.2d___

The U.S. District Court for the District of Colorado has determined that a federal right of way under the Act of March 3, 1891, 43 U.S.C. § 946-49 (1891 Act) is not established through construction of a ditch or reservoir, but only through explicit approval by the Department of the Interior. The court found that because the Department of the Interior never approved the map of the right of way and other application materials, the Pine River Irrigation District (Pine River) did not hold a vested interest in a right of way to construct and maintain a reservoir located on federal lands. In doing so, the court disagreed with certain historical decisions by the Department of the Interior and two more recent decisions interpreting the 1891 Act as allowing “vesting by construction” of a right of way over federal lands.