Aspen files motion to dismiss in hydroelectric power generation water rights case


From The Aspen Times (Andre Salvail):

The Oct. 5 motion states that Saving Our Streams, a nonprofit group made up of several local landowners that filed its complaint with the court in mid-September, has failed to “allege facts sufficient” to back up its claim.

According to the city’s motion, the SOS suit seeks a court judgment that Aspen abandoned one particular component — hydroelectric power production — of the municipal uses that accompany three separate water rights for Castle, Maroon and Midland creeks.

The city’s motion states that the three water rights were granted to various companies in the late 19th century for “municipal customers” and that the city acquired those rights in 1956. Those rights included “hydroelectric generation and domestic purposes” for Castle and Midland creeks, and were confirmed through a court decree in 1949.

The 1949 decree also confirms a water right for a diversion from Maroon Creek “in the amount of 65 cfs [cubic feet per second]” stemming from an appropriation in 1892, according to the motion.

The motion states that the SOS suit “does not identify which plaintiffs own water rights, what water rights they may own or how those water rights are or may be affected with respect to the alleged abandonment of the hydropower component” of the city’s water rights.

Further, “plaintiffs tacitly admit that some of them do not own or control any water rights,” the motion says. “If a plaintiff fails to allege or demonstrate that its rights, status or other legal relations will be affected, the plaintiff has no standing … and a declaratory judgment should not be entered.”

Also, the SOS suit fails to meet the law’s “injury-in-fact requirement” in which the challenged conduct of a defendant causes or threatens to cause injury to the plaintiff’s present or imminent activities.

More hydroelectric coverage here and here.

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