City of Aspen, property owners agree to end water-rights suit
June 23, 2014
The Aspen City Council agreed Monday to end its role in litigation over the city's right to pursue hydroelectric projects on Castle and Maroon creeks.
The vote on the resolution was 4-0. Councilman Art Daily was absent from the meeting.
City Attorney Jim True stressed that although the city wanted to formally end the active lawsuit brought nearly three years ago by property owners opposed to new hydroelectric-power projects, "We have no intention to abandon our water rights."
In September 2011, a group of landowners opposed to the city's plans for a Castle Creek hydroelectric facility filed a lawsuit in state water court alleging that the city had abandoned its water rights relating to hydropower projects along the creeks.
Following an advisory vote in November 2012, in which a majority of Aspen voters directed the city not to spend any more money on the controversial project, the City Council put its hydro plans on hold. However, the lawsuit remained active.
A trial was set for October 2013, but both sides agreed to delay it to pursue joint opportunities for further studies on stream health. "Those efforts were initiated but not completed," True said last week in a memorandum to council members.
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At an April work session, the council decided to remove hydroelectric power from a National Renewable Energy Laboratory evaluation of its energy portfolio. The city's stated goal is to achieve 100 percent renewable energy by the end of 2015, but following a presentation by the energy laboratory, the focus now will be on alternatives involving wind and landfill gas. The laboratory is a U.S. Department of Energy facility in Golden that researches and develops renewable energy and energy-efficiency options.
True's memo said that when the council determined that the energy laboratory should not consider the Castle Creek hydro project, Paul Noto, the attorney for the plaintiffs, told him that his clients would be interested in dismissing the suit.
But, according to the memo, the council's direction came during an informal work session, and the plaintiffs needed more formal action on the council's hydro direction before agreeing to drop the suit.
"Under court rules, the plaintiffs cannot simply dismiss litigation," True wrote. "The defending party must agree to the dismissal."
The plaintiffs are stipulating that the dismissal be made without prejudice, which means that all or one of them will retain the right to refile the lawsuit in the future, should the city decided to initiate a hydro or micro-hydro project.
True and the city's water-rights attorneys recommended approval of the dismissal.
"Dismissal saves the cost of ramping up and conducting trial, avoids the risk and uncertainty of trial, and protects for the time being the hydroelectric purposes decreed to the (Castle and Maroon) water rights," True said.
Over the past seven years, controversy has surrounded the city's Castle Creek hydro project, estimated to cost $10 million. The city spent more than $7 million toward the project, but because of the 2012 advisory vote, the Castle Creek Energy Center is on hold indefinitely.
The suit's dismissal, True added, "does not act to confirm the city water rights for hydropower purposes. Rather, it maintains the status quo: that all decreed purposes of these water rights are in effect at this time."
Plaintiffs in the litigation known as T. Richard Butera et al. v. City of Aspen are: T. Richard Butera; Maureen Hirsch; Christopher Goldsbury Jr.; Elk Mountain Lodge LLC; Crystal LLC; American Lake LLC; Ashcroft LLC; and the Bruce E. Carlson Trust.