Purgatory Resort is appealing an April decision by a U.S. District Court judge to dismiss the ski area’s lawsuit against the U.S. Forest Service over access to water in Hermosa Creek.
In a case filed in the U.S. District Court for the District of Colorado in October 2022, Purgatory sought access to federal land on the backside of the resort where the resort retains rights to 4.54 cubic feet per second of water from Hermosa Creek via an in-stream diversion and ground wells.
Senior Judge William Martinez granted the forest’s motion to dismiss the lawsuit in April on the basis that the statute of limitations had expired years before the lawsuit was filed.
The case was dismissed without prejudice and did not settle the ultimate question: Does Purgatory have a right to access the water?
Although the resort’s previous owners traded the land where the diversions are to be made to the San Juan National Forest in 1991, Purgatory never gave up its water rights. It has sought to develop those rights since 2001.
However, delays caused by various administrative stumbling blocks prevented that from happening.
Now, the resort claims a common law implied easement to access and perfect the water rights.
In an opening brief filed July 30 in the 10th Circuit Court of Appeals, Purgatory’s attorneys argued that the District Court applied the incorrect legal standard to determine when the statute of limitations began to run. They also argue that the court erred in its dismissal of a request for declaratory judgment finding that the water rights constitute an inholding to which Purgatory must have access, among other claims.
“Implied easements are well recognized under both Colorado and federal law and presumed to occur where, as here, property was divided in a way that left certain property inaccessible,” the resort’s appeal states.
Purgatory has also argued that by denying access to the water rights in the interest of preserving habitat for the native cutthroat trout, the forest has essentially tried to decree a right to in-stream flows without adhering to the appropriation system.
The resort’s attorney requested an oral hearing before the court of appeals and asked that the dismissal be reversed.
rschafir@durangoherald.com
