Judge Boyd dries up ski resort's snow plans

Powderhorn Mountain Resort has 42 snowmaking acres and wanted to expand its operations. A judge's ruling leaves the ski resort with the option of reapplying to use 7 acre-feet of water over the course of a winter for snowmaking, one-fifth the amount Powderhorn wanted to use.

A water court judge on Monday struck down Powderhorn Mountain Resort's plans to make snow from water it bought from a local rancher in 2016.

Three Mesa Creek Ditch water users, Andrea Clark, Tom Kirkpatrick and Dana Black, objected to the resort's plans to divert the water during the wintertime, transporting it to a nearby reservoir and storing it for snowmaking and other uses.

Judge James Boyd, who presides over all water court cases originating in the Colorado River Basin, issued the ruling roughly 10 months after a three-day trial in his Glenwood Springs courtroom.

In that trial, the ditch users argued the ski resort bought a 1- cubic-foot-per-second water right that didn't totally belong to the seller. They also accused Powderhorn of buying the water on speculation, as it had no way to transport or store the water in question when it asked the state for permission to change the way the water was being used.

George Bevan, a former Mesa Creek Ditch Co. president who died in October, sold the water to the ski resort about three years ago. Powderhorn intended to divert up to 150 acre-feet of the water during the winter, transporting it more than a mile away across private property to the H.U. Robbins Reservoir or a small pond at the base of the resort, and use the water for snowmaking.

The ski resort planned on purchasing, leasing or condemning rights of way necessary to transport the water, according to previous court documents. Powderhorn has 42 snowmaking acres and wanted to expand its operations.

But Boyd ruled the most water that Bevan could have used, historically, for watering his livestock from Oct. 1 to April 1 each year is only 6 or 7 acre-feet, at most.

While he decreed that Bevan owned the right to use 1 cubic foot per second of the water Powderhorn purchased from him, he ruled the water right had been used at much lower levels than the ski resort argued.

Bevan testified he kept a maximum of 400 cows at the location over the winter, using the water right for livestock.

A water engineer testified that amount of cattle would consume as much as 7 acre-feet of water over the course of a winter, and the judge used that amount to determine the historic use of the water right. An acre-foot is equal to 325,851 gallons, enough water to cover a football field a foot deep.

The ditch users were represented by two attorneys, Grand Junction lawyer Isaiah Quigley and Jim French, a retired securities attorney who is married to Clark and lives in Mesa.

French and Clark both worked on the case pro bono. They called the ruling a win.

"I'm happy that we prevailed," Clark said.

Since the lawsuit was filed in October 2016, she took on much of the research of the water rights history and it became a full-time job. Because none of the records prior to 1950 were digitized, that meant going through ledgers, locating handwritten slips of paper and deciphering the information.

The judge noted in his ruling that even Powderhorn's chain of title, the most complete of all the claimants, "is plagued by varying legal descriptions of the land and sometimes imprecise and changing references to water rights."

Clark, a retired businesswoman, said she volunteered her time going through all the records and history because she values honesty and integrity, and wanted to get to the bottom of the issue.

"There's no money in this for me," she said. "I was just flummoxed at the 20 years worth of lying and deceit that I was finding."

Clark, who moved to the area in 2006, said she was glad to take on the case as a relative newcomer to Plateau Valley, where many residents have longtime ties and seemed to be afraid of repercussions or retaliation related to the lawsuit.

The issue of who owns exactly how much winter water in this section of the Mesa Creek Ditch remains unresolved, but the judge ruled that Powderhorn has the right to use the historical amount of water Bevan used and sold to the resort.

The judge also ruled the ski resort is one of only nine original claimants of the winter water right on the ditch, meaning other users who believed they had the right to use the water over time may be doing so illegally.

It's unclear whether Powderhorn will opt to apply to use the lesser amount of water for snowmaking or pursue its plans to transport the water from Mesa Creek to the ski area. The judge denied the ski resort's application in this instance but did not prevent it from reapplying in a future application.

The judge's ruling leaves the ski resort with the option of reapplying to use 7 acre-feet of water over the course of a winter for snowmaking, one-fifth the amount Powderhorn wanted to use.

Powderhorn co-owner Andy Daly, who testified at the trial, said he was aware of the ruling but hadn't reviewed it yet Monday.