Full opinion text
OPINION KANE, District Judge. This is an action arising out of a dispute between the Denver Water Board and the United States Forest Service regarding Denver’s right-of-way over national forest lands in the Williams Fork Basin, Arapahoe National Forest. The right-of-way was granted to Denver in 1924 by the federal government pursuant to the Act of 1905, 33 Stat. 628, 16 U.S.C. § 524. Denver had conducted minimal construction on the right-of-way to develop its water resources since the granting of the right-of-way. The central issues of the dispute are whether Denver has constructed off its right-of-way, and, if so, whether it must forfeit its existing right-of-way, whether it may continue construction under a theory that the federal government approved construction off the right-of-way, or whether it must file an amendment requesting a change or extension of its right-of-way, and in doing so comply with federal environmental regulations, in order to continue construction off the right-of-way. Ancillary to these issues is the issue of whether Denver is required to comply with state and county land use control statutes and regulations as part of the process of obtaining a right-of-way permit from the Forest Service, if such is required, and whether and to what extent federal environmental laws mandate compliance with such statutes and regulations. The parties involved in the litigation are the City and County of Denver, acting by and through its Board of Water Commissioners, a municipal corporation of the State of Colorado authorized and created by Article XX of the Constitution of the State of Colorado; plaintiff-intervenor Mountain States Legal Foundation, a non-profit membership corporation of the State of Colorado; defendant Bergland, the Secretary of Agriculture of the United States acting in his official capacity; defendant McGuire, the Chief of the United States Forest Service acting in his official capacity; defendant Rupp, the Regional Forester, Rocky Mountain Region of the United States Forest Service acting in his official capacity; defendant Cecil D. Andrus, the Secretary of the Interior of the United States acting in his official capacity; defendant Dale An-drus, the State Director of the Bureau of Land Management of the Department of the Interior acting in his official capacity; defendant-intervenor Board of County Commissioners of the County of Grant, a governmental subdivision of the State of Colorado, created by Article XIV of the Constitution of the State of Colorado; defendant-intervenor Sierra Club, a non-profit corporation of the State of California; defendant-intervenor American Wilderness Alliance, a non-profit corporation of the State of Colorado. I. FINDINGS OF FACT History of the Legislation On March 3, 1891, the Congress of the United States approved the Creative Act of 1891, 26 Stat. 1103, 16 U.S.C. § 471, which provided, in pertinent part: Sec. 24. The President of the United States of America may, from time to time set apart and reserve, in any State or Territory having public lands bearing forests, in any part of the public lands ... as national forests, and the President shall by public proclamation declare the establishment of such forests and the limits thereof. On June 4, 1897, Congress approved the Organic Administration Act, 30 Stat. 35, 16 U.S.C. § 551, which provided, in pertinent part: The Secretary of Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said Act of March 3, 1891, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction. On February 1, 1905, the Congress of the United States approved “An Act providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture.” 33 Stat. 628. Section 4 of the Act, codified at 16 U.S.C. § 524, provided as follows: That rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the forest reserves of the United States, are hereby granted to citizens and corporations of the United States for municipal or mining purposes, and for the purpose of the milling and reduction of ores, during the period of their beneficial use under such rules and regulations as may be prescribed by the Secretary of the Interi- or, and subject to the laws of the state or territory in which said reserves are respectively situated. Section 1 of the Act of 1905 transferred the powers over national forest lands hitherto exercised by the Secretary of the Interior to the Secretary of Agriculture. See 16 U.S.C. § 472. Section 3 of the Act initiated the creation of a specific arm within the Department of Agriculture to be known as the “Forest Service.” 16 U.S.C. § 554. On March 1, 1905, the Secretary of the Interior promulgated certain regulations under Section 4 of the Act of 1905, which were first published at 33 Pub.Land Dec. 451-453 (1905) Volume 36, pp. 584-86, Decisions Relating to the Public Lands (1908), with only slight variation, and subsequently amended by the Department of Interior circulars. Denver’s Application for a Right-of-Way Under the 1905 Act The City and County of Denver, acting by and through its Board of Water Commissioners, initiated its survey for the Williams Fork Diversion Project on March 21, 1914, and completed the survey on September 1, 1921. The noted and distinguished engineer and surveyor, George M. Bull, conducted the survey during a period of seven and one-half years. At trial, testimony was heard and I find that the survey was “an excellent survey,” definitely relocatable which “[cjould be put back upon the ground with the accuracy of the original survey.” Such accuracy was tested by running all of the bearings and distances stated in Bull’s field notes through a computer and determining the amount of misclosure, which “is the only way that relative accuracy can be expressed.” After completion of the survey work, Denver submitted its initial filing for a right-of-way across national forest lands for its Williams Fork project on February 11, 1922, under the Acts of March 3, 1891, 26 Stat. 1101, 43 U.S.C. §§ 946-49; May 11, 1898, 30 Stat. 404; and February 1,1905, 33 Stat. 628, 16 U.S.C. § 524. On June 13, 1923, the General Land Office of the Department of the Interior denied the initial filing due to its submittal under all three of the above referenced Acts. Denver submitted an amended filing on December 12, 1923, under only Section 4 of the Act of 1905. The amended filing consisted of a map and plat showing the location of certain proposed tunnels and canals of Denver’s Williams Fork project and accompanying field notes. The field notes accompanying the final application stated that “[t]he center lines of canals and tunnels were staked; angles being turned by Buff and Berger transit reading to minutes at every station, distances being measured by stadia and grades set by level and rod. Solar observations taken daily.” George M. Bull, the engineer employed by Denver to conduct the survey for its Williams Fork project, stated on the amended filing that “said survey accurately represents a proper gradeline for the flow of water which is the proposed line of said canals and that said survey is accurately represented upon this map and by the accompanying field notes; .... ” Frank L. Woodward, the then president of the Denver Water Board, stated on the amended filing that: the survey of the said canals and tunnels as accurately represented on this map and by the accompanying field notes was made under the authority of [the] Board; ... [and] that said canals, tunnels, etc., as represented on this map and by said field notes were adopted by [the] Board by resolution on the 3rd day of May, A.D. 1921, as respective locations of the said canals and tunnels as described.... As written and submitted to the Secretary of the Interior, the amended application specifically called for a gravity flow system utilizing canals and tunnels. On May 5, 1924, the Secretary of the Interior approved the amended filing in accordance with Section 4 of the Act of 1905, subject to certain stipulations between the United States Forest Service and Denver. Denver thereby obtained a right-of-way across national forest lands, subject to beneficial use and the regulations of the Department of the Interior, such right-of-way being identified as Denver [or D]-027915. Construction on the Right-of-Way: 1924-78 On June 28, 1929, after five years of inactivity upon the right-of-way, the Department of Interior, through the Commissioner of the General Land Office directed the Register of the Denver, Colorado, District Land Office to notify Denver to file proof of construction of the Williams Fork project. The letter stated, inter alia : There has been no evidence of construction filed in this office and while the act under which the grant was approved makes no provision for construction within a specified period of time, in view of the fact that the act of March 3, 1891, granting rights-of-way for irrigation projects and the act of March 3, 1875, granting rights-of-way for railroad purposes both provide for construction within five years from date of approval, five years is deemed a reasonable period of time within which to construct and put to beneficial use any project approved under said act of February 1, 1905. The commissioner directed that Denver file proof “showing the project to be constructed .. . and [that it] is now being devoted to beneficial use or relinquish the [right-of-way] grant or show cause why this office should not recommend the cancellation of the grant by judicial proceeding.” On July 26, 1929, Denver filed its “Answer Showing Cause Why Cancellation of the Grant Herein Should Not be Recommended.” Denver’s answer was accepted by the Commissioner of the General Land Office and further action looking toward cancellation of the 1924 grant was suspended until January 1, 1931. Denver did not seek, and has not sought, any administrative or judicial review of the Department of Interior’s decision that five years was deemed a reasonable period of time within which to put to beneficial use any right-of-way approved under the Act of 1905. Beginning with the 1929 show cause report referenced above, the Department of the Interior made periodic requests that Denver show cause why cancellation of the 1924 right-of-way should not be recommended and Denver responded in each instance by filing a report. These documents were reviewed by the Department of the Interior and the Forest Service, with the Department of the Interior suspending further action regarding cancellation of the right-of-way for an additional period of time. This procedure continued until December 30,1976, when Denver filed its thirty-seventh document. These “progress reports” were not required under the Act but were accepted as responses to the Department of Interior’s “show cause” requests why the right-of-way should not be suspended. Actual construction of the Williams Fork project did not begin until 1937, culminating in 1942 with completion of a three-mile tunnel and partial completion of two conduits. This construction consisted of the Gumlick (Jones Pass) Tunnel and a collection system from the mouth of the tunnel to McQueary Creek and from the mouth of the tunnel to Steelman Creek. The construction utilized buried steel conduit on a grade and center line alignment designed for utilization of conduit and different from that originally set forth on the survey map upon which the 1924 right-of-way was granted. Denver has indicated that the change in alignment was necessary because the survey alignment was “unbuildable.” During the 1937-1942 construction period, the Public Works Administration, directed by George M. Bull at that time, participated in the construction of the Williams Fork project. The PWA was created under the Emergency Relief Appropriation Act of 1935 for the purpose of employing the unemployed and stimulating construction during the depression of the 1930’s. Neither Bull nor the PWA had the power or duty to authorize the transfer of Forest Service lands or construction off Denver’s original right-of-way. During this period the PWA allocated $1,230,750 for “aid in financing the construction of a sewage disposal system and appurtenances embracing a sewage treatment plant.” The exact percentage of this funding spent on the construction of the conduits and other diversion work is unclear. However, with PWA financial assistance, approximately 15-17 percent of the total project as now envisioned by Denver was constructed. In its seventh report dated June 26,1941, Denver advised the Department of the Interior that installation of the first segment of the Williams Fork project had been accomplished utilizing steel cylinder pipe conduit, contrary to the specifications under the original right-of-way plan. Denver also advised the Department as follows: In the course of actual construction there have been certain slight changes in alignment of canals and in some cases distinct departures from the original plan for the sake of ultimate economy and efficiency in maintenance and operation. Denver is now preparing the necessary maps and other information for an amended application under the above serial number so that the final grant may be made by the United States of America as to those portions of the project which have been completed. It is anticipated that it will be nearly a year before such amended application can be made ready. By decision dated July 24,1941, the General Land Office approved as satisfactory Denver’s seventh report and suspended further action on the cancellation of the right-of-way until December 31, 1942. Although subsequent actions by Denver indicate that it intended to file an amended application, such application was never filed with the Department of the Interior. Both a subsequent letter from Denver to the Office of the Register, District Land Office, Denver, Colorado, and its eighth report recognized deviations of the construction in location and mode of construction. The letter, dated February 5, 1942, from Glenn S. Saunders, an attorney for Denver, was in response to the Register’s letter of February 3, 1942, directing Denver to file certain reports. The Saunders letter stated in part: We ... wish to advise that the subject-matter of this letter has been given serious consideration by us for several weeks. While a great deal of completed construction has been done, a large portion of it requires a resurvey because actual construction did not occur exactly as originally proposed. (Emphasis added). The letter continued to assure the Office of the Register that a resurvey would be conducted and completed in the summer of 1942, or if such a resurvey could not be completed, a limited showing would be provided and a further extension requested. The eighth report, dated December 29, 1942, and filed December 31,1942, indicated to the Department of Interior that “[ajctual construction of the canal line consisted of the installation of cylindrical steel pipe.” This report was accepted as satisfactory by a decision dated November 30, 1943, by the Department of the Interior, through its General Land Office. Because of World War II, further action was suspended until February 1, 1944. In that decision letter, however, the commissioner noted that Denver had reported that the actual construction [had] necessarily deviated to some extent from the definite location as approved, for which a new survey and map is to be presented for approval. No action was taken on the reports so filed on December 31, 1942, and no subsequent report has been submitted by the grantee, showing the progress of construction.. .. I find that the above-quoted portions of the letter were in response to Denver’s reports of deviation from the original plan for the Williams Fork Project. The statements establish Denver’s acknowledgment of the need for an amended application. By Denver’s admission at trial, the Williams Fork project as constructed in 1942 and preceding years deviates as much as 1,800 linear feet and 65 vertical feet from the 1924 survey alignment. The Department of Interior or Forest Service had no knowledge of these deviations during the construction period. Denver, however, became aware of the deviations in location and mode of construction during the. construction period. After notification of the deviation, the Department of the Interior informed Denver thirty-seven years ago that an amended application was necessary. Nonetheless Denver has never asked for any authorization from the Secretary of the Interior or the Secretary of Agriculture to continue with its deviations as to location or mode of construction. Prom 1942 to 1978 there was no significant construction on the Williams Fork project. On June 30, 1955, the portion of the project constructed in the years 1937 — 42 was conveyed by deed by the City and County of Denver to the City and County of Denver acting by and through its Board of Water Commissioners. The Blue River Decree Pursuant to the “Blue River Decree,” entered in United States of America v. Northern Colorado Water Conservancy District, et al., Civ. Nos. 2782, 5016 and 5017 (D.Colo. 1955), the City and County of Denver has a priority date of 1921 in the waters of its “Williams Fork Diversion Unit.” This decree was approved by congress in Section 11 of the Colorado River Storage Project and Participating Projects Act, Pub.L. 485, 70 Stat. 105, 43 U.S.C. § 620 et seq. The Blue River Decree does not indicate any specific diversion points for the proposed and yet unbuilt portions of the Williams Fork project. The decree states that “[n]o part of this decree shall in any case be taken, deemed or held to confirm, impair, or in any manner affect any claim of right or property claimed or held by any person, ... to any land.... ” Blue River Decree, No. 657, pp. 1, 2 (1937). The decree further states that “[t]his decree shall [only]' be taken, deemed and held as determining and establishing the several priorities of right by appropriation to the use of water....” Id. at 4 (emphasis added). At page 724 of the same decree the court stated that the “locations of the several points of diversion of the canals” either were located according to the same United States Location Monument Wilson used by George Bull in his survey for the subject right-of-way, or significantly, “ha[d] no independent point of diversion of any stream.” Id. at 724. As a matter of fact rather than as a matter of law this decree did not quiet title to any land or right-of-way granted to Denver under the Act of 1905 and the 1924 grant. Developments After Passage of the National Environmental Policy Act of 1969 and the Federal Land Policy and Management Act of 1976 In 1969 congress enacted the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., which became effective January 1, 1970. NEPA, as the act is known, empowers the federal government to use all practicable means available to carry out the policies of protecting and preserving the environment. Beginning with its December 12,1973, recommendation that Denver’s Thirty-Fourth report dated December 29, 1972, be accepted, the Forest Service recommended such action “subject to compliance with the requirements of the National Environmental Policy Act... .” In his recommendation, the Regional Forester stated: Field investigations by our personnel disclose that the western portion of the proposed project remains uncompleted and little if any of the accomplishment reported by the City is directly attributable to this [1924] right-of-way. However, we understand that the City is in the process of reevaluating its entire diversion system plan for this area and has, at the request of the Forest [Service], initiated an environmental study to assess the alternatives. In the meantime, they have agreed, and we concur, that further road construction or right-of-way clearing activities on this particular project will be deferred pending results of an anticipated Environmental Impact Statement, which considers the Williams Fork Diversion system. Denver’s Thirty-Fourth report was accepted by the Department of the Interior on March 12, 1975. As early as 1973, in reviewing Denver’s reports, the Forest Service began to consider various alternatives to continued construction of the gravity-flow system on which construction had commenced in 1937. Denver began to conduct various design and environmental studies concerning the development of its water rights in the Williams Fork valley. Such studies and other planning activities were reflected in Denver’s reports, commencing with its Thirty-Fifth such report, dated December 29,1973. On August 24, 1976, Denver informed the Forest Service that additional alternatives to continuation of the past development of the Williams Fork project were under consideration. Discussions regarding these alternatives were held by the parties involved in this litigation from the fall of 1976 until this action was filed in 1979; the alternatives were first formerly proposed after the passage of the Federal Land Policy and Management Act of 1976. The FLPMA, 43 U.S.C. §§ 1701 et seq., was enacted by congress on October 21, 1976, providing in Subchapter V, 43 U.S.C. §§ 1761 et seq., for rights-of-way concerning the public lands and national forest lands, and transferring to the secretary of agriculture the authority to grant, issue or renew right-of-way concerning national forest lands. Section 706(a) of the act, 90 Stat. 2793, repealed the Act of February 1, 1905, 16 U.S.C. § 524, but § 701, 90 Stat. 2786, expressly stated that “Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.” In response to this act Denver submitted two special use permit applications to the Forest Service on October 27, 1976. The first application related to various pumping, storage and conveyance facilities located outside the existing 1924 right-of-way. The second application requested a modification of the gravity-flow system as described in the original 1924 grant. During this period the State Director for the Bureau of Land Management and the Regional Forester had met with Denver to discuss the alternatives which were the subjects of the two special use permits. Denver continued to reassess its Williams Fork project and in its Thirty-Eighth progress report dated December 30, 1976, it noted that after three years its “environmental assessment of the Williams Fork Diversion Project was completed.” It still had not decided, however, on the design and concept for the diversion project, completed plans for any particular alternative to the 1924 plan, or formally requested permission from the Forest Service to alter or amend the 1924 right-of-way. Meanwhile the Department of the Interi- or and the Forest Service initiated plans to either secure an amendment from Denver to continue construction off its right-of-way and relinquish the unconstructed portion of the right-of-way, or adopt an alternative to the 1924 plan. On May 9, 1977, defendant Dale Andrus, State Director of the Bureau of Land Management, issued to Denver a “Notice to Show Cause” requiring Denver to submit a satisfactory showing of why an order of suspension of the right to construct the remaining portions of the right-of-way D-027915 should not be issued. After discussing the special use permits which Denver had filed on October 27,1976, the document stated: At this time the Regional Forester believes that either of the two alternatives presented by the Special Use applications is superior, environmentally, to continued construction of right-of-way number D-027915. Consideration of the two Special Use applications has been delayed by the Forest Service pending completion of the Environmental Statement for the Williams Fork Land Management Plan. The Forest Service anticipates filing the draft environmental statement with the Council on Environmental Quality in October 1977, and the final environmental statement in July of 1978. Andrus further noted that under the Act of 1905 rights-of-way were granted only for a period of beneficial use and that [hjolding a right-of-way grant for a period of over 50 years, with only a minor portion of the authorized facilities being constructed in the first 18 years, and no construction occurring in the last 33 years, is clearly not putting the right-of-way to beneficial use in a reasonable time.... He indicated also that the granting of the special use permits would obviate the need for construction as planned under the 1924 grant. Andrus concluded that Denver had thirty days within which to submit a satisfactory showing to preclude the suspension of the right-of-way, that such a suspension would be terminated if a viable alternative were selected and that, in any event, a hearing would be allowed if an order of suspension were issued. In its response, dated May 27, 1977, Denver indicated its position that the Department of the Interior had no authority to suspend its 1924 right-of-way grant and its apparent rejection of the two proposed alternatives embodied in its special use applications. Denver responded that the department had “over a great number of years” given agency recognition to the fact that Denver had never intended to abandon any portion of the right-of-way but rather had “tenaciously held all of [its rights] as a part of the water works system and plan of the people of Denver....” Further, Denver stated that it had filed the special use permits at the urging of the Forest Service “for other routes across Federal lands in the Williams Fork Basin” so that the Forest Service could consider them for “water works purposes in the development of a management plan for the Williams Fork Basin.” Denver expressed surprise, however, that the special use permits were not being considered and that the Forest Service would interpret them as an implied intent to abandon the existing right-of-way. By letter of the same date, May 27, 1977, Denver communicated to the Forest Supervisor of the Routt National Forest its intention “to move forward with completion of [the Williams Fork system] in the remaining portion of those lands [covered by the 1924 right-of-way] as rapidly as possible.” This decision by Denver to discontinue consideration of water diversion project alternatives was apparently prompted by its realization that the adoption of a new alternative would require amendment to its existing right-of-way and compliance with federal statutory and regulatory environmental standards. I note also that at this time the Department of the Interior and the Forest Service were unaware of the location deviations which occurred during the construction between 1937-42. Nevertheless, the two agencies gave confused responses to Denver’s announced intention to continue construction on or, as the case may be, off its right-of-way. The Forest Supervisor, Routt National Forest, in a letter dated June 8,1977, refused permission for Denver to proceed with construction pending the resolution of a challenge to the validity of Denver’s 1924 right-of-way in administrative proceedings before the Department of the Interior, of questions under federal law concerning the validity and width of the right-of-way claimed by Denver, and any necessary satisfaction of the provisions of the National Environment Policy Act and related Forest Service Requirements. Defendant Dale Andrus, however, having discussed the dispute with Denver’s director, James L. Ogil-vie, issued a letter dated June 21, 1977, to Mr. Ogilvie stating: [B]ased on your letter of May 27, 1977, and our discussions, it appears that the Board at this time is complying with the statutory authority under which the right-of-way was granted (Section 4, Act of February 1, 1905 (33 Stat. 628; 16 U.S.C. 524)). Of course, we reserve the right to re-evaluate the Board’s compliance at reasonable intervals in the future. As agreed, re-evaluation will occur after the unit plan and environmental statement are completed by the Forest Service. Regardless of the apparent inconsistent positions of these two federal agencies, Denver was aware that construction was to be delayed pending the outcome of environmental studies. Grand County Involvement in NEPA Scheme At all times relevant to this action the lands upon which Denver intends to construct its Williams Fork Diversion Project have been lands lying wholly within the unincorporated territory of Grand County, except for the eastern segment of the Gum-lick (Jones Pass) tunnel. On December 14, 1973, an agreement entitled “Agreement for Land Use Planning Coordination” was entered into between the Forest Service and the County Commissioners of Grand County pursuant to the Multiple Use-Sustained Yield Act of June 12,1960,16 U.S.C. §§ 528-531, and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The agreement provides for cooperative planning efforts among Grand County, the United States Forest Service, and the Colorado Forest Service for activities on national and state forest and related lands within Grand County. It provides, inter alia, for cooperation in the preparation of “any environmental analyses or statements for any projects or activities as may be required pursuant to state laws and the National Environmental Policy Act (PL 91190).” The testimony at trial showed that the Forest Service takes cognizance of Grand County’s land use regulations and ordinances in the administration of the national forests located within Grand County. For example, in the issuance of special use permits, the Forest Service, as a matter of administrative practice, requires that a per-mittee abide by all laws, orders and regulations of state and local government. Grand County has adopted such regulations which will be discussed hereafter. Administrative Decisions and Appeals The Forest Service proceeded with the development of the Williams Fork Land Management Plan and the environmental statement concerning the plan during 1978. In July, 1978, Denver began work on the Williams Fork project, completing a steel bridge and pioneering approximately four additional miles of road near the southeast end of Steelman Creek. The Forest Service then attempted to halt this construction. After a meeting on August 17, 1978, between Forest Service officials and Denver, the Forest Service informed Denver by letter dated August 23, 1978, that the 1924 “[gjrant provides a right-of-way on specified locations on National Forest land for only canals and tunnels as authorized in the amended filing map.” and, since Denver was proposing closed conduit construction not included in the 1924 grant, that an application for a new or amended right-of-way was necessary. The letter directed Denver “not to begin any operations not specifically related to those facilities (canals and tunnels) authorized by the Grant.” Denver responded to the Forest Service in a letter dated October 6, 1978, stating that the Forest Service and the Department of Agriculture had no authority over its 1924 right-of-way, that the “canal versus conduit” distinction was artificial, and that Denver’s construction activity was within the scope of the 1924 grant. Denver also said that continued construction along the right-of-way involved no substantial federal action or supervision, and that an environmental assessment was not required. On October 6, 1978, the Regional Forester, Craig W. Rupp, requested Denver to submit complete plans for its continued construction of the Williams Fork project, both on and off the 1924 right-of-way, and a timetable for that construction, so that the Forest Service could adequately assess and evaluate any additional facilities that might be needed by Denver in order to install the project as described in the 1924 grant document. The Regional Forester also requested confirmation from Denver that all current work was specifically related to the authorized right-of-way. At this time the Regional Forester had knowledge of only the conduit deviation and not the alignment deviation which had occurred during the construction in 1937-42. By letter dated October 9, 1978, Denver informed the Forest Service that it had not yet developed complete plans for the Williams Fork project. On October 19,1978, the Regional Forester informed Denver that “to change from canals and tunnels to another structural form would require an amendment to the right-of-way” and that such amendment could not be accomplished under the Act of February 1, 1905, since that Act had been repealed by the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq. Denver was further advised that any change from the 1924 right-of-way could only be authorized after compliance with the National Environmental Policy Act and the FLPMA. The Regional Forester cautioned Denver that he was not requiring Denver to build canals and tunnels rather than conduits, but that he was requiring compliance with the FLPMA and NEPA regarding any change from the 1924 right-of-way as he was authorized to do under Subchapter V of the FLPMA, 43 U.S.C. § 1761 et seq. Denver appealed the Regional Foresters October 19, 1978, decision on November 9, 1978, to John R. McGuire, Chief of the Forest Service. On December 11, 1978, the Regional Forester filed his Responsive Statement, which again concluded that the grant issued in 1924 was specifically limited to “canals” and “tunnels,” and that construction of closed conduits would require amendment of the 1924 right-of-way and an environmental assessment. Denver replied to the Regional Forester’s Responsive Statement on December 27, 1978. On February 13, 1979, Denver’s appeal was denied by the Chief of the Forest Service for lack of timeliness. On March 5, 1979, Denver requested reconsideration. This request was denied on April 18, 1979. Therefore, the February 13, 1979, decision by John R. McGuire, Forest Service Chief, constitutes the final decision of the Department of Agriculture that the closed conduit construction is outside the scope of the 1924 right-of-way. On December 4, 1978, Denver provided the Forest Service with additional partial plans and maps for the Williams Fork project. Denver also indicated that it would continue its practice of simultaneous planning and construction. It was upon the receipt of such plans and maps that the Forest Service realized that Denver had already constructed off the 1924 alignment. On January 5, 1979, while Denver’s appeal on the question of closed conduit construction was pending, District Ranger Roger M. Corner informed Denver by letter that environmental damage was being caused by Denver’s continued forest clearing and preliminary road construction and that Denver’s map of October 12, 1978, showed that planned construction would take place a substantial distance off the 1924 right-of-way. Because of these concerns, the District Ranger directed Denver immediately to stop construction until measures could be taken to mitigate environmental damage and “until you can satisfactorily assure me that planned construction does not deviate from the approved right-of-way.” On January 12,1979, the Regional Forester, Craig W. Rupp, supplemented and confirmed the District Ranger’s January 5, 1979, letter and issued a formal Stop Order, ordering Denver to halt all new construction on the project until certain enumerated conditions were met. These conditions included, inter alia, the submission by Denver of complete plans for the Williams Fork project, resolution of whether those plans were “within the 1924 right-of-way grant you presently hold,” and completion of an environmental assessment. The order specifically required Denver to stop new construction until such has been “approved or authorized by any and all Federal, State or County agencies with jurisdiction....” (Emphasis added). On February 5, 1979, the Commissioners of Grand County formally entered the picture. By letter of that date addressed to William Miller of the Denver Water Department the Board of County Commissioners of Grand County advised the department that before it could commence construction on the Williams Fork Diversion Project, it would be required to comply with the land use regulations of Grand County, to-wit: (1) Grand County Comprehensive Plan, Grand County Resolution No. 1979-1-3, authorized by Article 23, Title 30, Colo. Rev.Stat. 1973 (as amended); (2) Grand County Zoning Regulations, Grand County Resolution No. 1978-6-4, authorized by Article 28, Title 30, Colo. Rev.Stat. 1973 (as amended); (3) Grand County Subdivision Regulations, Grand County Resolution No. 78-4-5 and 77-12-20, authorized by Article 28, Title 30, Colo.Rev.Stat. 1973 (as amended); (4) Grand County Building. Code, Grand County Resolution No. 178-7-6, authorized by Article 28. Title 30, Colo, Rev.Stat. 1973 (as amended); (5) Grand County Administrative Regulations, pursuant to Resolution No. 78-5-4, authorized by Article 65.1, Title 24, Colo.Rev.Stat. 1973 (as amended) (H.B. 1041). By letter dated March 5, 1979, addressed to Mr. S. R. Broome, Grand County Manager, the Denver Water Department replied to the letter of February 5, and denied any obligation on the part of the Denver Water Department, to comply with Grand County Land Use Regulations, stating, inter alia: In light of the foregoing views and authorities, we are compelled to vehemently protest and object to any attempt by Grand County to impose the requirements of the regulations referenced in your letter to our Williams Fork construction activities except as to the building codes, as stated above. No further action which might be pertinent to this litigation other than the independent Forest Service proceedings occurred regarding the application of the Grand County regulations to the Williams Fork Diversion Project. On February 14, 1979, Denver appealed the January 12, 1979, order to the Forest Service Chief in Washington, D.C. The Regional Forester filed his responsive statement on March 14, 1979, and on April 2, 1979, Denver replied. On May 8,1979, the Forest Service Chief issued a decision affirming the January 12,1979, order. In this decision, the chief stated, inter alia: Although the appellants argue that ‘There is no deviation from the collection system concept ... ’ there is a deviation from the location of the approved right-of-way. The deviation then, does require consent of the agency (through the regional Forester). With the passage of the Federal Land Policy and Management Act of 1976 (90 Stat. 2743) the Secretary of the Interior can no longer approve deviations from the right-of-way grant. That authority is now delegated to the Secretary of Agriculture when the right-of-way is on National Forest land. :}: $ s}s sf: $ It is our decision that the appellants cannot resume work on the Williams Fork Collection System until the following conditions have been met. 1. Submission of plans for construction between Steelman Creek and Station 482 to the Regional Forester for approval: 2. Completion of an environmental assessment of the proposed construction that identifies and defines measures to mitigate environmental impact; and 3. Issuance by the Regional Forester of authorization to proceed with the proposed construction. The decision of the Forest Service Chief constituted the final agency decision of the Department of Agriculture, subject to discretionary review by the secretary of that department. On May 23, 1979, the secretary indicated that he would not exercise such review. Although final agency action regarding the use of closed conduits and construction off the 1924 right-of-way would appear to have settled the dispute, the parties continued to avoid a resolution of their disagreements. While the appeal to the Forest Service Chief was pending, Denver informed the Forest Service by letter dated April 20, 1979, of certain activities that it intended to commence on or around May 1,1979. These included opening of the existing pioneer road, environmental monitoring, revegetation and a limited amount of minor construction activity. This letter was supplemented by a letter dated May 21, 1979, in which Denver indicated that it would also undertake certain geological and survey activities in preparation for further construction. Then, on May 23, 1979, Denver filed the present civil action seeking administrative review and quiet title decree to its right-of-way. In response to Denver’s May 21, 1979, letter, Forest Supervisor Jack Weissling, countered that it was apparent from discussions between Denver and the Forest Service that Denver’s proposed activities would not be restricted to the 1924 right-of-way, and that a special use permit would be required for any activities beyond the right-of-way that involved surface or vegetative disturbance. Weissling warned that the Forest Service would not allow any activity “which might alter the wilderness character of the RARE II further planning area which is contiguous to your right-of-way grant.” The Forest Supervisor requested that Denver “consider survey and drilling techniques which would minimize impacts on the further planning area,” and provided Denver with the necessary special use permit application. Denver countered the Forest Supervisor’s letter by informing the Forest Service by letter dated June 20, 1979, that the work proposed by Denver would be “carried out on the Board’s right-of-way, as constructed and as planned;” that “[t]hese activities will not involve structures, or soil and vegetation disturbances of any more than miniscule proportions;” and that, “[f]or these reasons, we must decline to file an application for any special permit and will proceed with the work outlined as soon as weather permits.” Denver also indicated its intention “to proceed as soon as possible with the work of establishing the final grade of the Pioneer Road which has already been constructed.” Meanwhile, on June 12, 1979, the Forest Service Chief issued a revised decision of his May 8,1979, decision affirming the Regional Forester’s January 12,1979, Stop Order. The revised decision stated that Denver is required to provide to the Forest Service complete plans for the entire Williams Fork project; that, since the administrative record shows a deviation from the 1924 right-of-way, Denver “should submit to the Regional Forester for approval an application covering the complete plan for the proposed Williams Fork project.” and that “[n]o activity is authorized on the proposed project unless such application is approved in accordance with Title V of the Federal Land Policy and Management Act;” that preparation of an environmental assessment will be required; that Denver must obtain any additional required federal or state authorizations; and that an assessment of the project’s impact on the contiguous RARE II “further planning area” is also required. The Department of Justice then entered the scene on June 28, 1979, by informing Denver “[t]o the extent your contemplated activities will occur or have effect beyond the limitation of the 1924 right-of-way, and pursuant to Forest Service regulations. 26 CFR 251.1 et seq., the issuance by the Forest Service of a special use permit is absolutely required in this instance.” Denver was further informed that “[w]ithout such permit process the Forest Service simply cannot make an intelligent determination of the adverse consequences upon National Forest lands as a result of Denver’s proposed activities,” and that “any activity by Denver beyond the limitations of the 1924 right-of-way will be considered a trespass upon federal lands ...” Nevertheless, on July 9, 1979, at the site of project construction, Denver, without obtaining the additional authorization requested by the Forest Service and the Department of Justice, operated two bulldozers on the Pioneer Road of the Williams Fork project. As reflected in a memorandum dated July 16,1979, and a letter dated July 17, 1979, from Forest Supervisor Weissling to Denver, both Weissling and District Ranger Corner were at the site of Denver’s July 9, 1979, construction activity. They concluded at that time that the activity was in violation of the January 12, 1979, Stop Order and the June 12, 1979, revised decision of Forest Service Chief John R. McGuire. They also concluded that the construction was located beyond the 1924 right-of-way and constituted a trespass on federal lands and a violation of Forest Service regulations at 36 C.F.R. § 251 and 261. The Forest Supervisor and District Ranger therefore ordered that all work cease, and Denver halted its construction. On July 10, 1979, Denver filed a motion for a temporary restraining order and preliminary injunction to prevent federal defendants from further interfering with Denver’s construction activity. After a hearing on August 3, 1979, the motion was denied. At this hearing I also considered ab initio Grand County’s motion to intervene formerly granted on June 15, 1979. I held that Grand County may intervene as a party defendant as a matter of right pursuant to Fed.R.Civ.P. 24(a), denied Grand County’s motion for summary judgment, and granted the Mountain States Legal Services’ motion for permissive intervention, dated August 1, 1979. Defendant Sierra Club was granted permission to intervene on June 15, 1980. On August 6, 1979, I granted the American Wilderness Alliance’s Motion to intervene as a party defendant. In February and March, 1980 defendant federal government and defendant-intervenors Sierra Club and the AWA filed motions for summary judgment which were denied after hearing on April 24,1980. Tri-' al was then held in this case for six days, beginning on May 12, 1980. Extensive testimony was held and voluminous documents and records were filed with the court. All parties submitted post-trial briefs which numbered in hundreds of pages of proposed conclusions of law and fact and legal memo-randa. II. CONCLUSIONS OF LAW Jurisdiction Denver maintains this action as one seeking review of final administrative action by the United States Forest Service regarding Denver’s location of and mode of construction on its 1924 right-of-way over national forest lands under 28 U.S.C. § 1331(a) and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. At the outset I note that Denver has also characterized this action as one to quiet title to its “property rights” pursuant to 28 U.S.C. § 2409a and as one seeking redress for an unconstitutional taking of its property in violation of the Fifth Amendment. I will first address these latter two bases for jurisdiction. Quiet Title Action 28 U.S.C. § 1346(f) provides for exclusive jurisdiction in the district court over actions brought under section 2409a. However, I find that I have no jurisdiction under this statute as Denver has failed to state a claim upon which relief may be granted. It is settled that the United States is immune from suit absent its consent, United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 769-80, 85 L.Ed. 1058 (1941), Stubbs v. United States, 620 F.2d 775, 779 (10th Cir. 1980), S. J. Groves & Sons Co. v. United States, 495 F.Supp. 201, 205 (D.Colo.1980). Congress may impose conditions on its waiver of sovereign immunity which must be strictly observed. Sori-ano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957), Stubbs v. United States, 620 F.2d at 779. Congress waived sovereign immunity in suits against the federal government to quiet title but expressly conditioned that waiver. In order for Denver to state a claim “[t]he complaint ... [must] ... set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property. . .. ” 28 U.S.C. § 2409a(c). Although a right-of-way, easement, implied easement of necessity or other “estate less than a fee simple” may properly be the subject of a quiet title action against the United States, Kinscherff v. United States, 586 F.2d 159, 160-61 (10th Cir. 1978), See H.Rep.No. 1559, 92d Cong., 2d Sess., reprinted in, [1972] U.S.Code Cong. & Admin.News, pp. 4547, 4552, the complaint must state with more particularity than Denver’s claim to “whatever land is necessary in the Williams Fork Basin ... along an alignment comparable to and in general conformity” with the survey indicated on the 1924 application may. Particularity is required, Buchler v. United States, 384 F.Supp. 709, 712 (E.D.Calif. 1974), otherwise district courts would be empowered to quiet title to undefined lands. Denver has admitted that it does not seek to quiet title to its original right-of-way under the 1924 grant but that it seeks title to some ill-defined public lands based upon adverse possession, a notion specifically rejected by Congress in 28 U.S.C. § 2409a(g) which states “[n]othing in this section shall be construed to permit suits against the United States of America based upon adverse possession.” The forest lands off the right-of-way have not been deeded to the Denver Water Board, nor has Denver been given a right-of-way to use the lands off the 1924 right-of-way. Thus this statute is an inappropriate basis for jurisdiction. In addition, the statute of limitations imposed by § 2409a(f) bars an action by Denver. The twelve year limitation period begins to run on the date Denver knew or should have known of the “claim” of the United States. Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980); Stubbs v. United States, 620 F.2d at 779-80; Amoco Production Co. v. United States, 619 F.2d 1383, 1837-88 (10th Cir. 1980). See also Hart v. United States, 585 F.2d 1280, 1283-85 (5th Cir. 1978) cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); Grosz v. Andrus, 556 F.2d 972, 974-75 (9th Cir. 1977); Hatter v. United States, 402 F.Supp. 1192, 1193-94 (E.D.Cal.1975). Denver knew or should have known that the federal government retained a claim of interest for the public in the forest lands off Denver’s right-of-way during and after the construction ending in 1942. If a dispute to the “title” of that property or any other forest lands off the right-of-way existed, it should have been resolved within twelve years from that date. To allow an assertion of title now under section 2409a is inconsistent with congress’ intent to prevent the bringing of stale claims against the government. Unconstitutional “Taking” Claim Regarding Denver’s claim that the federal government has taken its “property” rights in violation of the Fifth Amendment, the “Blue River Decree” (United States v. Northern Colorado Water Conservancy District, Civ. Nos. 2782, 5016, 5017 (D.Colo.1955), and the Act of Congress implementing that decree (43 U.S.C. § 620j, April 11, 1956, 70 Stat. 110), I find that I lack subject matter jurisdiction. Although I disagree with the description of this suit as a “taking” of property, such a claim if pursued is properly within the jurisdiction of the Court of Claims. 28 U.S.C. §§ 1346(a)(2), 1491. A claim “founded upon the Constitution” against the United States is within the jurisdiction of the federal courts under the Tucker Act. United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946); Whiskers v. United States, 600 F.2d 1332, 1335 (10th Cir. 1979) cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); United States v. Wald, 330 F.2d 871, 872 (10th Cir. 1964). Subject matter jurisdiction for an action alleging a governmental taking of property without due process of law in violation of the Fifth Amendment, where the amount in controversy exceeds $10,000, rests exclusively with the Court of Claims. United States v. Causby, 328 U.S. at 267, 66 S.Ct. at 1068. See also United States v. Wald, 330 F.2d at 872; Smith v. United States, 458 F.2d 1231 (9th Cir. 1972). The “property” involved here on which Denver seeks to develop its valuable water rights is clearly of value exceeding $10,000.00. The claim advanced by Denver is more like one seeking possession of the'right to use property than one for just compensation for its taking. See Bourgeois v. United States, 545 F.2d 727, 729 n.1 (Ct.Cl.1976); United States v. Northern Colorado Water Conservancy Dist., 449 F.2d 1 (10th Cir. 1971). If, however, Denver seeks to recover against the United States, it may pursue this claim only in the Court of Claims. See United States v. Gregory, 300 F.2d 11, 13 (10th Cir. 1962). Further, Denver may not present its claim as one for a declaration of its title to property off the original right-of-way and for injunctive relief to secure that title in order to escape the appropriate forum. See Hoopa Valley Tribe v. United States, 596 F.2d 435, 436 (Ct.Cl.1979); S.J. Groves & Sons Co. v. United States, 495 F.Supp. 201 (D.Colo.). I note that this court is empowered to grant only that relief to redress Tucker Act claims, i. e., money damages, as may be granted by the Court of Claims. See United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941); Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 630, 34 L.Ed.2d 647 (1973). Thus, I conclude I am without subject matter jurisdiction to hear Denver’s allegation of unconstitutional “taking” of its “property”. Administrative Review I find that jurisdiction exists under 28 U.S.C. § 1331(a) and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. There is a dispute among the circuits as to whether these two statutes taken together provide a jurisdictional basis to review agency action. I conclude that jurisdiction is proper in this action to review the final agency decisions made by the Forest Service. In Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court held that although “the APA does not afford an implied grant of subject matter jurisdiction permitting federal judicial review of agency action,” 430 at 107, 97 S.Ct. at 985, such was not necessary because section 1331 provided jurisdiction “subject only to preclusion-of-review statutes created or retained by Congress .... ” Id. at 105, 97 S.Ct. at 984. There is no statute that explicitly precludes judicial review of this matter. Thus jurisdiction lies. Cf. Lee v. Blumenthal, 588 F.2d 1281 (9th Cir. 1979) (district court limited in jurisdiction to review APA claim where existing limitation exists such as the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491); S.J. Groves & Sons Co. v. United States, 495 F.Supp. at 205 (D.C.Colo.1980). See also Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978). As will be discussed more fully, infra, the Secretary of Agriculture and the Forest Service have acted in this matter regarding national forest lands pursuant to their authority under the Federal Land Policy and Management Act of 1976, Pub.L. 94-579 (1976), 90 Stat. 2744, 43 U.S.C. §§ 1701 et seq., “to grant or renew rights-of-way over, upon or through lands within the National Forest System.” 43 U.S.C. § 1761 (emphasis added). The FLPMA specifically provides for judicial review of “public land adjudication decisions.” - 43 U.S.C. § 1701(a)(6). Although congress did not expressly waive sovereign immunity under section 1331, I find first that the federal question statute and the APA taken together provide a basis for jurisdiction to review this agency action and second that congress intended for sovereign immunity to be waived in situations such as this where aggrieved parties seek review of federal agency action. See Jaffee v. United States, 592 F.2d 712, cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir. 1980). It would be anomalous for judicial review of federal agency action to be unavailable in every situation because the APA provides no independent basis for jurisdiction and section 1331 provides no waiver of sovereign immunity. The result would be that no judicial review would ever be available. Were congress to intend such result its intention should be manifest. Jurisdiction Over State Claims At the hearing on August 3, 1979,1 ruled that Grand County could intervene in this litigation as a matter of right. Rule 24(a) of the Federal Rules provides intervention of right if (1) [the party] claims as an interest relating to the property or transaction that is the subject of the action, and (2) [the party] is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest.... ” Fed.R.Civ.P. 24(a). I also ruled that I had pendent jurisdiction over the commissioners’ state claims. Where the state and federal claims derive from “a common nucleus of operative fact,” the court must consider matters of “judicial economy, convenience and fairness to litigants” in determining whether to exercise pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Accord Sanchez v. Marquez, 457 F.Supp. 359, 364 (D.Colo.1978). I find such to be the case here. Grand County’s regulations are imminently at issue here as part of the federal environmental regulatory scheme. Its interests are affected by this litigation and its intervention does not impede the efficiency of adjudication of the issues. Authority of the Department of Agriculture and the Forest Service The authority of the Secretary of Agriculture and the Forest Service to supervise and protect the national forest lands is beyond challenge. The Property Clause of the Constitution provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S.Const. Art. IV, § 3, cl. 2. See Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 20 L.Ed. 534 (1872). See also Kleppe v. New Mexico, 426 U.S. 529, 535, 96 S.Ct. 2285, 2289, 49 L.Ed.2d 34 (1976); Alabama v. Texas, 347 U.S. 272, 274, 74 S.Ct. 481, 482, 98 L.Ed. 689 (1954); Sabin v. Bergland, 585 F.2d 955, 957-58 (10th Cir. 1978). This power granted to congress has been given an expansive interpretation by the courts. In Kleppe the Supreme Court indicated that the power over public lands is without limitation. 426 U.S. at 539-40, 96 S.Ct. at 2291-92. Accord Jette v. Bergland, 579 F.2d 59, 65 (10th Cir. 1978). A necessary ancillary to this power is the authority to “protect [public lands] from trespass and injury and to prescribe the conditions upon which others may obtain rights.... ” Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 389, 61 L.Ed. 791 (1917). Congress may delegate these powers to control and protect the public lands to the executive. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911). See also Best v. Humbolt Placer Mining Co., 371 U.S. 334, 336-338, 83 S.Ct. 379, 382-383, 9 L.Ed.2d 350 (1963); Sabin v. Bergland, 585 F.2d at 958. This power has been further delegated to the Department of Agriculture and its subagency, the Forest Service, pursuant to 16 U.S.C. § 551 which states that: [t]he Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests ...; and he may make such rules and regulations and establish such service as will