938 F.

2d 1134
20 Fed.R.Serv.3d 609

ALDRICH ENTERPRISES, INC., etc., et al., PlaintiffsAppellants,

v.
UNITED STATES of America, Defendant-Appellee.
Nos. 88-2575, 89-1038.

United States Court of Appeals,

Tenth Circuit.
July 12, 1991.
Rehearing Denied Oct. 4, 1991.

Jerry E. Cardwell, Denver, Colo. (George T. Ashen, Denver, Colo., Henry

Pedersen, Jr., Estes Park, Colo., Joseph C. French and David M. Haynes
of French & Stone, P.C., Jonathan M. Jellema of Bragg & Dubofsky, P.C.,
Boulder, Colo., Richard A. Winkel, Denver, Colo., Dale S. Carpenter of
Dale S. Carpenter, II, Lakewood, Colo., Joseph P. Genchi of Joseph P.
Genchi, P.C., Estes Park, Colo., and Robert B. Miller of Miller, Hale &
Harrison, Boulder, Colo., with him on the brief), for plaintiffs-appellants.
Phyllis Jackson Pyles, Asst. Director, Torts Branch, Civil Div., U.S. Dept.
of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., Michael J.
Norton, U.S. Atty., and Jeffrey Axelrad, Director, Torts Branch, Civil
Div., U.S. Dept. of Justice, Washington, D.C., with her on the brief), for
defendant-appellee.
Before HOLLOWAY, Chief Judge, and SEYMOUR and ANDERSON,
Circuit Judges.
HOLLOWAY, Chief Judge.

Certain residents and property owners of the Town of Estes Park, Colorado (the
Landowners) commenced this action against the United States under the
Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b) and 2671, et seq.,
seeking to recover for property damage allegedly resulting from the collapse of

Lawn Lake Dam. Two consolidated appeals are presently before us. In No. 882575, the Landowners appeal from the district court's entry of summary
judgment against them on their first claim for relief, which alleged negligence
by the government in relation to the inspection, maintenance, and repair of
Lawn Lake Dam. In No. 89-1038, the Landowners appeal from the district
court's denial of their 60(b)(2) Fed.R.Civ.P. motion respecting their first claim
on the ground of newly discovered evidence. We affirm.
2* A
3

In July 1982, the Lawn Lake Dam collapsed, releasing great quantities of water,
and flooding downstream property in the Town of Estes Park, Colorado.1 The
Lawn Lake Dam and Reservoir were constructed on federal lands in the Rocky
Mountain National Park by the Farmers Irrigating Ditch & Reservoir Company
(Farmers) under a right-of-way granted by the United States Department of the
Interior in 1903. The grant was authorized by the Act of March 3, 1891, 42
U.S.C. Secs. 946-49, and was made by an Occupancy Use Permit issued to
Farmers.

Following the collapse of Lawn Lake Dam, the Landowners commenced

separate actions in federal district court in Colorado against the United States
under the FTCA to recover for property damage caused by the flooding. The
district court consolidated these actions, and the Landowners filed an amended
consolidated complaint in February 1985, which alleged five claims for relief.
In the first four claims, the Landowners asserted four distinct theories of tort
liability grounded essentially on negligence,2 and in the last claim they alleged
that the government was liable for trespass. The Landowners sought monetary
relief in excess of $25,000,000.

At issue here is the first claim. In that claim, the Landowners alleged that, as
the owner of Rocky Mountain National Park, the government owed them a duty
to require or perform inspections, maintenance, and repairs of Lawn Lake Dam,
and to warn them of any hazards associated with the dam; that the government
in fact knew that the dam was leaking and in need of repairs and, further, that
the dam was in a dangerous condition due to the storage of unauthorized
quantities of water; and, as a proximate result of the government's breach of its
duty to the Landowners, the dam weakened to the point of collapse.

B
6

The government moved for summary judgment on the first three claims of the
amended consolidated complaint. In an unpublished memorandum opinion the

district court granted this relief as to the first two claims, and denied it as to the
third.
7

As to the first claim, the district court observed that the issue presented was
"whether the plaintiffs made a sufficient showing of the defendant's control of
the Lawn Lake Dam to make the government liable as an owner under the
[Colorado] statute." Dist.Ct.Op. at 2. The principal statute at issue was
Colo.Rev.Stat. Sec. 37-87-104(1) (1973), which made reservoir "owners" liable
for all damages caused by flooding due to the collapse of their dams.3 The court
read Colorado authorities as making control (including operation and
maintenance) of a reservoir and dam the key element in the statutory
"ownership" inquiry. It concluded that the Landowners "h[ad] failed to show
that the United States government had sufficient control of the dam to make it
liable for negligence as an owner under Colorado's statute." Dist.Ct.Op. at 4.

The Landowners moved for reconsideration of the court's summary judgment

ruling as to their first claim. They argued that such reconsideration was
appropriate in light of Weiss v. United States, 787 F.2d 518 (10th Cir.1986),
which was decided after the court entered summary judgment. In Weiss, we
upheld a FTCA claim against the government under Colorado law arising from
a helicopter accident on federal lands. Referencing analogous Colorado
decisions in the landlord-tenant context, we concluded that the government (as
landowner) owed a duty of care with regard to artificial conditions placed on its
premises by third parties (i.e., an aerial tramway cable), even though it neither
owned nor controlled the instrumentality. 787 F.2d at 520, 525-26.

The district court, however, denied relief. It said that Weiss did not "affect the
issues under the first claim for relief and [wa]s not an applicable change of
law." I R., Doc. 8, at 1. The Landowners and the government subsequently
agreed to the dismissal of the remaining claims, bringing the action to a close.
The Landowners commenced a timely appeal from the court's summary
judgment ruling on their first claim (No. 88-2575).

10

In preparing their appellate brief as to the first claim, the Landowners

discovered a letter written to Farmers by the United States Park Service on
August 14, 1975 that imposed certain restrictions on Farmers' activities in the
maintenance and repair of Lawn Lake Dam. They believed that the letter could
convince the court that there was adequate evidence of the government's
exercise of control over Lawn Lake Dam to support a negligence action against
it as a statutory "owner." Accordingly, they moved the district court for
reconsideration on the ground of newly discovered evidence. See generally
Fed.R.Civ.P. 60(b)(2).

11

The motion was denied. The court noted that it "ha[d] no jurisdiction in the
matter" because of the pending appeal from its summary judgment ruling (No.
88-2575) and, further, that the letter was "not persuasive." I Supp.R., Doc. 3, at
1. The Landowners filed a timely appeal from the denial of the motion for
reconsideration (No. 89-1038), and this appeal was consolidated with the
appeal in No. 88-2575 by order of this court.

II
No. 88-2575
12

Generally, the FTCA constitutes a waiver of sovereign immunity for certain

suits against the government arising from the negligence or wrongful conduct
of its employees. See Dalehite v. United States, 346 U.S. 15, 17, 73 S.Ct. 956,
959, 97 L.Ed. 1427 (1953). For liability purposes, the statute mandates that the
government be treated as a private person, and specifies that the governing
substantive law is the law of the place where the negligent or wrongful conduct
occurred. 28 U.S.C. Sec. 1346(b); see, e.g., LeMaire By and Through LeMaire
v. United States, 826 F.2d 949, 953-54 (10th Cir.1987) (applying Colorado
law). Accordingly, Colorado law governs our liability inquiry here relating to
the collapse of Lawn Lake Dam.

13

Guided by the Supreme Court's decision in Salve Regina College v. Russell, --U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), we give no deference here to
the district court's reading of Colorado law. We hold that the rationale of Salve
Regina, although adopted in a diversity case, applies in the context of this
FTCA suit governed by state law.4 This rationale should be given retroactive
effect. See Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79
L.Ed.2d 579 (1984).

14

We review summary judgment rulings de novo, applying the same legal

standard under Fed.R.Civ.P. 56 as the district court. See Gonzales v. Millers
Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir.1991). Specifically, we must
determine whether there are any genuine issues of material fact and, if not,
whether the substantive law was correctly applied. The evidence is viewed in
the light most favorable to the nonmovant. See Baker v. Penn Mut. Life Ins.
Co., 788 F.2d 650, 653 (10th Cir.1986). Entry of summary judgment is
mandated, after an adequate time for discovery and upon motion, against a
party who "fails to make a showing to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986); see Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256-57, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986).

15

* According to the government, Colorado statutes addressing the liability of

reservoir owners are controlling, in particular, Colo.Rev.Stat. Sec. 37-87-104(1)
(1973). This statute provides that "the owner of a reservoir shall be liable for all
damages arising from leakage or overflow of the waters therefrom or floods
caused by the breaking of the embankments of such reservoir." It codifies the
principle of strict or absolute liability as to property damage or personal injuries
caused by the collapse of reservoirs--a principle which is rooted in Colorado
common law. See Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285,
110 P. 79, 80 (1910); Sylvester v. Jerome, 19 Colo. 128, 34 P. 760, 762 (1893).
See also Cass Company-Contractors v. Colton, 130 Colo. 593, 279 P.2d 415,
418 (1955) (en banc) (noting that "Colorado cases have followed the doctrine
of absolute liability for certain dangerous enterprises, such as the impounding
of waters").5

16

The government contends that it is not liable under Sec. 37-87-104(1) as an

"owner" of Lawn Lake Dam. The true "owner," it says, is Farmers, who
possessed a right-a-way interest in the land and constructed and maintained
Lawn Lake Dam. We must agree. In Larimer County Ditch Co. v. Zimmerman,
4 Colo.App. 78, 34 P. 1111 (1893), the Colorado Court of Appeals indicated
that a statutory finding of "ownership" need not be predicated on an interest in
the reservoir land rising to the level of a fee simple absolute. Specifically, the
court held that a lessee of land upon which a reservoir was constructed could be
deemed liable as a reservoir "owner," where it was under a duty to construct
and maintain the reservoir and was in "absolute control and possession" of the
land. 34 P. at 1112-13.

17

There is no allegation here that the government (as opposed to Farmers) ever
built or maintained Lawn Lake Dam. Further, pursuant to the statutory grant of
a right-of-way to Farmers, the government had no right to possess the reservoir
as long as it was used for irrigation purposes, and it is undisputed that it was
continuously used for such purposes. See Kern River Co. v. United States, 257
U.S. 147, 154-55, 42 S.Ct. 60, 62-63, 66 L.Ed. 175 (1921).6 Accordingly, like
the district court, see Dist.Ct.Op. at 3-4, we believe that the Landowners have
not demonstrated that the government exercised sufficient control over Lawn
Lake Dam to raise a triable issue of a fact as to its liability under Sec. 37-87104(1) as an "owner."7

18

The Landowners contend that the district court did not give proper
consideration to the limited nature of the right-of-way granted to Farmers under
the 1891 Act, and the correspondingly significant interests retained by the

government in Lawn Lake Reservoir and dam, in concluding that the

government was not an owner under Sec. 37-87-104(1). They note that under
the 1891 Act, Farmers was only given the right to "construct, maintain, and
repair the Lawn Lake Dam and Reservoir for the storage of waters authorized
for irrigation purposes." Appellant's Brief, at 6. The government, on the other
hand, retained the right to invite the public onto the premises of Lawn Lake
Reservoir and dam to engage in various recreational activities like boating and
fishing, and it exercised this right, in part, by publishing and distributing
brochures and other advertisements. See I R., Doc. 2, Exs. F-H & P. Moreover,
the Landowners point out that the government retained the right to limit access
to the Reservoir and dam by all persons, including Farmers, to preserve
environmental values or to protect the interest of other users of the Rocky
Mountain National Park. See Appellant's Brief at 7. According to the
Landowners, the government's rights and conduct with respect to Lawn Lake
Reservoir and dam constitute "indicia of ownership," which were not properly
considered by the district court in its ruling under Sec. 37-87-104(1). Id. at 7.
19

We disagree. In the Larimer County Ditch Co. opinion the court observed that
the evident intention of the General Assembly in enacting Sec. 37-87-104(1)
was to compel construction of reservoirs and dams upon scientific principles,
and to reduce the danger from such structures to a minimum. 34 P. at 1112. The
statutory term "owner" should be read in this context. It is undisputed that
Farmers, not the government, was charged with the construction and
maintenance of Lawn Lake Reservoir and dam. These activities go to the heart
of the General Assembly's concerns, and thus Farmers (even absent a fee
simple absolute interest in the reservoir land) is properly viewed as an "owner"
in determining liability under the state law. We do not believe that the same can
be said for the rights and conduct of the government with respect to Lawn Lake
Reservoir and dam.

B
20

The Landowners also argue that common law negligence principles provide a
basis for relief. They acknowledge that there are no Colorado decisions directly
on point. However, citing Weiss, they rely on decisions in the landlord-tenant
context.

21

We agree that Sec. 37-87-104(1) is not the exclusive ground for relief with
respect to damages arising from reservoir failures, and that the Landowners
may properly look to common law negligence principles for redress. See, e.g.,
Kane v. Town of Estes Park, 786 P.2d 412, 414-17 (Colo.1990) (ruling on strict
or absolute liability claim under Sec. 37-87-104(1), and negligence claim under

common law). Cf. Parada v. United States, 420 F.2d 493, 494-95 (5th Cir.1970)
(upholding negligence claim under Texas law in the context of a canal failure).
22

We believe that the landlord-tenant analogy is a good one. Like a lessor, the
government conferred on Farmers (the "lessee") an interest in the land
underlying the reservoir through a grant of a right-of-way, and retained a
reversionary interest.8 Moreover, in the landlord-tenant context, Colorado tort
law provides a framework for analyzing liability that is particularly relevant to
these facts where the government ("lessor") did not construct or own the
reservoir, was not ordinarily charged with its maintenance, and the alleged
harm was inflicted on persons off the land.

23

Colorado decisions have noted that "[u]nder certain circumstances, a lessor

may be held liable for physical harm which resulted from a dangerous
condition on his land even though he retains no control over it." Salazar v.
Webb, 44 Colo.App. 429, 618 P.2d 706, 707 (1980); see Gonzales By and
Through Gonzales v. Bierman, 773 P.2d 629, 630 (Colo.Ct.App.1989). Accord
Weiss, 787 F.2d at 526 (noting that in Colorado "the ownership or control of
artificial conditions on land" is not determinative of the existence of a legal
duty on the part of a lessor). Moreover, in Moore v. Standard Paint & Glass
Co., 145 Colo. 151, 358 P.2d 33, 36 (1960) (en banc), the Colorado Supreme
Court held that a lessor was "under an affirmative duty not to permit its land to
remain in an altered state if such altered state created a condition the natural and
foreseeable result of which would result in injury to the adjoining property, and
the breach of this duty constitutes actionable negligence."

24

In general terms, Colorado decisions have endorsed the test of Sec. 379A of the
Restatement (Second) of Torts where the condition on the leased premises
causes injury to persons or property off the premises. See Bierman, 773 P.2d at
630; Salazar, 618 P.2d at 707. Cf. Rian v. Imperial Mun. Serv. Group, Inc., 768
P.2d 1260, 1263 (Colo.Ct.App.1988) (distinguishing Sec. 379A as only
applying to injuries off the leased land).9 As relevant here, this section provides
that after the lessor transfers possession it is subject to liability for physical
harm to persons outside the land caused by activities of a lessee on the land if
(a) the lessor knew at the time of the lease that the activity would be carried on,
and (b) the lessor knew or had reason to know that it would "unavoidably
involve such an unreasonable risk, or that special precautions necessary to
safety would not be taken." Restatement (Second) of Torts Sec. 379A (1965)
[hereinafter Restatement 2d ].10

25

Guided by the landlord-tenant analogy, and more specifically Sec. 379A, we

conclude that summary judgment was appropriately entered in favor of the

government. At the time that it granted Farmers a right-of-way ("lease"), the

government undoubtedly knew that Farmers would construct a reservoir and
dam. Indeed, under the terms of the statute, Farmers was required to do so or
risk forfeiture of its right-of-way. See Kern River, 257 U.S. at 154-55, 42 S.Ct.
at 62-63. We believe, however, that there is insufficient evidence to raise a
triable issue of fact as to whether the government knew or should have known
that the reservoir would unavoidably involve an unreasonable risk of flooding,
or that Farmers would not take special precautions necessary to protect against
this harm. And, because this evidentiary failing relates to an essential element
of the Landowners' case, summary judgment was appropriate. See Celotex, 477
U.S. at 322, 106 S.Ct. at 2552.
26

An activity "unavoidably" involves an unreasonable risk if a "necessary

consequence" of carrying out the activity is the creation of an unreasonable risk.
Restatement 2d, supra, Sec. 379A comment c. It is therefore not enough for the
Landowners to present evidence showing that the government knew, as a
theoretical matter, that dams occasionally fail. They must present evidence
showing that the government was aware of facts that would have led a
reasonable person to know that a necessary consequence of the operation of
Lawn Lake Dam was an unreasonable risk of flooding. See Kane, 786 P.2d at
416 & n. 6; Restatement 2d, supra, Secs. 379A comment c, 837(1) comment i
& Illustration 3.

27

Even if an unreasonable risk of flooding was not a necessary consequence of

the operation of Lawn Lake Dam, the government may still be found liable for
negligence under the principles of the Restatement. To establish such a claim,
the Landowners must demonstrate that there is evidence that the government
knew or had reason to know that Farmers would not take necessary precautions
in operating the dam. See id., Sec. 379A comment c.

28

Before us are internal government correspondence spanning the years 1957-59

which the Landowners say indicates that the government through the Park
Service was aware that the Lawn Lake Dam was larger than contemplated by
Farmers' right-of-way permit, and was in a deteriorated condition.11
Specifically, the correspondence indicates that in 1909 or 1910, after the
construction period provided for in its permit, Farmers raised the height of the
dam such that the amount of land covered by water exceeded the amount
provided for in the permit by at least 4.4 acres. However, we find no suggestion
in this correspondence, or the other evidence in the record, that as a
consequence of this enlargement the dam unavoidably posed an unreasonable
risk of flooding. Indeed, there is little suggestion in the record that this
enlargement had any appreciable impact on the risk of flooding such that a

reasonable landowner would have been on notice of a heightened possibility of

this harm.12
29

As for the allegedly deteriorated condition of the dam, the correspondence

indicates that in 1957 Farmers conveyed the impression to the government that
it was "reluctant to undertake the expense of making some necessary repairs for
its [Lawn Lake Dam's] proper maintenance." I R., Doc. 2, Ex. J, at 1. And, in
1958, former employees of Farmers told officials of the Park Service that the
dam was not capable of impounding the desired amount of water due to erosion
and repairs would be necessary to correct the situation. Id. Ex. M, at 2. At the
time the government apparently viewed the repairs with disfavor because of the
allegedly deleterious effect the work would have on the natural beauty of the
area. Id. Ex. M, at 2 & Ex. N, at 1-2.

30

We believe that the evidence is insufficient to raise a triable inference that in

1982 the government knew or had reason to know that the operation of the dam
unavoidably involved an unreasonable risk of flooding, or that Farmers was not
taking necessary precautions in the operation of the dam. The Landowners
present no evidence that Farmers' alleged reluctance to expend resources to
repair the dam continued beyond the 1950s. Further, they present no evidence
showing that the allegedly necessary repairs were not made by Farmers at some
point after 1958, or that the failure to make the repairs increased in any respect
the possibility of flooding.

31

We conclude, therefore, that the Landowners have failed to generate a triable

issue of fact under Colorado law and, more specifically, under the standard of
Sec. 379A as to the knowledge of the government ("lessor") of a risk of
flooding from Lawn Lake Dam. On this claim also we uphold the district
court's summary judgment ruling.

No. 89-1038
32

The Landowners contend that the district court erred in denying their motion
for reconsideration under Fed.R.Civ.P. 60(b)(2). The motion was based on their
discovery of a letter written to Farmers by the Park Service on August 14, 1975
that imposed certain restrictions on Farmers' activities in connection with the
maintenance and repair of Lawn Lake Dam.13 The Landowners challenge the
court's conclusion that it was without jurisdiction to rule on the merits of the
motion because of the pendency of the appeal in No. 88-2575. They argue that
they were entitled to relief under the standard of Rule 60(b)(2). In particular,
the Landowners contend that the district court erred in failing to recognize that
the letter was of material significance in establishing that the government

exercised sufficient control over the Lawn Lake Reservoir and Dam to be held
liable as an "owner" under Colorado statutes.
33

We review the district court's denial of the Rule 60(b)(2) motion under an abuse
of discretion standard. See Chief Freight Lines Co. v. Local Union No. 886,
514 F.2d 572, 576-77 (10th Cir.1975). We find no abuse of discretion here. We
do agree with the Landowners that the district court misconstrued the scope of
its jurisdiction. Although it lacked jurisdiction to grant the Rule 60(b)(2)
motion due to the appeal in No. 88-2575, the court was free to consider the
motion, and the court could then either deny it on the merits, or the court could
have notified us of its intention to grant the motion upon proper remand. Garcia
v. Regents of Univ. of California, 737 F.2d 889, 890 (10th Cir.1984); see
Summers v. State of Utah, 927 F.2d 1165, 1168-69 (10th Cir.1991) (citing
Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct.
556, 560 n. 7, 54 L.Ed.2d 521 (1978)).

34

In addition to his statement as to lack of jurisdiction, the district judge also

stated that the letter relied on by the Landowners "is not persuasive." A motion
under Rule 60(b)(2) must, among other things, present matter that is material
and of such importance that it would likely alter the outcome--that is, it must
have been capable here of creating a genuine issue of material fact. See Caribou
Four Corners, Inc. v. Truck Ins. Exchange, 443 F.2d 796, 799 (10th Cir.1971).
Accord Harrison v. Byrd, 765 F.2d 501, 503 (5th Cir.1985). In effect, in finding
that the August 14, 1975, letter was unpersuasive, the district court concluded
that the Landowners could not satisfy the requirements for relief under Rule
60(b)(2). We feel that this conclusion by the district judge was not in error.

III
35

Accordingly, the summary judgment on appeal in No. 88-2575 and the order on
appeal in No. 89-1038 are

36

AFFIRMED.

We have had occasion to discuss the unfortunate factual circumstances

surrounding the collapse of Lawn Lake Dam before. See Farmers Irrigating
Ditch & Reservoir Co. v. Kane, 845 F.2d 229 (10th Cir.1988) (holding that
plaintiff Farmers, an "admitted tortfeasor" did not have recourse to the
interpleader procedure). The collapse has spawned litigation in the state courts
as well. See, e.g., Kane v. Town of Estes Park, 786 P.2d 412 (Colo.1990); Kane

v. Royal Ins. Co. of America, 768 P.2d 678 (Colo.1989) (en banc)
2

The first claim is discussed in text. In the second claim, the Landowners
alleged that an order of the Secretary of the Interior imposed a duty upon the
government to identify privately-owned dams on government property and to
inspect them to discover items in need of repair, and the government was
negligent in carrying out this duty
In the third claim, they alleged that the government had sole control over access
to Lawn Lake Reservoir and Dam and through its negligence Farmers was
prevented from entering the area to carry out necessary repairs and
maintenance. Lastly, the Landowners alleged in their fourth claim that the
government was negligent in engaging in dynamite blasting operations near the
dam; allegedly, the result was a weakening of the dam's embankments and its
ultimate collapse. See I R., Doc. 1, at 7-8.

The district court also cited Colo.Rev.Stat. Sec. 37-87-104.5 in its discussion of
the government's potential negligence liability under Colorado law. This statute
provides that, unless the name and address of the "true owner" of a dam has
been filed with the state engineer by January 1, 1985, "[t]he person or persons
actually in control of the physical structure of any dam shall be deemed, for
determining liability arising from ownership of a dam and with respect to
operation thereof, to be the owners thereof." However, we do not believe that
the court gave any controlling effect to this statute (as opposed to, perhaps,
giving it some persuasive value). It was not enacted until 1984, after Lawn
Lake Dam collapsed, and we find no indication that it was intended to apply
retroactively

In the context of diversity litigation, the Court in Salve Regina held that
appellate courts should review a district judge's determinations of state law de
novo. 111 S.Ct. at 1221. In doing so, the Court rejected the "local judge" rule
which had been applied in this circuit (albeit, somewhat inconsistently). See,
e.g., Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1420 & n. 7 (10th
Cir.1991) (citing Goodnight, Chaos on Appeal: The Tenth Circuit's Local Judge
Rule, 67 Den.U.L.Rev. 515 (1990))
In essence, Salve Regina predicated its holding on four factors: (1) the statutory
grant of plenary appellate authority to courts of appeals under 28 U.S.C. Sec.
1291; (2) the implicit obligation of courts of appeals to conduct an
"independent" review of legal issues; (3) the dual goals of "doctrinal coherence
and economy of judicial administration"; and (4) the structural compatibility of
appellate courts for plenary review of legal issues (e.g., the availability of
multi-judge panels). Id. 111 S.Ct. at 1221-22. We believe that these four factors

transcend the diversity context, and that review here of the district judge's
interpretation of Colorado law should also be de novo in a suit under the FTCA.
5

The doctrine of strict or absolute liability as to reservoir failures, however, was

abolished by the Colorado legislature in 1986 when it repealed and reenacted
Sec. 37-87-104(1). See Kane v. Town of Estes Park, 786 P.2d 412, 414 n. 3
(Colo.1990); Salmon, 1986 Colorado Tort Reform Legislation, 15 Colo.Law.
1363, 1374 (1986). As presently drafted, this statute provides that an "entity or
person who owns, controls, or operates a water storage reservoir" cannot be
held liable for personal injuries or property damage arising from the failure of
the reservoir "unless such failure or partial failure has been proximately caused
by the negligence of that entity or person."

In Kern River, the Court stated: "The right of way intended by the act [of
March 3, 1891] was neither a mere easement nor a fee simple absolute, but a
limited fee on an implied condition of reverter in the event the grantee ceased
to use or retain the land for the purpose indicated in the act." 257 U.S. at 152,
42 S.Ct. at 62. The Kern River interpretation of the 1891 Act has been
questioned, however, in view of the Court's subsequent interpretation of very
similar language to confer easements, not fee estates, in a statute authorizing
the issuance of rights-of-way to railroads. Great Northern Ry. Co. v. United
States, 315 U.S. 262, 277, 279, 62 S.Ct. 529, 536, 86 L.Ed. 836 (1942)
(construing the Act of March 3, 1875); see E.E. Eggebrecht, Inc. v. Waters, 217
Mont. 291, 704 P.2d 422, 425 (1985) (noting that, after Great Northern, the
Kern River view "rests on a shakey [sic] legal foundation"). Moreover, citing
Great Northern, the Colorado Supreme Court has recently construed the 1891
Act as granting only easements to recipients of rights-of-way. Bijou Irr. District
v. Empire Club, 804 P.2d 175, 182 (Colo.1991), cert. denied, --- U.S. ----, 111
S.Ct. 2017, 114 L.Ed.2d 104 (1991)
We do not feel bound by the Colorado Supreme Court's construction of the
1891 Act in Bijou. However, under our view of this case at least, this debate
over the nature of the property interest conferred under the Act is not
dispositive. See E.E. Eggebrecht, 704 P.2d at 425 (noting that "there is no
useful distinction to be made between a limited fee and an easement when
describing the nature of a reservoir right of way granted under the 1891 Act").

We note that the government has not argued that Sec. 37-87-104(1) is
inapplicable in this FTCA action because it embodies the principle of strict or
absolute liability, although such an argument would not be lacking in force.
Generally, the government cannot be held liable under the FTCA on a state-law
theory of strict or absolute liability simply because of its operation of, or
involvement with, an ultrahazardous activity, such as the impounding of waters.

See Laird v. Nelms, 406 U.S. 797, 799, 802-03, 92 S.Ct. 1899, 1900, 1902-03,
32 L.Ed.2d 499 (1972) (citing Dalehite v. United States, 346 U.S. 15, 73 S.Ct.
956, 97 L.Ed. 1427 (1953)); McKay v. United States, 703 F.2d 464, 472 (10th
Cir.1983); United States v. Ure, 225 F.2d 709, 711 (9th Cir.1955). Because the
government did not make this argument before the district court, we do not
reach it here. We assume, without deciding, that Sec. 37-87-104(1) is
applicable to this action
8

The government contends that the landlord-tenant analogy is inappropriate

because incident to its right-of-way Farmers received a limited fee, not a
leasehold interest. However, both a limited fee and a leasehold estate are
interests in land, see, e.g., R. Cunningham, W. Stoebuck & Whitman, The Law
of Property, Sec. 6.1 (1984), and in each case the grantor retains some interest
in the property. Accordingly, even if the property interest at issue is
characterized as a limited fee, the relationship between the government and
Farmers created by the grant of the right-of-way may be reasonably likened to
that of a landlord and tenant for the purpose of considering the claims asserted
in this case

While we find the general reference to landlord-tenant law in our Weiss

decision instructive, we note that Rian casts doubt on our reliance there on Sec.
379A. In Weiss, the helicopter accident and resulting injury occurred on federal
land (i.e., the "leased premises"). See Weiss, 787 F.2d at 520

10

In full, the provision reads:

A lessor of land is subject to liability for physical harm to persons outside of
the land caused by activities of the lessee or others on the land after the lessor
transfers possession if, but only if,
(a) the lessor at the time of the lease consented to such activity or knew that it
would be carried on, and
(b) the lessor knew or had reason to know that it would unavoidably involve
such an unreasonable risk, or that special precautions necessary to safety would
not be taken.
Restatement (Second) of Torts Sec. 379A (1965). The Restatement describes
the circumstances under which a given risk is unreasonable as follows:
Where an act is one which a reasonable man would recognize as involving a
risk of harm to another, the risk is unreasonable and the act is negligent if the
risk is of such magnitude as to outweigh what the law regards as the utility of
the act or the particular manner in which it is done.

Id. Sec. 291.

11

Although the district court reviewed this correspondence and found that it did
not allow the Landowners to survive summary judgment as to their first claim,
it observed that the correspondence did demonstrate that the government was
"aware that the dam was deteriorating and needed repair." Dist.Ct.Op. at 4.
Assuming that this reading of the correspondence is correct, under our approach
here the central question that must be addressed is: to what time period does
this knowledge relate--in particular, was it sufficiently contemporaneous with
the collapse of the Lawn Lake Dam to give rise to a triable inference that the
government knew or should have known that the reservoir would unavoidably
involve an unreasonable risk of flooding, or that Farmers would not take special
precautions necessary to protect against this harm. We address this question
below and conclude the government's knowledge of the alleged deterioration of
Lawn Lake Dam is too distant in temporal terms to provide a ground for relief

12

We note that government officials, who were presumably familiar with the
basics of dam construction, appeared to be predominantly concerned with the
alleged trespassing effect of the dam enlargement, not safety issues. See I R.,
Doc. 2, Exs. T-V

13

The August 14 letter was addressed to an official of Farmers and discussed

complaints received by the Park Service from visitors and employees following
Farmers visit to perform annual maintenance work. The Park Service indicated
in the letter that in the future, inter alia, Farmers would have to: visit the dam
and leave in the same day, in the case of small maintenance jobs of two or three
hours' duration; prevent any horses it brings on maintenance jobs from grazing;
carryout out extended maintenance tasks requiring layovers only when
campsites are available under the Park Service schedule. Further, in the letter,
the Park Service indicated that it had included copies of some of its regulations.
See I Supp.R., Doc. 2, Ex. A, at 1-2