Abandonment OF WATER RIGHTS

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Abandonment OF WATER RIGHTS

• WYOMING Water LAW CONFERENCE
• APRIL 25, 2008
• Kara Brighton
• Hageman Brighton, P.C.

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Todays presentation

• Wyoming Water Law philosophies
• Abandonment statute
• Procedure for Abandonment action
• elements required for an Abandonment
• Non-Use
• Standing
• Same Source of Supp
• Benefit and Injury
• Excuses/Extensions for Nonuse of Water
• Conclusion

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Statutory Philosophy

• Water must be put to beneficial use
• Use It or Lose It

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Judicial Philosophy

• Forfeitures and abandonment are not favored in
  law, and in cases of abandonment, the evidence
  must be clear and convincing that it was the
  intent of the owner to abandon. Ramsay v.
  Gottsche, 51 Wyo. 516 (1936).

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Wyomings Abandonment Statute

• W.S. 41-3-401
• If an appropriator fails to intentionally or
  unintentionally use his water for beneficial
  use during any five (5) successive years, he is
  considered to have abandoned his water rights.

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Wyomings Abandonment Statute

• All water rights subject to appropriation are
  likewise subject to abandonment
• Supplement water rights are subject to
  abandonment

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Abandonment Proceeding

• Board of Control has Exclusive Jurisdiction
• Once action is filed, superintendent must notify
  all affected water users
• BOC decisions Are appealable to the District
  court and Wyoming Supreme Court
• The Courts must defer to the BOCs specialized
  knowledge and expertise regarding the use or
  nonuse of water and the technicalities involved
  in irrigation. Joe Johnson Co.

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Abandonment Elements

• Standing
• Non-Use
• Same Source of Supply
• Benefit and Injury

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Abandonment Elements

• STANDING
• Must prove two (2) essential facts
• You must possess a valid water right of equal or
  junior Priority to the right to your neighbor
  AND
• Your water right and your neighbors water right
  must be from the same source of supply.

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Abandonment Elements

• Standing
• Joe Johnson Co. v. Wyoming Board of Control, 857
  P.2d 312 (Wyo. 1993)

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Abandonment Elements - Standing
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Abandonment Elements - Standing

• Wyoming Supreme Court held
• Johnson had standing (Reversed BOC decision)
• Court denied abandonment because No demonstration
  of a tangible benefit or Injury by
  Reactivation of Water Right
• a relative improvement in priority, standing
  alone, is not sufficient to show a benefit

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Abandonment elements Non-Use

• Scott v. McTiernan
• 974 P.2d 966 (Wyo. 1999)
• 31 P.3d 749 (Wyo. 2001)

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Abandonment Elements Non-Use

• BOC Found abandonment
• Wyoming Supreme Court reversed BOCs decision and
  held that Ss failure to use the water was the
  result of Ms deliberate actions to prevent S
  from receiving water and therefore S did not
  voluntarily abandon the water
• Court calculated irrigable acres
• Court remanded the case to BOC

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Abandonment Elements Non-Use

• The BOC followed the Courts ruling in the first
  case and abandoned a portion of Ss water rights
• Court held BOC decision was not supported by
  substantial evidence

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Abandonment Elements

• Same Source of Supply
• Schulthess v. Carollo, 832 P.2d 552 (Wyo. 1992)

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Abandonment Elements Same Source of SupPly
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Schulthess v. carollo832 P. 2d 552 (Wyo. 1992)

• Same Source of Supply
• Requires C to prove that Ss water right, if not
  from an identical water source, is from a water
  source which contributes significantly to the
  water source upon which C relies to satisfy his
  appropriation.

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Abandonment Elements Same Source of Supply

• Court reversed BOC No Standing
• Court held BOC was required to find that surplus
  rights were from the same source of supply
• Same Source of Supply does not mean same stream
  system
• Court found BOC did not find Benefit
• Court found benefit must be tangible not
  theoretical

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Abandonment Elements

• Benefit and Injury
• Snider v. Kircheffer, 115 P.3d 1 (Wyo. 2005)

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Abandonment Elements Benefit and Injury
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Abandonment Elements Benefit and Injury

• BOC abandoned water right
• Wyoming Supreme Court held
• No abandonment because injury was too speculative
  to indicate a reasonable likelihood of injury or
  benefit

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Excuses/Extensions for Non-Use

• Extensions
• Reservoir rights May apply to BOC for an
  Extension
• Must demonstrate Due Diligence toward utilization
  of the appropriation
• Or Demonstrate reasonable cause for Nonuse

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Excuses/Extensions for Non-Use

• Reasonable Cause or delay from
• Court Proceedings
• Planning, Developing or Financing For
  Construction Projects
• Statutes (Federal and State)
• Any other Causes Beyond the Control of the
  Appropriator

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Excuses/Extensions for Non-Use

• Disastrous floods that prevent water users from
  using ditches or dams
• Inability to obtain water
• Shortage of water
• Involuntarily Nonuse

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Wyomings Forfeiture Statute

• W.S. 41-3-402
• If an appropriator fails to intentionally or
  unintentionally use his water for beneficial
  use during any five (5) successive years, the
  state engineer may initiate forfeiture
  proceedings against the appropriator with the BOC
  to determine the validity of the unused right.

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CONCLUSIONS

• Title 41 and Prior Appropriation Doctrine
  recognize Need for Abandonments
• Wyoming Supreme Court Disfavors Abandonments
• Wyoming Supreme Court Does Not Defer to Board of
  Control on these Issues
• Case Law is Complex May Require Statutory
  Amendment

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Questions

• Kara Brighton
• Hageman Brighton, P.C.
• 222 E. 21st Street
• Cheyenne, WY 82001
• 307-635-4888
• kbrighton_at_hblawoffice.com
• www.hblawoffice.com