Cochran v. State

• Citation: 291 Kan. 898,249 P.3d 434
• Decision Date: 25 March 2011
• Docket Number: No. 102,498.,102,498.
• Parties: Gary L. COCHRAN and Jerri Cochran, Appellees,v.The STATE of Kansas, DEPARTMENT OF AGRICULTURE, DIVISION OF WATER RESOURCES, and The City of Wichita, Kansas, Appellants.
• Court: United States State Supreme Court of Kansas

291 Kan. 898
249 P.3d 434

Gary L. COCHRAN and Jerri Cochran, Appellees,
v.
The STATE of Kansas, DEPARTMENT OF AGRICULTURE, DIVISION OF WATER RESOURCES, and The City of Wichita, Kansas, Appellants.

No. 102,498.

Supreme Court of Kansas.

March 25, 2011.

[249 P.3d 437 , 291 Kan. 898]

Syllabus by the Court

1. Standing is a jurisdictional question whereby courts determine whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf.

2. Standing implicates the court's jurisdiction to hear a case; therefore, the existence of standing is a question of law over which this court's scope of review is unlimited.

3. When the district court's ruling as to standing is made before commencement of discovery, an appellate court should accept the facts alleged in the petition as true, along with any inferences that can be reasonably drawn therefrom.

4. The express language of K.S.A. 2010 Supp. 82a–711(c) clearly limits standing to the applicant for administrative review of an adverse determination by the Chief Engineer of the Division of Water Resources with respect to a permit to appropriate water.

5. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) confers standing on any party to the proceedings. Under the KJRA a party to the proceedings includes a person to whom the agency action is specifically directed or a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding.

6. The KJRA applies to all agencies and all proceedings for judicial review of agency actions not specifically exempted by statute.

7. In a conflict between two statutes covering the same subject matter, the more specific statute must control over a more general statute.

[291 Kan. 899] 8. The provisions of K.S.A. 2010 Supp. 82a–711(c) apply to administrative review.

[249 P.3d 438]

The provisions of K.S.A 77–601 apply to judicial review.

9. The provisions of K.S.A. 2010 Supp. 82a–711(c) and K.S.A. 77–601 do not concern the same subject matter and there is no conflict between the two statutes; therefore, it is improper to use the more-specific-statute rule of construction.

10. If a party has no administrative remedies available there is no additional requirement that the party exhaust its administrative remedies before seeking judicial review.

11. In addition to the statutory qualifications conferring standing, a party seeking judicial review, in fact any party seeking to file an action in the courts of Kansas, must demonstrate he or she also meets the traditional requirements for standing.

12. The traditional test for standing is twofold, a cognizable injury and a causal connection between the injury and the challenged conduct.

Burke W. Griggs, of Division of Water Resources, argued the cause and was on the briefs for appellant State of Kansas.Brian K. McLeod, deputy city attorney, argued the cause and Joe Allen Lang, chief deputy city attorney, was on the brief for appellant City of Wichita.Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause, and John F. Reals, of Law Offices of John F. Reals, of Wichita, was with her on the brief for appellees.

The opinion of the court was delivered by SMITH, J.:

This case arises out of a determination by the district court that Gary and Jerri Cochran have standing to seek judicial review of the determinations made by the Chief Engineer of the Division of Water Resources granting the applications of the City [291 Kan. 900] of Wichita to appropriate water for beneficial use. We affirm the district court.

Factual and Procedural History

There is no dispute of any essential fact.

In 1993, the City of Wichita, Kansas adopted an “Integrated Local Water Supply Plan” to serve Wichita and surrounding cities and rural water districts through 2050. As part of that plan the City of Wichita, Water & Sewer Department (the City), applied to the Department of Agriculture, Division of Water Resources (DWR) for permits to appropriate water for beneficial use, File Nos. 45,296, 45,297, 45,298, 45,299, 45,300, and 45,301. The City sought to divert groundwater from the Equus Beds aquifer and Arkansas River bank storage water from an area known as the “Bently Well Field.” The Chief Engineer approved the applications, and the permits were issued on or about February 6, 2008.

Gary L. and Jerri Cochran (the Cochrans) are owners of prior water appropriation rights with points of diversion in the vicinity of the authorized points of diversion for the City's permits. During the permit process, the DWR received input from the Cochrans and their legal counsel, who expressed concerns that their prior appropriation rights may be affected by the City's proposed appropriation. Despite these concerns, the DWR approved the City's applications for the permits.

The permits issued to the City included provisions to prevent impairment of existing water appropriation rights. For example, the Chief Engineer reserved the right to review the available hydrologic data and make modifications to the conditions of approval, including revocation of the permit if the use of water as authorized was found to exceed the long-term sustainable yield of the aquifer, or caused impairment to existing water rights. Gary Cochran received a copy of the permits.

After the permits were issued, the Cochrans sent a letter to the Kansas Department of Agriculture, requesting a hearing regarding issuance of the permits. The Chief Engineer of the DWR entered an initial order denying the Cochrans' request on March 26, 2008, finding that the Cochrans lacked standing under K.S.A. 82a–711(c) [291 Kan. 901] to request a hearing challenging the City's permits. The Chief Engineer found that only the applicant

[249 P.3d 439]

enjoyed standing to appeal the determination relying on K.S.A. 82a–711(c). The Cochrans then filed a timely petition for administrative review of the Chief Engineer's order with the Secretary of the Department of Agriculture. The Secretary, in turn, issued an order, finding that the Cochrans lacked standing under K.S.A. 82a–711(c). The Secretary determined that K.S.A. 82a–711(c) conferred standing to request judicial review of a permit only to the applicant for a permit and not to third parties.

On May 30, 2008, the Cochrans filed a petition for judicial review in district court in Sedgwick County. In their petition, the Cochrans argued that the permits granted to the City did not sufficiently protect their senior water rights. The Cochrans requested the district court to stay or enjoin DWR's action under the permits pending the Court's final decision; set aside or modify DWR's action; remand the matter for further proceedings before the DWR with directions to protect the Cochrans' senior water rights; and provide other just and equitable relief.

The district court heard arguments limited to the issue of standing on January 29, 2009, and found that, under this court's decision in Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 189 P.3d 494 (2008), the Cochrans had standing to seek review of the Chief Engineer's order granting the permits.

The case is before this court on interlocutory appeal of the district court's determination of the Cochrans' standing.

Analysis Water Rights in Kansas

Before addressing the standing question, a brief review of Kansas water law and the Kansas Water Appropriation Act (KWAA), K.S.A. 82a–701 et seq. is appropriate.

Since passing the KWAA in 1945, Kansas has followed “a permit system for acquiring water appropriation rights based upon ‘first in time, first in right.’ ” Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 614, 132 P.3d 870 (2006) (citing Peck and Owen, [291 Kan. 902] Loss of Kansas Water Rights for Non–Use, 43 Kan. L.Rev. 801, 805 [1995] ). Water rights are considered real property. K.S.A. 2009 Supp. 82a–701(g). Further, “a water right does not constitute ownership of the water itself; it is only a usufruct, a right to use water.” Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, Syl. ¶ 6, 210 P.3d 105 (2009); see K.S.A. 82a–707(a).

Prior to enactment of the KWAA, Kansas followed the riparian doctrine for surface water and the absolute ownership doctrine for groundwater. Hawley, 281 Kan. at 613–14, 132 P.3d 870. Under both of these doctrines, water rights were “generally not lost solely by failure to use the water.” Hawley, 281 Kan. at 614, 132 P.3d 870 (citing 43 Kan. L.Rev. at 802).

Under the KWAA, Kansas now follows the appropriation doctrine. Williams v. City of Wichita, 190 Kan. 317, 333, 374 P.2d 578 (1962). “The appropriation doctrine is based upon the premise[ ] that all unused water belongs to all of the people of the state. The first person to divert water from any source and use it for beneficial purposes has prior right thereto. In other words, first in time, first in right.” F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 630 P.2d 1164 (1981). Under this doctrine, this court now approaches questions concerning water rights “ ‘upon the basis of the interest of the people of the state without losing sight of the beneficial use the individual is making or has the right to make of the water.’ ” F. Arthur Stone & Sons, 230 Kan. at 231, 630 P.2d 1164 (quoting State, ex rel. v. Knapp, 167 Kan. 546, 555, 207 P.2d 440 [1949] ).

Issue on Appeal

The sole question on appeal is whether the Cochrans have standing to seek review under the KWAA and/or the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77–601 et seq. (KJRA).

This court has “explained that if a person does not have standing to challenge an action or to request a particular type of relief, then ‘there is no justifiable case or controversy’ and the suit must be dismissed.” Bremby, 286 Kan. at 750, 189 P.3d 494 (citing

[249 P.3d 440]

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