Dechert v. Christopulos
| Decision Date | 07 January 1980 |
| Docket Number | No. 5144,5144 |
| Citation | 604 P.2d 1039 |
| Parties | Charles H. DECHERT, R. H. Pattison, Dave Pince, Stan R. Roden, Alan R. Pattison, Dick Pattison, Paul A. Christensen, Kenneth O. Fleenor, Myron C. Jarvis, George Pingetzer, Wayne Wilson, Lloyd Dechert, Ward Whitman, Stanley Bryant, R. L. Medow, and Farrell Grough, Individually and as members of the Midvale Irrigation District, on behalf of themselves and all others similarly situated, Appellants (Plaintiffs below), v. George CHRISTOPULOS, Wyoming State Engineer, the United States of America, acting through the Department of Interior, and Bureau of Reclamation, The Riverton Valley Irrigation District, and the LeClair Riverton Irrigation District, and all others similarly situated, Appellees (Defendants below). |
| Court | Wyoming Supreme Court |
Henry A. Burgess of Burgess & Davis, and Dan B. Riggs of Lonabaugh & Vanderhoef, Sheridan, for appellants.
John D. Troughton, Atty. Gen., and Jack D. Palma, II, Sr., Asst. Atty. Gen., Cheyenne, for George Christopulos, Wyoming State Engineer, appellee.
Charles E. Graves, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Sanford Sagalkin, Acting Asst. Atty. Gen., and Nancy B. Firestone, Regina L. Sleater and Carl Strass, Attys., Dept. of Justice, Washington, D.C., for U. S., appellee.
Houston G. Williams of Williams, Porter, Day & Neville, P. C., Casper, for Riverton Valley Irrigation Dist. and LeClair Riverton Irrigation Dist., appellees.
Before RAPER, C. J., and McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
This case principally concerns Fremont County, Wyoming, litigants and is mostly a contest among members of and the Midvale Irrigation District (hereafter Midvale), plaintiffs-appellants, and members of and the Riverton Valley (hereafter Riverton) and the LeClair Riverton (hereafter LeClair) Irrigation Districts, defendants-appellees. The central issue is whether, in 1917, the State of Wyoming, through the Board of Land Commissioners (hereafter the Board), with the approval of the State Engineer, validly granted Riverton and LeClair certain preferential rights to the waters of the Big Wind River. Midvale initiated this action in 1977 following a drought, in response to which, and by authority of certain agreements, another defendant-appellee, the Wyoming State Engineer, gave preferential treatment to Riverton and LeClair through his regulation of the waters of the Big Wind River. Appellants-Midvale complain that this preferential treatment redounded to their disadvantage and is contrary to law. This suit also involves the United States, which is named as a defendant below. The role which the United States plays will be discussed, infra.
This appeal concerns water rights primarily under appropriation Permit No. 7300 1 which authorizes a diversion of sufficient water from the Big Wind River to irrigate 331,708 acres of land in Fremont County, Wyoming. In 1906, the permit was granted by the State Engineer to Wyoming Central Irrigation (hereafter the Construction Company), a private construction company, as a part of a plan to undertake construction for and irrigation of withdrawn acreage under the Federal and State Carey Acts, now 43 U.S.C. § 641, et seq., and § 36-7-101, et seq., W.S.1977.
By 1913, the Construction Company, under its contract with the Board, had completed two major canals as part of the irrigation project. One of these, Wyoming Canal No. 2, served land now within Riverton, and the other, LeClair Riverton No. 2, served land now within LeClair. The Construction Company experienced difficulties and, with certain exceptions, in 1913 surrendered to the Board its right to proceed further with its agreement and its water rights under Permit No. 7300. This was accomplished according to the authority contained in § 36-7-322, W.S.1977. 2 Excepted from this surrender was the Construction Company's right, under Permit No. 7300, to irrigate land served by Wyoming Canal No. 2, but, in 1916, these water rights were assigned to Riverton's predecessor in interest. Further, in 1916, the Board assigned to LeClair's predecessor in interest such part of the rights contained in Permit No. 7300 as was necessary to irrigate the land served by the LeClair Riverton No. 2 Canal also under and by authority of § 36-7-322. These two assignments, consisting of the right to irrigate 28,122.63 acres of Permit No. 7300, did not convey reservoir rights then held or owned by the Board, nor was any mention made of any preference right to waters of the Big Wind River.
Thus, by 1916, predecessors in interest of both Riverton and LeClair owned canals, together with Permit No. 7300 rights to irrigate the 28,122.63 acres of land within their boundaries from the Big Wind River's direct flow. The Board retained its right to withdraw water under Permit No. 7300 to irrigate all of the remaining acres. Even though the Board had not yet developed the means to exercise this right, it was anticipated that the Big Wind River might one day prove incapable of providing sufficient water to irrigate the entire 331,708 acres encompassed by Permit No. 7300.
In anticipation of this contingency, certain "Tripartite Agreements" were entered into among the Board (with the approval of the State Engineer) and the predecessors in interest of Riverton and LeClair. These agreements resulted in giving the two irrigation districts a preferential right over any future Permit No. 7300 water users to the use of as much direct-flow Big Wind River water under Permit No. 7300 as is authorized by law. Other permits were also involved in the contracts but these need not be specifically discussed. See, fn. 1, supra. After the Tripartite Agreements were entered into, and specifically on February 15, 1919, the State transferred its water rights to irrigate the remaining 303,585.37 acres under Permit No. 7300 to the United States. The United States became and is the owner of this portion of the last-mentioned water rights which it holds as a fiduciary for the use and benefit of the members and irrigators of the Midvale Irrigation District.
In 1977, there was insufficient water to meet the requirements of the three irrigation districts and, therefore, the State Engineer, acting under the authority of the Tripartite Agreements, satisfied the claims of Riverton and LeClair on a preferential basis. This, claims Midvale, left it short of water and the suit by Midvale questioning the validity of the Tripartite Agreements followed.
Did the State of Wyoming, Riverton and LeClair have legal authority to contract with respect to a priority of use under Permit No. 7300?
The Tripartite Agreements were entered into on behalf of the State by the Board and approved by the State Engineer. Appellants claim that the Board lacked authority to adjust water priorities, urging this function to be vested in the Board of Control under Article 8, Section 2, Wyoming constitution. 3 Appellees argue that the Board, in its Proprietary capacity, held such interest in the Permit No. 7300 water rights as would permit it to contract with Midvale and LeClair concerning preferences and was, therefore, not acting in a regulatory capacity.
It is our judgment that the appellees' position is sound, and when the Tripartite Agreements were entered into, the State, through the Board, held title to Permit No 7300, As a water-right holder, subject to the strictures of the Federal Carey Act, ". . . to make all necessary contracts to cause the said land to be reclaimed . . . ." 43 U.S.C. § 641.
When land is to be reclaimed under the State Carey Act, the State Engineer must (all other laws and rules and regulations having been complied with) respond to the application of the party contracting with the Board concerning the issuing of water permits to facilitate the irrigation of Carey Act lands. § 36-7-303, W.S.1977. Once the contract for the construction of the irrigation works is entered into, the permit has been issued by the State Engineer to the contractor and default occurs, the statute provides as has been noted for the surrender to the Board "of any rights acquired (by the contractor) from the State." Supra, fn. 2. The contractor, when the permit was issued, was a water-front holder, supra, and when the Board acquired the contractor's right under Permit No. 7300, it acquired the same interest in the permit as the contractor owned, i. e., the Board became a water-right holder by reason of the contractor's surrender.
When it entered into the Tripartite Agreements in this capacity, the Board was not acting in violation of any of the duties constitutionally delegated to the Board of Control. It was simply acting as a permittee a trustee for the settlers 4 negotiating with the only other existing permittees concerning water rights under a common permit.
It must be remembered that when the Tripartite Agreements were executed, the only irrigators under Permit No. 7300 were the appellees-districts, who, together with the State, owned All of the rights under this permit. The Midvale Irrigation District did not come into being until many years later. The parties to the agreements could, therefore, lawfully agree among themselves to the subordination of the rights of one party to the rights of others. Such subordination of water rights to the rights of another was recognized by this court in Stoner v. Mau, 11 Wyo. 366, 72 P. 193, reh. den. 11 Wyo. 366, 73 P. 548 (1903).
The rights of the Board as a trustee-holder-of-rights under a permit to appropriate water must not be confused with the Regulatory authority of the Board of Control over the use of the waters of the State. The Board of Land Commissioners' right to contract as a permittee with other permittees with respect to the priority rights of the parties under a common permit comes about as an incident of the Board's obligation as a trustee of water rights which were acquired...
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