Goshen Irr. Dist. v. Wyoming State Bd. of Control, 95-162

• Decision Date: 31 October 1996
• Docket Number: No. 95-162,95-162
• Citation: 926 P.2d 943
• Parties: GOSHEN IRRIGATION DISTRICT, Appellant (Petitioner), v. The WYOMING STATE BOARD OF CONTROL and Basin Electric Power Cooperative, Appellees (Respondents), and BASIN ELECTRIC POWER COOPERATIVE, Appellant (Petitioner), v. GOSHEN IRRIGATION DISTRICT and The Wyoming State Board of Control, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 943

926 P.2d 943

GOSHEN IRRIGATION DISTRICT, Appellant (Petitioner), v. The WYOMING STATE BOARD OF CONTROL and Basin Electric Power Cooperative, Appellees (Respondents), and BASIN ELECTRIC POWER COOPERATIVE, Appellant (Petitioner), v. GOSHEN IRRIGATION DISTRICT and The Wyoming State Board of Control, Appellees (Respondents).

No. 95-162.

Supreme Court of Wyoming.

Oct. 31, 1996.

Kate M. Fox (argued) and Kim D. Cannon of Davis and Cannon, Cheyenne, for Goshen Irrigation District.

Rex E. Johnson and Stephen N. Sherard (argued) of Sherard, Sherard & Johnson, Wheatland, for Basin Electric Power Cooperative.

William U. Hill, Attorney General; Thomas J. Davidson, Deputy Attorney General; S. Jane Caton, Senior Assistant Attorney General; and Frederick E. Chemay, Special Assistant Attorney General (argued), for Wyoming State Board of Control.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

LEHMAN, Justice.

Goshen Irrigation District (GID) seeks review of a decision by the Wyoming State Board of Control declaring that 66 c.f.s. of GID's 100 c.f.s. supplemental water right in the Laramie River had been abandoned. Conversely, Basin Electric Power Cooperative (Basin) also seeks review of that decision contending that the evidence demonstrated that GID had abandoned 75 c.f.s.

We affirm in part and reverse in part.

GID presents the following issues for review:

1. Whether Basin is benefitted or injured sufficiently to have standing to bring this partial abandonment action.

2. Whether, in making the determination of benefit or injury, the Board of Control erred in considering unauthorized releases made from the Grayrocks Reservoir by Basin.

3. If the Board of Control has jurisdiction to consider and decide upon equitable matters, whether the Board's decision that it is statutorily precluded from considering such matters is contrary to law.

4. If the Board of Control does not have jurisdiction to consider and decide upon equitable matters, whether GID is entitled to a trial de novo on these issues in the District Court.

5. Whether the Board of Control's declaration of partial abandonment of an appropriation for irrigation use is contrary to law (Wyo.Stat. § 41-3-401(f)) and policy where the appropriator had used all the water available to it at some time during the five years immediately preceding the filing of the action.

6. Whether Hofeldt v. Eyre, 849 P.2d 1295 (Wyo.1993), the case which held for the first time that supplemental supply rights are subject to abandonment, should be applied retroactively to partial abandonment actions.

7. Whether the Wyoming legislature's clear expression of intent to support and fund GID's Laramie River pump station must be reconciled with other legislative enactments to modify or otherwise limit the retroactive application of Wyo. Stat. § 41-3-401 et seq. partial abandonment of a supplementary water right.

Basin, on its claim that the Board should have declared an additional 9 c.f.s. abandoned, offers two issues in the form of statements:

1. The evidence relied upon by the Board to find that 34 c.f.s. was pumped by GID on April 1, 1994 * * * was insufficient, speculative, improper and lacked foundation.

2. The test pumping performed by GID on April 1, 1994 did not constitute the required beneficial use of water which will prevent an abandonment under Wyoming Statute 41-3-401(a).

The State Board of Control also filed a brief but contented itself with addressing the issues as presented by the parties.

FACTS

GID is an irrigation district located in Goshen County. GID is the owner of a 100 c.f.s. supplemental water supply right on the Laramie River with a 1932 priority date. This supply is available whenever GID is in priority and its main appropriation rights on the North Platte River are insufficient.

Basin operates the Laramie River Station power plant near Wheatland, Wyoming. Basin's water permit allows it to store 104,109.6 acre feet of water per year from the Laramie River in the Greyrocks Reservoir. That permit carries a priority date of April 24, 1973 and is junior to GID's supplemental permit.

In 1992, the Wyoming Legislature authorized the construction of a new pump station for GID located downstream from Greyrocks Reservoir. The station was designed to house two pumps, each capable of pumping 34 c.f.s., for a total capacity of 68 c.f.s. The first pump was installed in November of 1993. On April 1, 1994, the pump was used Concerned that the new pumping station might impact the operation of their power facility, Basin sought reassurance from GID. Initially, Basin relied upon a 1975 agreement between GID and Basin on the use of GID's supplemental water right. In that agreement, GID agreed to limit the use of its supplemental supply depending upon the amount of water in the Laramie River. Basin, in turn, agreed not to contest the relocation of GID's point of diversion on the Laramie River. GID, however, informed Basin on May 26, 1992, that the agreement was not binding since the State Engineer and the Board of Control had never approved it. Basin attempted to negotiate an agreement with GID through early 1994, but the parties were unable to find common ground.

to divert water from the Laramie River. The second pump has yet to be installed.

Basin filed a Petition for Declaration of Partial Abandonment with the Board of Control on April 7, 1994. The parties stipulated that GID's use of its supplemental water supply during the five previous years was limited to seventeen days in August and September 1990 and that the rate of diversion did not exceed 25 c.f.s. It was also stipulated that GID utilized the new pump with a 34 c.f.s. capacity in November 1993 after its installation and again on April 1, 1994.

After a hearing, the Board of Control concluded that there were times when GID was entitled to use its supplemental supply and there was water available but GID did not divert it. The Board also concluded that the April 1, 1994 diversion was done at the pump's full capacity of 34 c.f.s. Consequently, the Board held that there had been partial abandonment of all but 34 c.f.s. of GID's supplemental water right on the Laramie River.

Both parties have petitioned this court to review that decision.

DISCUSSION

1. Standing

GID initially contends that Basin lacked standing to bring an abandonment action because Basin could not demonstrate any injury or benefit. ¹ GID argues that if its supplemental water right was not abandoned, Basin would not be injured in any way as there have historically been sufficient flows in the Laramie River to meet its needs. Similarly, GID argues that the abandonment of its water right did not benefit Basin.

Standing is "a jurisprudential rule of jurisdictional magnitude." Schulthess v. Carollo, 832 P.2d 552, 556 (Wyo.1992). A party will have standing to pursue a litigation when they have a "personal stake in the outcome of the controversy" which has further been described in our case law as a "tangible interest." Id., at 557. In the context of a petition for abandonment of a water right, the petitioner must allege and prove three facts:

(1) that he possesses a valid water right of equal or junior status to the water right sought to be abandoned; (2) that the water right relied upon by the petitioner and the water right for which a declaration of abandonment is sought are from the same source of supply; and (3) that the petitioner stands to benefit from a declaration of abandonment or to sustain injury by reactivation of the contested water right.

Id. See also W.S. 41-3-401(b) (Repl.1995). We also held that the Board of Control must make corresponding findings of fact, with support, in order to conclude that a petitioner has standing. 832 P.2d at 557.

In this case, there is no dispute that the first two conditions are met; we are solely concerned with whether the abandonment of GID's supplemental right would confer a benefit on or prevent an injury to Basin. The Board of Control made the following findings of fact regarding benefit or injury 20. THAT the parties offered a number of computer simulations of the operation of the Greyrocks Reservoir and the lower Laramie River * * *. Each exhibit is a simulation representing the results of a water accounting model of the Greyrocks Reservoir operation and resulting downstream Laramie River flows, each being based on different assumed values of parameters such as the order of use of the various water rights involved, the amount of use by GID under [its supplemental water right], and whether Basin's agreement flow releases would be protected [see fn. 1], among others.

21. THAT the Board found that the most useful of these simulations are found in Exhibits I and M. Those simulations are based on assumed use by GID in the amounts of 100 and 35 c.f.s., respectively, with Basin's agreement releases not protected. Of all the simulations offered as evidence, these simulations incorporate assumptions which most closely approximate the recent operating conditions on the Laramie River at and below Greyrocks Reservoir.

22. THAT the potential injury to Basin's storage which could result from the utilization of GID's supplemental supply right to its full extent of 100 c.f.s., is exhibited by a comparison of the results of the model simulations for 100 c.f.s. and 35 c.f.s. diversions by GID, with Basin's agreement flows not protected, as set forth in Exhibits I and M, respectively. * * * Because the potential injury need not be a certainty, but only one that is not too remote or speculative, the results representing the averages for the 60-year period studied in the simulations, * * * are accepted to present a relatively likely end result. * * *

23. THAT the results depicted in Finding of Fact No. 22, tend to show that if GID diverts 35 c.f.s. under its supplemental supply right rather than 100 c.f.s., greater amounts of permanent storage and end-of-month storage could be available to the...