Hawley v. Kansas Department of Agriculture

• Decision Date: 28 April 2006
• Docket Number: No. 93,690.,93,690.
• Citation: 132 P.3d 870
• Parties: Marlin M. HAWLEY and Karen E. Hawley, Trustees of the Marlin M. Hawley Trust and the Karen E. Hawley Trust, Appellees, v. KANSAS DEPARTMENT OF AGRICULTURE, Division of Water Resources, Appellant.
• Court: Kansas Supreme Court

132 P.3d 870

Marlin M. HAWLEY and Karen E. Hawley, Trustees of the Marlin M. Hawley Trust and the Karen E. Hawley Trust, Appellees, v. KANSAS DEPARTMENT OF AGRICULTURE, Division of Water Resources, Appellant.

No. 93,690.

Supreme Court of Kansas.

April 28, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brett W. Berry, of Kansas Department of Agriculture, Division of Water Resources, of Topeka, argued the cause and was on the brief for appellant.

Larry G. Michel, of Kennedy Berkley Yarnevich & Williamson Chartered, of Salina, argued the cause and was on the brief for appellees.

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

The Division of Water Resources, Kansas Department of Agriculture (DWR), appeals an order of the district court setting aside DWR's termination of a water right. The sole issue is whether DWR erroneously interpreted K.S.A.2005 Supp. 82a-718 when it concluded that one of the notice provisions of the statute, subsection (b), was not a condition precedent to termination of a water right pursuant to subsection (a). The appeal is brought pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., and our jurisdiction is under K.S.A. 20-3018 (approval of Trustees' motion to transfer).

We reverse the district court and affirm the decision of DWR terminating the water right.

FACTS

On July 6, 1953, E.E. Conzelman applied to DWR, file number 1575, for a permit to appropriate water for beneficial use from the Republican River in Republic County, Kansas, through use of a pump and sprinkling system. On October 9, 1953, DWR's chief engineer approved the application for "irrigation purposes." After correcting the land description in the application, the chief engineer issued a certificate of appropriation on May 11, 1960. The certificate informed Conzelman that the water appropriation right "shall exist and continue only by the exercise thereof in a lawful manner. [It] shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful beneficial use is made of water under this appropriation for three (3) successive years."

In November 1978, Conzelman received a letter from DWR concerning water usage between 1975 and 1977:

"If it is determined that no water has been used pursuant to this application or if it is determined that a water right has been perfected to some extent by use of water before 1975, the issue of abandonment and termination of such right or the dismissal of the application will be considered by the Chief Engineer for further action."

Conzelman replied that he had completed water use reports for the years in question, he was not irrigating during the period in question due to crop selection, and he was operating according to conservation guidelines.

Conzelman held the water right until his death on July 30, 1982. Following Conzelman's death, his son, Max, took over operation of the farmland subject to the water right.

On November 23, 1982, DWR again sent a letter concerning abandonment and termination of the water right. In response, Max asserted that use of the water right would change under his management. Based on the change in management, he asked DWR to withhold termination proceedings.

A third letter was sent from DWR in 2000 detailing the nonuse. DWR asserted that according to water use reports, the water right had only been exercised once in over 40 years.

After Max's death in December 2000, the water right passed to his daughter, Karen Hawley, and son-in-law, Marlin Hawley, as trustees of his estate (Trustees). In February 2002, the 2000 DWR letter detailing the nonuse was forwarded to Marlin Hawley with a notice of "possible abandonment."

In May 2003, six other holders of water rights on and around the Republican River sent DWR letters requesting an expedited abandonment hearing for the Trustees' water right. The letter discussed the impact that use of the Trustees' water right would have on other water right holders:

"The last reported diversion of this surface water permit was in 1970. It is known that the owner [Trustees] is using this water right in anticipation that there will be several years before a scheduled abandonment hearing. Many water right owners, from the Nebraska border down the Republican River, will be directly impacted by the [Trustees'] use of water file number 1,575 in both minimum desirable streamflow calculations and seniority concerns. We would not want this to start a trend of using water rights that have not complied with Kansas Statutes." (Emphasis added.)

Two months later, in July 2003, DWR sent a letter to the Trustees regarding abandonment and termination of their water right to provide them with "notice ... and the opportunity to comment." DWR requested documentation of the Trustees' "due and sufficient cause" for periods of nonuse not previously provided by their annual water reports.

In a letter dated August 11, 2003, Marlin Hawley replied that he was not aware why water right No. 1575 had not been used:

"He [Max Conzelman] passed away December 1, 2000, having spent the previous four years of life in a nursing home. Prior to those years, he cared for my invalid mother in their home until her death. He had leased the ground for many years. Otherwise, I am unaware of the reasons why the water right was not used.

"I became aware of this problem in 2001 and promptly installed a pivot system in 2002 and pumped 80 hours. In December, 2002, I received notice that a waterflow meter was required before the watering season. This meter was installed and has been inspected by your Stockton Field Office. I have been irrigating all this summer of 2003."

On December 17, 2003, Scott Ross, an authorized representative of DWR's chief engineer, filed a 20-page verified report regarding permit No. 1575 pursuant to K.S.A. 82a-718. The report was prepared by G. Duane Harris, an engineering technician employed by DWR, after investigating the water use history under the permit. The report concluded that

"no lawful, beneficial use has been made under the above referenced Appropriation of Water for five or more successive years (1971 thru 2002) and ... due and sufficient cause for non-use has not been shown. The above referenced Water Right cannot be certified as a water right based on the information herein as required in K.S.A. 82a-714(c). Therefore, I hereby recommend to the Chief Engineer that notice be given and a hearing be held in accordance with the provisions of K.S.A. 82a-718 to determine whether the above referenced Water Right, File No. 1,575 should be declared abandoned and terminated."

One week later, on December 24, DWR initiated proceedings by sending to the Trustees, via certified mail, the verified report and notice of a hearing. The notice stated that the purpose of the hearing was "to determine whether any water right that may exist under the above-referenced file number shall be deemed abandoned and terminated under the provisions of the Kansas Water Appropriation Act." It additionally advised that "[t]he hearing is the parties' opportunity to present evidence (facts) to show whether the lawful, beneficial use of water occurred during the alleged period of non-use or whether due and sufficient cause for such non-use of water existed." Among other things, DWR attached a copy of K.A.R. 5-7-1, promulgated by the chief engineer pursuant to his authority granted in K.S.A. 82a-706a, which identifies 10 different categories of "due and sufficient cause" for nonuse of water.

The Trustees filed an answer and motion to dismiss, asserting that due and sufficient cause for nonuse existed and that DWR's compliance with the notice provision of K.S.A.2005 Supp. 82a-718(b) is a condition precedent to an abandonment action. DWR filed an objection to the motion, arguing that the notice provisions of K.S.A.2005 Supp. 82a-718(b) only apply to the limited class of water rights where the water right has been unused for 3 successive years but for less than 5 successive years; under the circumstances of the case, only the notice of hearing under subsection (a) was necessary.

The two notices in K.S.A.2005 Supp. 82a-718 state in relevant part:

"(a) All appropriations of water must be for some beneficial purpose. Every water right of every kind shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful, beneficial use is henceforth made of water under such right for five successive years. Before any water right shall be declared abandoned and terminated the chief engineer shall conduct a hearing thereon. Notice shall be served on the user at least 30 days before the date of the hearing. . . .

. . . .

"(b) When no lawful, beneficial use of water under a water right has been reported for three successive years, the chief engineer shall notify the user, by certified mail, return receipt requested, that: (1) No lawful, beneficial use of the water has been reported for three successive years; (2) if no lawful, beneficial use is made of the water for five successive years, the right may be terminated; and (3) the right will not be terminated if the user shows that for one or more of the five consecutive years the beneficial use of the water was prevented or made unnecessary by circumstances that are due and sufficient cause for nonuse, which circumstances shall be included in the notice." (Emphasis added.)

The Trustees' motion to dismiss was denied by the hearing officer in a prehearing order dated February 4, 2004. In the order, she gave several reasons for her holding.

First, she examined the plain language of the statute.

"Because the issues raised require interpretation of a statutory provision, the fundamental rule is to give the statute the effect intended by the legislature. Respondents' argument asserts that, in this case, legislative intent must be determined based on principles of statutory...