Joe Johnson Co. v. Wyoming State Bd. of Control

• Decision Date: 23 July 1993
• Docket Number: 92-188,Nos. 92-187,s. 92-187
• Parties: JOE JOHNSON CO., Petitioner (Petitioner/Contestant), v. WYOMING STATE BOARD OF CONTROL, Respondent (Respondent), and S.Y. Ranches, Inc., Respondent (Respondent/Contestee). JOE JOHNSON CO., Petitioner (Petitioner/Contestant), v. WYOMING STATE BOARD OF CONTROL, Respondent (Respondent).
• Court: Wyoming Supreme Court

Page 312

857 P.2d 312

JOE JOHNSON CO., Petitioner (Petitioner/Contestant), v. WYOMING STATE BOARD OF CONTROL, Respondent (Respondent), and S.Y. Ranches, Inc., Respondent (Respondent/Contestee).

JOE JOHNSON CO., Petitioner (Petitioner/Contestant), v. WYOMING STATE BOARD OF CONTROL, Respondent (Respondent).

Nos. 92-187, 92-188.

Supreme Court of Wyoming.

July 23, 1993.

Rex E. Johnson, Wheatland, for Joe Johnson Co., petitioner.

Frederick E. Chemay, Asst. Atty. Gen., for Wyoming State Bd. of Control, respondent.

Frank J. Jones, Wheatland, for S.Y. Ranches, Inc., respondent.

Before MACY, C.J., and THOMAS, CARDINE, and GOLDEN, JJ. and BROWN, Ret. J.

BROWN, Justice (Retired).

Petitioner Joe Johnson Co. seeks review of two orders of the State Board of Control (Board) denying its petitions for declaration of abandonment of certain ground water rights attaching to lands owned by respondent S.Y. Ranches, Inc., and other parties who did not appear to contest the matter. We affirm.

Johnson presented the following issues for review: ¹

1. Does Johnson have standing to seek a declaration of abandonment of the ground water wells set forth in the two Petitions for Abandonment which it filed?

2. Did the State Board of Control, hereinafter referred to as "Board", err in finding that Johnson did not have standing to seek a declaration of abandonment?

3. Is the Board's decision supported by substantial evidence?

Johnson has a ground water right with an appropriation priority date of March 27, 1989. This appropriation, known as the Eydie Lee Johnson No. 2 well, is relied on by petitioner to establish standing for its two petitions, identified in this court as No. 92-187 and No. 92-188.

The water rights sought to be abandoned in Docket No. 92-187 are two appropriations owned by S.Y. Ranches, Inc. These wells are commonly known as the "Bowen Wells." These wells are north of the North Laramie River.

The petition in Docket No. 92-188 involved three appropriations owned by the Farmers' Home Administration (FHA), United States of America. The United States declined to appear at the hearing in opposition to the petition. These wells are referred to as the "G.E. Wells."

It is undisputed that all the wells involved in these petitions draw from the same aquifer (the Arikaree formation, also know as the "Red aquifer") for their source of water, and that the Eydie Lee Johnson No. 2 Well was junior in priority to each of the appropriations sought to be abandoned.

In support of its petitions for declaration of abandonment, Joe Johnson Co. offered the testimony of Joe Johnson, Sr., President of Joe Johnson Co. Regarding potential benefit or injury, Mr. Johnson's testimony consisted of the assertion that Joe Johnson Co. stood to benefit by the abandonment of the appropriations in question because there would be fewer senior appropriators ahead of Joe Johnson Co. drawing from the aquifer. Mr. Johnson testified that no studies were performed with regard to injury, and he offered no specific testimony as to whether Joe Johnson Co. was then using ground water which would be withdrawn to the company's detriment by the five wells subject to the petitions if they were reactivated. Also, no testimony was offered to show whether, or in what amounts, the reactivation of the five wells might affect the Eydie Lee Johnson No. 2 Well.

Johnson also offered documentary evidence in support of its petitions through its request that the Board take administrative notice of several orders of the State Engineer and the Board of Control, along with the record of proceedings supporting each order. The Board granted that request and considered those materials. These records are from three separate proceedings which were held before the State Engineer and the Board of Control in the late 1970's and early 1980's. These proceedings were: (1) Johnson application; (2) Basin Electric Power petitions for a change in use from irrigation to industrial; and (3) the creation of the Platte County control area.

I.

The Board concluded that the enhancement of a petitioner's relative priority without a showing of potential tangible benefit or injury was insufficient to sustain the petitioner's standing to seek the abandonment of the water rights at issue. The Board found that Johnson failed to produce any direct evidence regarding the potential effect of reactivating the Bowen wells and the G.E. wells.

The Board also concluded that the additional evidence it noticed did not support Johnson's standing and found that the evidence contained no specific analysis of the wells involved. The Board also found that the wells studied or involved in the Johnson application were not sufficiently similar to the wells involved in this case to support the conclusion that the results of those studies were applicable in this case. The Board found that the record of the Basin Electric applications contained no evidence pertaining to ground water effect resulting from the operation of any wells. Finally, the Board found that the record of the creation of the Platte County Control Area contained no evidence as to specific well-to-well interactions.

We defer to the Board's specialized knowledge and expertise regarding the use and nonuse of water and the technicalities involved in irrigation. Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P.2d 548, 549 (Wyo.1970); Wheatland Irrigation District v. Pioneer Canal Co., 464 P.2d 533, 543 (Wyo.1970); Laramie Rivers Co. v. Le Vasseur, 65 Wyo. 414, 202 P.2d 680, 694-95 (1949). Such deference is particularly appropriate when the Board's actions, as in this case, involve an area of such technical complexity as ground water. When deferring to an agency's experience and expertise, we will not disturb the agency's decision except "where it is clearly contrary to the overwhelming weight of the evidence on the record." Vandehei Developers v. Public Service Commission of Wyoming, 790 P.2d 1282, 1287 (Wyo.1990).

Other standards of reviewing agency action which may have some peripheral application here are:

Substantial evidence is defined by this court as "relevant evidence which a reasonable mind might accept in support of the conclusions of the agency." The substantial evidence standard also requires that there be more than a scintilla of evidence. It is not required that the proof attain such a degree of certainty as to support only one conclusion to the exclusion of all others. Once the measure of evidence has surpassed the scintilla threshold, the possibility of drawing two inconsistent conclusions from the entire record does not mean that the conclusion drawn by the administrative agency is not supported by substantial evidence. Even where this court, after reviewing the record, arrives at a different conclusion, the court cannot substitute its judgment for that of the agency's as long as the agency's conclusion is supported by substantial evidence.

Department of Employment, Labor Standards Div. v. Roberts Construction Co., 841 P.2d 854, 857 (Wyo.1992) (citations omitted).

It is not disputed that the circumstances here are covered by the basic abandonment of water rights statutes, Wyo.Stat. § 41-3-401 (Supp.1992). ² The controlling portion of the statute, however, is Wyo.Stat. § 41-3-401(b), which provides in part:

When any water user who might be benefitted by a declaration of abandonment of existing water rights or who might be injured by the reactivation of the water right, desires to bring about a legal declaration of abandonment, he shall present his case in writing to the state board of control. * * * The following persons have standing to petition the state board of control to declare the abandonment of existing water rights under this section:

(i) Any person who has a valid adjudicated water right or is the holder of a valid permit from the same source of supply which is equal to or junior in date of priority to the right for which abandonment is sought; or

(ii) The holder of a valid water right entitled to surplus water under W.S. 41-4-318 through 41-4-324, petitioning to abandon a water right from the same source of supply if the right sought to be abandoned has a priority date of March 1, 1945, or earlier.

In an effort to reconcile what we have said in prior cases with the circumstances of this case, petitioner at oral argument advanced a rather novel notion regarding the construction of Wyo.Stat. § 41-3-401(b). Petitioner argued that this section provided for two classes of persons or entities that could seek abandonment under the statute. According to petitioner, one class was provided for in the first sentence of Wyo.Stat. 41-3-401(b), that is, those who might be benefitted by a declaration of abandonment or who might be injured by reactivation of the water right. The other class of persons or entities who could seek abandonment according to petitioner were those who possess a valid water right of equal or junior status to the water right sought to be abandoned and 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.

Petitioner in the case before us has standing to pursue an abandonment petition by virtue of Wyo.Stat. § 41-3-401(b)(i). However, it must additionally show a benefit or injury according to the statute. ³

It is an elementary rule of statutory construction that statutes must be construed so that no part is rendered inoperative or superfluous. State ex. rel. Wyoming Worker's Comp. Div. v. Mahoney, 798 P.2d 836, 838 (Wyo.1990). Accordingly, we read Wyo.Stat. § 41-3-401(b), as amended, to confer standing to petition for abandonment upon a water user who alleges and proves two essential facts: (1) that he possesses a valid water right of equal or junior status to the water right sought to be abandoned; and (2) that the water relied upon by the petitioner and the water right for which a...