Mohr v. State (In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys.)
Decision Date | 13 August 2015 |
Docket Number | No. S–15–0008.,S–15–0008. |
Parties | In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN the BIG HORN RIVER SYSTEM and All Other Sources, State of Wyoming. Frank E. Mohr, Appellant (Objector), v. The State of Wyoming and Farmers Canal Company, Appellees (Respondents). |
Court | Wyoming Supreme Court |
Representing Appellant: Frank E. Mohr, pro se.
Representing Appellee State of Wyoming: Peter K. Michael, Wyoming Attorney General; James Kaste, Deputy Attorney General; Chris Brown, Senior Assistant Attorney General; Abigail C. Boudewyns, Assistant Attorney General.
Representing Appellee Farmers Canal Company: No appearance.
Before BURKE, C.J., and HILL, KITE* , DAVIS, and FOX, JJ.
[¶ 1] In the final phase of the general adjudication of water rights in the Big Horn River, the Wyoming Board of Control (the Board) recommended elimination of certain unused and unadjudicated water rights under Farmers Canal Permit 854 (Farmers Canal Permit), including the rights to irrigate Tract 109, now owned by Appellant Frank E. Mohr. Since at least 1922, Tract 109 has been irrigated under Permit 3712E (the Perkins Ditch Enlargement). In conjunction with his application for that permit, Mr. Mohr's predecessor submitted his affidavit acknowledging that water under the Farmers Canal Permit had not been put to beneficial use on Tract 109, and relinquishing his right to water under that permit. The Special Master and the district court found that relinquishment of the Farmers Canal Permit by Mr. Mohr's predecessor was final and not subject to attack by Mr. Mohr. Mr. Mohr argues on appeal that his predecessor's actions did not eliminate the Farmers Canal right, and he asserts a multitude of procedural errors by the district court. We affirm.
[¶ 2] Although Mr. Mohr asserts numerous issues, we can discern and will address the following:
[¶ 3] In 1977, the Wyoming Legislature authorized the general adjudication of “the nature, extent, and relative priority of the water rights of all persons” in the Big Horn River system. Wyo. Stat. Ann. § 1–37–106 (LexisNexis 2015). The Big Horn adjudication was divided into three phases:
The focus of the first phase was on the claims of the United States of America and the Shoshone and Arapaho Tribes regarding reserved water rights on the Wind River Indian Reservation and any other water rights established by federal law. The second phase was to focus upon the consideration of claims asserted by non-Indian successors in interest to lands within the Wind River Indian Reservation that once had been owned by Indian allottees and subsequently conveyed. The third phase was reserved for litigation of all claims founded on state court decrees, state certificates of appropriation, state permits that had not been cancelled, or any additional state claims otherwise represented.
In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61, 65 (Wyo.1990) (Big Horn II ). Mr. Mohr's appeal comes to us under Phase III, and concerns the elimination of an uncancelled permit.
[¶ 4] The Farmers Canal Permit was filed on November 21, 1894, by “Richard L. Preator in the name of and for the Farmers Canal Company,” for irrigation, mill, and domestic purposes. The permit originally sought water to irrigate 14,353.81 acres from the Greybull River, including 161.73 acres, now known as Tract 109, and currently owned by Mr. Mohr. Over the years, the Board adjudicated 9,214.81 of the acres identified in the Farmers Canal Permit, but no Farmers Canal water was ever adjudicated for Tract 109.
[¶ 5] In November 1916, Levi Johnson, Mr. Mohr's predecessor-in-interest to Tract 109, signed an application for the Perkins Ditch Enlargement for the purpose of irrigating Tract 109 and for domestic use. In conjunction with his application, Mr. Johnson executed the following affidavit:
The affidavit was filed, but the State did not remove references to Tract 109 in the Farmers Canal Permit or otherwise formalize the requested cancellation.
[¶ 6] The State Engineer issued a permit for the Perkins Ditch Enlargement in December 1916. Construction began in May 1917, was completed in October 1920, and water was put to beneficial use on Tract 109 through the ditch in September 1921. Mr. Johnson submitted a Proof of Appropriation, and the Board subsequently issued a Certificate of Appropriation of Water to Tract 109 under the Perkins Ditch Enlargement. The certificate provided for 2.31 cubic feet per second (cfs) of water for 161.73 acres in Tract 109 with a priority date of August 8, 1916. Through a series of subsequent changes to points of diversion and means of conveyance, Tract 109 continues to receive water under the Perkins Ditch Enlargement, though since at least 1942 it has been delivered via the Farmers Canal.
[¶ 7] In accordance with Phase III procedures for the Big Horn River General Adjudication, the Board inspected unadjudicated water rights under the Farmers Canal Permit, and in May 1992, the following report was transmitted to the Board's Division III Supervisor:
The attachment to the report identified Tract 109 as adjudicated under the Perkins Ditch Enlargement.
[¶ 8] In 2008, the Administrator for the Big Horn River General Adjudication recommended eliminating the unadjudicated acreage from the Farmers Canal Permit, including Tract 109. The recommendations were provided to the Farmers Canal Company, which then forwarded the notice to each landowner in accordance with the Big Horn River General Adjudication procedures. Nine appropriators filed objections to the report, including Mr. Mohr. In response to the objections, the State Engineer's staff conducted further inspection of the unadjudicated lands under the Farmers Canal Permit and submitted an amended report to the district court for adjudication. Though the amended report resolved most objections, it still recommended elimination of Tract 109, and Mr. Mohr continued to object.
[¶ 9] The Special Master held a two-day hearing on Mr. Mohr's objection in February 2010. At the hearing, Mr. Mohr admitted that Tract 109 had never been adjudicated under the Farmers Canal Permit, but was adjudicated under the Perkins Ditch Enlargement with a priority date of 1916. He also admitted that he currently irrigates Tract 109 with water permitted under the Perkins Ditch Enlargement Permit and conveyed via the Farmers Canal. Nevertheless, he contended that Levi Johnson's affidavit was signed without sufficient knowledge of what rights were being relinquished and therefore was ineffective to terminate Tract 109's right to Farmers Canal Permit water. The Big Horn Administrator testified that adjudicating the Farmers Canal Permit to apply to Tract 109 at this point in time would “create a double right on the same system on the same tract of lands[,]” and it would “create[ ] a water conflict on the ground, in addition to the paper record.”
[¶ 10] In her Report and Recommendation to the district court, the Special Master recommended elimination of Tract 109 from the Farmers Canal Permit and concluded:
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