Schulthess v. Carollo

• Decision Date: 20 May 1992
• Docket Number: No. 91-150,91-150
• Citation: 832 P.2d 552
• Parties: Wallace J. SCHULTHESS, Petitioner, v. George CAROLLO and the State Board of Control, Respondents.
• Court: Wyoming Supreme Court

Page 552

832 P.2d 552

Wallace J. SCHULTHESS, Petitioner, v. George CAROLLO and the State Board of Control, Respondents.

No. 91-150.

Supreme Court of Wyoming.

May 20, 1992.

Sharon M. Rose of Vehar, Beppler, Lavery, Rose & Boal, P.C., Evanston, for petitioner.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Dennis C. Cook, Sr. Asst. Attys. Gen., Frederick E. Chemay, Asst. Atty. Gen., Cheyenne, for respondents.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

George Carollo (Carollo) filed a petition with the State Board of Control (Board) to have Wallace Schulthess' (Schulthess) original supply water rights to 116 acres and his supplemental supply water rights to 37.78 of the 116 acres declared abandoned. Following a hearing, the Board issued an order which granted Carollo's petition as to Schulthess' original and supplemental supply water rights to 37.78 acres and denied his petition as to the remaining 78.22 acres. Schulthess timely filed a petition for review with the district court, claiming that Carollo lacked standing, that the petition for abandonment was deficient, and that the evidence was insufficient to support the Board's order. The district court certified the case to this court for review. We will reverse the Board's order and remand the case to the Board with directions that Carollo's petition for abandonment be dismissed.

ISSUES

Schulthess raises the following issues for review:

A. Whether or not the state board of control erred in finding that defendant-contestant had standing to bring a petition for abandonment.

B. Whether or not plaintiff-contestee's property has been taken without due process of law, if defendant-contestant's standing to bring the petition for abandonment is based upon injury or benefit C. Whether or not defendant-contestant failed to prove by clear and convincing evidence that plaintiff-contestee had abandoned the water rights at issue.

to a water right that was neither pled nor presented through evidence at the hearing on the petition for abandonment.

Carollo and the Board rephrase the issues:

I. Whether George Carollo, petitioner below and appellee/respondent here, had standing to bring his petition for a declaration of abandonment on the basis of the surplus water right attaching, by operation of law, to his original supply water right, and if so, was the appellant denied due process by the Board's reliance on that surplus water right?

II. Whether the Board's decision is supported by substantial evidence?

FACTS

The facts of this case are best understood by placing them into context geographically. The water rights relevant to the present controversy originate from two streams, Beaver Creek and Ham's Fork Creek. Beaver Creek flows in a southwesterly direction and is a tributary of Ham's Fork Creek. Ham's Fork Creek flows in a southeasterly direction. Upon convergence, the two streams form what is best illustrated by the letter "Y"--the right branch of the "Y" representing Beaver Creek, the left branch of the "Y" representing the upper Ham's Fork Creek, and stem of the "Y" representing the lower Ham's Fork Creek.

Schulthess owns an original supply water right with a priority date of January 20, 1916, for the diversion of water from the upper Ham's Fork Creek into the Johnson-Spencer Ditch for stock watering purposes and for the irrigation of 116 acres. Schulthess also owns a supplemental supply water right with a priority date of January 28, 1931, for the diversion of water from Beaver Creek into the Enlarged Johnson-Spencer Ditch for the irrigation of 37.78 of the 116 acres. The 116 acres to which Schulthess' water rights appertain are located southeast of both Ham's Fork Creek and Beaver Creek. Historically, water diverted from the upper Ham's Fork Creek traversed the land between the point of diversion and Beaver Creek via the Johnson-Spencer Ditch, was flumed across Beaver Creek, and continued in the Enlarged Johnson-Spencer Ditch until reaching the 116 acres. In 1932, the point of diversion and means of conveyance for the original supply water appurtenant to 78.22 of the 116 acres were changed from the Johnson-Spencer Ditch to the Smith No. 1 Ditch. The Smith No. 1 Ditch diverts water from the lower Ham's Fork Creek and provides a more direct route for the irrigation of the 78.22 acres.

Carollo owns an original supply territorial water right with a priority date of May 15, 1889, for the diversion of water from Beaver Creek into the East Stock Ditch for irrigation purposes. Based on his water right in Beaver Creek, Carollo petitioned the Board to declare as abandoned Schulthess' original supply water right from Ham's Fork Creek and his supplemental supply water right from Beaver Creek. Carollo alleged that Schulthess had failed to apply the subject water to beneficial use for the period of five years and that he, Carollo, would be benefitted by a declaration of abandonment. The Board considered Carollo's petition for abandonment at a regular board meeting and referred it for public hearing.

A public hearing was then held at which both Carollo and Schulthess presented evidence relative to whether Schulthess had beneficially used his original or supplemental supply water rights in the previous five years. Both prior to and following the presentation of the evidence, Schulthess moved to have Carollo's petition for abandonment dismissed or denied on the ground that Carollo, possessing the senior water right, lacked standing under Wyo.Stat. § 41-3-401(b)(i) (Supp.1990). Wyo.Stat. § 41-3-401(b)(i) has, at all relevant times, conferred standing upon "[a]ny 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."

Following the hearing, the Board issued its findings of fact, conclusions of law, and order granting in part and denying in part Carollo's petition for abandonment. The Board determined initially that Carollo had standing to bring the petition for abandonment. The Board made this determination by judicially noticing that a surplus water right with a priority date of March 1, 1945, attached by operation of law to Carollo's Beaver Creek water right. Using the March 1, 1945 priority date, the Board concluded that Carollo, possessing a water right junior to those he sought to abandon, had standing under Wyo.Stat. § 41-3-401(b)(ii). Wyo.Stat. § 41-3-401(b)(ii) has, at all relevant times, conferred standing upon "[t]he 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." The Board then determined that the evidence was sufficient to grant Carollo's petition of abandonment as it pertained to Schulthess' original and supplemental supply water rights to irrigate 37.78 of the 116 acres. The Board denied Carollo's petition as to that portion of Schulthess' original supply water right that had been changed to the Smith No. 1 Ditch for the irrigation of the remaining 78.22 acres.

Schulthess timely filed a petition for review with the district court. In his petition, Schulthess averred that Carollo lacked standing, that his abandonment petition was deficient, and that the evidence was insufficient to support the Board's order. The district court certified the case directly to this court for review pursuant to Wyo.R.App.P. 12.09.

STANDARD OF REVIEW

When an administrative case is certified to this court pursuant to Wyo.R.App.P. 12.09, we review the decision "under the appellate standards applicable to a reviewing court of the first instance." Amax Coal v. State Bd. of Equalization, 819 P.2d 825, 828 (Wyo.1991) (quoting Application of Campbell County, 731 P.2d 1174, 1175 (Wyo.1987)). The scope and standards of administrative review are well known and need not be recited in detail. Suffice it to state that our general objective is to determine whether the agency's decision is supported by sufficient findings of fact, whether the findings of fact are supported by sufficient evidence, and whether it is in accordance with the law. ¹

DISCUSSION

The primary issue raised for our consideration is whether the Board erred in concluding that Carollo had standing to petition for an abandonment of Schulthess' water rights. This issue cannot be addressed, however, without first considering whether the Board made findings of fact sufficient to provide this court with a rational basis for judicial review. See Wyo.Stat. § 16-3-110 (July 1990); FMC v. Lane, 773 P.2d 163 (Wyo.1989). Therefore, our initial task is to revisit the doctrine of standing both generally and as it applies to an abandonment proceeding to identify what findings of fact the Board must make before concluding that a petitioner has standing. We must then examine the Board's order to determine if such findings of fact were adequately made, and, if so, whether they were supported by substantial evidence.

The doctrine of standing is a jurisprudential rule of jurisdictional magnitude. At its most elementary level, the standing doctrine holds that a decision-making body should refrain from considering issues in which the litigants have little or no interest in vigorously advocating. Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 317 (Wyo.1980), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28. Accordingly, the doctrine of standing focuses upon whether a litigant is properly situated to assert an issue for This court has not addressed the issue of what is required to establish standing in an abandonment proceeding since the 1985 amendments to Wyo.Stat. § 41-3-401(b) (1977). Before 1985, § 41-3-401(b) (1977) simply conferred standing upon "any water user who might be affected by a declaration of abandonment." We interpreted...