Wyoming State Engineer v. Willadsen

• Decision Date: 01 June 1990
• Docket Number: No. 89-223,89-223
• Citation: 792 P.2d 1376
• Parties: WYOMING STATE ENGINEER and the Wyoming State Board of Control, Petitioners (Respondents), v. Jack WILLADSEN and Duane Willadsen, Respondents (Petitioners).
• Court: Wyoming Supreme Court

Page 1376

792 P.2d 1376

WYOMING STATE ENGINEER and the Wyoming State Board of Control, Petitioners (Respondents), v. Jack WILLADSEN and Duane Willadsen, Respondents (Petitioners).

No. 89-223.

Supreme Court of Wyoming.

June 1, 1990.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Sr. Asst. Atty. Gen., Jennifer Hager, Asst. Atty. Gen., and Frank Gibbard, Legal Intern, for petitioner Wyoming State Engineer.

Joseph B. Meyer, Atty. Gen., and S. Jane Caton, Asst. Atty. Gen., for petitioner Wyoming State Bd. of Control.

John W. Pattno, Cheyenne, for respondents.

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

MACY, Justice.

Jack Willadsen and Duane Willadsen appeal from a decision by the Wyoming State Board of Control which affirmed the Wyoming State Engineer's determination that an irrigation well operated by an upstream landowner did not interfere with the Willadsens' surface water rights. The Willadsens appealed the Board of Control's decision to the district court, and the district court certified the appeal to this Court.

We affirm.

The Willadsens present the following issues:

I. Did the District Court err[ ][ ] in failing to hear this case and by certifying the case to the Supreme Court[?]

II. Is it error for the State Board of Control, as hearing officer, to petition for certification of a case to the Supreme Court[?]

III. Did the Board of Control err[ ][ ] in arbitrarily disregarding the uncontradicted and unimpeached testimony of the Contestant Petitioners[?]

IV. Did the Board of Control err[ ][ ] in failing to find that Contestant Petitioners proved by a preponderance of evidence that there was interference by Cottonwood No. 1 Well with Cottonwood Creek[?]

V. Did the Board of Control err[ ][ ] in its arbitrary decision[?]

The Willadsens own a surface water right in water which flows out of Cottonwood Creek. The creek is located approximately eighteen miles north of Wheatland, Wyoming, and feeds a ditch which runs through the Willadsens' ranch. On November 25, 1981, the State Engineer's office received a complaint from the Willadsens contending that an upstream irrigation well was interfering with their surface water rights. Pursuant to Wyo. Stat. § 41-3-911(b) (1977), ¹ the State Engineer's office conducted an investigation to determine if interference existed. The State Engineer's office prepared a report and concluded that the investigation could not substantiate the existence of interference.

The Willadsens contested the results of the investigation at a hearing held before the Board of Control. The Board of Control received evidence and decided that the Willadsens failed to carry their burden of establishing that the irrigation well interfered with their surface water rights. The Willadsens appealed the Board of Control's decision to the district court, and the district court certified the appeal to this Court. We remanded the case back to the Board of Control because it utilized the wrong burden of proof. Willadsen v. Christopulos, 731 P.2d 1181 (Wyo.1987). We held that the Willadsens were entitled to relief if they established by a preponderance of the evidence that the well interfered with their rights. Id.

Once again, the Board of Control held a hearing and received evidence. The Board of Control examined evidence presented at the first hearing and heard additional testimony from expert and lay witnesses. The Board of Control concluded that "the testimony of the parties' experts and lay witnesses did not convince the Board that interference between Cottonwood No. 1 Well Permit No. U.W. 48944[ ] and Cottonwood Creek was any more probable than not" and dismissed the Willadsens' complaint of interference.

The Willadsens appealed the Board of Control's dismissal to the district court. As it did with the first appeal, the district court certified the case to this Court. We must decide whether the appeal was properly certified and whether the Board of Control's conclusion is in accordance with law and supported by substantial evidence.

The Willadsens contend that the district court erred when it certified their case to this Court. W.R.A.P. 12.09 provides in pertinent part that review of an agency determination

shall be conducted by the court without a jury and shall be confined to the record as supplemented pursuant to Rule 12.08, W.R.A.P., and to the issues raised before the agency. The court's review shall be limited to a determination of the matters specified in § 16-3-114(c).

If after such review, the district court concludes the matter to be appropriate for determination by the Supreme Court, the district court may certify the case to the Supreme Court. Upon notification of such certification, the petitioner shall pay the required docketing fee.

Under that rule, the district court's decision to certify a case to this Court is discretional. Safety Medical Services, Inc. v. Employment Security Commission of Wyoming, 724 P.2d 468 (Wyo.1986). The record fails to show that the district court abused its discretion, and the Willadsens have not presented cogent argument or authority demonstrating such abuse. Consequently, we hold that this appeal was properly certified for our review.

The Willadsens also contend that the Board of Control's conclusion that the Willadsens failed to prove interference is inconsistent with the evidence and is arbitrary. After an appropriator of surface water files a complaint alleging interference, the State Engineer must conduct an investigation to determine if interference exists and issue a report to all interested parties. An appropriator who is dissatisfied with the findings of the State Engineer may seek relief under the Wyoming Administrative Procedure Act. Section 41-3-911(c). If an adjudicatory hearing is held before the Board of Control, the appropriator has the burden of proving the existence of interference by a preponderance of the evidence. Willadsen, 731 P.2d 1181. Our review of the Board of Control's determination is subject to the standards specified in W.R.A.P. 12.09 and Wyo. Stat. § 16-3-114(c) (1977). Doidge v. State Board of Charities and Reform, 789 P.2d 880 (Wyo.1990); Employment Security Commission of Wyoming v. Western Gas Processors, Ltd., 786 P.2d 866 (Wyo.1990); Cook v. Zoning Board of Adjustment for the City of Laramie, 776 P.2d 181 (Wyo.1989). Section 16-3-114(c) provides:

To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action....