Zezas Ranch, Inc. v. Board of Control

• Decision Date: 20 February 1986
• Docket Number: No. 85-78,85-78
• Citation: 714 P.2d 759
• Parties: ZEZAS RANCH, INC., and Lulu Zezas, Appellants (Respondents and Petitioners), v. BOARD OF CONTROL, State of Wyoming, Appellee (Respondent), Leo Tass, Johnson-Rogers Cattle Company, Inc., Preston and Nina Bolinger, John W. and Eileen Daley, and Roy R. and Mary E. Schedlock, Appellees (Petitioners and Respondents).
• Court: Wyoming Supreme Court

Page 759

714 P.2d 759

ZEZAS RANCH, INC., and Lulu Zezas, Appellants (Respondents and Petitioners), v. BOARD OF CONTROL, State of Wyoming, Appellee (Respondent) Leo Tass, Johnson-Rogers Cattle Company, Inc., Preston and Nina Bolinger, John W. and Eileen Daley, and Roy R. and Mary E. Schedlock, Appellees (Petitioners and Respondents).

No. 85-78.

Supreme Court of Wyoming.

Feb. 20, 1986.

Rehearing Denied April 11, 1986.

David F. Palmerlee, of Omohundro and Palmerlee, Buffalo, for appellants.

A.G. McClintock, Atty. Gen., and John D. Erdmann, Asst. Atty. Gen., for appellee Board of Control, Henry A. Burgess and Kim D. Cannon of Burgess & Davis, Sheridan, for remaining appellees.

Before THOMAS, C.J., and ROONEY, ^* BROWN and CARDINE, JJ., and RAPER, J., Retired.

ROONEY, Justice, Retired.

This is an appeal from a district court order affirming the action of the Board of Control which quantified Priority No. 2 on Crazy Woman Creek. Appellants word the issues on appeal as follows:

"(a) Was quantification of the No. Two Priority under the Crazy Woman Decree within the jurisdiction of the Board of Control?

"(b) Was quantification of the No. Two Priority under the Crazy Woman Decree res judicata?

"(c) Did Appellees have standing to seek quantification of the No. Two Priority under the Crazy Woman Decree?

"(d) Was the Crazy Woman Decree an ordering of vested water rights by priority and quantity in 1889?

"(e) Is the territorial court presumed to have acted in conformity with the law which required it to quantify the No. Two Priority under the Crazy Woman Decree?

"(f) Was quantification of the No. Two Priority under the Crazy Woman Decree by the Board of Control, under the law of the case, supported by substantial evidence and contrary to law?

"(g) Are Appellants entitled to divert and use up to the decreed amount of the No. Two Priority for beneficial use in accordance with Quinn et al. v. John Whitaker Ranch Co. et al.?"

The water rights from Crazy Woman Creek were adjudicated in 1889 by the territorial district court pursuant to the judicial adjudication statutes, Ch. 61, § 15, Session Laws of Wyoming Territory (1886). The Crazy Woman Decree concerning this adjudication was issued by that court on July 5, 1889, prior to Wyoming's statehood and prior to the establishment of the Board of Control.

Priority No. 2 of the Crazy Woman Decree reads as follows: ¹

"PRIORITY No. 2.

"That John R. Smith and Agnes D. Smith the owners of the John R. Smith Ditch, by original construction thereof shall be entitled through said ditch to so much water from Crazy Woman Creek and its several tributaries, as may be necessary and useful for the irrigation of 1200 acres of land lying thereunder, not to exceed 67 and 3/100 cubic feet of water per second of time and the same shall be Priority No. 2."

On April 21, 1975, appropriators junior to Priority No. 2 filed a petition for a partial declaration of abandonment. This petition was later amended to include a prayer for quantification of Priority No. 2. On August 17, 1977, the Board of Control entered its decision that neither side had proved abandonment, and that it did not have jurisdiction to consider the prayer for quantification. On review, the district court remanded the matter to the Board of Control, holding that the latter did have jurisdiction The Board of Control, on March 14, 1984, issued the order being reviewed here. That order quantified Priority No. 2 at one cubic foot per second per 70 acres of irrigated land for 1200 acres. The district court affirmed this order, and the present appeal was brought.

to determine the amount of water "necessary and useful" under Priority No. 2, as that amount had not been previously quantified.

JURISDICTION

Issue (a)

Appellants first contend that the Board of Control lacks jurisdiction to quantify a single water right, as opposed to having jurisdiction to conduct an entire streamwide adjudication. The district court clearly had jurisdiction to interpret the Crazy Woman Decree under the situation in this case. In so doing, the district court found an omission in the Crazy Woman Decree. It was, then, appropriate for the district court to call upon the state agency with expertise in this area, i.e., the Board of Control, to ascertain the facts necessary to correct the omission.

We have approved this procedure before. In the case of Kearney Lake, Land & Reservoir Company v. Lake DeSmet Reservoir Company, Wyo., 487 P.2d 324 (1971), we discussed the relationship between the Board of Control and the district court in regard to jurisdiction over abandonment proceedings. Two relationships being proposed, that of concurrent jurisdiction in the two entities and that of exclusive jurisdiction in the Board of Control, we chose to adopt a third: that of primary jurisdiction in the Board of Control. We said there:

" ' * * * [C]oordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge. See Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). The doctrine of primary jurisdiction has become one of the key judicial switches through which this current has passed. When there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved. * * * ' " Id., 487 P.2d at 328, quoting from Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Trans-Atlantic, 400 U.S. 62 , 91 S.Ct. 203, 208, 27 L.Ed.2d 203, 208 (1970).

This being said, we note that we will save for a later case the question of whether or not the Board of Control would have had jurisdiction initially to quantify a single water right.

STANDING

Issue (c)

Although appellants word this issue as concerning standing to "seek quantification" of the water right here involved, their argument is directed toward standing to attack an already quantified water right on the basis of abandonment or condemnation. They refer us to recent decisions of this Court concerning abandonment: Cremer v. State Board of Control, Wyo., 675 P.2d 250 (1984), and Platte County Grazing Association v. State Board of Control, Wyo., 675 P.2d 1279 (1984).

An abandonment theory was contained in the pleadings in this case, but the case was processed on the quantification issue. Appellees hold water rights junior to Priority No. 2 which will not be satisfied if the water allowed to Priority No. 2 is greater than the quantity allocated thereto as "necessary and useful." In effect, appellees are requesting the determination of the amount allocated to Priority No. 2 in order that proper administration of the water rights can be had, rather than an abandonment or condemnation of an already established quantity of water--which must be accomplished under the specific statutes relative thereto.

As holders of junior water rights in a stream, appellees certainly have standing Recognizing that the original position in the matter was premised primarily on abandonment, standing existed even at that time. The cases relied upon by appellant are easily distinguished. Cremer involved a senior water right seeking abandonment of a junior water right--a different situation than in this case. Platte County Grazing Association involved the amount of land to which the water was being applied and not the quantity of water being used.

to contest the administration of water that is not quantified by the adjudication of the water right.

In Laramie Rivers Company v. Wheatland Irrigation District, Wyo., 708 P.2d 20 (1985), we said that a fundamental aspect of the standing doctrine is that one who presses an issue must allege "a personal stake" in the outcome, so as to guarantee a full and complete adversarial presentation of the case. We went on to say:

"The standing requirements of § 41-3-401(b) ² mandate that the petitioner must be possessed of a water right that is being abridged either by misuse (misapplication), as was the case in Platte County Grazing Association, or nonuse as the junior appropriator contends here. * * * " (Emphasis in original; footnote omitted.) 708 P.2d at 28.

Appellees in this case alleged a misuse of water in that they contended that either an abandonment or a quantification was proper. They hold junior water rights which will not be satisfied absent some requested relief, due to the lack of water in the stream to satisfy all appropriators. They had standing to request relief.

QUANTIFICATION

Issues (b), (d), (e) and (g)

These issues are all interrelated and may be considered together. Basically they boil down to the question: Did the Priority No. 2 portion of the Crazy Woman Decree, supra, specify the amount of water "necessary and useful for the irrigation of 1200 acres of land lying thereunder"?

The Priority No. 2 water right, along with others, was adjudicated pursuant to the judicial adjudication statutes, which provided for a declaration of existing water rights establishing the priority "with the amount of water which shall be held to have been appropriated by such construction and enlargement." Appellants argue that since the statutory duty pursuant to the territorial act was to establish the amount of each existing water right, we must assume that such was done. However, to so assume would be to ignore the plain language of the Crazy Woman Decree itself. The Crazy Woman Decree sets the amount of water for Priority No. 2 at that amount "necessary and useful for the irrigation of 1200 acres of land * * * not to exceed 67 and 3/100 cubic feet of water per second of time." The Crazy Woman Decree does not state what amount of water is "necessary and useful." Regardless of what the territorial court was or was not required by law to do, it is clear from the document itself that no definite quantity of...