265 P.3d 1194
Kan. Ct. App.2011Background
- Wheatland Electric sought changes to FI 168, FI 229, and Application 2,342; the Division approved changes but limited consumptive use.
- District court remanded to reconsider the consumptive-use limitation; the Division then pursued abandonment proceedings and partially abandoned portions of the rights.
- The district court later held the Division could not partially terminate a vested right and remanded to reconsider consumptive-use entitlement.
- Wheatland and the Division appealed; the Division argued it could abandon part of a water right, Wheatland argued it could not.
- Ownership of FI 168 was resolved in Wheatland's favor in 2008; the Division's 2008 abandonment order deemed remaining non-irrigable acres abandoned, prompting further litigation.
- Upon review, the district court struck down partial abandonment as contrary to Kansas law; the case returns for rehearing on consumptive-use entitlement under FI 168.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the Division's consumptive-use regulations valid? | Wheatland contends regulations exceed statutory authority and violate first-in-time rights. | Division asserts regulations fall within the Act to protect public interests and permit limiting consumptive use. | Valid; Division may limit consumptive use under change applications. |
| Can the Division partially abandon a vested right? | Wheatland argues partial abandonment is allowed under statute for nonuse. | Division maintains partial abandonment is authorized by statute; proceeds should be pursued. | No; partial abandonment is not authorized by plain statutory language. |
| Did the Division act arbitrarily or unreasonably in applying consumptive-use regulations? | Wheatland claims reliance on improper data and inconsistent use classifications undermines reasonableness. | Division relied on established data and statutory/regulatory framework to limit use if needed. | Division's actions not arbitrary or unreasonable under State Farm factors. |
| Did the Division have authority to change Application 2,342's type of use and place of use to accomplish Wheatland's goal? | Wheatland argues changes were unnecessary; industrial use already encompasses power-plant water. | Division reasonably required a municipal-use classification given the city involvement and treatment process. | Not arbitrary; change to municipal use and place of use was reasonable. |
| Should the district court remand for reconsideration of consumptive-use entitlement rather than affirm partial-abandonment reasoning? | Wheatland seeks reconsideration of entitlements consistent with remand instructions. | Division believes partial abandonment should govern, but this is contrary to law. | Remand to district court for reconsideration of consumptive-use entitlement under FI 168. |
Key Cases Cited
- Barbury v. Duckwall Alco Stores, 42 Kan. App. 2d 693 (2009) (regulatory deference and standards for challenge to agency regulations)
- Williams v. City of Wichita, 190 Kan. 317 (1962) (police power and due process considerations in water regulation)
- Knapp, 167 Kan. 546 (1949) (public trust in water and abandonment principles)
- Kirkpatrick, Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554 (2009) (inverse condemnation and takings principles in municipal action)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (regulatory takings framework and economic impact balancing)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (takings factors and economic impact considerations)
- Garrett v. City of Topeka, 259 Kan. 896 (1996) (jurisdiction and takings analysis in Kansas context)
- State ex rel. v. Finch, 291 Kan. 665 (2011) (statutory interpretation and liberal construction principles)
- Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426 (1994) (reasonableness standards for administrative action)