*1 RIVER GREEN DEVELOPMENT
COMPANY, Appellant
(Petitioner/Respondent), Light Company,
Pacific Power & a
corporation, (Respondent),
v. CORPORATION; Gulf, Inc.;
FMC Texas Corporation;
Allied Chemical Church &
Dwight Inc.; Company, and Charles
Price, Murdock, Noble, Joseph Mike Swain, Luman,
Edna Mae Doris E. John
Wardell, Sommers, Hig Albert P. Ted L.
gins, Harry Steele, Wardell, Jr., Martin Barlow, Appellees
Lance Hill and J.P.
(Petitioners/Respondents). ENGINEER,
The WYOMING STATE
Appellant (Respondent),
GREEN RIVER DEVELOPMENT COM-
PANY; Gulf, Corporation; FMC Texas
Inc.; Corporation; Allied Chemical Dwight Inc.; Company,
Church & Price, Murdock, Joseph
Charles Mike
Noble, Swain, Luman, Edna Mae Doris Wardell, Sommers,
John E. Albert P. Harry Higgins, Steele,
Ted L. Martin Jr.,
Wardell, Barlow, Lance Hill and J.P.
Appellees (Petitioners/Respondents), Light Company,
Pacific Power &
corporation, (Respondent).
Nos. 5771.
Supreme Court of Wyoming.
March *2 Jones, Jones, Vines &
Wm. R. Jones Wheatland, Hunkins, for Green River De- Co., in 5770 and velopment appellant No. 5771; Wolfe, Lawrence J. appellee in No. Gen., Cheyenne, Wyo- for The Atty. Asst. 5771. Engineer, appellant in No. ming State A. Fitz- Fitzgerald E. James Sharon Corp. gerald, appellee for FMC Cheyenne, Sundahl, Godfrey & John Sundahl Gulf, Inc. Cheyenne, appellees Texas for and individual Ranchers. Johnson, ap- Springs,
Robert H. Rock for Corp. and & pellees Allied Chemical Church Co., Dwight Inc. Erdmann, Gen., Atty. Chey-
John D. Asst. enne, filed a brief behalf Board of Control. RAPER, ROONEY, C.J.*, Before **
THOMAS, BROWN, JJ. ROSE ROSE, Justice. THE
NATURE OF CASES 27,1977 River Devel- On December Green (sometimes opment Company called Green River, GRDC), petitioned Engineer, seeking to amend four ac- permits Green River water had quired permits carry These 1948. following priority dates: December 1908; 1910; 1920; March December January 1921. to be con- alleged Under the 41-4-514, W.S.1977,1 peti- tained change tion asked during use cfs of of 131.22 year-round to 20.18 cfs for irrigation season * authorized, January hereby “(a) Chief Justice since The state owner, upon petition of to amend written ** appropriate prior to ad- argument. Justice at time Chief of oral judication by the state board of control for otherwise, correcting purpose errors or filing petition, 1. At the time of the ap- judgment when in his such amendment provided pertinent W.S.1977 pears necessary; provided that desirable or part respects provides: in all material still —and the total area of lands not exceed the permits; petition “Correction of errors in original permit.” area described appropriation; amended certificate of hear- nothing do The balance of the section has notice; ings petition; on costs. Engineer. with an industrial purposes and to FACTS use, point diversion and means The water utilization in is that conveyance. part the water embraced requested used, which has never been which is to say County Sublette to Sweetwater Coun- the lands described the petition as *3 ty away 134 miles to enhance —some —was being included in the permits have never the water supply thus power the steam irrigated, applied been farmed or to ranch- generation capabilities of Pacific Power and has, purposes.4 fact, There in been no Light Company’s Bridger Jim Power Plant. application beneficial of the water which is request The opposed by was affected indus- sought be to transferred in this action even trial and agricultural appropriators Allied though part original permit a of the water Corporation, Dwight Chemical Church & has been appropriated applied to bene- Co., Inc., Gulf, FMC Corporation, Texas ficial use. none the in Since of liti- Inc., Price, Murdock, Joseph Charles Mike diverted, gation here has been there is no Noble, Swain, Luman, Edna Mae Doris historic rate of diversion no historic Wardell, Sommers, John E. Albert P. Ted L. consumptive Additionally, use. GRDC does Steele, Wardell, Jr., Higgins, Harry Martin any by not own of the lands embraced the Lance (sometimes Hill and J.P. Barlow petition. The United of America States Contestants). called urged These parties 8,104 of owns acres the land and it has not that 41-4-514(a) not the did authorize to petition. consented the The State of to request- enter the order is the owner of the remaining ed, use, use, change place that of of 1,012 and, acres while the State Board of point of diversion and means of conveyance Land to appel- Commissioners did consent state’s water could be accom- filing lant’s the plished through petition, did not compliance with stan- join petition dards established as a took party and no W.S.1977 ' 41-3-114(a), and § W.S.1977.3 position respect to its ultimate success provides: “(i) community 2.Section W.S.1977 The to economic loss right and the state if the use from which the place change “Procedure to “(a) use use. or of discontinued; is transferred is right anWhen of a owner wishes “(ii) The extent to which such economic change right present a water its from use use; loss will be the new offset use, place to another or from the of use “(iii) Whether other sources of water are use, existing right place under the to a new available for new use. petition requesting permission he shall file a “(b) all cases where the matter of com- change. petition to make such a The shall pensation dispute, is in of com- pertinent existing set forth all facts about the pensation proper be shall submitted to the use, or, proposed change use and the in determination.” district court for change requested, where a in use pertinent existing all information about the provides: 3. Section W.S.1977 proposed of use and the of use. “(a) Petition to board of control or state en- may require The board an advertised corpora- gineer. Any person, association or public hearing hearings or be held at — acquired right having tion heretofore a petitioner’s expense. petitioner shall The any stream in beneficial use of provide transcript hearing public adjudicated Wyoming, either or state change change the board. The place or change unadjudicated, who allowed, desires may provided appropria- or their diversion his quantity the granting of water transferred means tion or the of diversion and petition shall not exceed the conveyance appropriation, peti- shall of such historically amount of water diverted under control if tion therefor to the state board of existing nor exceed the historic rate adjudicated, the water has been existing of diversion under the in- nor if is unad- the state the water consumptively crease the historic amount judicated.” existing used under the nor decrease flow, any historic amount of return nor in says brief: 4. GRDC in its injure existing appropri- manner lawful begun, but it ators. The board of control all “Beneficial has has shall consider yet completed pertinent facts it not all of the water or believes to the transfer permits.” following: include the lands under the been bene- previously or failure. The Land Commissioner water which had not being contemplat- described State’s consent utilized. This directive ficially equivalent quitclaim 2,000 to “a deed the order of acre feet ed a on Bridge.” Brooklyn it authorized a per year; of water it assessed a 25% conveyance; means of Development Company Green River ac- loss, entitle- leaving an annual quired subject in order to feet, 1,500 acre and allowed diver- ment of on develop agricultural irrigation project period days, for a maximum sion County. some desert lands Sublette July year. 31 of each May through inception record shows that at the 1950’s, project expended in the late GRDC litigation, this Throughout the course of money some to construct facilities to irri- appel- to be the it has been and it continues 10,100 and, gate some acres of land at 41-4- provision that the position lant’s *4 litigation, approxi- time relevant to this 514(a), says Engi- which supra, 7,410 mately acres of this land have been neer is authorized presently being irrigated by permit and are prior adjudi- “to amend agricultural that was authorized for er- correcting cation for the of However, purposes. Green River is not at- judgment in rors or otherwise when his tempting any to transfer of the water nec- amendment seems desirable or such applied which has been to a beneficial use. added) essary,” (emphasis so, it irrigate Even is to be noted that to authority entry is sufficient of land from which it does wish to transfer in here. Engineer’s orders water, additional facilities would have to be constructed. Part of the water in decision was unac- Since question is for lands where en- desert land either River or the Con- ceptable to Green tries have been denied because the federal testants, appealed the Contestants government determined, pursuant to feder- while River Devel- Board of Control Green standards, al these lands were not ir- opment Company appealed directly to rigable. appeal sought district court. This latter aspects in the substantive put issue not By order 1981 and February dated jurisdiction also the of the 24,1981, of the order but February Engi- amended the State appeal. to hear the Un- usé, neer Board of Control authorized a of deterred, jur- the Board of Control assumed convey- of diversion and means of ance Light plant to the Pacific Power and isdiction under of § that part appellant’s original permit Wyo- of and Article 2 of the W.S.19775 41-4-517, W.S.1977, Cum.Supp. hearing if 5. Section 1982 and shall be heard at such tified provides: Any person persons appearance is made. feeling aggrieved by himself or themselves “Appeal engineer from action of state or or- any of order or determination of the board der of board of control. “Any applicant feeling embracing appeals such control cases aggrieved by himself (6) engineer, may months the state within six the endorsement made upon the state by the board of from the date of such action may, application, writing, his in an control, applicant thereof to the and notice pleadings informal manner and without any appeal to the district court of the take an character, appeal sixty (60) days within county greatest in which the use of water is endorsement, date such and notice proposed application. to be made under the applicant, thereof to the to the board of con- appeals procedure in such shall be in any trol for an examination and reversal of conformity provisions of sections with engineer. Upon such action of the state re- 4—401], 41-4-402], 876 ceipt 874 875 appeal, secretary [§ [§ of such an 41— 41-4-404], 41-4-403], 41- notify 878 [§ [§ [§ board of control shall the members 41-4-408], 4-406], 41-4-4Ó7], 880 upon receipt 879 [§ [§ the board of control and 41-4-405], date, replies early the Revised Stat- [§ from them shall fix a as possible, chapter appeal Ses- utes of 1899 and section when such shall be 41-4-207], directly parties heard sion Laws of 1903 The attor- before the board. All [§ shall, cases, appeal ney general represent interested in claim in such those who thereto, duly an adverse interest shall be no- state board of control.” Constitution,6 mmg thus rejecting Green In the course deciding whether River’s contention that the appeal should be had the authority directly taken to the district court. point of diversion and means of conveyance under juris-
Since
Board Control assumed
diction, Green River also filed a
we must
notice of
ask: What
difference be-
appeal
sought
to have the Board of
tween a
and a water
modify
aspects
Control
several
the State where the water has
applied
not been
to a
Engineer’s decision. After a hearing,
beneficial use?7 In the
we
event
find -that
Board reversed the order of
Engi-
the State
significant
exist,
differences do
we must
neer.
identify
then
and evaluate
the salient
parties appealed
All
from the Board of
change of use and diversion inconsistencies
order,
Control’s
and the district court there-
pertain
perceived
such
differ-
after
appeals,
consolidated the
heard all
ences.
say
The reason we
inquiry
this
must
contentions from whatever source
up-
be made is because GRDC and the State
held the Board of Control’s reversal
Engineer press for a theory which holds
State Engineer’s orders.
judg-
From this
that,
we
since
are concerned
amending
ment Wyoming
appeals
“permits” to
apply
waters
the state
the trial
court’s decision in Case No.
to beneficial use at some fu-
Development
Green River
appeals in
(and
ture date
rights,”
therefore “water
Case No. 5770. The
appellees
ap-
each
upon
which are conditioned
the predicate
*5
peal
following
are the
persons and entities:
that water has
to
applied
beneficial
Corporation,
Gulf, Inc.,
FMC
Texas
Allied
involved),
use are not
the State
Corporation,
Chemical
& Dwight
Church
was not
41-4-514(a)
bound under
to the
§
Inc.,
Company,
Price, Joseph
Charles
Mur-
change
use,
use,
dock,
place
Noble,
Mike
of diver-
Swain,
Edna Mae
Doris
Luman,
Wardell,
John E.
sion
conveyance
Albert P. Som-
and means of
constraints
mers, Ted Higgins, Harry Steele,
L.
Martin
imposed upon
which are
the Board of Con-
Wardell, Jr.,
Hill,
Barlow;
Lance
and J.P.
trol when considering
right
water
transfers
Development
Green River
Company is also
under the provisions of
41-
§
§
an appellee in Case No. 5771.
3-114(a) and
case
relating
law
to these
by
statutes —nor was he bound
other
any
THE ISSUES
inhibiting
own
except
“judg-
factors
his
Both sides in
appeals
both
*
identify nu-
(§ 41-4-514(a)).
ment.”
merous issues for resolution here but the
To
urged by
hold as
Green River and the
determinative
is that which asks
give
State
would be to
the State
whether
4-514(a) is applicable
§
41—
almost unbridled
under
purposes of authorizing the
Engi-
State
41-4-514(a)
use,
to
§
neer’s orders of
February, 1981 whether
point of
and means of conveying
diversion
is without
this or any
permit waters of this state while the Board
such authority
words,
whatsoever.
In other
is,
itself,
this appeal
main,
by
reason of the directives of
addresses
Control
to
a statutory interpretation question.
41-3-104 and
and our
§
Wyoming
some,
all, cases,
6. Article
2§
Constitution
In
but not
the certificate of
provides
part:
contemplated
appropriation
by §
W.S.1977,
Cum.Supp.
1982
will not issue until
“There shall be constituted a board of con-
beneficially applied.
the water has been
See
trol,
composed
to be
of the state
41-4r-506,
W.S.1977.
In this case it is admit-
superintendents
divisions;
the water
appli-
ted that there has never been a beneficial
shall,
regulations
which
under such
as
permit
prescribed
law,
cation of the
water which the Green
by
supervision
have the
Development Company
River
to transfer
seeks
appropri-
the waters of
state
their
ation,
diversion,
though
even
there has been a beneficial use of
distribution and
and of the
permits.
some of the
embraced
various
officers connected therewith.
Its de-
subject
cisions to be
to review
the courts
of the state.”
in this case
statutes,8
they were
these
se- were successful —as
opinion
interprets
convincing the
years
restricted in the exercise of its dis-
60 or more
verely
—in
respect
changing
cretion with
the time within
Engineer to extend
means of
of diversion and
orders the
which the statute
example,
rights.
of water
For
appropriation per-
completed
works
rights
where water
concerned
41-3-
are
Speculation
with the
fected.9
of use and
of use
confines
beneficially apply
use —or not use—and
—or
where it can be shown
situations
waters of this
beneficially apply
not
—the
“ * * *
of water trans-
quantity
that the
through such utilization of
state
petition
granting
ferred
discretionary authority
plainly
is
shall not exceed the amount of water
Wyo-
public
policy
contrary
historically
existing
diverted under the
Nichols, Wyo.
ming. Scherck
use, nor
the historic rate of diver-
exceed
(1939),
Electric Power
P.2d 74
and Basin
existing
sion under the
nor increase
Control,
su-
Cooperative v.
Board
consumptively
the historic amount
used
advocate
appellants
The scheme that
pra.
existing
under the
nor decrease the
change of con-
circumvent historical
would
flow,
historic amount of return
nor in
concepts which
use and diversion
sumptive
injure
existing
ap-
manner
lawful
near,
integral to the water law
dear and
propriators.”
(Emphasis added.)
require-
exemplified by
statute in Basin Elec-
interpreting this
diver-
ments for water
transfers and
Cooperative
tric Power
v. State Board of
changes
41-3-104
sion
contained
Control,
(1978),
Wyo.,
Such a resolution of the
as is
of
conveyance
and means of
of diversion
urged by
appellants
would allow water
appro-
to
by
permit
waters embraced
bare
permittees
assign parts
parcels
to
of
Wyoming.
waters of the state of
permit
priate
their
to
beneficial use while
recognition
involves a
speculating
holding
with the balance of the waters
This
41-4-514(a)
permits, providing
grants
embraced
their
they
work;
extensions;
Cooperative
rights;
8. See Basin Electric Power
v. State
forfeiture of
tion
Control, Wyo.,
(1978).
expira-
permit;
Board
pra 1), n. the appellant GRDC has no such Wyoming mindful of the fact that the state interest waters at issue here legislature has with —as eligible as could be considered trans- (e.g., 41-3-114(a)) 41-3-104 and § —has fer —the no authority has adopted authorizing never a statute undertake the transfer and the admin- use, point of diver- agency istrative authorized statute to sion and means of of whatever use, place transfer the use and a water use the waters points convey- of diversion and means of has, legislature carries with it. The *7 the Wyo- ance for waters of the of state course, of authorized the to ming, is the Board of Control under the (§ permits amend to errors 41-4- correct in contained 41-3-104 and § 514(a)). It is this statute that 41-3-114(a). § Engineer says enough is to include broad use, use, power change place to of point conveyance of diversion and means of THE LAW of 60 70 permit years water authorized to
Jurisdiction use, ago put and never to in circumstances Even though parties jurisdic- make where is not even contended that errors tion arguments, we find that there is no original Ap- occurred authorization. legitimate having issue before us to with do pellants’ permits is that the in issue position agency jurisdiction which court or had rights are not the waters envi- water since appeal hear the orders of never been so permits sioned have Hamm, State Engineer Judge subject because of a adjudicated not been —have 10. See our discussion of John Meier & Son, County, Wyo., (1979), Inc. 603 1283 infra. P.2d v. Horse Creek Conservation District of Goshen they agree appellants they certificate of have We with when —nor per with put required by say
been
to beneficial use as
that here we are concerned
41-3-101,
predi-
From this
mits for the future use of water and not
W.S.1977.11
§
appellant
Engineer argues
adjudicated
rights”
cate the
“water
under
provisions
beneficially
that
of
41-3-104 and water has been
used. There
§
propo
41-3-114
is comfortable with a
impact upon
do not therefore
fore this court
§
pertain
exercise of his discretion to
sition which avers that the statutes
use,
ing
point
of diversion and
of
conveyance
means of
means
conveyance
of water embraced
diversion and
added) (§
water
41-3-
discretionary
rights” (emphasis
as that
authori-
“water
ty
given
41-4-514(a).
41-3-114(a)) may
him
indeed not be
§
literally
least
regarded
applicable
to be
—at
We assume that the appellants mean that
if it were
this would be so
conceded
permittee’s
interest
in the waters of the
an'
applicability depends upon
admission
although real and valuable —is not a
state —
speak only
adjudicat
that those statutes
“water right”
appropriated
adju-
rights.
ed water
Even so—and remember
dicated sense of the word for the reason
statutory-in
that we are involved in a
that the permit water has not been diverted
terpretation
question-
these water
—while
applied
to a beneficial use and there-
right
applica
statutes
not have literal
fore the holders of the
not
would
of a
bility
contemplate
properties
as we
eligible
appropria-
to receive a certificate of
are, in
of the fact
permit, they
light
water
41-4-511, W.S.1977,
tion. See:
and Tre-
they
have been enacted
lease,
Materials, p.
Water Law Cases and
policy
carrying
out
beneficial-use
36, (3d
1979),
ed.
where it is said that an
law as announced in
Wyoming’s
appropriative
right
has been said to
41-3-101, possessed
telling
relevance
(1)
appropriate
consist of
the intent
as an
whether
not the
deciding
aid to
or
water, (2) notice
the appropria-
to others of
appellant
Engineer possesses the au
tion, (3) compliance
prescribed
with state
change the
thority
formalities,
water,
(4)
(5)
a diversion of
of diversion and means of
application of the water to a beneficial use.
41-4-514(a).
This
under §
Also see:
Hereford Ranch v.
because,
is so
announced
Packing Co.,
Hammond
33 Wyo.
236 P.
W.S.1977,
statutorily proclaimed
(1925),
where it is held:
is that
policy of this state
“By
passed
a statute
a ‘water
“ * * *
basis,
beneficial use shall be the
right’
right
is defined as ‘a
to use the
limit
right
the measure and
use
state,
water of the
when such use has
* *
(Emphasis
water at all
times
*.”
acquired by
the beneficial applica-
added.)
tion of water under the laws of the state
thereto,
497, 505,
relating
States,
and in
conformity
Ide v. United
263 U.S.
regulations
(1924),
the rules and
dependent
this authority adjudicated right, water under an all operate cannot in a vacuum way such a as to leave it as 41-3-104 and 41- unimpressed contemplated by §
348 3-114. To so hold would constitute an ac- This fairly be a accurate description of knowledgment permit that what a per- put this court finds the state’s water to beneficial use actually Campbell is. phase right Wy- mit of water acquisition to be a Co., oming Development 55 Wyo. kind of never-never land in which the au- 124, 142, P.2d Wyo. reh. denied 55 thority of the indefinable, (1940) P.2d 745 uses word “inchoate” indiscernible and indescribable. It would speaking when of a water permit. Black’s though be as we were to say that this Ed., Dictionary, Law 5th defines “inchoate” authority may be exercised absent the bur- as something that is den inhibiting protective standards or unfinished; “[i]mperfect; partial; begun, restrictions, respect and with to which the * * n .” but not completed is possessed of all such lee- An “inchoate right” distinguished from a way in these matters as will allow him do right” “vested is that which is not com yet pleases whatever him. The appellants in pleted finished, Hutton v. Autoridad So suggest fact this is the nature of the bre Hogares de la Capital, F.Supp. broad discretionary powers possessed by the 999, (D.C. (1948)). Taussig Puerto Rico where permit transfer of v. Moffat Development Tunnel Water & rights consideration, is under since 41-4- Co., (1940), 106 Colo. 106 P.2d 514(a) provides that the Engineer is autho- Supreme Colorado Court said: rized to permit amend a “when in his .judg- long “So as no water has applied ment such amendment appears desirable or beneficial we are concerned necessary.” According to the and with an inchoate an unperfected GRDC, this authority, by legis- unrestrained right.” lative limiting standards the parameters of When the pertaining appli- statutes envisions, its application, purposes for cation issuing for and the of a water permit case, this authority to account, are taken into (e.g., 41-4-501 §§ change the place of use through 512) a permit may then be diversion of agricultural permit water to a described pursue as the a water point 134 miles away to be utilized for right conditional but unfulfilled promise —a industrial purposes when the waters em- part on the of the state to allow permit- braced these permits to be as- —-now day tee to one apply the state’s water in a signed to another place and a different particular place and to a specific beneficial use —have not been beneficially applied to use under conditions where the the land or the use for which were they appropriators will not be impaired. granted for years. 60 to 70 appellants The meantime, In the the state withholds argue that this authority exists free from property interest in the water described any such would, restrictions as under the permit adjudication as well as the final same circumstances, or similar impede the as to of its use and the exercise of the Board of Control’s authority diversion for the ultimate benefit of the where the transfer of a water is under applicant, pending completion of certain consideration. statutory requirements and the construction That is not what the water law of this petitioner water works. When the state envisions. has complied statutory requirements, promise the state’s is directed statute What is a permití issuing be fulfilled with the of a certificate Engineer says in his brief of appropriation, priority the date of to be upon the date which the application * ** “The represent inchoate was filed. The rights, have not ripened into a com- [that] the obtaining of a water is the nec- plete they but are valid and essary step first which has the effect of
are entitled to legal recognition
pro-
temporarily reserving certain of the state’s
tection.”
appro-
waters
order that a certificate of
*10
Wyoming
water of the state of
is
right may
public
be later
priation for a water
the
he must
Engineer,
received
State
permit
The
re-
acquired by
petitioner.
the
date it and record it. He must see that the
before a lawful
quirement
mandatory
is
application
necessary
contains all
informa-
He-
be made.
appropriation
location,
tion to show the
nature
and
Co.,
Packing
su-
reford Ranch v. Hammond
proposed
amount of the
beneficial use.
canals, etc., when construction be- the time requirements the above When will be gins and when it is estimated it with, proof final under complied have been time estimated for the completed, and the bemay of water oath of the water complete application prescribed manner in the form and made use. proposed W.S.1977. given will be proofs Notice of statute. community where to ac- advertisement When an for a (em- situated” involved is “the water use of the quire to the beneficial *11 phasis added), W.S.1977, 1982 tection of all of those appropriators § on the Cum.Supp., and which notice will affected, contain who are in any way water course number, permit the the date of priority the GRDC nevertheless (which is the application date the is filed argue Engineer’s authority 41-4-512, W.S.1977), the name of the § is described amendatory language ditch, reservoir, canal or the name of the 41-4-514(a), interpreted by should be this appropriator, the name of the stream from enough court to be broad to authorize the made, which the appropriation is and the use, use, of point of of diver- appropriation. amount of The advertise- sion and means of as contem- ment say proofs will when the are to be plated by Engineer’s February orders of opened public inspection for any party the safeguards provided absent water- who in any right claims interest water rights holders. The result of such action from the stream or streams to which the be to retain priority would dates of the proofs refer shall have the right protest permit applications changing while the en- the proposed adjudication. No contest hav- tire for which the here instituted, ing been the Board of Control instance, in the issued first with the further will proofs receive the and if satisfied that ignor- and most devastating consequence appropriation has perfected in ac- existing other and future users of the permit, duty cord with the it shall be the of water course. a scheme would obviate Such the Board to issue a certificate appropri- necessity reapplying per- ation of water. W.S.1977. contemplated by mits for industrial use The priority of such shall Light Company Pacific Power and under date from the filing applicable issuing the statutes to the 4-512, office. W.S. It permits. would circumvent 41— safeguards for the transfers contemplated involving rights contemplated by as summary, From this it can 41-3-104 and it seen, first, that there is no provision unbridled, give would such standardless au- a change of use point thority to the as diversion of the waters authorized for a is not even reserved to the Board of Control water permit. Secondly, appears vividly ripened fully where matured water clear that legislature has taken extraor being considered for transfer. dinary precautions assign the permit specific waters to A pur reading locations and use mere of these statutes poses with legislature notice to all concerned as to should make clear that did how grant the water is to be not intend to transfer powers utilized —how much will standardless, be taken from the water course and when under such a grant and where the water vague course will be de and indefinite prived 41-4-514(a). of the water. The is found to be contained in statutes also protest by make room for affected water Cooperative In Basin Electric v. State users; they contemplate an proce efficient Control, supra, Board of we were concerned dure for construction and completion of the philosophy with the behind works permit, conceived and it is use, place point of use and of diversion provided that the Board of will Control 41-3-114(a)) (§ statutes 41-3-104 and § and, proof receive if satisfied that all re applied rights. opin- to water That met, quirements have been issue a certifi genesis public policy ion found its cate of water appropriation priority with a contemplates applica- the state which date to be that upon original which the tion of reserved water to a beneficial application was filed. and we said that so much of a water Under the heavy shadow of these transferred been his- statuto- could be as had ry requirements acquisition it was not torically beneficially of a used —that water, to appropriate enlarge upon and the the historic benefi- pro- possible appropriated cial use of an changing through the device of changing place of diversion and means of conveyance of
use and We explained diversion. contemplated waters permit, a water we key to understanding applica- go in search of the legislature’s intention tion concepts of beneficial-use to a change- with respect to this issue as that intent of-use proceeding reflected in provisions of the statute. *12 “ * * * is a recognition that the of issues The statutory authority for the granting of
nonuse and misuse are inextricably inter
the permit
is definite
explicit
as re-
woven with the issues of change of use
gards the
place
amount and
of water diver-
and change
in the
of use. This is
sion, the use and place
to which
true even without the formal initiation of
of the water is to be made
rights
and the
proceedings
abandonment
under the stat
appropriators.
case,
In this
the per-
appropriator,
utes.
If an
either
mis mittees have never applied
use or failure to
has effectively aban waters which they seek to transfer
to any
part
doned either all or
right
his water
beneficial use whatever even though the
through noncompliance with the benefi
granted
have been
for 60 or more
requirements
law,
cial-use
imposed by
he
years. This
that
permittees
means
could not effect a change
of use or
possessed
nothing
qualifies
for
of use for that amount of his appropria
transfer
only
since
water which has been
tion which had been abandoned.
See
beneficially applied
subject
is
to sale and
Rocky Mountain
Company
Power
v.
transfer. Basin Electric Power Cooperative
Association,
White River Electric
Control,
supra.
State Board of
158, 161,
Colo.
376 P.2d
and Flasche v.
The reasoning for this conclusion is sound
Co.,
387, 149
Westcolo
112 Colo.
P.2d 817.”
because the statutes disclose that —had the
added.)
(Emphasis
beneficial use.” 578 P.2d at 563. cause it was never intended that such inter- qualified ests would be for transfer. opinion In the same we said: “ * * * The water an appropria- bear, then, our upon These considerations tor is limited to beneficial use even 41-4-514(a). interpretation If though larger adjudi- amount has been in water one only transferable interest is cated.”, (with citations) 578 P.2d at use,12 that to beneficial put has been cannot, therefore, successfully argued be “ ‘ * * * has the Engineer that the State an appropriator of water obtains admittedly transfer water which has by his he that of which ” * * We con- beneficially. never been utilized makes a beneficial use *.’ 578 P.2d position that in this appellants’ clude 563, quoting at v. Little Johnston regard is untenable. Co., Horse Irrigating Wyo. Creek (1904). 79 P. 41-4-514(a) must said not to Section be hand, place of
With these considerations at include the following we reach the conclusion: There of diversion and means being authority yet no another reason. specific authority Control, supra. Cooperative 12. Basin Electric Power v. State Board of following grants statute the State broad appellants argue language permit (as authorizes the indicated discretion to amend contem- changes make the that his orders thought may amendment plate: opinion made when in the necessary”), it is “desirable or the exercise authorized, hereby
“The state is limit- authority of this must nonetheless be owner, to upon petition written where the ed to those situations any permit appropriate amend instance, adjudication by the state board had to act the first prior to correcting i.e., “or control where there had been an error otherwise, judgment Horsecreek, when in his which, errors in Meier v. otherwise” appears such amendment desirable or ambiguity per- we found included necessary; provided that the total area clause. That authority-granting mit’s lands not exceed the area described contemplated of correction that is kind *13 original (Emphasis in the add- permit.” as it is included in by the word “otherwise” ed.) (December W.S.1977 phrase, the pamphlet.) correcting errors or “for the purpose provision speaks That of the statute added.) (Emphasis otherwise.” correcting per- the of error contained in a Son, to be supra, In John Meier & it seems mit. are at a loss to understand how it We con- ambiguous language conceded that the argued can that the En- seriously be not disputed permits in the could tained gineer, contemplating change when and really be “errors” the ambi- be said to but place of diversion and means this accepted by were nevertheless guities agriculture permits for these which could presenting problem court as County usage from to industrial Sublette con- logically having considered as away County Sweetwater miles —was —134 “correcting errors or oth- templated by the mistake-correcting in a exercise. involved We held language of the statute. erwise” If that is of the appellants, the contention the should be clarified ambiguity that borders on the ridiculous. The fact of the appropria- conform to the intention Engi- matter the is that GRDC and Board the and the tors and neer, utilizing error-correcting while the and permits at the time Control statute their not accomplish purpose, do were issued. appropriation certificates of take that a was really position mistake this is the kind of hardly It can be said that original with the issuing involved that even correcting error “or otherwise” permits. origi- The record is clear that the assumption of au- remotely approaches permits applicants nal were issued to the which leads to a thority place purposes be utilized in the and for the orig- purpose contemplated by Engineer, indicated and therefore the State inal to another and another permits thereto, did by his order and amendment later and 130 miles purpose years 60 to 70 origi- not undertake to correct errors in the errors or away. “correcting That is not Instead, permits. simply nal he assumed (Emphasis added.) otherwise”1 assign them to a different altogether. use Here, (where unlike John . Meier & Son was language original Son, v. in John Meier & Inc. We held sought have noth- ambiguous), changes Horse Creek Conservation District of Gosh original with the correction of ing to do 1283,1286 (1979) 603 P.2d County, Wyo., en not fall errors and therefore do (§ 41-4-514) that this statute “is self-limit of the statute contemplation within the narrow in its We application.” Thus, reliance appellant’s question. said, cannot be broadened and other “[i]t misplaced. That Meier & is upon John Son injected by parties elements added position. their support case does not proceedings.” While we also held that than in land description, again EJUSDEM amend- GENERIS13 ed in 1945 to include the word “otherwise.” In ferreting meaning out to be Nichols, supra, 95 P.2d at Scherck given the term “or 41-4- otherwise” we said of the 1929 amendment 514(a), the district court found that “amendment, think, merely we broadened ejusdem generis doctrine of germane. scope of the correction.” This ap- also agree. We This rule of statutory construc pears to be effect of the 1945 amend- requires phrase tion that the “or otherwise” ment. only things embrace those which are cover bar, ed the statute. In the case at this Article Constitu- means “correction of errors.” We have requires: tion
long recognized ejusdem generis rule of bill, except general “No requires construction which bills and bills for the codification and “** * a specific enumeration [w]heu laws, general revision of the shall be term, general concludes with a it is held passed containing more than one subject, to be things limited to of the same kind. clearly expressed shall be in its ‘It is restricted to [Sutherland] title; any subject but if is embraced in genus the same things as the enumerat expressed act which is not ” People ed.’ ex rel. Dist. 3 v. School No. title, such act shall be void as to so Dolan, (1895). 5 Wyo. 39 P. much thereof as shall not be so ex- Lazy See also: D Grazing Association v. pressed.” Terry Land and Livestock Company, 641 *14 118, The title Chapter Wyo- S.L. of 844,
F.2d (10th Cir.1981). 849-850 ming essentially 1945 which is W.S.1975, People ex rel. the word “otherwise” School Dist. No. 3 v. insofar as Dolan, 755, 39 P. at concerned, the court pertinent part: outlined the reads in rules of require construction that “AN to amend re-enact ACT and Section an examination of Statutes, 122-415, Wyoming Revised “ * * * the legislature intent of the relating permits to correction of errors in statute; enacting the but that we must of cer- by and correction do aby context, consideration of the oth- by of water tificates of * * materia, er pari sections or acts in Board of Control *.” of the usual and well- It is to be noted that the word “other- known rules of construction of words or mentioned in the title. The wise” is not Unless, therefore, terms employed. only title refers to “correction of errors in construction, context forces a different or permits” and “correction of certificates provisions affecting exist this mat- Therefore, it seems clear appropriation.” result, ter which lead to such a we are be read in the word “otherwise” must inclined, bound, and indeed we are give conjunction with the word “correction” to these words that construction which is * * that. It has been beyond not extend required by the rules cases that the ob- many Wyoming held in The title to W.S.1977 is: was to provision the constitutional ject of permits; “Correction of errors in petition legislation or fraud in prevent surprise for amended certificate appropriation; titles of in bills the provisions means of * notice; costs; hearings petition; on their real intimation as to gave no 102, Wyoming Chapter content. S.L. provided The forerunner of this statute 118, 1929, by Chapter amended which was of errors in the correction 1945, virtually the bore Wyoming S.L. description of land. It was amended in 1929 to of errors other same title: correction opinion aspect Judge of the law. Hamm for the on this
13. We are
the debt of
aid furnished
memorandum
his excellent
“AN ACT to amend and re-enact
disposition
Section
be construed to refer to a
847,
and Section
Compiled
gift.
the same class as a sale or
Roberson
Statutes, 1920, authorizing
state
State,
100 Ala.
14 So.
555.
permits.”
to correct errors in
improve’ following
‘Otherwise
the words
widen,
open,
Amendments
‘to
subsequent
to 1945 all re-
and extend’ a street re-
ferred to “correction of errors.” Hodgson
fers only
improvements
to such
as are
The court then said:
clause, states:
(D.C.Wyo.1924), in interpreting
v. Mountain & Gulf Oil
defined rule of statutory construction in
higher class than that which it immedi-
should disregard the ordinary and well-
ejusdem generis rule of statutory con-
“
struction is
this character will include only things of
a like or similar
ately follows.”
tion which immediately precedes it? The
‘otherwise’ with respect to the classifica-
interests
by lease, contract,
Supp.1923, 4640-l/4j.]
inure to the benefit of the claimant and
“What
all
“
* * * Unless,
‘All
persons
[*]
is the
may appear.’
[*]
claiming through or under him
that a
interpretation
or leases hereunder shall
[*]
kind,
therefore,
‘clean-up’
Go.,
otherwise,
[*]
297 F.
[Comp.St.Ann.
nothing
[*]
phrase of
as their
inuring
court
term
[*]
of a
thereunder cited.”
term ‘otherwise’
described. 50 Am.Jur.
of the same nature
restricted
standing alone, but as related to words of
with which they are associated. The
cific enumeration is
more definite and
wide extent which
are deemed to have been used not to the
words are restricted to a
which are associated
section.
are capable
limited to the
like opening
color from each other so that the
“General and
City Wyandotte,
the less
Methodist
meaning
of an
general.
specific
preceding language
when
analogous meaning
widening
and limited to articles
31 Kan.
Episcopal
they
particular
as those
together
commonly given
words in a statute
preceded by spe-
244-246,
sense
might
general
and must be
and which
previously
Church v.
analogous
and cases
meaning
3 P.
general
bear
a
words
take
if
*15
acceptance
its
and meaning of the term
holding similarly
Other cases
are Pennsyl-
‘otherwise,’ as
presented,
here
it would be
Washington
vania
Co. v.
Berkeley
Steel
&
necessary to exclude plaintiff
from any
Co.,
1011,
Bridge
(D.C.1912);
194 F.
1017
rights or
accruing
benefits
under the in-
Cabot,
747, 106,
Hickman v.
183 F.
uring clause.”
(1910);
Smythe,
E.C.A. 183
and Reiche v.
Douglas,
203,
State v.
70 S.D.
16 N.W.2d
(13 Wall)
(1872).
U.S.
THOMAS, Justice, specially concurring. court, way. I would treat with them this majority opinion holds that: A of Art. 2 of the Constitu- comparison express The State has no Wyoming1 tion of the with Art. statutory authority approve change 5,2 a the Constitutional suggests to me that change a in the a Engi- intended that the State Convention in the change point of diversion and a offi- neer should be the chief administrative change in the means of with conveyance supervision cer in connection with respect permit. to a water and the officers the waters of the state he with its distribution. As such connected implied 2. The has no Control, is a member of the Board a approve change a granted to which is agency is the state change in the respect to the discretionary authority with of diversion and a the waters of the state respect supervision means of to a *16 di- distribution and permit arising statutory appropriation, out of his of their version, connected there- authority permits. to amend 41— and of the officers Section 4-514(a), with. W.S.1977. Constitution, engineer Wyoming provides: be a state who shall be 1. Art. “There shall by governor appointed of the state and “There shall be constituted a board of con- senate; he shall hold his confirmed trol, composed to be of the state (6) years, or until of six office for the term divisions; superintendents the water appointed and shall have been his successor shall, regulations under such president qualified. He shall be shall have supervision law, prescribed by be have the general control, have and shall the board of appropri- and of their the waters of the state supervision of the state and of the waters ation, diversion, distribution and and of the with its distribution. the officers connected various officers connected therewith. Its de- position appointed person to this shall be No subject review cisions to courts knowledge and has not such theoretical who' added.) (Emphasis of the state.” practical experience as shall fit and skill such added.) (Emphasis position.” him for the Constitution, provides:
2. Art.
Turning then provisions to the in the action in enter- district court relating to the Engineer, State found in taining appeal from the order W.S.1977, et seq., compar- §§ Engineer. req- State That order lacks the those with relating the statutes to the uisite administrative vest finality to 41-4r-201, Board Control found in et §§ jurisdiction district court with to review. W.S.1977, seq., I persuaded am made suggestion by the Constitutional Con-
vention has legisla- effectuated
ture. An examination of the manner in our statutory relating scheme to the
beneficial use of the waters of the state
functions leads to the conclusion that dis-
cretionary authority is only afforded Board of Control. The functions of the Glenya HARRINGTON, Appellant essentially administra- (Plaintiff), tive and ministerial in nature. The State Engineer has no discretionary authority re-
lating to the except waters of the state HARRINGTON, Appellee Robert D. whatever discretion may be exercised in (Defendant). determining the manner in which his minis- No. 5802. terial functions performed. will be For this additional reason I would hold that Supreme Wyoming. Court of authority approve had no a a change in a March change in the point of diversion and a change in the means of because such would
require the exercise of discretion which I legislature
conclude the has not afforded to Engineer.
the State approach This is con-
sistent with the Constitution State of
Wyoming. agree
I would that the Board of Control jurisdiction not have
did the pur- to review
ported decision of Engineer pur- the
suant Obviously W.S.1977.
this case does not language fit within the particular would, however, statute. I
use that statute legisla- as an of a example
tive manifestation of which I the roles have
ascribed and the
Board of Control. language 41-
4-517, W.S.1977, fits neatly manage- into scheme
ment in which the State functions,
exercises ministerial and dis-
cretion is exercised the Board Control. juncture
At this I one must sound discor- note respect majority opin-
dant
ion. Since I am persuaded that discre-
tionary authority appellants which the as- resides,
cribe to the if any-
where, Control, I Board of find error