State by and Through Christopulos v. Husky Oil Company

Wyoming, By Through The STATE of CHRISTOPULOS,

George Engi State Wyoming,

neer of the State Robert ndin, Department

Su Director of the Quality, Appellants

of Environmental below),

(Defendants Glassburn, Fogg, Calvin John Bau

Albert Knauss,

man, McNally, Marvin K. D. Henry Fogg, Miller and Darrell

Dean (Intervenors

Naffziger, Appellants be

low), DELA

HUSKY OIL COMPANY OF

WARE, (Plaintiff below). Appellee

No. 4780.

Supreme Wyoming. Court of 17, 1978.

Feb. Gen., Mendicino, Atty.

Y. Frank Jack D. Palma, II, Gen., Atty. Cheyenne, Asst. for appellants-defendants.

Stanley Hathaway, Hathaway K. Kunz, Speight & Cheyenne, appellants- for intervenors. Learned, Cheyenne,

James R. and Arthur Nielsen, Utah, appel- H. Lake City, Salt lee. Kalokathis, Uchner, Lathrop

Nick & Cheyenne, City Chey- for amicus curiae enne Board of Public through its Utilities. J., GUTHRIE,

Before C. and McCLIN- ROSE, TOCK, RAPER, JJ. THOMAS McCLINTOCK,Justice.

George Christopulos, (hereinafter referred the state of engineer) as the state and Robert Sun- din, department director of the of environ- a full (DEQ) appeal upon mental from the deci- should be factual trial quality court of Laramie sion of the district Coun- parties, including claims of all the interve- summary judgment ty, Wyoming granting nors, judgment before a final is entered Company in favor of Oil Dela- the matter. (Husky), declaring compa-

ware that that We take as a factual basis for the views effluent ny’s plan impound recycle to and expressed following: herein The city water, being remaining the water after use legally adjudicated rights (1) has in its of water which it refinery process take, virtually store and use all the water purchases city Cheyenne, Wyo- from the developing drainage, in the Crow-Creek a ming, subject is not and its having stream source in the area west of control of the state and the Wyo- Cheyenne flowing through city and that on ming (board). state board of control The down to lands which are owned and irrigat- summary also declared that judgment intervenors; take, by (2) ed store and proposed infringe upon any use did not use water produced through wells drilled in rights of downstream water appropriators lying area to the west of the city; (intervenors) permitted who had been (3) take, store and use quantity a action, intervene in the file answer and from divertеd another watershed a appear as active litigants. city considerable distance from the All city.1 Cheyenne, original appropriator of the these are commingled city waters water sold to was Husky, not made a treated, then municipal system, distrib- to the action no sought other has near uted to various users within and joinder. its city, acting through city. many years purchased For has of public (city), board utilities did not seek city large amounts of water which to intervene but claimed interest in the it uses in refinery operations conducted granted outcome and was leave file a part at That of the water Cheyenne.2 curiae, brief in the lower court as amicus which is used but not consumed in the re- privilege which same was extended to it in finery operations and which has to some Upon this court. careful consideration of extent polluted by refining process been arguments the briefs and upon the motions throughout all this time period been summary judgment, a majority of the returned to and such amount as court are of the Crow Creek opinion that both the state board of control and continues down that stream to lands of the city Cheyenne are necessary indispensable parties intervenors has been used them under the action if the adjudicated rights early issues asserted are to as 1888 and as adjudicated and that A permit DEQ the cause should not late as 1970.3 issued proceed joinder. without their are pursuant authority We also to federal and state is of the opinion that after joinder their there polluted to the limitation summary showing appropriations ap- 1. The record contains 3.The these dates of do not pear nothing amount Similarly, of water received frоm the various in the record. years sources city’s for the 1970 to 1976. For the re- record as to the dates of year appears last listed it that of a total spective rights, although Tassel Real in Van 10,500 city system, acre feet received into the City Cheyenne, 49 Estate & Live Stock Co. v. 7,300 supply acre feet or was re- Wyo. 333, (1936) 54 P.2d 906 reference made 70% slope, ceived tunnel from western adjudication right, to an entered 1,700 acre feet or came from the Crow 12,481 city 16% that awarded the cubic feet of water drainage, 1,500 Creek acre feet or time, per larger 14% second of “a much amount came from the wells. presumed than the stream ever carried.” It is the tunnel diversion and the wells have during typical 2. The record discloses priority, although later dates of as we shall period July, February, 1975 to indicate, subsequently has contended Husky’s purchases 49,- amounted to more than in its amicus curiae brief that such water is to 000,000 gallons month, per ‍​‌‌‌​​‌‌‌​‌‌‌​‌​‌‌‌​​​‌​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‍of water of which developed be considered as water and not sub- balance, two-thirds was used and the some ject concerning to the usual rules return flow. 16,338,750 gallons, discharged into Crow Creek. discharged into historically stream af- Crow Creek discharged shall not be into the Cheyenne They July by Husky. ter 1977. The downstream impound the stream part allege Husky’s plan involve the direct flow of also is also claimed but it intervenors return rather than the water is a diminution of the flow of Creek will Crow storage of use and di- expansion injurious direct and effect jurisdiction of the rect-flow under the ground irrigation of some of wells They and of engineer state board control. the intervenors drilled in Car- the so-called effectuation be en- plan ask that of such penter Groundwatеr Control Area. At the to treat joined Husky be ordered and argument for sum- hearing upon the motion comply its effluent to with state purify and judgment orally stipulated the mary it to discharge and continue to standards purposes that for of argument the the stream. considered that of discontinuance that the foregoing we conclude From the discharge refinery the would re- in the the issue involved case is whether injury sult in to the intervenors. diverted, and impounded, treated waters so Husky’s principal is that the contention por- the by city, including the distributed in question “unappropriated waters are not of Husky, to remain “waters tion sold subject jurisdiction to control of and “unappropriated waters of State” or of Engineer Wyo- of the State State State,”5 subject con- jurisdiction and Its raised the ming.” complaint amended of engineer state and the board trol of the was im- engineer state control, of acting respective in their fields under the properly asserting jurisdiction whether The further issue is authority.6 W.S.1957, 41-26, provisions requiring of § acquired the intervenors have such vested anyone seeking impound unappropri- to in the effluent after rights discharge waters apply ated of the state to for Husky’s plan proposed use that the to store By from the state their engineer. of (presumably approval with the Husky joint DEQ answer the and engineer state represents in dero- city) change of use impound contend that to Husky’s plan gation rights. of intervenors’ waters which have been re- historically moved for on Husky summary judgment to change turned Crow Creek and “is a ground that there was issue genuine no use, expansion storage of involving the as a judgment of fact and it was entitled to direct flow water which is within the law, submitting only matter of an affidavit jurisdiction Engi- and control of the State manager and concerning purchase of its neer and the under State Board of Control engineer added) by Husky. use of water The state (Emphasis law.”4 The Wyoming joined for DEQ to file a cross-motion allege intervenors have vested they against portion judgment of the effluent waters in their favor summary specific 4.Just what action the state 5. Section of Article VIII of our Constitution streams, taken all or threatened clear in the declares springs, natural “[t]he is not made water, 41-26, W.S.1957, lakes other collections of still record. relating refers to § within the boundaries of the state” to be the applications permits to store for property of the-state. article Section 2 of this reservoirs, water engineer’s the basis control, regula- board of vests the under such jurisdiction, authority claim of prescribed by tions as law answer, but his as well as that of the interve- supervision of the their waters of the state and nors, Husky’s amounting refers to action as appropriation, distribution and diversion. change expansion use, a subject is the 41-4.1, W..S.1957, Cum.Supp. of § VIII, engi- 6. 5 of Section Article vests the state briefs, read As we district court both in the “general supervision neer with the state.” was intended uncontrolled W.S.1957, of the waters here, attorney general and that no claim makes provision We do not think that this pertinent, 41-26 § consider the we give him an unlimited aptly predicated real issues to be more on 41-4.1, authority thereover, § 41-4.1. Cum.Supp., relating use, only to refers the board. either 41-4.18 or 41-29.19 then the apply, intervenors.7 The mo- both necessary Board affidavits that would be to this accompanied by tion action.”10 adjudicated rights from were other point discharge below the Crow Creek After and consideration of argument DEQ effluent, order did Husky’s that the parties, briefs all the well submitted as proposed require impoundment total as the submitted in behalf of amicus brief Husky, system acceptable and such a city, the court motion Husky’s sustained DEQ if available under legally it “is for the its plan reason that “ * * * statutes,” legality plan all the impound or the ef- recycle discharger. determined purchas- fluent water which the Plaintiff City Cheyenne es from the and uses in proceedings took part no process is not to con- refinery motions argument until after Engi- trol the State day summary judgment. following neer or the of the State public utili- city, its board of not in- State Board Control and does ties, to amicus permission appear asked of fringe upon any rights the Interven- curiae, responding for the of to purpose added) (Emphasis ers.” as to the board was a questions whether 1-1052, in- action, permits W.S.1957 an the to what ex- Section necessary to rights, terested whose status or oth- person jurisdiction the state had over engineer tent legal er are by relations affected a statute water, municipal of and whether the use any question to have determined of con- of had absolute customers the board control validity struction or This statute. sold unless and the of water to them until includes determination of the necessarily water was into the natural channel released to a applicability particular of a statute city the gener- of Crow Creek. In its brief particular of facts. No to appears set one of ally supported position Husky the that question or applicability the of the statute engineer jurisdiction, state without the was Husky its to but W.S. availability § 1— claiming that was a prop- the use pertinent 1957 contains thе direction that: municipal use, supplied that the water to er all declaratory sought, “When relief is foreign Husky came from a source to Crow persons parties be made who shall in which had no priority, Creek intervenors be or interest which would claim was in use change that there no and that declaration, no decla- affected city necessary was Its party. not a prejudice rights per- ration of shall significant are respect comments this last to the parties proceeding.” sons not position because the takes the that it is (Emphasis supplied) necessary a if case is disposed not grounds mentioned if just proceed of on All to on the basis appear to a to or change granted “the Court should be inclined hold that that if of use is be 7. The motion ^[8] to the state venors. We engineer either as these state Husky’s petition of right” seeking requesting permission relates is directed to the board of control. The state diction he Section use and summary judgment to the is not mentioned in the section. against Husky 41-4.1, W.S.1957, engineer requires officials take the change does conclude have. should be not indicate to exercise whatever change of use or therefor, or as “owner of dismissed, should be against change and as I read it just file position briefs Cum.Supp. what the inter- leaving a water entered, of petition juris- place kind, that it ^[9] 10. This board then assert an adverse interest. mitting if he is secured without its is no rights sel feels that if certain permits Section district court. permits party engineer point of control. should conditions quotation hurt its the owner 41-29.1, W.S.1957, presence. application in its not be the decision of the court proper adjudications is from the to store such being Aрparently of a direct-flow presence obtaining approval to sit back and wait I know of no rule for such adjudicated a party, city’s right, brief filed but that city’s right under Cum.Supp. suit, adversely first can to the of the of law to see coun- sub its denied, it important would be board of control Even more us is the absence state engineer not the who would make the public or its board utilities as While the state decision. acts in a party to the suit. Nowhere in the record approve the first instance to or deny or briefs do we find contention that impoundment water so assignment there has been an or other his as a party inclusion defendant to city’s transfer of any part as filed Husky proper, action no right does appear and it has pointed any authority one to be by purchase temporari- either by him in connection with a exercised ly permanently succeeded or any to all change or Under expansion use. part of the water whereby this statute, 41-4.1, W.S.1957, applicable becomes available the city it Cum.Supp., adjudicatory he has no capacity It Husky. is not that com- inconceivable respect whether pliance with the interve- burden Husky’s proposed represents action such a (or might nors ask court ask board use, expansion anyone and if control) to impose upon disposi- Husky’s other than a court has original primary tion pur- of the water which has served its question, the board pose process in the refinery without con- of control. It therefore seems clearly sumption, or upon any use that alternative persons come within that class of who have it might propose to make of the uncon- or claim an and it interest therefore nеces- water, sumed sarily sufficiently follows that under the mandate onerous declaratory judgment statute it shall purchase render uneconomic a party. only made the board Since city. negotiations In that event the right adjudicate assert to the claim of for a different or of contract abandonment of change contrary Husky’s position use to existing purchase the contract of could re- upon action, the broadened issues of *the the sult. Termination of the contract could is the logical only board and real defendant upon ability have serious effects of the question. on this On this issue is the city obligations to meet bond and should the board’s which is authority questioned, not operations be refinery discontinued or engineer’s. the state Husky’s purchase of water terminated 19(a)11 It is also that clear Rule requires for any reason it be city would that presence of all who have a real interest water, would seek a new disposition for its disposition case, of the and we cannot perhaps one completely consump- that was might conceive who be more interested in a use, tive in its such furnishing water to a as to ruling power authority and of the brewery of manufacturer soft drinks. board than the board itself. We cannot On the assumption city and presence avoid the conclusion that of Husky change seek to make use of a the board is mandated both statute appropriated sold city and by the any and rule before declarations can it Husky, to it is entirely probable that the be concerning entered that authority. We legislature has primary jurisdiction vested of permits know no rule which the state of to board control determine wheth- engineer, though even he is constitutionally change er such permitted. of use should be a member the board and is statutorily thereof, the ex officio But in this case as a and the president rep- party to in litigation resent interests of this city kind. as amicus curiae contend no 19(a), provides pertinent 11. Rule disposition W.R.C.P. tion and is so situated that the part: may (i) practi- action his absence as a impair impede ability cal matter protect his “(a) per- Persons Be Joined if Feasible. A (ii) that interest or leave subject process who son is to service of shall persons already parties subject joined a substan- party (1) as a in the action if in his double, incurring multiple, tial risk of or oth- complete absence relief cannot accorded obligations by erwise among inconsistent reason already parties, (2) those he claims ” * * * his claimed relating subject interest. an interest to the of the ac- or the enter might use we district court change of which use—at least a change of rights herein, without a real factual basis legal affect adversely will proceed, Creek—is and in the absence of water users from Crow which other city’s continuing clear us that the has a vital inter- city It is which be effected. made, can be and use of the water be a ownership est in the decision that is would affected, pres- yet without materially holding as a matter of fact and of law that would the state diverted, as a impounded, ence which has been is of use change us declare (only part treated distributed alone has and the board of control involved bemay coming considered as from go jurisdiction. The intervenors ask us Creek), during flow of the direct Crow of use change and declare that the further it has рeriod use and before adverse- because it will permitted cannot be stream, lake spring, returned to natural ly legal appropriators their affect water, collection is to be or other of still been ad- the stream. We have not as the of the state and property treated jur- just as to how the administrative vised supervision to its control since neither isdiction would invoked the board of and the state control likely application is to make nor city do not that this engineer. say We they change of use which approval constitu- construction of our proper be the such, unless we recognize as but do not tion, and former decisions statutes of use is change that a make declarations court, of the water the owner appli- specifically direct contemplated purchaser, and not a lessee or licensee right, control, or declare cation to the board party contracting other contemplated legal that no quantity limited purchase for the real legal, Husky’s proposed retention thereof, proceedings must be a to the authority concerning case issues of the proper decision is to be just if a In either will not be decided. of the board reached. then, is of we make a decision that event dis- disposition this case has been importance city. the utmost unwarrant- wholly the naive and rupted The claim of the intervenors that may ap- assumption that it ed historically returned to the which has curiae, its views pear as amicus submit con- so that others use it must may stream claim of inter- a brief and base its user of to return thereto and that a tinue suit lack of interest est or that use change expand nоt may in the action is whether the decision issued injured as are long junior appropriators so That to it. is favorable or unfavorable general support- is one that thereby, finds declaratory the clearly not intention in One of the contentions ing authority. 19(a), W.R.C.P. act nor of Rule judgment brief, or ex- fully developed not city’s the ac- who the persons are affected Those plored, brought that water which has been parties tion are to be therein. is foreign from a source into the watershed indispensable principles concerning appropriators in which not water other many easy there are are not parties represents counter-pro- any priority, own court defining the term. Our decisions posal A number worthy consideration. fairly in two question has considered questions must answered before Beryllium & Oil recent cases. American brought deci- litigation proper can be to a (1967), Chase, v. 425 P.2d Corporation sion, and we would not be considered Co., Supply Oxley v. Mine and Smelter favoring any side. All seem parties (1968),in both of which Wyo., 439 P.2d 661 in Hereford to find comfort party of an is indispensable the definition Packing Company, Ranch v. Hammond said to be: it is true (1925), 236 P. 764 “ * * * presence is one whose be- much in case which without there is not be court a could final decree pertinent dispute in this case. fore his interest affecting point we make decision made either is that in such a con- affirmative and the court leaving controversy say that a might dition that its final determination judgment could be rendered as between wholly equity inconsistent with and Husky, the intervenors engi- and the state * * *” (Quotation good conscience. neer, but such a cope decision cannot 663) 439 P.2d at from problem the rеal which deals with the possible itself and stringent but A series of four tests are set forth in these do having restrictions to with return of the cases, a negative response in one of water to the stream. is not party indispens- which renders the absent nor alter-ego is it the owner. (again quoting able. These tests are Their is con- interests insofar this suit 663): 439 P.2d at identical, may quite cerned but Is the absent party “1. interest clearly brings the case within first test separable? distinct and sep- their interests are not distinct and “2. In his absence can the court ren- arable. No decision be entered as to der before judgment between (at which will not affect least as a it? decisis) matter stare the decision that Will decree in “3. made his ab- might be entered at time as the city injurious have no on sence effect his in- might protect see fit actively its interest. terests? In this language situation the Metropoli- Will the “4. final determination in his tan Denver Sewage Farmers Reservoir absence be consistent with equity and Irrigation Company, 179 Colo. good conscience?” (1972) P.2d is pertinent: most In the latter of these two cases it was view, “In possession our sew- held that the owner of claims mining was age in effluent Metro is in the nature not indispensable party an to action to en- of possession by agent, agent an against force claimed liens asserted not Denver. While no doubt Metro is an claims mining themselves or owner’s indispensable here, party party the real therein, only against interest whatever disposition interest Denver. Whatever the parties interest defendant in the case effluent, Denver make Metro had. Similarly, in earlier case no title make; can and whatever disposition Den- of the absent involved. While proscribed ver cannot make is to Metro.” the statement of the rule in two these cases We think that the lack of an indis unobjectionable, we do not think that pensable party is of such importance that application of approved the tests therein we may properly raise the on our facts this case can result four own 12(h)(2), motion. Under Rule W.R.C.P. affirmative answers. The claim is here ad- of indispensable defense lack that Husky may vanced or ex- may be made at the trial on the merits pand the use of deroga- 12(h)(3) appears by tion the under Rule if it rights sugges of of appropria- downstream tion parties tors. The which of the interests seeks otherwise the to jurisdiction assert court inextricably subject are tied the lacks of into owner- the mat ter, ship of the the court city of and the shall dismiss the action. can be asserted on the There expressions basis that the are of city the courts that as owner of the lack an right could take the of steps indispensable party results in to Perhaps seeks take. the lack jurisdiction although of view this has question second could be one answered the been In of criticized.12 the earliest and Miller, Wright motion, impression 12. See & Federal Practice the on and court its own the page join jurisdiction- Procedure: Civil 1610 and §§ 1611. At is created that a to failure is 115 it is said: al, ordinarily jurisdictional defects Thus, objection join “Because an to are treated in this it is ‍​‌‌‌​​‌‌‌​‌‌‌​‌​‌‌‌​​​‌​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‍the failure to a fashion. not person many regarded surprising indispens- who should be as cases found that can be 19(b) speak non-joinder ousting able under Rule be raised as late as the court of appeal judgment an jurisdiction.” as on from a final

269 necessary party, and the motion to dis- indis- question cases on the mоst cited Barrow, v. 17 miss will denied.” pensable parties, Shields (1854).it is said: How. “ in Mallow jurisdiction; U.S. no court person’s a much broader before equally the court.’ either whatever case * where indispensable * * the the actually apply to 58 right, ground can v. ” court, [A]s L.Ed. U.S. Hinde, putwe adjudicate directly upon is 599] ‘we do observed all courts of ground, which their structure constructively jurisdiction, but 12 it on the when 15 L.Ed. Wh., not the parties were speaking ^[193] put ground this case 158, equity, before court, being as to must upon of a 161 not [25 a that case an element of the pose er taken briefs the court was careful appeared has indicated its city had appeal. actively, although al interest tion However, in the city. The waters contrary had insofar as the as amicus as a filed what not to be satisfied action, the dismissal there the sought that of curiae, present outcome of the action and strong support the amounted to a disclaim- city is to be a had served their implicit throughout of the the judgment asserted its was yet only with the lack point case the state authorities concerned out that city, interest of judgment city materi- and posi- pur- and the the bemay take inconsistent the intervenors. position The we Wyoming this court in with that taken point, disposition not the directly While Packing Company, Hereford Ranch v. Farm Bu- court Mountain West by this Of the (1923), discussing 222 P. 1027 Wyo. Inc. v. Mutual Company, reau Insurance question reserving ruling on motion Wyo., Company, Hallmark Insurance of the absence of appeal dismiss the because de- (1977) pertinent. is We P.2d the consideration on city the until after jurisdiction of a suit to determine nied merits, Ranch Hereford com- two insurance respective liabilities of specifi- Hammond Packing Company,supra, when the respective to their insureds panies was neces- holding city that the not a cally its own place in evidence plaintiff failed to had been sary party appeal. city rejected jurisdiction policy, insurance appeared party to action had seeking action con- part another therein, judgment in the course of which a agreement of a “hold-harmless” struction entered the sale of was that a contract for insureds, to the parties not between two certain water to Hammond rejection action. This view invalid. not and in appeal did court should consider between opinion concerning necessity its final not be really which can suit said, a party in the this court appeal, presence nonparties. settled without at 236 P. at 773: Ed., Practice, 2d In 3A Moore’s Federal “ * * * what was in that From said 19.05, importance ¶ pointing after out motion, on opinion opinion in this practice, federal principle merits, think it appears on we 2209-2210): proceeds (pp. author only question respect in issue with goes indispensability “But the concept discharged was a sewage waters and touches beyond federal plaintiff between the court power very company; the former packing defendant adjudication, where equitable to make an contending that such waters became it. before indispensable party ap- part public waters situation, eq- barring exceptional this state, the laws the propriation under his uities, proceed without it should not contending the it had a and latter that * * *.” joinder, by grant to said waters 12(h) permits Rule pointing That been de- out that city. have After trial, the raised at the bringing into the defense to be city termined withоut 2211): therefore, city, (p. the case. The was not author continues “ * * * There reason why city And the matter is so vital that is no cannot court, sponte if neces- appellate sua easily joined be as a nor we do see point sary, may although consider it why control, reason the board of or the not trial court. If the raised thereof, may members similarly not be joined, be indispensable party can cause joined. The is remanded to the dis- ' ordinarily permit joinder court should bring trict court with directions to in the and not dismiss the action.” board control its members the city and closing, Before we would note that Cheyenne parties, as then proceed to expressed Mr. by dissent as Justice Ra develop concerning city’s the facts ap- while per, arguing that the state board of thereof, propriations, the use made and the action, control cannot be a to proposed by treatment of water Husky nevertheless concedes that the issues as It impoundment. certainly should originally posed by Husky have been consid whether, alleged be determined by expanded by the erably answer behalf of Husky, is to part recycling this DEQ. points the state As he or, process as seems to contended answer, out, the practical pur which for intervenor, state authorities and the will counterclaim, poses could be treated aas complete result in evaporation of specifically asserts the and au now used consumptively refining not in the thority of Husky’s the board control over then, process. basis, that On factual us, proposed actions. To this emphasizes court can enter its declarations whether a the board’s vital interest in the outcome of contеmplated, use whether the the suit. the action is one for Since declar rights of intervenors are or affect- may be atory judgment and the court should make ed, legal jurisdic- authority what all declarations will end the controver premis- tion board control has in the sy, important it does not seem to us wheth es. questions er the are raised answer counterclaim, concept Reversed and remanded with instruc- board’s can adequately prop interests tions. represented erly another party seems to unacceptable us novel and as the RAPER, Justice, dissenting. proposition the city’s ade interests are quately and properly represented by Husky. join I dissent Chief Justice We further raising note that in questions and separately dissent, as well. concerning the position of the board and the It to appears me the majority declaratory in this judgment action the gone to extreme lengths justify the re- majority sought give have not definitive mand of this case to the district court to answers and have tried foreclose the join parties carry additional on a full- right of any parties, nonparties develop blown trial to facts that are not in intervening downstream users dispute important this juncture at binding legal secure determinations of parties either before in my the court or the many issues that to be appear involved. unnecessary proceeding. view The far-reaching scope of the dissent Mr. Raper, Justice as also the Chief There one simple issue to be decid- Justice, and they the answers give would ed, presented by and that was questions only those confirm our view of Company Oil in its for declaratory action the essential inseparable connection judgment. down, Boilеd it and the State and the board of control with the only asking are the court: “Must questions We say raised. do not that those make application to the State of questions answered; should not be we a permit impound waters under the say that in good and equity they conscience presented?” facts should not be pres answered without the ence find, vitally that are I no end of trouble trying affected those answers. authority let alone determine what Wyoming. of of He and his name the conclusion that State arrive at their majority the I the counsel authorized necessary party. assistants are of control is the board State, agen- for that its legislative represent the officers permission1 find no any type 9-125, W.S.1957, or sued in of in provides to sue agency cies. Section must be out the title pointed ease. It pertinent part: “Husky Oil Compa the case before us is of attorney general prosecute “The shall Plaintiff, Wyoming, by v. of The State ny, may by defend be instituted all suits Christopulos, State En through George the against Wyoming, or the State of Robert Wyoming, of gineer State is not prosecution and defense of which ndin, of Department Director of the Su law, and he provided by otherwise for Defendants.” Quality, Environmental shall all criminal represent the state in court, supreme the and shall de- cases in authority no to sue particular There is in brought the state against fend suits all and boards or even state officers individual relations, except official officers in their Declaratory under the Uniform the State them the state. brought against suits in held Retail Act. It was Judgments attend to the required He shall be University v. of Local AFL-CIO Clerks suits, in actions of the state all 884, P.2d interests Wyo.1975, 531 Wyoming, the is or or claims in which state legislative consent to the is no sue supreme in either the become interested Declaratory Judg to be found in the State state, or in of the United any court of the Hjorth Royalty v. Company ments Act. * * * ”2 1924, courts. States University Wyoming, of of Trustees 9, 222 P. this court declared could have probably While the State against officer or board of that a suit it elected immunity, raised the defense state, against is an action the the state instead in court and assume to remain rule was in Retail confirmed Clerks. ques- been role of It has never aggressor. enforce tioned the State cannot spoke Retail This court likewise in Clerks court in of this This In Mat- laws the courts state. approval parte: with from Ex Brimmer, in rel. York, held Zweifel State ex of New 256 U.S. ter State 9-132, W.S. 588, 590, Wyo.1974,517 P.2d that § that deter- 65 L.Ed. S.Ct. 1957,3 go attorney general authorizes to a suit is to be mining who are parties any any prosecute in the state to names into court the mere determined in in opinion which is his proceeding the essential nature titular of the State. best interest as it proceeding, appears and effect of from the entire record. then, respond- in Wyoming, The State of prayed ing plaintiff’s complaint, answered

The State follows: attorney general Wyoming in the priate against en- brought against and to relief violation 1. Before a suit hereunder, State, Constitution, I, Wyoming force act or a issued Article requires legislature proper showing permanent direct or state must and preliminary injunction temporary in the manner which it must be done. restrain- granted bond.” shall be order majority 2. While no is raised authority department or I find to sue no respect opinion Department of En- any any action. officers sort of named, Quality, vironmental also Section 35- W.S.1957, 9-132, part, pertinent 3.Section 502.92, W.S.1957, Cum.Supp., imposes as follows: specific attorney general: duties on the “ * * * attorney general, deputy his “(d) any provided penalty In addition hereby any authorized or to Wyoming of his assistants are (b) section, (c) subsections er the office determines that a lating of this whenev- go of the courts of the State into person is vio- prosecute the United States section, provisions of this behalf of the state whenever or defend on attorney general shall refer matter to the attorney general opinion the inter- may bring who a civil action on behalf of the by so would best served est of the state doing.” in and for district court the coun- ty injunctive appro- Laramie other 272 Husky impound

“1. that for a apply permit That the determine and de- to Court plan water, plan clare ef- it with impound proceeds that Plaintiff’s before its fluent waters which have basin. I would historically evaporation construct been returned to Crow Creek is a hold the state board of control cannot expansion storage and of use and the a inter- action and whatever est direct flow water which is within it have is as a satellite jurisdiction Engineer rep- and are present State State and interests and Control; proceeding, desig- State Board of resented a party. nation as “2. determine de- That Court clare Engineer State and State I adequately Before can discuss ab- primary jurisdic- Board of Control have requirement City sence of tion of proposed impoundment Plaintiff’s explain why it Cheyenne joined and Court shall refrain from necessary party, not a the factual situation assuming of this action until majority should further set out. The do the Plaintiff exhausts its administrative explain sufficiently how this case arose. remedies; dispute While I have no with the facts in “3. That the Court determine and de- the majority opinion they go, as far as I clare that the failure treat Plaintiff’s enlarge express my wish to them its effluent and continue waters its re- own and in connection therewith ex- way, inju- turn flows Crow Creek would be applicable law. plain rious to downstream appropriators and Husky pur- years For almost 30 has law; would Wyoming violate chased, large purchases, quantities and still “4. That Court order Plaintiff Chey- City water from the treated requirements meet the discharge of its municipal system for use enne’s permit by some means other than total period a During typical Cheyenne refinery. impoundment and continue its return 1975, February, Husky July, from flows into Crow Creek for the use of 49,062,000 average of monthly a purchased downstream appropriators.” (Emphasis water, approximately consumed gallons of added.) refinery proc- total in its of this two-thirds Paragraph raises issue with ess, remainder, 16,338,- discharged which we should concern ourselves. The (50,142 acre-feet) per month gallons briefs indicate that to be the primary issue. This into the channel Crow Creek. paragraphs The other are shotgun ap- by was is used monthly discharge proaches. appropriators priority downstream March, whole matter was by ranging heard the dis- dates to June on trict court the pleadings and various 1970. affidavits summary judg- under motions for Environ- required Wyoming As Husky ments filed both and the State Act, requested and Quality mental Wyoming. While the answer of the State permit by the discharge was issued water counterclaim, was not cer- denominated it of Environmental Wyoming Department

tainly be, can and I would construe as for the dis- Quality. allowed 8(c), W.R.C.P., such. Rule provides part July charge pollutants оf certain until required time after which “ * * * mistakenly When a stringent its terms to conform to more designated a defense as a counterclaim standards, Wyo- pollutant adopted defense, a counterclaim a court on Quali- ming Department Environmental terms, justice if requires, so shall treat ty from federal standards. See pollution pleading as if there been proper had 35-502.19, W.S.1957, Cum.Supp. designation.” 4(a)(1) II, Chapter Wyoming §§ Obviously, whole attitude the State Quality Regulations. Water Rules and in the proceeding articulates its insistence order to comply pollution-control with such W.S.1957, alternative, 35-502.18, that § De- agreed with the requirements, Husky Environ- Cum.Supp.,5 to con- Quality Environmental partment of was unconstitutional. store, Quality Act im- mental transport, struct facilities Intervenors, surface and as downstream reuse, utilize and otherwise pound, recycle alleging injury appropriators, groundwater effluent without direct dis- refinery its is construct- reservoir impoundment if the foregoing into Crow Creek. charge Fol- to intervene. ed, permitted then Husky and were place transaction took between by plead- of the issues delineation lowing of the of Envi- personnel Department State Wyoming of Husky and the State Quality any ings, consultation ronmental judgment. grant- In with, summary for knowledge of or reference to the state moved motion, the district court con- 35-502.9(a)(ii) engineer.4 requires ing Husky’s Section not have engineer did between the cluded that the state cooperation consultation that down- Department jurisdiction Director of the of Environmen- asserted No rul- had no claim. appropriators and other of the stream Quality agencies tal State. of constitutionality made on the during argument We were informed oral was having been 35-502.18, question lack of communication in water this § summary judg- at the argued raised nor matters has since been corrected. quality immediately appeal This hearing. ment Department that the of undisputed It is followed. administering Quality, Environmental concerns Act, presented The basic Quality the Environmental did not and control, board or not the state a of whether require Husky adopt system does not any has engineer, state thereby impoundment. appears total What there proposed Husky’s over jurisdiction permit of a state simple be here is a case of failure As effluent. refinery user, impoundment a water at the time the agency and briefs—the presenting by think noted all to even impoundment approved, curiae, City of State, and amicus about or consider the interests of others permit jurisdiction finding of Cheyenne to the might response who be affected. —a control board of engineer and jurisdic- for the state engineer’s permit state assertion of upon constitutional predicated the must be tion over initiated in project, statutory authori- implemented grounds, for praying court an action declara- district storage-facility logically either ty, had no most engineer relief that the state tory W.S.1957, 41-29.1, statute, pro- permit permit § a require statute, change-in-use or the Cum.Supp.,6 impoundment, waste posed refinery any strength quantity “(iv) or Increase the “supervision of the 4. The board of control discharge; appropriation, the State and of their waters of any Construct, install, modify operate “(v) or 2, Article and diversion.” Section distribution VIII, supply.” public engi- Wyoming The state Constitution. supervision “general waters of neer has provides: 6.Section 41-29.1 VIII, Wyoming Section Article the state.” аdjudicated owner of an holder or “The Cooastitution. of the natural the direct use any stream of surface flow unstored provides: 5. Section 35-502.18 long so as direct flow store such state “(a) person, except when authorized No appropriator or user is no other provisions pursuant issued to the thereby. injured Prior or affected 35-502.56], this act shall: 35-502.1 [§§ storage water under commencement Cause, “(i) discharge threaten or allow appropriator right, the direct flow water any pollution the waters of the or wastes into storage request for submit shall state; engineer writing and shall obtain to the state “(ii) physical, chemical, radiologi- Alter approval state board of control. cal, biological bacteriological properties of may permit stor- board of control state; waters of the long age is no inter- time so as there at Construct, install, “(iii) modify operate existing water or uses. with ference The state works, any sewerage system, dis- empow- treatment is authorized system facility, capable posal regulations other prescribe such rules ered to causing contributing pollution; necessary to enable or desirable 41-4.1, W.S.1957, 1975 Cum.Supp.7 Of “The title to water in the natural streams statutes, these two I believe the change-in- in Wyoming is in the state but the water use, hereinafter referred to “change” subject application to withdrawal for statute, provides the better basis. The stor- irrigation or other beneficial use. In oth statute, age-facility provisions, deals words, er water is owned the state storage of direct flow water to appropriation for beneficial rights, a situation somewhat different from ownership use. It has been said that the bar, the onе at though some direct flow of the state is subject particular to a water is involved. The water here has its trust —the being appro trust source from wells and a pipeline an- priation for beneficial Willey use. watershed, mingled other in reservoirs west Decker, 73 P. 100 Am. ** * of the of City Cheyenne, thereafter treated St.Rep. 939. The state owns City’s system distributed stream, title to the running water ultimately acquired under contract by except as it from time to time may Husky. Husky impoundment has elected of lawfully application diverted for to au polluted issuing from its industrial use, right thorized beneficial while facility, cleaning-up rather than a process appropriator attaches not to the discharge back into the creek. There is running water while in the natural chan storage, no direct flow except very indirect- nel but to the use of a quantity limited ly- use, thereof for pursuance beneficial in an appropriation perfected and continued By charge, constitutional all natural compliance in requirements with the waters within the boundaries of Wyoming law. Farm Investment Carpenter, Co. v. are considered to be the property of the 110, Wyo. 258, 9 61 747, P. 50 L.R.A. 87 1, VIII, State. Section Article Wyoming Am.St.Rep. added.) 918.” (Emphasis Yet, Constitution. this ownership by the State has been found specific to a See also Lake De Company Smet Reservoir trust, well summarized Wyoming Kaufmann, 1956, v. 87, 75 292 P.2d precedent in Mitchell Irr. Dist. v. Sharp, 482, where it was wisely dealing said in 1941,121 964,967, Cir. F.2d Sharp water, cert. den. ignore public we cannot Mitchell, v. 314 U.S. 62 S.Ct. 86 interest and the relative to beneficial L.Ed. 534: regulated use in a manner.8 effectively provisions consumptively him to administer crease the historic amount use, existing of this section.” used under the nor decrease the flow, historic amount of return in nоr provides: 7. Section 41—4.1 injure existing appropri- manner other lawful “(a) right When an owner of a water wishes ators. The board of control shall consider all change right present a water from its use pertinent facts it believes transfer use, place to another or from the of use may following: which include the existing right place under ‍​‌‌‌​​‌‌‌​‌‌‌​‌​‌‌‌​​​‌​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‍to a new “(i) community The economic loss to the use, petition requesting permis- he shall file a right the state if the use from which the is change. petition sion to make such a The discontinued; transferred is pertinent shall set forth all facts about “(ii) The extent to which such economic loss existing proposed use, change use and the in use; will be offset the new or, change place request- where a in of use is “(iii) Whether other sources of water are ed, pertinent all information about the exist- available for the new use. ing place proposed place of use and the “(b) In all cases where the matter of com- may require use. The board that an adver- pensation dispute, is in of com- public hearing hearings tised be held at pensation proper shall be submitted petitioner’s expense. petitioner shall district court for determination.” provide transcript public hearing use, change interesting the board. The in in 8. An rea- discussion of relative and place use, allowed, provided appears sonable beneficial uses of water quantity Concept of water transferred “The Recoverable Beneficial Use granting petition Streams”, Trelease, Wy- shall not exceed the the Law of Surface historically oming develop- amount of water diverted under L.J. 1. The author observed a use, existing only particular nor exceed the historic rate rule that a use must not use, existing accepted of diversion under the nor in- uses but it class of beneficial a prior water of appropriator captured; use thus be of beneficial concept the court as the ultimate foundation held that a person characterized un every permanent held could not appropriate and measure of system pre appropriation der the priority seepage of the possibility because vailing utilization, other arid states. Budd a better in this and way of waste 373; P.2d Lin Bishop, Wyo.1975, seepage, occur one cannot Davis, U.S.D.C.Wyo.1939, coln Land Co. v. compel another to continue waste. 1008; McNaughton v. Ea F.Supp. a better proposing toway ton, 242 P.2d 570. In 121 Utah by recycling plans utilize Wyoming, application supervision, evaporation, run into basin for is entrusted to provision, constitutional will serve no industrial use in the actual state engineer. and the board of control refining process. only represents It one VIII, 5, Article Sections 2 and way of satisfying require- environmental Constitution. discharge ments for eliminating pol- However, valuable water is a resource effluents, resulting pro- luted from refinery this state and when beneficial uses are key disposition cedures. The fact in the conflict, bow to the other. A one must problem evaporation before us is that significant Wyoming provi- constitutional solution, pointed not the out VIII, sion, separate from Article bears on unresisted do not the affidavit. We have 31, Article subject. I: Section details of the water be otherwise how being pros- “Water essential industrial but a matter for the techni- rescued that is amount, perity, easy of limited presently cal skill of It is the exist- others. channels, from its natural diversion fact, giving the state state, which, in the in control must be under control, jurisdiction, their board of use, guard for its shall providing equally water, the af- supervisory powers, because all the normally various interests involved.” re- use, would be ter industrial State, of the as it to the control stored In the the court are the inter- case before historically has been. industry, agricultural ests of the Husky’s interests and environmental downstream appropria- state that an It is basic in this considerations, have all of which been permits him right a acquire tor cannot are of concern and ours. We legislative reasonably more than is neces- to use water in use of valuable must draw a balance Quinn v. John sary purposes. for beneficial in up Big resource. As Bower v. pointed 1939, Co., Wyo. 367, 54 92 Whitaker Ranch Association, 1957, 80, Wyo. Horn 77 Canal 568; Company v. P.2d Farm Investment 593, 599-600, 307 P.2d water must be sub- 1900, 110, 258, P. Wyo. 61 50 Carpenter, 9 jected largest practicable to the use and 747, The Am.St.Rep. prob- 918. L.R.A. 87 prevention beneficial uses and the of was- over the the court arose lem of case before tage are major determining factors in who Irr. Pulaski Ditch Co. ago a in half-century shall have the to utilize water. Bow- right 1922, 565, Trinidad, 70 Colo. City of v. er long held that as was waste to purify Trinidad undertook P. where water, junior to use put could be City whether the was sewage. The issue appropriator junior appropriator purification, sell water left after could waste, compel not the continuance of or whether that agricultural purposes, for put where the waste could beneficial to prior go remainder downstream must use through improved irrigation methods using been left-over appropriators, who hаd appropriator. senior system sewage previous water from a made, was in favor disposal. argument An type I am of water contemplating City posses- took Miller, selling, once the Binning waste v. considered in sion, destroy it had water and Wyo. 451, seepage right where 102 P.2d 6-7, particular supply. pp. in See must the source of also be reasonable and economic light present 16-17 and and future demands on 19-21. either theless, clear, light purposes dual sewage by evap- of its might disposed statute, one, protect injury The court decided that from orating it away.9 evaporation destroy appropria- valid rights vested of other practi- there is no other can exist when and, two, of continued supervision ben- tors The court sewage disposal. cal method use, readily apparent it should eficial belong to the held that the water did not character, any change of whatever sell, the circumstances there. City to under either of these brings question into areas, two should be covered. Wyoming As Hereford Ranch was said in Co., 1925, Packing Hammond court, before the litigation In the now 236 P. 764: change can be likened question asserted “ * * * been when waters have used enlargement more to an use rather than appro- full extent intended change traditionally accepted notion of priation, quantity unconsumed specific one to another. use a part returned to the stream is then event, the use as changed the waters of the state.” respect, evaporated pollu- will nothing court it clear that made Yet, control, tion a new—“another use”. taken precedent10 should be “as enlargements even such of use have been establishing any principlе that would autho- recognized bring sufficient changes rize [Cheyenne] to control the scrutiny under beneficial rights subsequent from a appropriators well rights appropria- use as as the of other stream to which the re- [Crow Creek] It Irr. explained tors. in East Bench turns purpose waters that have served the Co., Co. v. Deseret Irr. Utah 2d of the appropriation by city.” 449, 455, 271 P.2d that: court then on to explain went that once the “ * * * enlarge would Such City’s right beneficial use has been rights upper appropriators enjoyed and returned to the impair the vested of the lower stream, it is use by beneficial rights were users because their estab- other appropriators, under state control. enlarge- on the no such lished basis that One manner in which engineer the state use would made changes ment or and the state board of control fulfill their perfected had their after lower users supervisory duty and control over beneficial storage is true of appropriation, and this use in the appropriation system require is (Empha- waters.” as well as direct flow permit approval before of validly the use added.) sis acquired rights water can changed. Sec- Church, Then, in v. City of Westminster tion required 41-4.1. This approval insures 1968, 1, 52, 167 Colo. 445 55: P.2d not that the use will remain beneficial “ * * * Where an owner of decreed after the proposed change, but also that the obtaining permit- after a decree rights, proposed change itself will adversely not diversion, en- ting change point a affect other valid appropriators from the larges enlarge the use attempts same water source. The problem injury of other rights water arises is his although desig- the statute decree does specific considеred, permissive nates as, appropriators, factors to be for latter. instance, Dry bar relief to the Creek diversion, historic not historic con- Co., sumptive use, flows, Ridge historic 2 Ditch Ditch return 41-4.- No. Co. v. Coal § 292; 1(a), 556, designate does not Colo. P.2d New Cache specific what 109 129 manner of change is to Supply be covered. Never- Poudre Co. v. Water Irrigating La Cheyenne, 1911, Wyo. 9. dealing City For an informative law review v. 677, article 10. Edwards pollution 900; for problem abatement 122 P. Holt creat- P. reh. den. evaporated, ed when City Cheyenne, water is P. see XII Land and Water L.R. “Water Law—Cessation of Re- 876. turn Complying Flow as a Means of with Pollu- Berger. tion Control Laws” Robert G. Co., Storage & 74 Colo. 218 P. 739.” unstored flow stream cannot be added.) (Emphasis lands, detached from the place purpose they acquired, are except as respect The facts before the court in that provided in sections 122-402 [§ 41-3] question, citing raised new so 41-4], 122-403 Revised Statutes [§ cases, quoting from the above I do so only Wyoming, pertaining to a change to for the purpose setting principles. out preferred use, and except provided cases, realize, Those I not present do section 1 of this (Em- act [§ 41-213].” interplay between environmental demands phasis added.) upon and beneficial use of water nor do they present question of substantial It should be noted not once in that appropriator water waste one not an section “appropriation” word used. as an water industry having preferred Husky has a right by reason of right. Again, for the question there is a 41-3, as follows: § “ control, board of not at this time a Water rights are hereby defined as fol- to be decided the courts. lows, according to use: Preferred uses right? is a water That an impor- What shall rights include for domestic and tant case consideration because transportation purposes, steam power (set 41—4.1 out in full in footnote 7 of this § plants, purposes; and industrial existing dissent), requires which I would hold preferred, may be condemned application change to file an for a use supply preferred for such uses in with the state for consideration by accordance with provisions of the law control, provides state board of in part relating to condemnation of property for an owner of a water right “[W]hen public and semi-public purposes except as wishes to a* water from its hereinafter provided. Preferred water * * * use, present use to another he uses shall have preference rights in the shall file petition requesting permission following order: First —Water for drink- ” * * * make such a change. ing purposes beast; for both man and municipal Second—Water for purposes; A “water right” 41-2, is defined Third—Water for use W.S.1957, of steam en- as follows: gines use, and for general railway “A water right is a to use the water for culinary, laundry, bathing, refrigerat- state, when such use has been ing (including ice), the manufacture of acquired by the application beneficial for steam and hot water heating plants, water under the laws of the state relat- power and steam plants; and Fourth— thereto, with, conformity and in purposes. Industrial The use of water rules regulations dependent thereon. irrigation for superior shall be pre- basis, Beneficial use shall ferred to any use where water turbines or measure and limit of right to use impulse water wheels are installed for times, water at all not exceeding the stat- power purposes; however, providеd, utory except limit as provided by section preferred power use of steam plants 122-117 Revised of Wyoming, Statutes and industrial purposes herein granted as by chapter amended section shall give not be construed to right 1, Session Laws of Wyoming, 1935 condemnation.” (Emphasis added.) 41-181], Water being always the [§ property state, Again, please to its use note that the “appro- words shall attach irrigation, to the land for priation” or or “appropriator” are not once to such other purposes object or for which Husky, mentioned. by acquisition of water acquired in accordance with the beneficial City, therefore, satisfying use made right for which the receives “water right” purposes, for industrial sub- public recognition, under the ject law and the to the administrative requirement that provided administration thereby. permit Water impoundment be obtained for un- rights for the direct use of the natural der the provisions 41-4.1. The latter § “ * * * section proverbial fits like the glove. The The appropriator secured a City only appropriation; has an A property right. portion of that right it the water right. sold to be beneficially applied to other sold, water, lands. It right but the “appropriation” An of water and a water water; words, use in other a water right are not necessarily synonymous. This right.” court has held that the appropriation act of water, City, undertaken someone other than as a is a distributor person public utility, 37-l(e) possesses providing, who the water and amongst § other puts categories, designated “public it to beneficial utili- use. Scherck ties,” Nichols, 1939, “Any plant, property facility or 95 P.2d supply, storage, distribution or furnish- interpreting court was what is now 41- § public to or for the 201, W.S.1957, water for manu- setting out the procedure for facturing, municipal, agriculture or domes- applying for a to make an appropri- uses;”. tic The municipality, acting as a ation. This court there held that the appli- utility, is authorized by legislature cant for an appropriation need not be the contract for the furnishing of water for user, requirement being that the 470, W.S.1957, industrial use by § put water be to beneficial use and not di- 15.1— C.1965, provides: verted to “idle purposes”. The spoke court approvingly of precedent Colorado “Any city in which or town contract to fur- the applicant for a permit for a water nish right adjacent water at and city to the an intermediate agent for the town for a years agreed term of upon, ultimate user of the any water. I am company satisfied railroad for use in its that this court in dispels any shops, locomotives, Scherck con- and other railroad cept that there is any magic in the City purposes, and to any subsidiary or affili- being the appropriator nominal of water for ate of company railroad whose the use of others. pointed principal Scherck out that adjacent business at or to the the statutes of this state place the main or town is furnishing of material stress service, both, on the “beneficial use” of compa- water. to the railroad compared Scherck acquisition ny, and to industrial user of water right by water one for the benefit of principal water, anoth- whose needs for at or er to contract with adjacent town, one for the benefit are defined another not a party preferred to the contract. uses or water after the [of] industry or industries has established its It can further be said with respect to the own priority.” (Emphasis added.) role of the City as an appropriator that its statutory That section any question cinches 41-3, byis limited to “munici- that Husky’s municipal is a pal purposes.” I visualize those to be right. Husky must establish its own way of example, not exclusively: pro- fire priority use, for industrial separate and tection, street flushing, and sewer a supply apart from that City. I conclude of water for use in its public buildings, etc. ever so clearly has a direct It is a matter of pro- convenience that it obligation to the board of control with re- vides an appropriation of water and distri- spect right. to water system bution satisfy the individual others; water rights of drinking for “man What Husky proposes expan- here is an beast”; and “culinary” “bathing” for sion of water utilization from its historical and; householders “industrial” for those use priority under its industrial in the refin- business concerns having a source ex- ing more, alone process something to not cept through the City’s system. These only use in the refining process but to use views original are not abatement, with me. This court in large-scale pollution as well. said in Johnston v. Little Horse Creek Irri- up proposed-use-enlargement Tied Co., 1904, gating 208, 233, 22, 13 Wyo. 79 P. are possibilities innumerable which could 26, 341, 70 L.R.A. 110 Am.St.Rep. only affect not 986: conditions as historic historic return consumption engineer, flows but in issuing a permit, must rights junior appropria- also the vested consider water quality. Department The a continuation of historic stream tors to Quality Environmental must consider bene- jun- It is well established that conditions. ficial use and interests of ap- downstream have vested in a appropriators ior propriators. I make attempt pre- no of stream existing continuation conditions scribe the mechanics оf how those two im- appropriations at the time of their and they portant agencies of the carry state will out successfully resist proposed changes their mutual problems. Changes in their and use points of diversion which in procedural regulations or legislative even way materially rights. affect their Farm- changes may required but it is not the ers Highline Canal & Reservoir Co. v. City function of a court to carry out those exec- Golden, 1954, 575, 129 Colo. 272 P.2d utive legislative jobs. 629.11 That case also stands for the princi- then, In summary order that there ple expressed that a prior appropria- be no misunderstanding, I would hold junior tor has no as against appro- that the state engineer and board of control priator to use waste water.12 and that Husky, as one possession Actual physical of water does claiming an industrial water right, must user, not give appropriator its nor its hav apply permit, for a for consideration by the absolute, right, unqualified a water board of control. I would not hold that a dispose pleases. as he granted nor, issued, must be if what The use made at all fall must times within its conditions must be. I have outlined the use, the outline of the shadow of beneficial law only to bracket the only question and to limit well as foundation. point out that facts and undisputed Bishop, supra; Sharp, Budd v. Mitchell v. circumstances of this case compel activation 41-2, supra; appropria W.S.1957. Water § supervisory powers of the board of vacuum; tors and users do not live in a control and the state over the their light actions must be considered in waters of the state before the water in- possible, foreseeable effects on other volved be impounded. The situation appropriators and those having water herein has been created historical actions rights. Whether or not to “an reliance, and a holding did not other enlargement of proposed use”— use— consider such undisputed background would herein, falls within the shadow of beneficial be judicially shortsighted. backdrop use, as possible outlined the numerous law, however, both facts and serves involved, effects is a decision the board of purpose charting a course that re- control has been by Wyoming mandated quires acquisition permit by Husky Constitution and statute to make. Section from the board of control. 2, Constitution; VIII, Article mind, With those I considerations now 41-4.1, supra. move to the reasons I why dissent my It I view and would hold that position by majority taken that the case permits, must obtain two one from must be remanded to the district court for the state board of control the other joinder City Cheyenne a full Department of Environmental many majority trial of the issues the thinks enactment, Quality. By legislative precious judge the trial must I consider. consider it water must not only fairly allocated and judicial wheel-spinning, progress. beneficially used but also must meet quality held, standards. The two agencies specifically concerned This court has in a com- go State cannot each way. parable involving own case the City Chey- City Citing Enlarged of Grand Junction v. Kannah 11. See also Southside Irr. Ditch 12. Co. Association, Co., Creek Water Users John’s Flood Ditch Colo. 116 Colo. 1173; City of Boulder v. Boulder and Left P.2d 183 P.2d 554. Company, Hand Ditch Colo. 557 P.2d 1182. necessary party City’s expressed The interest enne, City is not a brief, disposition of waters opening to the ultimate to its amicus filed in this municipal purpose. their court, have served where it is stated as follows: Ranch v. Hammond Hereford Wyoming Amiсus, “The as City, chiefly concerned Co., it was contended that Packing supra, that this litigation might prece- create a appeal entertain an this court should not interpretted dent which would be as [sic] not been City Cheyenne because the had compelling City discharge [sic] in that case was be- joined. dispute The treated affluent water into Crow [sic] Ranch, tween Hereford as a user Wyoming Creek and that it would not be able to Creek, and Hammond of waters on Crow prospective sell such water to industrial Packing which had entered into a Company, customers. Another concern is that this buy City Cheyenne contract with the litigation might away City take pur- for industrial discharge sewage water prerogative selling its historic its mu- poses. The ranch contended nicipal water its customers without part public waters became a of the Engineer.” interference from the State packing and the subject appropriation it neither Its brief tracks that of right it had a to the contended company hints suggests any nor even additional decided City. water from the This court Husky, claim to the it has furnished fully determined question that the under the latter’s own water bringing City party in as a of this only subject which is the matter that the ground a motion to dismiss on action. party was a was denied. City necessary Ranch v. See also Hereford Ham- Judg- Declaratory 1-1061 of the Section Co., 1924, Packing mond P. Act, majority, upon by relied ments case, phase a different in the same than our Rules says no more

where there was a motion to dismiss filed W.R.C.P., respect joinder parties before the case was considered this court over us than spell cast no more and should merits, City Cheyenne on its because the those rules. joined appeаl, though was not in the it had been a below. This court said in that 19(a) language Rule is almost in the same appropriation case since the City’s which, part, is as pertinent 1—1061 municipal purposes water for was in no follows: affected, wise appear it did not to be a “When declaratory relief is sought, all necessary party appeal. to the The court persons parties shall be made who have significance also noted that it was of any claim interest which would be City seeking was not to be made a declaration, affected by the and no decla- party. was finally disposed of ration shall prejudice the rights per- in the later appeal, as first here dis- ” * * sons to the proceeding. cussed. Rule 19 provides follows: ‍​‌‌‌​​‌‌‌​‌‌‌​‌​‌‌‌​​​‌​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‍City Once the allows under contract an person subject “A who is to service of industry to take water process shall joined as a the City’s distribution system under the in- (1) action if in his absence complete relief dustry’s own priority, has exhausted one cannot among already be accorded those purposes of the appropriation. It has parties, (2) he acted as far claims an interest relat- as it can. It never any claimed of the action and is so water diverted back into Crow Creek. disposition It situated that the of the action objection Husky evaporat- now has no ing any (i) water left in his practical after its industrial use. absence as a mat- appropriation impair Its ter any impede ability protect is not in wise affect- his ed. disposal (ii) I suggest per- neither takes that interest or leave away nor gives City sons anything already parties subject to a substan- sort. double, of incurring multiple, tial risk obligations by inconsistent rea- acсording respective otherwise to their rights to interest. If he has not relief, son his claimed against one or more defend- joined, been so the court shall order that ants according respective to their liabili- join he be made a If he should party. ties. so, plaintiff may but refuses to do he “(b) may The court make such orders as joined made a defendant. If the party will prevent from being embar- objects joinder to venue and his would rassed, delayed, put or to expense by the render the venue of the action improper, party against inclusion of a whom he he shall be dismissed from the action. no asserts claim and who asserts no claim “(b) When who are not persons indispens- against him, may separate order tri- able, but ought parties who to be if com- als or make prevent other orders to delay plete relief is to be accorded between prejudice.” have already parties, those not been made particular Of interest in Rule 20 is sub- parties jurisdiction and are (b) I paragraph and am convinced that it is process, of the court as service of applicable Miller, Wright here. 7 & Federal ap- court shall order them summoned to Civil, Practice and Procedure: § pear in the action. The court in its dis- explanatory of the Federal Rules 19 and proceed cretion in the action may identical to those Wyoming of the same making such persons parties, juris- if its number. It is there said: diction over them can be acquired only by their consent or voluntary appearance; “The general philosophy joinder judgment but the therein rendered does provisions of the federal rules is to allow not affect the liabilities of ab- virtually joinder unlimited plead- аt the persons. sent ing stage but give the district court “(c) In any pleading in which relief is discretion to shape the trial to the neces- asked, pleader shall set forth sities of the particular case. [Footnote names, him, if persons known to who 20(b) Rule policy furthers this omitted.] ought parties to be if complete relief is to by giving the court authority to order already par- be accorded between those separate trials or make any other order to ties, joined, but who are not and shall prevent embarrassed, being why state are they omitted.” delayed, prejudiced, or [Footnote omitted] Rule 20 following language: put to unnecessary expense by join- “(a) All persons join in may one action as party against der of a whom he asserts no plaintiffs if they any right assert to relief claim and who against asserts no claim * * jointly, severally, or in the alternative in him (Emphasis added.) respect of or arising out of the same There would unnecessary delay and ex- transaction, occurrence, or series of trans- pense to all of the to this action to actions or occurrences and if any question insist against inclusion of the City, of law or fact common per- to all these plaintiff claim; whom the makes no sons will arise in the persons action. All defendants against City; make no claim joined in one action as defendants the intervenors make against no claim if there is against asserted them jointly, nor, City; is there indication of severally, alternative, or in the any right sort City has any against claim respect to relief in arising of or out of the To, anyone. date, require at this late transaction, occurrence, same or series of addition of City pur- for the ultimate transactions occurrences and if any pose of going through useless motions is question of law or fact common to all only money legal wasteful of not but of defendants will arise in the action. A time, judicial as well. plaintiff or defendant need not be inter-

ested in obtaining defending To hold that the against all the relief Judgment demanded. board of control is as far be given for one or plaintiffs more of the as we go must or need would mean that powers when “The application by Husky government is made for a 41-4.1, provisions under the state are divided into three distinct de- partments: The and give public legislative, board would notice of the hear- executive judicial, person and no or collection of ing, Cheyenne at which the City persons charged pow- with the exercise of appear, and there would be considered all ers properly belonging to one of these pertinent, facts and law it to in- considers departments any powers shall exercise following: clude the others, properly belonging to either of the “(i) community The economic loss to the except expressly as this constitution and the state if the use from which the or permitted.” directed discontinued; right is transferred is It by was intended the authors of our “(ü) The extent to which such economic that the Constitution board of control settle use; by loss will be offset the new matters brought such as that to our atten- “(iii) Whether other sources of water are by tion this case. In Farm Investment available for the new use. 1899, 110, Company Carpenter, 9 Wyo. “(b) In all cases where the matter of 258, 918, P. Am.St.Rep. 50 L.R.A. compensation dispute, question is in Potter, Justice himself a member of the of compensation shall be submitted to the Convention, quoted Constitutionаl proper district court determination.” Journal and Debates of the Constitutional It is an unconstitutional intrusion this Convention for the State of Wyoming, p. court upon responsibility and function where it was said on the floor: of the board of require control to the dis- “When we appoint a board of control to any trict court to consider issue other than manage system, say this water that we whether the board of control the state state, belongs to the us give let them have jurisdiction. Arti- Section authority highest to control it for the VIII, Constitution, cle bestows state, uses of the people best upon the board of control those initial de- don’t fix that by saying ap- control terminations when it mandates: propriation shall settle the matter.

“There shall be constituted a board of Leave it to the of control to say board control, to be composed engi- equities of the state what enter into this matter of superintendents neer and water, of the water the use of and let them consider divisions; shall, under regula- every question arises connection prescribed law, tions as with its appropriation, say and then un- supervision of the waters of the state equities der all the of the case who shall water, of their appropriation, distribution be entitled to the use of that diversion, and of the various say prior officers appropri- the matter of connected therewith. Its decisions to be ation shall settle it.” subject to review the courts of the The board of control is better equipped to added.) state.” (Emphasis handle matters relating to water. White v. legislature District, has prescribed regula- Irrigation Wyo.1966, Wheatland tions with respect to the “diversion” of the 413 P.2d 252. The board of control shоuld water from a historical requires use and be utilized to settle water matters because regard determinations in that peculiar knowledge expertise involved, made the board of control. Section 41- to the technicalities as well as the 4.1. We plenty will have of time in pertaining Kearney which realities to water use. judicial Lake, involve our hand when we re- Land Company and Reservoir v. Lake action, view that requested. board’s if Pri- Wyo.1970, De Reservoir Company, Smet time, or to any determinations made P.2d supplemented 487 P.2d 324. This are improper judicial interference and fur- court encouraged use of the board of II, ther a mentioned, violation of Article Wyoming control and ludicrous “[t]he Constitution: spectacle judges solemnly of learned decree- Kaser, rights.” Louth v. brief of the reveals that it does not 96. 364 P.2d attempt suggest even this is the case. majority Nor does the contend that I would reverse the district court in such the city will be in manner by any bound manner to require Husky apply for a declaration in this case because it is basic change-of-use engi- that since thereto, is not a party neer and board of control.

rights could not be affected. Simply and GUTHRIE, Justice, Chief dissenting. logically, appears complete be a an- swer to City whether the I,too, respectfully join must dissent. I Cheyenne is an indispensable party, but my dissent of brother Raper, but feel approach unacceptable is often appropriation, use, because the legal mind, although sug- it is the writer’s control of the waters of this state comprise gestion that these facts alone reveal single most important area of concern justiciable to all absence of a of the issue. Wyоming, citizens of I feel compelled to set out shortly some of my Although majority opinion is sensitive views and the reasons therefor. brief, to the limitations of an amicus curiae It is my view that the majority opinion a careful reading opinion suggests casts confusion into this field and departs that it has been unable to these limi apply long-established precedent, and that it tations, improper. which is An amicus curi fails to conceptualize or recognize the basic “create, enlarge ae brief cannot extend or constitutional commandments that all the issues,” v. Prudential City Tempe waters state, are the property of the sub- America, Company Insurance 109 Ariz ject alone to the supervision and control of . 429, 745, 748, 510 414 P.2d dismissed U.S. the State Board of Control and that 546; 1088, 717, 94 38 L.Ed.2d Hootch S.Ct. only power, authority, v. Alaska State-Operated System, School courts this area is one of appellate re- Alaska, 809; 793, Morgan County 536 P.2d view. I am also concerned that this opinion Powell, Commission v. 292 Ala. 293 ignores the basic principle although So.2d 840. right to use of water is described as one of far as I am able to and under- analyze So ownership, this is conditional and such use stand, the holding majority of the that the is always subject to the doctrine of benefi- City Cheyenne indispensable party is an cial use for the benefit of society as propositions, in this three upon case is based whole. summarily most stated as follows: Additionally, it is my opinion that 1. That because of conditions which majority of the court has restructured this might imposed it uneco- could become proceeding and raised and asserted issues purchase nomical for its water raised, contemplated asserted or by the city, renegotiatiоn from the and that a parties thereto and has departed completely might an abandonment of the contract upon basis which the trial court follow, which have serious effects “could made its holding. This approach mystifies upon ability of the to meet bond me, leaving me with the apparent inference * * * obligations refinery should the this is a device to avoid the clear operations Husky’s be discontinued or holding Wyoming Hereford Ranch v. purchase of the water terminated.” Co., Hammond Packing Wyo. 33 236 P. 764, Hereford Ranch v. Ham- city, any 2. That in the absence Co., mond Packing 222 P. 1027. against Husky decision made herein would affect “as a matter of record is clear that no to this stare decisis.” proceeding has in any challenged manner the city’s appropriation, priority, relationship apparent use of 3. With some thereunder, the water strangely point, majority last-mentioned enough an examination of the amicus curiae opinion asserts that apparently agent city, sewage

an would make its function had ceased. The extent indispensable party. of Denver’s control such that it was the it, same as if Denver alone had treated these, my opinion, An examination of based thereon that case decides Metro is an affirmatively impropriety reveals unable, agent by any of Denver. I am they indispens- assertion that indicate an herein, construction of the facts to attribute city. able status of the to Husky any agency arrangement, Husky upon speculation The first is based being merely purchaser of the water and imagined existent possibilities using ‍​‌‌‌​​‌‌‌​‌‌‌​‌​‌‌‌​​​‌​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌‍purposes it for its own with no provi- opinion Declaratory mind of the writer. City sion that it be returned to the grant power nо to courts judgment actions “ Cheyenne. or controver- ‘to determine future that have not of events anticipation joinder dissent, sies In my Raper’s Justice I ” Thomson, occurred,’ Wyo., Cranston disposal make full reliance his of such Fox, 726, 729, quoting Glasgow v. P.2d therein, the authority matters and cited Tenn. 13. S.W.2d specifically which I do not mention in this opinion. actions do not re- Declaratory judgment

quire joinder persons who will be is, however, view it my necessary not only by precedent, Attorney affected Gen- only require Husky apply for a permit Mass., Inc., eral v. Optics, Kenco 340 N.E.2d but to reverse and set aside the judgment 868, 870. suggests The writer further that of the trial court insofar as it holds that the by application of the rule in Cranston rights infringed the intervenors were not same result is If the indicated. writer upon and to set aside the dismissal be indulged in his own speculation has—as prejudice petition. the intervenor’s been quite freely done itmay herein— long The historical use water has been observed that if this basis has validity recognized, intervenors deprive and to strong is a possibility every mu- in this case a proper forum in which to nicipality which has water rights and which assert their devastating, claim would be sells water to industrial users an indis- them, whose but to others pensable party herein. dependent upon application To agency sustain the relationship and throughout doctrine the state. The this decision city, will affect the however, may suggest, writer majority relies Metropoli- case of question may ripe not be unless until tan Sewage Denver Disposal District No. 1 the board of control and the Engineer State v. Farmers Irrigation Reservoir and Compa- granted shall have with conditions ny, 1190, 1192, 179 Colo. 499 P.2d therein which would result the violation apparently satisfy itself that any decision rights, of their they certainly rendered against Husky will affect the city should be heard. in this case.

This writer is totally apply unable to

case to this proceeding because of the mark-

ed factual differences. That case is based

upon the agreed facts and conditions of the

contract between Denver and Metro.

effect Metro was only treating sewage, and

once it had completed the treatment of the

Case Details

Case Name: State by and Through Christopulos v. Husky Oil Company

Court Name: Wyoming Supreme Court

Date Published: Feb 17, 1978

Citation: 575 P.2d 262

Docket Number: 4780

Court Abbreviation: Wyo.