County of Boulder v. Boulder & Weld Cnty. Ditch Co., 367 P.3d 1179 (Colo. 2016) (holding that the water court correctly denied the County of Boulder’s change of use application because it failed to meet its burden of proving an accurate historical consumptive use analysis).

Beginning in the early 1990s, the County of Boulder (the “County”) entered into a series of transactions to acquire the Bailey Farm, a 290–acre property historically used for irrigated agriculture and gravel mining.  The County aimed to develop the Bailey Farm into an open-space park featuring two ponds made from gravel pits filled with groundwater.  The ponds would expose groundwater and increase evaporation, requiring the County replace lost water through an augmentation plan under Colo. Rev. Stat. § 37-90-137.  To meet this requirement, the County filed an application in the District Court for Water Division No. 1 for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and exchange.  Each component was interdependently linked.  The application hinged on approval of the change in water rights.  The County sought to change fifty inches of its Martha M. Matthews Ditch surface water right (“MM water right”), used historically to irrigate the Bailey Farm (the “Bailey Farm Inches”), into  an augmentation plan.  Boulder and Weld County Ditch Company (“BW Ditch”) opposed the County’s application, claiming injury from the proposed change.

At trial, the County submitted two historical consumptive use (“HCU”) analyses examining the Bailey Farm Inches to prove BW Ditch would not suffer injury.  Both analyses included a prorated estimate that assumed previous users delivered the Bailey Farm Inches entire to 101 acres of the Bailey Farm.  The County’s first analysis assumed full delivery of all fifty Bailey Farm Inches to Bailey Farm from 1950 to 2000; however, BW Ditch records later revealed the HCU analysis overestimated actual consumption by thirty-seven percent from 1973 to 2000.  As a result, the County supplemented the original HCU analysis with BW Ditch’s correct numbers from 1973 to 2000 and the same estimated numbers for 1950 to 1972.  The court cited three fatal deficiencies in the County’s HCU analysis.

First, the County inaccurately calculated actual use of the Bailey Farm Inches.  BW Ditch claimed the County overstated the number of acres the Bailey Farm Inches historically irrigated, which would unlawfully enlarge the Bailey Farm Inches water right and injure down-stream users.  Second, the County failed to prove the Bailey Farm Inches irrigated the seventy–acre parcel of land that the County purported.  Specifically, the County assumed without support that the Bailey Farm Inches irrigated the entire Bailey Farm and based the HCU analysis on these figures.  Finally, the County ignored the historical consumption of other water rights by conducting a parcel-specific analysis, rather than ditch-wide analysis.  The water court rejected the County’s findings as inaccurate and insufficient to meet the County’s burden of proving HCU, and consequently dismissed the entire application because the County could not demonstrate an absence of injury to others or that the proposed change in water rights would not fully compensate for the anticipated loss.  The County appealed the court’s determination.

On appeal, the Colorado Supreme Court affirmed the water court’s holding.  The Court divided its analysis into two stages.  First, the Court discussed applicable principles of Colorado water law.  Second, the Court discussed whether the County provided an accurate HCU analysis.

In its discussion of legal principles, the Court explained why an accurate HCU analysis is necessary for persons exposing groundwater through gravel pits.  It first explained the interaction between surface and ground water rights, and the Water Right Determination and Administration Act of 1969, which integrated the prior appropriation of surface with ground water while maximizing beneficial use of water.  Integrating surface rights with groundwater often requires augmentation plans.  Augmentation plans allow users out-of-priority groundwater diversions, so long as he or she adequately replenishes the diversion from existing water rights to protect senior water rights.  Water districts only approve augmentation plans that do not injure other users.  A careful accounting of actual water use may help demonstrate lack of injury and prevent the unlawful expansion of water rights.

Next, the Court examined long-established principles regarding changes of water rights and HCU analyses.  The Court noted that the amount of water changed must reflect the actual amount of water used and exist within the water’s contemplated use at the time of appropriation. This limitation comes from the principle that water rights derive from both appropriation and beneficial use.  Once diverted, the water’s beneficial use becomes the basis, measure, and limit of the water right. The Court also explained that modification of use itself cannot injure other water users.  Courts often intertwine these principles, as an expansion of a water right’s previous use often reduces the amount of water in return flow.  Thus, established principles allow water rights holders to change only as much water as they historically consumed in the manner contemplated by those rights.

The Court then analyzed whether the County upheld its burden in proving a reliable HCU.  The Court first found the County did not accurately report historical consumption of Bailey Farm Inches.  As the applicant, the County had to prove that previous users of the Bailey Farm Inches actually used the water as calculated in the HCU analysis. Despite this change, the Court found the inaccurate estimate cast serious doubt on the validity of the remaining figures and, thus, the entire report.  The County failed to provide a convincing explanation for their inaccurate HCU.  Thus, the Court affirmed the water court’s decision that the County failed to carry its burden of accurately quantifying the amount of Bailey Farm Inches actually used on the Bailey Farm.

The Court also held that County did not show the Bailey Farm Inches historically irrigated the entire Bailey Farm.  Covering a total of 101 acres, the Bailey Farm existed as two main parcels: a thirty-one-acre parcel and a seventy-acre parcel.  To carry its burden, the County had to prove that the 101 acres of the Bailey Farm claimed was within the lawful place of use and historically irrigated with Bailey Farm Inches.  The County failed to offer definitive proof that the larger portion of the Bailey Farm in fact received Bailey Farm Inches for irrigation.  Specifically, the Court pointed to the lack of evidence on the record demonstrating the seventy-acre parcel received any of the Bailey Farm Inches.  Without actual evidence showing past users irrigated the seventy-acre parcel with Bailey Farm Inches, the Court could not accept the analysis.  Moreover, the Court also explained that even if the seventy-acre parcel fell within the lawful place of use, the County would still have to prove that the MM water right was actually used on that land over time.  At first, different entities appropriated the Bailey Farm Inches to use in different properties.  Over time, the owners consolidated the properties. Because of the convoluted past, the water court required an accurate accounting of actual past use.  Absent actual proof of historical use, the water court declined to rely on the County’s HCU.  In committing these two errors, the County failed to prove the HCU and, thus, failed to prove a lack of injury to other water users.

The Court also rejected the County’s request for an appropriative right of substitution and exchange.  The Court found the County could not supplement its augmentation plan through a water lease with the City of Lafayette because the lease alone could not satisfy the County’s replacement obligations.

Accordingly, the Court affirmed the ruling of the water court and denied the County’s change of use application.

 Connor Pace

Image: A Western irrigation ditch. Flickr User Shaun Fischer, Creative Commons.

Curry v. Pondera Cty. Canal & Reservoir Co., 370 P.3d 440 (Mont. 2016) (holding that: (i) the Water Court did not err in concluding that the number of shares issued by water company determined the company’s rights; (ii) water supply company’s rights corresponded to size of service area as opposed to a historical place of use; and (iii) the Water Court erred in determining water supply company put storage rights to beneficial use prior to 1973).

The Curry Cattle Company (“Curry”) is a private landowner in Montana and owns shares to irrigation rights in the Birch Creek Flats (“Flats”). Curry obtained these rights in 1988, some of which are the oldest rights in the Marias River Basin. Pondera County Canal & Reservoir Co. (“Pondera”) provides land owners in Pondera County with water shares for beneficial use. Pondera possesses water rights to divert from Birch Creek, as well as a complete distribution system to serve the area.

This case originates from a dispute between the parties regarding waters in the Birch Creek. Pondera’s predecessors in interest secured some of the water rights in question through the Carey Land Act (“Act”), a federal law meant to encourage relocation the American West. In response, Montana set up the Montana Carey Land Board (“MCLB”), which sought to meet the requirements laid out in the Act. The Act functioned by setting up operating companies comprised of shareholders who had rights to water as determined by acres of land owned. Under the Act, the operating company maintains ownership of the water rights for a service area. In this case, the service area is accompanied by 72,000 water shares. Land owners in the service area may acquire these water shares. Pondera’s predecessors operated under the Act and began appropriating water for irrigation and sale in the late 1800s, eventually organizing as the Pondera Canal Company. The Company officially registered as an operating company under the requirements of the Carey Act in 1927. As currently aligned, individual stockholders own the Pondera Company, which distributes water as such on a per-share basis.

Disagreement over the priority of the Curry’s rights under this scheme existed for some time before this case. In 2004, Pondera communicated to Curry that its water share was less than previously believed. Curry rejected this assertion and continued to put more water to beneficial use than Pondera believed it was entitled. In 2005 Pondera locked Curry’s head gate, leading Curry to file a complaint alleging Pondera interfered with their water rights.

The Water Court initially ordered a preliminary injunction against Pondera to unlock the head gate. In 2008, the Water Court held an a six-day hearing to determine the correct quantity under the water right. The water master held in favor of Curry, finding the beneficial historic use of its water right established its water quantity. In 2014, the Water Court issued an order amending and partially adopting the master’s report. The Water Court determined that the rights in question instead correspond to the number of shares MCLB authorized for the project. Curry appealed this order to the Montana Supreme Court (“Court”).

The Court reviewed de novo five distinct issues resulting from the order of the Water Court. The Court also reviewed whether Water Court conducted its review of the master’s findings properly under a clear error standard.

The Court first reviewed the Water Court’s determination that a stockholder’s actual historic use limits the water rights of an entity organized under the Carey Land Act. Before the Court, Curry argued that beneficial use is the touchstone of water law in Montana, and therefore the Water Court improperly placed Pondera’s rights above all others by allowing it to retain ownership over water that was not put towards beneficial use. In opposition, Pondera argued that its beneficial use was not shown through actual irrigation, but by putting water into sale and service for shareholders. The Court reviewed the history of Montana water law and relied on a 1912 Montana Supreme Court case, Bailey v. Titinger, which held that either system capacity or company need would determine the extent of rights, to clarify the doctrine of beneficial use. The Court noted Montana public policy encourages public service corporations in the endeavor of irrigation. Therefore, the Court held that the Water Court did not err in determining that water rights paralleled the actual shares issued, and that sale of water unquestionably constituted a beneficial use.

The Court next confronted the issue of the Water Court’s grant of a service area to Pondera rather than a place of use based on historically irrigated land. Curry contended that the Water Court misinterpreted Bailey in entitling Pondera to a service area larger than the historical place of use. Pondera argued that the service area was the appropriate boundary for determining place of use. The Court began by discussing the concept of appurtenance of water to the land as a general rule in Montana law. The Court then explained that due to the movement of water inherent in the scheme of the Carey Act, a strict requirement of appurtenance was not applicable in this case. The Court noted that under the Act, the individual stock certificate’s appurtenant land did not define the overall place of use. Relying on Bailey, the Court affirmed the Water Court by holding that the idea of a service area is the proper method of satisfying the Carey Act’s place of use requirement. The Court declined to determine the exact size of the service area at this stage of litigation.

The Court also considered whether there was any evidence of water use by irrigators on the Birch Creek Flats prior to 1973. The water master found some evidence of historic use on the Flats, including some releases from storage facilities that eventually flowed into canals utilized by non-Pondera water users, but determined that these releases did not amount to Pondera use warranting inclusion of the Flats within the service area boundary. However, the Water Court found that there was evidence of Pondera water being used on the Flats prior to 1973, and concluded that the Flats should be considered as falling within the boundaries of the Pondera service area. The Court evaluated the use of water in the Flats based on Pondera’s actions, and disagreed with the Water Court’s conclusion that Pondera put the water to beneficial use on the Flats prior to 1973. The Court reversed this portion of the decision and remanded for further consideration.

The Court next examined whether the Water Court erred by substituting its judgment for that of the master regarding the “Gray Right.” Curry argued that the judgment of the Water Court was erroneous regarding the flow rate of the Gray Right. Pondera in turn argued that the Master’s report contained contradictory findings and therefore the Water Court’s judgment was not erroneous. The Court held that the Water Court applied the appropriate standard of review to the Master’s findings, and the Water Court’s determination of the flow rate for the Gray Right was not clearly erroneous.

Finally, the Court considered whether the Water Court’s tabulation of the parties’ respective claims to water rights should have included volume measurements when it did not. Pondera contended that the tabulations should have included volume. The Court held that while such measurements would undoubtedly be helpful, this was a matter of discretion for the Water Court.

Accordingly, the Court partially affirmed the Water Court by finding Pondera’s water rights corresponded to actual shares allotted under the Carey Act and extended to its entire service area, and reversed and remanded the determination with respect to the acreage determination.

Brian Hinkle

Image: Swift Dam on Birch Creek in Pondera County, Montana. Flickr User Sam Beebe, Creative Commons.

United States v. Washington, 827 F.3d 836 (9th Cir. 2016) (holding: (i) the fishing clause in the Stevens Treaties guaranteed Indian tribes the right to off-reservation fishing, with an inferred promise that sustainable fish populations would be available for tribal harvest; (ii) the State violated the fishing clause by constructing and operating barrier culverts that interfered with fish migration; and (iii) the permanent injunction appropriately ordered the State to correct barrier culverts).

In 1854 and 1855, multiple Pacific Northwest Indian tribes (“Tribes”) entered into the Stevens Treaties (“Treaties”), in which, inter alia, tribes relinquished land known as the “Case Area” to what is now the State of Washington (“State”) in exchange for a guaranteed right to off-reservation fishing.  Pursuant to this “fishing clause,” tribes had the right to take fish “at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”  These Tribes rely on salmon fishing and engage in commercial salmon fishing, consume salmon to meet dietary needs, and use salmon in cultural and religious ceremonies.  Tribes and the State have long been in conflict over these fishing rights.  This case stems from a United States suit brought on behalf of Tribes in 1970 to resolve these persistent conflicts.

When building roads over streams, State road builders historically constructed culverts under the roads to allow natural stream flow.  However, these culverts interfere with salmon migration.  The culverts prevent juvenile salmon from migrating to sea where they mature, prevent mature salmon from returning to their spawning grounds, and prevent young salmon from freely locating food and avoiding predators.  As a result, salmon numbers diminished.

In 2001, the Tribes filed a request for determination with the United States District Court for the Western District of Washington (“district court”), which sought to impose a duty upon the State to abstain from constructing culverts that degraded fish habitat and reduced adult fish populations.  The United States joined the Tribes’ request for determination and sought declaration from the district court that the fishing clause in the Treaties imposed a duty upon the State to abstain from constructing or maintaining culverts that interfered with the fishery resource in way that “deprive[d] the Tribes of a moderate living from the fishery.”    Additionally, both the Tribes and the United States individually sought a permanent injunction from the district court requiring that the State open culverts that interfered with salmon migration, and requiring the State to remedy culverts that substantially reduced fish migration, respectively.

The district court ruled against the State on two grounds: (i) that the fishing clause imposed a duty upon the State to abstain from constructing or operating culverts that interfered with fish migration in a manner that reduced salmon that would “otherwise be available for Tribal harvest”; and (ii) that the State operated culverts that violated this duty.

In 2013, after failed settlement efforts, the district court issued a Memorandum of Decision, in which it found that the Treaties purported to assure Tribes that they would forever have an adequate salmon supply.  The district court reasoned that culverts, in part, degraded salmon habitat by inhibiting the free migration of adult and juvenile salmon, which resulted in reduced Tribal harvests that prevented tribal members from earning a living and caused “cultural and social harm to the Tribes in addition to economic harm.”  On the same day, the district court issued a permanent injunction ordering the State, in consultation with the United States and Tribes, to compile a list of state-owned barrier culverts within the Case Area and required the State to correct all listed culverts in a manner that provided fish passage.  The State appealed.

On review in the United States Court of Appeals, Ninth Circuit (“court”), the State contended that the Treaties did not impose a duty on the State to abstain from constructing barrier culverts, and objected to the scope of the district court’s injunction

First, the court determined the State’s duties under the Treaties.  The court found that the State misconstrued the Treaties by characterizing their primary purpose as “opening up the region to settlement”; the court instead deemed the primary purpose as establishing a reliable means to sustain tribal livelihoods once the Treaties took effect.  The court, relying on Supreme Court precedent, construed treaties between tribes and the United States in favor of the tribes. Along that vein, the court reasoned the Tribes understood that the Treaties would provide not only access to usual and accustomed fishing places, but also to sustainable salmon populations; thus, regardless of explicit language, the court would infer that promise.

The court then reviewed the facts presented to the district court regarding the State’s culverts and recognized their effects within the Case Area as “block[ing] approximately 1,000 linear miles of streams suitable for salmon habitat.”  Therefore, the culverts precluded sufficient salmon populations that would maintain a moderate living for the Tribes.  The court further reasoned that replacing or modifying culverts to increase salmon migration would render more mature salmon available for Tribal harvest.

Next, the court addressed the appropriateness of the district court’s injunction and rejected the State’s contentions.  The State contended that the Tribes did not provide sufficient evidence that the culverts significantly caused the salmon’s decline. However, the court determined that the Tribes had presented extensive evidence.  Specifically, the Tribes presented a report prepared by state agencies, which acknowledged culverts as a type of barrier to fish migration and as “correctable obstacles.”  The State also contended that the district court’s injunction ordered the State to correct almost all state-owned barrier culverts without evidence that such corrections would improve salmon migrations.  However, the court reiterated that the State’s own evidence illustrated that once salmon habitat is accessible by un-blocking barrier culverts, “hundreds of thousands of adult salmon” would be available to Tribes.

Accordingly, the court affirmed the district court’s holdings and concluded that the district court did not abuse its discretion by issuing the permanent injunction.

Gia Austin

Image: A coho salmon spawning on the Salmon River in the Pacific Northwest. Flickr User BLMOregon, Creative Commons.

Rangen, Inc. v. Idaho Dep’t of Water Res., 371 P.3d 305 (Idaho 2016) (affirming the district court’s ruling that: (i) the Idaho Department of Water Resources’ approval of a mitigation plan that deferred consideration of injury to other water users was not an abuse of discretion; (ii) a mitigation plan that included curtailment and insurance as contingencies was adequate to assure protection to senior priority rights; and (iii) construction of a water pipeline across private land to a place of beneficial use did not constitute an unlawful taking under Idaho’s eminent domain laws).

On December 13, 2011, Rangen, Inc. (“Rangen”) filed a petition for a delivery call with the Idaho Department of Water Resources (“IDWR”), alleging groundwater pumping by junior appropriators in the Eastern Snake Plain Aquifer (“ESPA”) materially injured its water rights.  In response, IDWR’s director (the “Director”) issued an order that curtailed some junior-priority groundwater pumping in the ESPA.  The order allowed junior-priority groundwater users to avoid curtailment by participating in an approved mitigation plan providing 9.1 cubic feet per second (“cfs”) of water to Rangen.  Idaho Ground Water Appropriators, Inc. (“IGWA”), who represented junior priority users in ESPA, submitted several mitigation plans to IDWR.  On October 8, 2014, the Director conditionally approved IGWA’s Fourth Mitigation Plan (the “Plan”), which required IGWA build and maintain a pumping station, pipeline, and other necessary facilities for the transport of water (“the “Magic Springs Project”).  Under the Plan, SeaPac of Idaho, Inc. agreed to sell or lease 10 cfs of water to IGWA.  IGWA would then pump that water to Rangen through the Magic Springs Project.

The conditional plan hinged on IGWA obtaining approval for its Application of Transfer from SeaPac of Idaho, Inc.  The Director declined to rule on the Application of Transfer in the order.  The Plan also required IGWA to purchase an insurance policy that covered Rangen’s losses of fish attributable the Magic Springs Project’s failure.  Last, the Director ordered Rangen state in writing that it would accept the water delivered and the construction of the Magic Springs Project on its land.  If the conditions failed, IDWR would suspend the Plan.  Nevertheless, IGWA constructed the Magic Springs Project’s pipeline during the conditional period.

After approval, Rangen petitioned the district court to review the Director’s decision.  The district court affirmed the decision.  Rangen then appealed to the Supreme Court of Idaho, challenging that: 1) the Director abused his discretion when he deferred consideration of potential injury to other water users until proceedings on IGWA’s Application for Transfer; 2) the Director erred by approving a plan with inadequate contingency provisions; and 3) the Director’s order constituted an unlawful taking of Rangen’s property and should be set aside.

First, the Supreme Court of Idaho held the Director did not abuse his discretion by deferring consideration of potential injury to other water users until the proceedings on IGWA’s Application for Transfer.  Here, Rangen argued the Director did not have discretion to defer consideration of injury to water users under Conjunctive Management Rule (“CMR”) 43.03j and that it was unreasonable to ignore those factors.  CMR 43.03 and subsection j state the Director “may” consider “whether the mitigation plan is consistent with the conservation of water resources, the public interest or injures other water rights, or would result in the diversion and use of ground water at a rate beyond the reasonably anticipated average rate of future natural recharge.” The Court began its analysis by interpreting the CMR’s regulatory language.

The Court found that a plain reading of the CMR gave the Director discretion to defer consideration because the word “may” was permissive rather than imperative.  The Court compared the regulatory language to its interpretation in another case that required the Director consider several factors in determining injury prevention.  The case was distinguishable as it referred to a different subsection that stated, “the mitigation plan must include. . . .”  After undertaking this analysis, the Court turned to Rangen’s assertion that it was unreasonable to ignore the factors under CMR 43.03j.

Rangen claimed it was unreasonable for the Director not consider CMR 43.03j for two reasons.  Rangen first claimed the Director would not find injury to other users because IGWA had completed construction of its pipeline and accordingly had failed to consider potential injury to other users.  The Court rejected this argument, finding it unclear how potential injury to users would occur without consideration, as the Plan provided other users with the opportunity to raise issues at the later proceeding.  Furthermore, Rangen failed to submit any evidence to the court showing the Direct would allow construction based on the pipeline’s construction and IGWA bore the risk burden when it built the pipeline early.  Rangen also argued the Director should have conducted the injury analysis in the Plan because the later transfer proceeding went forward under a different regulatory provision than CMR 43.03j.  In response, the Court again pointed to the Director’s discretion provided by the CMR.  After determining the Director did not abuse his discretion by delaying Application of Transfer Proceedings, it turned to Rangen’s challenge that the Plan did not include adequate contingency provisions.

The Court found the contingencies were adequate because the IDWR did not avoid curtailment of junior-priority rights in the event that the Plan became unavailable.  CMR 43.03c requires mitigation plans “assure protection of the senior priority right in the event the mitigation water sources becomes unavailable.”  Under this regulation, Rangen argued curtailment was not a contingency because it was a natural and legal consequence that occurs without mitigation, and that the benefits of curtailment can take years to materialize and would not immediately remedy its injury.  The Court rejected this argument, finding the Plan offered sufficient protection to Rangen’s right through the combination of a curtailment and insurance.  It noted the insurance policy would provide as a safeguard if curtailment failed to provide a remedy.  Rangen then challenged that the insurance plan’s adequacy for compensating potential losses it would suffer if a shortage occurred.  The Court allayed these concerns by stating the insurance policy covered exactly the type of injury Rangen discussed.

Finally, the Court turned to Rangen’s argument that IDWR’s order constituted an unlawful taking of senior owner’s property.  Rangen argued the Director’s order amounted to an unlawful taking because it forced senior owners to choose between granting IGWA an easement or risk losing water that they were entitled to because the order allowed IGWA to suspend its mitigation obligation if Rangen did not allow the pipeline’s construction.  The Court found that even if it interpreted the Director’s order to require Rangen to grant IGWA an easement because Idaho’s constitutional eminent domain power extends to property of public use after just compensation.  Under the Idaho Constitution, right of ways for the construction of pipelines to convey water to the place of beneficial use fall under that power.  This would allow the state to take the property after just compensation.  Since Rangen did not allege that it was not provided just compensation, the Court rejected this claim.

Accordingly, the Court upheld the district court’s partial affirmation of the Director’s order conditionally approving the Plan.

Dalton Kelley

Image: No Trespassing sign in Idaho. Flickr User Makis Siderakis, Creative Commons.

New Mexico, ex rel. State Engineer v. Trujillo, 813 F.3d 1308 (10th Cir. 2016) (holding that a special master in a general stream adjudication properly granted summary judgment against an individual who objected to a district court’s proposed order limiting her water use to 0.5 acre-feet per year (“AFY”)).

This case came before the Tenth Circuit Court of Appeals as an individual challenge to a general stream adjudication initiated by New Mexico to determine water rights in the Nambe-Pojoaque-Tesuque Basin (“Basin”), which originates in the Sangre de Cristo Mountains.  Elisa Trujillo held a domestic well permit allowing her to divert underground water in the Basin.  The individual adjudication of water rights led to the conflict between Trujillo and New Mexico.  In 1983, the United States District Court for the District of New Mexico prevented the state from issuing domestic well permits in the Basin unless the water was used for household purposes only.  This permit provision specifically excluded using water for irrigation.   In 1985, Trujillo’s predecessor-in-interest received a domestic well permit in accordance with the 1983 injunction (prohibiting irrigation) and was granted a maximum use of 3.0 AFY.

In 1994, the district court directed a special master to determine the appropriate amount of water rights for all permits granted after 1982, including Trujillo’s.  The doctrine of beneficial use controls how much water is granted to each permit, and under the New Mexico Constitution, is the amount of water that can be used beneficially and with purpose; water rights are limited based on that use.

Because of the 1994 order by the district court, Trujillo’s permit was amended to limit water use to either 3.0 AFY or the historic, beneficial use, whichever was less.  The court allocated 0.5 AFY for domestic wells unless permit holders showed a greater beneficial use.  In 2006, the district court required permit holders to show (1) why the permit should not be adjudicated to 0.5 AFY and (2) why the water rights should not be otherwise adjudicated consistent with the terms of the domestic well permit in order to obtain more AFY.  Essentially, the burden was placed on the permit holder to prove a need for more than 0.5 AFY in keeping with the doctrine of beneficial use.

Trujillo’s permit was originally designated for domestic use, and in 1985, the permit allowed for up to 3.0 AFY of water.  The state’s proposed order restricted Trujillo’s water use to indoor purposes and limited the amount to 0.5 AFY based on historic beneficial use.  Trujillo objected to her permit’s prohibition on outdoor use and the limitation of 0.5 AFY.  The State offered into evidence an affidavit by an expert witness stating that, on average, permits for a domestic well use 0.4 AFY per household. Trujillo failed to prove that she had the right to use more than 0.5 AFY under the doctrine of beneficial use for a purpose other than as allowed in the permit. In 2010, the Special Master granted summary judgment in favor of New Mexico.

After the Special Master issued the order, Trujillo filed several motions, including an objection to the 2010 order of summary judgment, two motions to quash the 1983 injunction, and a motion to reconsider the district court’s overruling of her objection to the order of summary judgment.  In 2015, the district court issued an order adjudicating Trujillo’s domestic water rights as part of a regional general stream adjudication.  The 2015 order issued by the district court imposed identical conditions on Trujillo’s domestic water rights as had been stated in the 2010 order: a limit of 0.5 AFY with a prohibition on outdoor use including irrigation.  The Court did not find this to be a final ruling subject to its jurisdiction because Trujillo and other permit holders may object to the order during the inter se stage before the district court enters a final judgment on September 15, 2017.  Therefore, the Court did not have jurisdiction under 28 U.S.C. § 1291 to review 2015 order by the district court.  The pragmatic finality doctrine is an exception under § 1291 and may be applied in order to expedite appellate review. However, the Court did not apply the pragmatic finality doctrine to Trujillo’s appeal, instead finding jurisdiction under 28 U.S.C. § 1291(a), which permits interlocutory appeals.

Accordingly, the Court had jurisdiction to review the Special Master’s summary judgment order issued in 2010.  The Court upheld the district court’s ruling from 2010 and the subsequent order in 2015. On appeal, Trujillo did not present the court with evidence of her beneficial indoor use.  Trujillo failed to raise an argument against the 2010 decision upon which the 2015 decision was based.  Contrary to New Mexico law, Trujillo argued that her permit alone created the water right.  Beneficial use is the basis from which all water rights within the state may be legally measured and limited, and Trujillo gave no evidence of her beneficial use for indoor purposes in excess of the allocated 0.5 AFY.

Therefore, the Court affirmed the district court’s order for summary judgment in favor of the state of New Mexico.

Margaret Casey

Image: The Río Grande del Norte National Monument, which is west of the Sangre de Cristo Mountains in New Mexico. Flickr User Bureau of Land Management, Creative Commons.



Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (holding that three federal agencies managing a dam did not violate the requirements of NEPA when they decided to fluctuate the level of a reservoir without filing an environmental impact statement because that decision was within the range of action originally available when the dam was first operational, and therefore, was not a major federal action).

The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”  An EIS is a detailed study that examines the environmental consequences of an agency’s action.  To determine whether an EIS is necessary, Agencies prepare environmental assessments (“EA”).  In this case, the United States Court of Appeals for the Ninth Circuit decided whether the Bonneville Power Administration (“BPA”) violated the requirements of NEPA when BPA concluded in an EA that no EIS would be necessary to raise and lower the level of Lake Pend Oreille to generate power through the Albeni Falls Dam.

The Albeni Falls Dam (“Dam”) lies on the Pend Oreille River and operates to balance a variety of competing objectives including flood control, power generation, navigation, and wildlife conservation.  Lake Pend Oreille (“Lake”) serves as the Dam’s reservoir.  The Dam’s electricity output corresponds with the amount of water released from the Lake.  Higher output lowers the Lake and causes its shoreline to recede.

The Army Corps of Engineers (“Corps”), the BPA, and the Bureau of Reclamation jointly manage the Dam.  Since its completion in 1957, the Corps fluctuated the level of the Lake to generate power as needed during the winter months.  However, from 1997 to 2011, the Corps maintained the Lake at a constant level to mitigate adverse effects on the kokanee salmon population.

In 2009, the BPA advocated for more “flexible winter power operations.”  The operating agencies developed a new plan (the “Plan”), which preserved the Corps’ discretion to raise and lower the level of the lake by up to five feet during the winter.  Along with the Plan, the agencies published an EA in which they concluded that fluctuating the level of the Lake had no significant environmental impact.  The agencies moved forward without preparing an Environmental Impact Statement.

The Idaho Conservation League (“Petitioner”) challenged the agencies’ decision to move forward without preparing an EIS as a violation of the requirements of NEPA.  The Petitioner requested the court to require the BPA prepare an EIS.  The Petitioner also challenged the EA’s finding of no significant impact, claiming the agencies failed to consider the Plan’s impact on the spread of the flowering rush, an invasive species.  The court held the Plan did not violate the requirements of NEPA.

First, the court rejected the Petitioner’s EIS request, explaining that an action is not a major federal action when an agency operates a facility “within the range originally available to it,” and that the EIS requirement only applies where the proposed action is major.  Actions regarding ongoing projects can be major when agencies make changes that “themselves amount to major Federal actions.”  There was no change in the Plan.  In other words, the plan “did not change the status quo” because if the agencies had before consistently fluctuated the levels of the Lake during the winter, then formalizing the approach to fluctuation would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Dam] was first operational.”  The court concluded the Corps never relinquished its discretion to fluctuate the level of the Lake from 1997 to 2011 when the agency maintained the Lake at a consistent level.  The court reasoned that because the agencies decided to maintain the lake at a consistent winter level on a year-to-year basis, that they had always retained the authority to respond to annual changes in power demands.  By rejecting Petitioner’s request, the court held all other challenges to the EA were moot.  Since the Plan did not trigger a major federal action, the agencies had no need to further consider the flowering rush.

Finally, the court noted that the Petitioner may have had a separate colorable claim if they had argued that the agencies must have supplemented an existing EIS with an analysis of how year-round dam operations affect the spread of the flowering rush.  Agencies have a duty to supplement if there are “significant new circumstances or information relevant to environmental concerns” that were not considered in an earlier EIS.  However, the court found that issue was outside the scope of the case and only raised on appeal.

Accordingly, the court held that the agencies’ decision to move forward with the Plan without preparing an EIS did not violate NEPA.

Trevor C. Lambirth

Image: Photo taken by Roland Taylor of Lake Pend Oreille in Northern Idaho. Flickr user U.S. Department of the Interior, Creative Commons.

Upper Eagle Reg’l Water Auth. v. Wolfe, 371 P.3d 681 (Colo. 2016) (holding that an owner of multiple water rights can choose to divert and make absolute any of its in-priority, conditional water rights and is not required to make absolute a senior conditional water right before a junior conditional water right, so long as the owner lives with his or her choice and does not injure the rights of other water users).

Effective as of March 25, 2004, the Upper Eagle Regional Water Authority (the “Authority”) formed a water service agreement with the Edwards Metropolitan District and the Cordillera Metropolitan District.  Under the agreement, the Cordillera Metropolitan District gave certain water rights and facilities to the Authority, which in turn provided water services to the Cordillera area.  The rights conveyed to the Authority included the SCR Diversion Point No. 1 conditional water right (the “Senior Lake Creek Right”), with a priority year of 1989, and the Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”), with a priority year of 1991.  Pursuant to the agreement, the Authority would limit use of both conditional water rights to irrigation, domestic, commercial, and fire protection purposes, with diversions to occur at the Edwards Drinking Water Facility.

On July 4, 2004, a day on which there was no call on the Colorado and Eagle Rivers, the Authority diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River for beneficial use in the Cordillera area.  The Authority allocated 0.47 cfs of this diversion to its Junior Eagle River Right.  On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (“Application”).  The Application requested confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right at the Edwards Drinking Water Facility for irrigation, domestic, commercial, and fire protection purposes during free conditions.  The State and Division Engineers (the “Engineers”) opposed the Application.

The Engineers initially argued the Authority must make diversions in accordance with the “seniors first” policy, requiring that users first attribute diversions to senior absolute water rights, then to senior conditional rights, and finally, junior conditional rights.  A Water Court granted the Engineers’ motion for summary judgment in part and denied the Authority’s claim for making 0.47 cfs of the Junior Eagle River Right absolute.  The court held the Authority did not have discretion to choose a junior water right over a senior water right when both rights decreed the same point of diversion for the same purposes at the same place of use.

The Authority appealed the Water Court’s decision, arguing that it should have the discretion to choose the conditional water right it wants to divert and use.  The Colorado Supreme Court reviewed de novo the Water Court’s conclusions of law.

The Court only examined whether Authority had to attribute its diversion to a senior water right.  The Engineer partially based its argument on a previous Colorado Supreme Court holding, which required that applicants seeking to make a conditional water right absolute first show they appropriated water in excess of an existing absolute decree.  The Court rejected that argument by distinguishing the facts of this case as involving a choice between two conditional rights rather than a choice between a conditional right and an absolute right.  The Court reasoned that the previous case was not compatible, because the Authority had to attribute one of its conditional rights to a needed water diversion.

The Engineers then argued that application of a “seniors first” policy here would help effectively administer the prior appropriation system and “correctly express” the Colorado Constitution and state statutes.  The Engineers believed that if the Court allowed the Authority to freely select among its conditional water rights, the Authority could change its attribution of diversions from one day to the next.  The Engineers claimed that this potential behavior was dangerous because it could allow the Authority to make absolute more water rights than it actually needed.  The Court did not accept the Engineers’ argument.

The Court ruled that once the Authority makes 0.47 cfs of the Junior Eagle River Right absolute, it must live with that choice; the only way the Authority could later perfect its other conditional water rights is through showing with quantifiable evidence that it requires more water than 0.47 cfs of the Junior Eagle River Right to fulfill the need of the Cordillera area.  The Court summarized that, absent any evidence of waste, hoarding, or injury to the rights of other water users, the Authority may choose which of its conditional water rights it wishes to divert and make absolute.

Accordingly, the Court reversed the order of the Water Court that the July 4, 2004 diversion must be allocated to the Senior Lake Creek Right, and remanded the case with instructions to make 0.47 cfs of the Junior Eagle River Right absolute.

Tina Xu

Image: Flowing water on the way up to Hanging Lake located in Glenwood Canyon, Colorado. Flickr User Zach Dischner, Creative Commons.

Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134 (1st Cir. 2016) (holding that a real estate developer and home builder failed to state facts sufficient to establish a facially plausible claim to relief in their complaint, which alleged that a water district and its superintendent deprived them of federal and state constitutional rights when the superintendent raised valid objections of public concern against the construction of a subdivision).

In 2012, Najas Realty, LLC (“Najas”) purchased a ten-acre parcel of land (the “Property”) in Seekonk, Massachusetts (the “Town”) and filed a preliminary subdivision plan application to develop a ten-lot subdivision (the “Pine Hill project”).  The Seekonk Board of Health met to discuss the application.  The Seekonk Water District’s Superintendent, Robert Bernardo, attended the meeting and expressed concerns that Pine Hill project could potentially impact one of the Town’s wells, Well GP-4.  Bernardo asserted that a malfunctioning septic system servicing a nearby middle school caused high nitrate levels in the soil around GP-4.  As a solution, the Board of Health required that Najas perform a nitrate loading analysis.

After the Seekonk Board of Health initially met, Bernardo expressed concerns at two other meetings that the Pine Hill project’s septic system could increase nitrate levels and expose unborn babies and nursing infants to “Blue Baby Syndrome,” and that nitrate contamination requires high clean-up costs.  Najas rejected these claims.

After these meetings, Najas completed its nitrate loading analysis and submitted a definitive subdivision plan. Najas claimed the plan satisfied regulatory requirements for septic systems and kept nitrate levels in the GP-4 area within regulatory limits.  The Board of Health initially voted to approve the analysis.  After approval, the Planning Board held a public hearing. At the hearing, Bernardo claimed the nitrate loading analysis’ data was false.  In response, the Planning Board reviewed and denied the Pine Hill project.  Najas then appealed to the Massachusetts Land Court.

The appeal led to a settlement allowing Najas to proceed if it reduced the number of lots from ten to nine and shortened the subdivision’s road length.  The Planning Board reviewed the revised plan at another public meeting.  Bernardo again attended and voiced concerns about water contamination issues.  The Planning Board approved the revised Pine Hill project.  The Seekonk Water District then filed a petition to the Planning Board to rescind or modify the approved plan.  The Planning Board denied the petition, and the Pine Hill project continued in accordance with the revised plan.

Najas, joined by Petra Building Corporation (“Petra”) (collectively, “Plaintiffs”), filed a complaint in the United States District Court for the District of Massachusetts against the Seekonk Water District and Bernardo (collectively, “Plaintiffs”), asserting claims under the United States Constitution and analog claims under the Massachusetts Constitution.  The complaint asserted: (1) Defendants retaliated against the Plaintiffs for asserting First Amendment rights to petition and freedom of speech; (2) Defendants violated Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out; (3) Defendants violated Plaintiffs’ Fourteenth Amendment due process rights by opposing the plan; and (4) Defendants tortuously interfered with Plaintiffs’ business.  The district court granted judgment on the pleadings in favor of the Defendants, stating that Najas and Petra failed to state a viable claim.  Subsequently, Plaintiffs submitted a second complaint, which the district court also dismissed in a final judgment.

Plaintiffs appealed to the United States Court of Appeals for the First Circuit, claiming the district court required too much at the pleading stage and the complaint was sufficient to deny a motion for judgment on the pleadings.  The court reviewed the appeal de novo.

The court started its analysis noting that for constitutional claims under 42 U.S.C. § 1983, plaintiffs must prove the conduct complained of was committed under color of state law and that the conduct worked as a denial of rights secured by the United States Constitution.  The court accepted that Bernardo acted under the color of state law, and proceeded by determining whether he encroached on the Plaintiffs’ constitutional rights.

To begin, the court analyzed whether Bernardo had retaliated against the Plaintiffs’ First Amendment right to petition and freedom of speech.  The court stated a cognizable retaliation claim under the First Amendment requires plaintiffs show the conduct was constitutionally protected and that a causal connection existed between the protected conduct and the retaliatory response.  The court found it was unclear whether Najas’s conduct was protected petitioning conduct or free speech comprising commentary on a matter of public concern.  Instead, the court evaluated the test’s second prong, whether the Plaintiffs had established a causal connection between the protected conduct and the retaliatory response.

For this element, Najas pointed to Bernardo’s accusation that the data submitted for the Pine Hill project was “fabricated, false, inflammatory, and baseless.”  The court first discussed the retaliatory conduct and found the record offered no indication that Bernardo did not genuinely hold his concerns.  Graphs revealed “variable and sometimes excessive” nitrate levels from in the monitoring the area dating back to 1995.  The record also showed that members on the Board of Health previously expressed concerns regarding nitrate levels before Bernardo spoke at the initial meeting.  The court also took judicial notice that the Environmental Protection Agency has linked excessive nitrate levels to Blue Baby Syndrome and that nitrate contamination requires high clean-up costs. Therefore, the court found the Plaintiffs’ allegations of retaliatory conduct were conclusory and that Bernardo had a duty to raise objections about potential public health impacts that he believed were valid.

The court then discussed whether Bernardo violated the Defendants’ protected First Amendment right to free speech on a matter of public concern.  Matters of public concern are those “relating to any matter of political, social, or other concern.”  The court found Bernardo had not committed such a violation because, as superintendent, he had an obligation to speak out on matters of public concern.

Next, the court analyzed the claim that Bernardo violated the Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out for unique reasons.  To prevail on this claim, the complaint had to show the Defendants were motivated by bad faith or malicious intent to injure when they treated the Plaintiffs differently from others similarly situated and without a rational basis for doing so.  However, the court found the Plaintiffs failed to explain how other developers and builders were similarly situated because they did not provide basic information, such as when other projects were located, and when they were built.

After the equal protection claim, the court examined the Plaintiffs’ substantive due process claim under the Fourteenth Amendment.  To assert a viable substantive claim, plaintiffs must prove deprivation of an established life, liberty, or property interest, and that the deprivation occurred through governmental action that shocks the conscience.  The court found it unclear what deprivation occurred, and noted the Plaintiffs “oddly” claimed that by opposing the project, Defendants deprived them of life and liberty.  The court instead analyzed the claim as a deprivation of property.

Substantive due process claims regarding deprivation of property cases are only available in “horrendous situations.”  The court found that, at worst, the Defendants actions were “doggedly persistent,” and this did not amount of “brutal, meaning, and harmful” conduct as is necessary in such a claim.

Finally, the court analyzed the Plaintiffs’ claim that Bernardo intentionally interfered with a business expectation, opportunity, and advantage.  Here, the court addressed whether Bernardo’s actions directly attempted to interfere with business relations.  The court granted Bernardo immunity for his actions under Massachusetts common law, where public officials who act in good faith and exercise judgment and discretion are not liable for errors in making decisions.  Here, the court again stated that the Plaintiffs’ complaint failed to state a plausible claim for bad faith or malice intent.

Accordingly, the court affirmed the order of the district court.

Kole Kelley

Image: Drawbridge on the Seekonk River, a tidal extension of the Providence River. Flickr user rprata, Creative Commons.