Middle Niobrara Natural Res. Dist. v. Dep’t of Natural Res., 838 N.W.2d 242 (Neb. 2013) (holding the Natural Resources Districts’ allegations lacked standing because they did not allege any legal right, title, or interest in the subject water of the Niobrara River and Thomas Higgins’ allegations lacked standing because the harm was speculative and not distinguishable from harm the harm that would be caused to any other landholder within the natural resources district).

The Middle and Lower Natural Resources Districts (NRD) and Thomas Higgins unsuccessfully appealed to the Supreme Court of Nebraska the Department of Natural Resources (DNR) dismissal of their action for lack of standing.  The purpose of the action was to object to Nebraska Public Power District’s (NPPD’s) application to appropriate an additional 425 cubic feet per second of natural flow from the Niobrara River.  The NRDs are responsible for the management of ground water within their districts.  Higgins is the owner of real property in the Niobrara River Basin who holds senior water rights and pending surface water appropriations from the Niobrara River.  The DNR dismissed the appellant’s objections sua sponte for lack of standing.  According to DNR, NRD lacked standing because it did not allege any legal right, title, or interest in the subject water of the Niobrara River and their allegation of harm was based upon mere conjecture.  Higgins did not fulfill the standing requirement because no legal right existed with a pending application.  Further, if DNR granted the pending applications, Higgins rights would be senior to NPPD and there was no evidence of credible harm.

The Court considered four issues on appeal.  The first issue was whether the director erred when he determined that NRD did not have a cognizable interest to fulfill the standing requirement.  The second issue addressed was the conclusion that Higgins would not be adversely affected in a manner sufficient to confer standing.  The third issue was that DNR applied an improper standard of review.  The final issue was that DNR failed to consider the impact of the decision on the public interest.

The Court affirmed the DNR’s assertion that the NRDs did not have standing.  The NRDs failed to allege any legal right, title, or interest and their allegations were based on mere conjecture.  The NRD’s argued that the granting of NPPD’s application would cause a portion of the Niobrara River to be fully appropriated in the future and that a threatened injury would satisfy the standing requirements.  The NRDs further argued that they had standing because they were responsible for the management of ground water from the Niobrara River.  The Court, in a previous case, determined that standing exists when duties are placed upon NRDs when a fully appropriated designation was made.  In this case, however, no fully appropriated designation was made and it was merely speculation that the application might be granted and the application might lead to a fully appropriated designation.  NRDs also tried to argue that the appropriation would preclude the use of water for irrigation and limit their tax base.  The court ruled that the harm suffered by the NRDs needed to be more particular and to a more direct and identified interest.

Higgins also lacked standing because he did not allege sufficient harm.  Higgins argued that the grant of NPPD’s application might increase his property taxes and it might affect the real property value.  These allegations were both speculative and not actual or imminent.  Higgins further argued that the grant might affect his existing appropriations and increase the cost of his pending applications.  However, Higgins failed to explain how his rights would be affected when his rights were both upstream and senior to NPPD’s rights.

The third issue the Court addressed was whether the DNR applied the correct standard of review.  The appellants argued that the DNR failed to assume that all of the allegations were true and view them in the light most favorable to the appellants.  The DNR used the correct standard of review because the allegations did not allege an interest or an injury which was sufficient to confer standing.

Finally, the Court addressed whether the DNR should deny an application if it is demanded by the public interest.  The Court concluded it did not matter whether NPPD’s application was in the public interest or not because the appellants did not have standing.  Neither NRD nor Higgins could assert the public interest.

Because neither the NRDs nor Higgins established an interest or injury sufficient to confer standing, the Court affirmed the decision of the DNR.

Stephan, J., Concurring in Part and Dissenting in Part

Stephan concurred in the determination that NRD did not have standing.  It was merely speculative that the grant of NPPD’s application would lead to a determination that the water basin was fully appropriated.  Further, no single appropriation causes a fully appropriated decision and one could argue that any appropriation would cause the basin to become fully appropriated.  This would allow the NRDs to challenge any surface water appropriation.

However, Higgins’ claim was based on his own water rights and he had a pending application for another appropriation.  Higgins allegations that the grant of NPPD’s application might increase his taxes and affect the value of his property were not enough to confer standing.  However, Higgins’ allegations that the grant would adversely impact his existing appropriations or preclude or increase the cost of his pending application were enough to confer standing despite the fact that Higgins did not allege how the appropriation would adversely affect his water rights.

Connolly, J., Dissenting

Connolly dissented because he believed the majority ignored the evidence of imminent harm that would result from the approval of the application.  The Administrative Procedure Act (APA) permits the hearing for a contested case, which means a proceeding where a state agency is required to determine a parties’ legal duties, rights, or procedures.  Further, the APA defines an interested person as one who is or could be adversely affected in a legally cognizable way.  Both the NRDs and Higgins have alleged sufficient facts to show that they would be adversely affected by DNR’s approval of the NPPD application.  Thus, both the NRDs and Higgins have standing.

 

The title picture is of the Niobrara Headwaters and is licensed to Patrickdf under a Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this picture does not endorse this blog. 


United States v. Hamilton

United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).

This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.

Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.

The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”

The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.

The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.

Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.

 

The title picture is part of the public domain in the United States because it was prepared by an employee or officer of the United States government as part of their employment. The United States government does not endorse this blog. 


Reep v. State

Reep v. State, 2013 WL 6835003 (N.D. 2013) (holding the anti-gift clause of North Dakota’s constitution precludes construing a state statute as a grant of the State’s equal footing mineral interests under the shore zone to private upland landowners).

Eleven named owners of land next to navigable waters in North Dakota (“upland owners”) sued the State of North Dakota (“State”), seeking declaratory judgment that they, not the State, owned the minerals under the shore zone.  The landowners appealed to the Supreme Court of North Dakota (“Court”) from the district court’s grant of summary judgment in favor of the State.

When North Dakota joined the Union in 1889, the equal footing conferred onto the State constitutional rights to the land and mineral interests under its navigable waters from high watermark to high watermark.  Although this conferral included the right to allocate its property interests, the equal footing doctrine required North Dakota, by virtue of its sovereignty, to hold its shore zone interests in trust for the public.  The anti-gift clause found in N.D. Const. art. X, § 18 further protected the public trust by precluding the State from gifting its mineral interests to any private entity.

At issue in this case was N.D.C.C. § 47-01-15, which provides that private landowners next to navigable waters “take to the edge of the lake or stream at low watermark.”

The upland owners argued the district court’s holding was contrary to the Court’s decision in State ex rel. Sprynczynatyk v. Mills which they construed as holding that upland owners next to navigable waters have full interests in the shore zone under N.D.C.C. § 47-01-15.  The upland owners further contended that the State’s public trust and equal footing obligations did not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.  The upland owners further contended that the statute did not violate the anti-gift clause.

Conversely, the State argued that its rights to shore zone mineral interests extended from high watermark to high watermark under the equal footing doctrine.  The State claimed N.D.C.C. § 47-01-15 was a rule for construction, clarifying the extent of a grantor’s conveyance to the grantee, rather than granting public mineral interests to private entities.  The State further contended that a construction of the statute as a grant of the mineral interests to private entities would violate the equal footing doctrine and the anti-gift clause of N.D. Const. art. X, § 18.

The Court first examined Mills to determine whether N.D.C.C. § 47-01-15 is, as the upland owners contended, an absolute grant of shore zone interests to private landowners next to navigable waters.  In so doing, it reiterated the statutory interpretation in Mills, wherein the Court determined the word “takes” in N.D.C.C. § 47-01-15 was ambiguous statutory language for a rule of construction, and not a grant of ownership.  Examining the more specific use of the word “ownership” in Champlain v. Valentine, coupled with the introductory clause in N.D.C.C. § 47-01-15, the Court found a legislative intent that the statute does not grant a riparian landowner absolute ownership of the shore zone.  Rather, the Court agreed with the district court that N.D.C.C. § 47-01-15 is a rule of construction for determining the boundary for grants of riparian land.  The Court emphasized that its construction avoided an interpretation that would grant a private party a gift in violation of the state constitution’s anti-gift clause.

Having concluded that the upland owners’ reliance on Mills was misplaced, the Court turned to the law governing the State’s ownership of mineral interests under the shore zone.  Examining the public trust doctrine, the Court acknowledged a newly admitted state’s power to allocate its mineral interests but emphasized that power as subject to the public trust doctrine.  The Court discussed some states’ allocation of ownership of the shore zone to the upland owner to the ordinary low watermark, and other states’ decisions to extend an upland owner’s title only to the ordinary high watermark.  The State in this case claimed its mineral interests extended to the ordinary high watermark under the equal footing doctrine and that its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18.

The Court turned next to the adoption of the anti-gift clause in 1889 and its development through subsequent case law.  It determined that unlike previous cases, this case did not raise an issue about the State engaging in an industry, enterprise, or business.  It proceeded to examine a holding in Arizona Ctr. For Law v. Hassell, which determined statutory provisions substantially relinquishing Arizona’s equal footing interest in navigable riverbeds violated Arizona’s anti-gift clause.  It also cited Solberg v. State Treasurer, which held that a statute directing the State to release a reserved mineral interest to a prior owner violated the anti-gift clause because the statute had the effect of transferring State property as a gift.

The Court found that the precedent in Hassell and Solberg favors a determination that N.D.C.C. § 47-01-15 did not allocate the State’s equal footing mineral interests in the shore zone to upland owners.  The Court noted that this construction was in keeping with the Court’s presumption that statutes are written in compliance with state constitutions and in favor of public interests over private interests.  However, the Court further concluded that N.D.C.C. § 47-01-15 would allow an upland owner to take the State’s full interest to the low watermark if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed.  The Court underscored that receipt of grants or conveyances from the State is subject to the restrictions of the public trust doctrine and is invalid where the deed provides otherwise.

The Court finally examined whether the upland landowners presented any factual support to show a grant of mineral interests by the State or a successor to the State, and found that they had not.  It therefore concluded the district court did not err in concluding the State owns the mineral interests under the shore zone.

Consequently, the Court affirmed summary judgment for the State, but stressed that its decision does not preclude an upland owner from taking to the low watermark if it can establish a chain of title wherein the State granted its equal footing interest to the upland owner.

 

The title picture is of Wild Rice River in North Dakota licensed under the Creative Commons Attribution-Share Alike 2.5 Generic License to Tim Kiser, who in no way endorses this blog.

 


Heavirland v. State

Heavirland v. State, 311 P.3d 813 (Mont. 2013) (holding (i) Montana case law applies retroactively in determining sufficiency of evidence rebutting the presumption of abandonment of water rights founded on a prolonged time of nonuse, and (ii) claimants provided sufficient evidence to defeat the presumption of abandonment and excuse twenty-four years of nonuse of irrigation rights).

Frank Truchot filed and perfected the subject water right in 1904. The right granted Truchot water from Muddy Creek for irrigation. Christina and Henry Weist purchased the water right in 1913. Their son, Ray Weist, took over the farm and continued to utilize the water right for flood irrigation, when available, from the mid-1940’s until 1961. Utilization of the right was particularly difficult because of the slope and heavy clay soil of the Weists’ fields. Ray stopped irrigating in 1962. His son, Lyle, stated that his father’s age and the inefficiency of flood irrigation were the reasons Ray stopped irrigating. Lyle also testified that, in the event that they used pivot irrigation in the future, Ray had three-phase power connected to the farm.

Lyle returned to and purchased the family farm in 1975. After researching the farm’s water rights history, in 1981 Lyle and his wife, Linda, filed a statement of claim in the Montana general stream adjudication. Lyle installed a fourteen-tower Valley Center Pivot and resumed irrigation in 1981–82. He continued to use the pivot until 1991, when he sold the water right and property to Loren and Sue Heavirland. The Heavirlands thereafter irrigated every year but one when water was unavailable.

Lyle and Linda Weist’s claim was in the Temporary Preliminary Decree for Basin 41O with attached Department of Natural Resources and Conservation (“DNRC”) issue remarks. The remarks noted that the 1962 Teton County Water Resource Survey and the 1978 USDA Aerial Photography indicated zero acres irrigated at the farm. Meetings between DNRC and the Weists did not resolve the issue remarks. DNRC Water Resource Specialist Kraig Van Voast (“water master”) reviewed the documentation and found that he did not have information that could resolve the lack of proof of irrigation from Muddy Creek. The water master therefore joined the State of Montana to the adjudication, pursuant to Mont. Code Ann. § 85-2-248(7) (2013). The State moved for partial summary judgment regarding the issue of abandonment, and the water master granted the motion. The water master found that the period of nonuse from 1962 to 1982 raised a rebuttable presumption of abandonment; this finding moved the burden of proof to Lyle Weist and the Heavirlands (“claimants”) to rebut the presumption.

At an evidentiary hearing, the water master found that the claimants had abandoned the water right, stating that the claimants’ evidence did not overcome the burden to rebut the presumption of intent to abandon the water right. Claimants then filed an objection with the Chief Judge of the Montana Water Court (“water court”). Claimants presented two central arguments: (i) the law as it stood in 1973 applied to the abandonment of then-existing water rights, meaning the water master erred in retroactively applying 79 Ranch, Inc. v. Pitsch, 666 P.2d 215 (Mont. 1983), to their existing water right; and (ii) even if 79 Ranch applied, the claimants offered evidence sufficient to rebut the presumption and excuse the twenty years of nonuse.

The water court first held that 79 Ranch applied to the case at hand. 79 Ranch states that a long period of nonuse creates a presumption of intent to abandon a water right and causes the burden of explaining the nonuse to shift to the claimant. 79 Ranch also requires that a claimant present concrete facts or conditions, not just wants and wishes to utilize the right, to rebut the presumption of abandonment. The water court then applied 79 Ranch and concluded that the water master erred in not finding that the evidence was sufficient to rebut the presumption of intent to abandon. The State appealed to the Montana Supreme Court (“Court”).

The first question the Court examined was whether the water court correctly found that 79 Ranch applied to the abandonment of a water right that predated that case. The Court noted that the 1973 Montana Constitution, as well as the Water Use Act, protects “existing rights.” But the Court went on to hold that 79 Ranch did not run counter to the state constitution’s protection of those rights and did not change or create new law. Rather, 79 Ranch clarified the standard for abandonment, meaning its retroactive application did not offend the claimants’ rights or Montana law.

The second question the Court addressed was whether the water court properly held that the claimants presented adequate evidence to show that they did not intend to abandon their water right. The State argued that the evidence presented was insufficient because (i) the claimants did not offer adequate evidence to show that Ray stopped irrigating his property because of his age or health, and (ii) the connection of three-phase power to the property did not necessarily indicate intent to install a pivot irrigation system.

The Court held that the claimants’ presentation of the difficulty of flood irrigation on the property, coupled with Lyle’s testimony regarding his father’s age and health, were sufficient to overcome the presumption of abandonment. The Court stated that there was no reason to doubt Lyle’s statements about his father and the property. The Court also found that Ray’s installation of a pivot irrigation system was proof enough of his father’s belief that Lyle would want to use that type of system. The Court also stated that Lyle’s continued irrigation with the new system supported the notion that the Weists did not intend to abandon the water right. Weighing the evidence presented in its totality, the Court held that the water court correctly concluded that the water master erred in finding a lack of sufficient evidence to rebut the presumption of intent to abandon the water right.

The Court therefore affirmed the water court’s decision to apply 79 Ranch retroactively. The Court also affirmed the water court’s conclusion that the claimants presented evidence that was sufficient to justify the decades-long nonuse and therefore to rebut the presumption of abandonment.

 

The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License to Tony Hisgett, who does not in any way endorse this blog.


Yellow Jacket Water Conservancy Dist. v. Livingston, 2013 WL 6800619 (Colo. 2013) (holding the Water Conservancy Act’s holdover provision, containing neither temporal nor reasonableness requirements, allowed district’s holdover directors to remain in office past their original term as de jure officers with authority to act on behalf of the district).

The Yellow Jacket Water Conservancy District (“Yellow Jacket”) held conditional water rights to several bodies of water located in northwest Colorado. Yellow Jacket’s board of directors met on September 29, 2009, and authorized the filing of diligence applications with the water court. On the date of the meeting, Yellow Jacket’s board of directors, normally a nine-member panel, had one vacancy as well as four directors whose terms had expired but who were still performing their official duties pending appointment of qualified replacements. After reviewing Yellow Jacket’s diligence applications, several parties (hereinafter “Livingston”) objected to the board’s authority to approve the filing these documents. Livingston argued that Yellow Jacket could not have assembled a valid quorum because only three of the nine directors were serving unexpired terms on the date of the board meeting. Livingston filed for summary judgment asking the Rout County District Court, Water Division 6 (“water court”) to cancel Yellow Jacket’s conditional water rights.

While the water court recognized that the WCA contained a holdover provision, the court relied on case law from other states in finding that the four holdover directors had remained in their positions for an unreasonable amount of time past the expiration of their terms. The four holdover directors’ terms expired on October 18, 2008, nearly one year before the board meeting. Consequently, the court found that Yellow Jacket’s board had not assembled a valid quorum and lacked the authority to approve the filing of the diligence applications. As a result, the water court granted Livingston’s motion for summary judgment, deeming Yellow Jacket’s conditional water rights abandoned and cancelled.

On appeal, the Colorado Supreme Court (“Court”) began its analysis by reviewing the purpose and procedure of Colorado’s Water Conservancy Act (“WCA”). In order to maintain a conditional water right, the holder is required to file an application for a finding of due diligence every six years. These applications help ensure that the holder is continuing to work toward completion of the project that initially led to the conditionally decreed appropriation. The water court then publishes the applications, allowing interested parties to contest the continuation of these conditional water rights.

The Court next examined the holdover provision of the WCA. Looking at the plain language of the statute and construing that language according to rules of grammar and common usage, the Court found that the WCA unambiguously allows a director to hold office for the original term, as well as any interim term, without limitation, pending the appointment of a duly qualified successor. The Court noted its longstanding position that when a statute provides that an incumbent may remain in office until a successor is duly qualified, the incumbent remains as a de jure officer, with all the authority vested in such position. Finding no legislative intent to impose temporal or reasonableness requirements on holdover terms, the Court declined to read either limitation into the statute.

The Court held that the water court had erred in its reliance on a standard of reasonableness, rather than the plain language of the holdover provision of the WCA. Accordingly, the Court reversed the water court’s decision to cancel Yellow Jacket’s conditional water rights and remanded the case for further proceedings.

 

The title picture is of the White River, which flows through the Yellow Jacket Water Conservancy District.


Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, No. 2:08CV447, 2013 WL 6091882 (E.D. Va. Nov. 18, 2013). (holding (i) the Corps’ extensive factual findings were not arbitrary and capricious and (ii) the Corps’ ultimate determination that a significant nexus existed between the relevant wetlands and the Northwest River was sufficiently persuasive to subject the wetlands to the Clean Water Act).

This case involved 4.8 acres of wetlands (“subject wetlands”) located in Chesapeake, Virginia for which Precon Development Corporation (“Precon”) sought a permit to develop. The development area contained a total of 658 acres, about half of those acres being wetlands, and 166 of the wetland acres flowed into the Saint Brides Ditch (“the Ditch”), including the subject wetlands. The Ditch ran along the western boundary of the wetlands area and fed into the Northwest River (“the river”). The second tributary to the river consisted of relatively permanent water that ran in the southwest corner of the wetlands and flowed into the Ditch. From there, the Ditch flowed to Pleasant Grove Swamp, joined Hickory Ditch, and finally entered the river.

The United States District Court for the Eastern District of Virginia (“district court”) received the case on remand from the United States Court of Appeals for the Fourth Circuit (“court of appeals”). The court of appeals determined the original administrative record contained insufficient information to evaluate the United States Army Corps of Engineers’ (“Corps”) conclusion that a significant nexus existed between the wetland and the river. Thus, on remand, the district court examined the Corps’ improved and amended record in accordance with the court of appeals’ direction.

The court of appeals based their suggestions for remand upon the “significant nexus” test in Justice Kennedy’s concurrence in Rapanos v. United States. Before remanding the case, the court of appeals provided guidance to the Corps regarding the nature of the report needed for reconsideration. The court of appeals noted that the report would not need to include laboratory tests or quantitative measurements but could instead include qualitative evidence like expert testimony about the functions of the relevant wetlands, adjacent tributaries, and the river. The court of appeals specifically stated that the administrative record should adequately address (i) the condition of the Northwest River, (ii) the actual flow rates of the two tributaries­, and (iii) the significance of that flow. The court of appeals also charged the Corps with documenting how the wetlands significantly, rather than insubstantially, affected the integrity of the navigable waters.

After the court of appeals remand, the district court also remanded the case to the Corps for additional administrative review. After the Corps developed a new record, the district court considered cross-motions for summary judgment. A magistrate judge first heard oral arguments for the motions before filing a Report and Recommendation (“R&R”) with the district court. The R&R recommended that the district court grant the Corps’ motion for summary judgment. Precon subsequently filed an objection to three of the R&R’s findings: (i) the condition of the Northwest River, (ii) the flow of the relevant tributaries, and (iii) the function of the wetlands in relation to these tributaries and the river. The district court analyzed each in turn.

In considering the condition of the river, the district court noted that the river was an impaired body of water due to low dissolved oxygen (“DO”) levels. Low DO levels are generally the result of high levels of nitrogen or phosphorus. Precon asserted that the evidence did not support a finding of excessive nitrogen because the record found only phosphorus as a nutrient of concern. As such, Precon contended that any role the Precon wetlands and similarly situated wetlands have on nitrogen cycling did not significantly impact the chemical or biological quality of the river.

The district court found that the record did not support Precon’s logic. The court determined that excess nutrient inputs from the wetlands cause eutrophication, which contributes to low DO levels in the river. Further, the court of appeals previously found that the wetlands and their adjacent tributaries trap sediment and nitrogen. Based on this record, the district court made two determinations. First, the court determined that the Corps’ finding that the wetlands prevent additional nutrients from reaching the river was not arbitrary and capricious because the record showed that both nitrogen and phosphorus levels were important to downstream water quality, and that the wetlands trap sediment and nitrogen. Second, the district court noted that it was not necessary for the Corps to demonstrate that there were high nitrogen levels in the river and its relevant tributaries on remand – it only needed to make general findings about the river’s impairment. Because the Corps provided evidence from both the Virginia Department of Environmental Quality and its own experts that showed that the river is an impaired body of water, the district court found that the Corps satisfied the court of appeals’ mandate to consider the condition of the relevant navigable water.

The district court next considered evidence regarding the flow of the river’s tributaries. Precon asserted that the magistrate judge’s evaluation of the flow in the ditch was meaningless. The district court interpreted Precon’s objection to be that the Corps arbitrarily relied upon hypothetical rather than actual flow rates. However, the district court found that the Corps’ reliance on hypothetical flow rates was appropriate and rational. Due to the lack of flow gauges in the river, the Corps had no actual flow rates, making a direct comparison of the flows from the river and the ditch impossible. The district court found that the Corps appropriately analyzed the available data points on the wetland and the navigable waterway and properly incorporated this information into the significant nexus determination. As the court of appeals instructed, the district court applied Skidmore deference and agreed that the analysis possessed the power to persuade.

 

Finally, the district court considered the Corps’ findings regarding the functions of the wetlands in relation to the tributaries and the river. Precon argued that the Corps’ experts simply expressed their opinions rather than provided quantitative and qualitative evidence to support a finding of a significant nexus. The district court found this objection meritless. The district court found that the Corps properly engaged in a lengthy discussion about the scientific validity of Precon’s experts’ findings and the conclusions drawn therefrom. The district court determined that Precon fundamentally misunderstood the district court’s role when faced with divergent expert opinions.  The district court relied upon the reasoning in Marsh v. Oregon Natural Resource Council, which states that courts should defer to the informed discretion of the responsible federal agencies. The Corps’ administrative record also emphasized the wetlands’ ability to support wildlife and the role tributaries performed in regulating water flows and quality. The district court therefore found that the Corps provided ample persuasive support for its finding of a significant nexus between the relevant wetlands and the Northwest River. The district court again found that the Corps’ determination was not arbitrary and capricious and that the ultimate determination of a significant nexus was highly persuasive.

Accordingly, the court adopted the magistrate judge’s R&R, granted the Corps’ motion for summary judgment, and denied Precon’s motion for summary judgment.

 

The title picture is of wetlands in Mattaponi Wildlife Management Area, located in Virginia. The picture is attributed to the U.S. Fish and Wildlife Service.


United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).

This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.

Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.

The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”

The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.

The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.

Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.

 

This title picture is of of the Bighorn Mountains located in Wyoming. This picture is attributed to Conniemod under the Creative Commons Attribution-Share Alike 3.0 Unported license, and the use this pictures does not in any way that suggests that Conniemod endorses this blog.


Hughes v. Hughes

Hughes v. Hughes, 305 P.3d 772 (Mont. 2013) (holding (i) the lower court had jurisdiction to adjudicate the alleged stock water easement; (ii) partition of land does not extinguish existing water rights on other land unless the parties intended such a result; and (iii) an implied easement was the appropriate remedy to allow continued use of the stock water right).

The Supreme Court of Montana (“Court”) reviewed four complaints Jack and Shirley Hughes (“Jack”) filed against their son, Johnny Hughes (“Johnny”). The Tenth Judicial District Court (“lower court”) consolidated Jack’s complaints, which concerned money he loaned to Johnny, an alleged stock water easement following a partition of jointly-owned land, and a disputed pasture lease. The lower court found in favor of Johnny on all matters except the water rights issue. Jack appealed the non-water issues and Johnny cross-appealed the stock water issue.

These disputes arose in the wake of a falling-out between Jack and Johnny and the subsequent referee-supervised property partition. In separate deeds dated 1984, 1985, and 1986, Jack granted Johnny an undivided 56% interest in Melby Ranch but retained a life estate in the buildings and improvements. Thus, at the time of partition in 2011, Jack and Johnny owned Melby Ranch as tenants in common. In light of their falling-out, the parties engaged three referees to partition the land. Jack and Johnny agreed that Johnny would receive the section of Melby Ranch that included Flatwillow Creek. However, they did not specify how this partition would affect Jack’s stock water right that he used to sustain his cattle business on land not subject to the partition. The parties agreed to fence their boundaries to better reflect the partition. In his complaint, Jack sought an easement either to allow his cattle access to Flatwillow Creek or to construct a pipe to bring water across Johnny’s parcel. Johnny opposed, arguing that the partition agreement did not provide for a stock water easement.

The lower court granted Jack a water gap through the fence and over Johnny’s land, but in the same order, determined that it lacked jurisdiction over the water issue. When the parties asked for clarification, the lower court stated that it did not believe it had jurisdiction to grant the water gap. Johnny thereafter appealed the original order granting Jack a water gap.

After resolving the non-water issues, the Court discussed the lower court’s jurisdiction and found it well established that district courts have jurisdiction to supervise already-adjudicated water rights. Jack possessed rights to use Flatwillow Creek for stock water through J&S Family Limited Partnership. The Court also stated that, regardless of the lower court’s jurisdiction over water rights, an easement is a legally distinct property right. For these reasons, the Court concluded the lower court possessed the jurisdiction to determine whether Jack held an implied easement to continue using Flatwillow Creek.

Jack argued he possessed an implied easement by existing use over Johnny’s part of the partitioned land. The Court first recited the three elements for the creation of an easement by existing use: (i) prior unity of ownership of the two parcels, (ii) severance, and (iii) an apparent, continuous, and reasonably necessary use for Jack’s beneficial use and enjoyment. Neither party disputed these factors, and the Court therefore held that Jack originally owned both parcels, the partition severed that ownership, and access across Johnny’s section was reasonably necessary for Jack to exercise his stock water right.

The crux of the dispute rested on whether Jack and Johnny intended for Jack’s use of Flatwillow Creek to continue after the land partition. Jack did not have access to any other source for stock water besides Flatwillow Creek. The Court observed that Johnny, at the time of the partition negotiations, knew Jack possessed the water right and had no other source from which to use it. The Court also noted that nothing in the record suggested Jack intended to stop using Flatwillow Creek for his cattle. The Court paid particular attention to the fact that if the partition excluded Jack from exercising his water rights, it would be inequitable and could not stand. As a result, the Court held that the record supported Jack’s implied easement by existing use because both he and Johnny intended the stock water use to continue after severance of the two parcels.

In opposition, Johnny further argued that Jack surrendered his water rights to Flatwillow Creek when he agreed to the partition. As Johnny argued, the partition identified and valued the two parcels of land as “dry pastureland” and “irrigated land.” Jack granted Johnny all of the available irrigated land, including Flatwillow Creek. As a result, Johnny argued that Jack consciously gave up his stock water right. However, the Court disagreed and found that Johnny’s argument overlooked the fact that Jack’s water rights benefited land not subject to the partition.

The Court therefore concluded that, by agreeing to the partition, Jack did not intend to give away his water rights used on land not included in the agreement. The Court remanded the issue to the lower court to determine the best and most equitable way to provide Jack access to Flatwillow Creek.

 

The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License by Tony Hisgett, who does not in any way endorse this blog.