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Joe v. Runyan

July 14, 2010

JOE AND TAMMY K. GERINGER, HUSBAND AND WIFE, APPELLANTS (PETITIONERS),
v.
MARK D. RUNYAN AND SHARON K. RUNYAN, HUSBAND AND WIFE, AND ROBERT WILLSON AND JANA WILLSON, HUSBAND AND WIFE, APPELLEES (RESPONDENTS).



Appeal from the District Court of Platte County The Honorable John C. Brooks, Judge.

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C. J., and GOLDEN, HILL, VOIGT,*fn1 and BURKE, JJ.

[¶1] Joe and Tammy Geringer filed petitions with the Wyoming State Board of Control (Board) for the involuntary abandonment of water rights Mark and Sharon Runyan and Robert and Jana Willson (herein referred to collectively as Appellees) hold on lands that were formerly in common ownership with lands on which the Geringers hold water rights. Following a hearing, the Board denied the Geringers' petitions, finding the Geringers lacked standing to pursue the petitions for abandonment. The Geringers appealed to the district court, which affirmed the Board's ruling. We also affirm.

ISSUE

[¶2] The Geringers present the following issue for review by this Court:

Did the Board of Control err when it held that the Geringers lack standing under the third element of the Wyo. Stat. § 41-3-401 requirements for standing by its determination that the Geringers were seeking to enlarge their water right rather than using the Runyans' and Willsons' undiverted water to fulfill the Geringer right?

FACTS

[¶3] The following pertinent facts are undisputed. All parties to this appeal acquired real property through a common grantor. The Geringers own the largest amount of acreage and engage in farming activities. The Geringers' irrigation water for their crops comes from a surface supply and several underground wells providing additional supply water.*fn2 It is two of the wells providing additional supply water that are at issue. One well is commonly referred to as the Leonard No. 1 Well. The Leonard No. 1 Well is adjudicated to provide additional supply water to lands owned by the Geringers and also lands owned by the Runyans. The second well is commonly referred to as the Chambers No. 2 Well. The Chambers No. 2 Well is adjudicated to provide additional supply water to lands owned by the Geringers and also land owned by the Willsons.

[¶4] In irrigating their crops, the Geringers employ a pivot irrigation system comprised of two pivots. In order to run both pivots at the same time, the Geringers require the full water flow produced by both the Leonard No. 1 Well and the Chambers No. 2 Well. The ability of the Geringers to operate both pivots simultaneously thus depends on the nonuse of well water by the Appellees concurrently with the Geringers' irrigation.

[¶5] In order to protect their unfettered ability to simultaneously operate both pivots, the Geringers filed petitions with the Board seeking declarations of abandonment of the respective additional supply water rights of Appellees.*fn3 The Geringers did not allege or present any evidence suggesting the water supply in the underlying aquifer is limited. Rather, they proceeded under the theory that the amount of water available to them under their additional supply water right is determined by the adjudicated flow rate of the respective wells. They concluded the water available to them under their right, therefore, is limited by the use of Appellees of water from the same wells. Thus, the Geringers argued they would benefit from a declaration of abandonment of the respective additional supply water rights of Appellees because they will then have unfettered use of their pivot irrigation system. Conversely, the Geringers argued they would be injured if the respective water rights of Appellees are not declared abandoned because they will not be able to run their pivot irrigation system at the same time Appellees withdraw water from the respective wells.

[¶6] After a hearing, the Board denied the Geringers' petitions. The Board determined that the Geringers lacked standing to bring the petitions because they could not show they had an adequate personal stake in a declaration of abandonment. The Board rejected the Geringers' argument that their water supply was limited by the flow rate of the respective wells. Rather, the Board concluded the water supply was determined by the amount of water available in the aquifer. The Board held that the Geringers "failed to show that the source of supply available for the wells at issue is limited." Because there was no evidence suggesting that the water available in the aquifer was limited, the use by Appellees of their additional supply water rights did not impact the Geringers' use of their additional supply water rights in a legally cognizable manner. Consequently, the Board found the Geringers lacked standing.

[¶7] The Geringers appealed the Board's order to the district court, which upheld the order. The Geringers then brought this appeal.

STANDARD OF REVIEW

[¶8] This Court reviews administrative actions pursuant to the Wyoming Administrative Procedures Act. See Wyo. Stat. Ann. § 16-3-114 (LexisNexis 2009). In this appeal, we find the dispositive issue to be an issue of law. We do not defer to the Board's determination on issues of law, but rather review such issues de novo. Three Sons, LLC v. Wyoming Occupational Health & Safety Comm'n, 2007 WY 93, ¶ 11, 160 P.3d ...


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