January 31, 2015
By Brian C. Shuck
Under Wyoming law, water right holders can only change the place of use of a direct flow or groundwater irrigation water right by filing a change petition with the Wyoming Board of Control (BOC). The petition can only be granted for that portion they can show has been historically beneficially used. Further, the BOC may only approve the petition if the change does not injure other water right holders. Therefore, filing a successful change petition can be a challenge.
In consultations over the years with various staff in the State Engineer’s Office (SEO), BOC, and Attorney General’s Office, I have developed a list of helpful hints to avoid many mistakes the BOC repeatedly encounters in petitions for changes of place of use. Some of these hints are outlined below.
Start by Working with Your Water Commissioner/Superintendent.
First, work with the Water Commissioner or Superintendent to determine the probability of success, whether neighboring water users will be injured, and what issues may arise.
The Water Commissioner may be able to tell you if the water has been historically used, how much historically has been used, the type of use, and what changes are feasible on the ground.
Do Your Homework – Do the Water Rights Search First.
Have a thorough water rights search performed – what family members told you about the water rights may not be consistent with what is in the SEO paper records. Actual irrigation practices can evolve over time and may deviate from the mapping. You may find the facts are not as you believed or different petitions need to be filed.
Although you can do some searches online, those of us who perform water rights searches for a living are not ready to rely heavily on it. In the future, the SEO website may become a more reliable tool. For now, it is wiser to have a search performed using the SEO’s paper records in Cheyenne.
Copy and analyze all Order Records and Certificate Records noted on permits and other documents.
Research the land to be dried up for supplemental supplies, secondary permits, and water users using the same means of conveyance.
Identify the water rights for intervening water users as well as the current owners of intervening water uses.
Research the lands to be affected by the change to determine if the land already has water rights, the change cannot be administered, or the proposed change cannot be operated on the ground.
Determine Whether An Injury Would Occur.
After you have identified intervenors and other water users who may be injured, attempt to mitigate all potential legitimate injuries.
If you cannot avoid the injury, stop there and save your time and money.
Be Proactive and Provide Proof of Historic Use.
The BOC will want evidence the water historically has been beneficially used at the permitted location for the permitted use and they may ask for proof of such use for the last 5 years water was available. To prove this, look to Water Commissioner’s records, Water Commissioner’s field inspections, irrigation district delivery cards or records, canal or ditch company records, aerial photography, the electric company’s records for any groundwater well pumps involved, or the affidavit of a disinterested neighbor.
Provide Proof of Petitioner’s Authority to Sign.
If the landowner is a corporation or LLC, produce the attestation by the corporation’s Secretary on a resolution or minutes authorizing the President to file the petition.
If the petitioner is a partnership, have all partners sign.
If the petition involves marital property, it is best to have both spouses sign.
Get consents from intervening water users.
Get consents from all other water users in the same ditch or canal.
Get consents from anyone else who may claim an injury.
Submit proof the person signing the consent owns the land, such as a certified copy of the deed.
You must attempt to get consents and fail before the BOC will refer the case for a hearing.
Ensure the Mapping is Correct.
Do not assume a surveyor/engineer knows exactly what is required to prepare the type of map required to accompany a change petition. The BOC Regulations are detailed and require numerous items on petition maps. I always carefully review the BOC Regulations with the mapmaker outlining what is required on the map and then review the drafts of the map carefully to make sure it includes everything.
If a client proposes to change from flood irrigation to a pivot irrigation system, the water use mapping will change from rectangles to circles and semi-circles. Make sure the map shows where the new circle will be and the same number of acres is being irrigated.
If you have 2 or more priority dates under the same center pivot, show which lands each water right will be attached to as concentric circles or in pie pieces so the pivot can be regulated when a call is placed on the river and part of the pivot needs to be regulated off.
Make sure the acreage math adds up.
Show flumes where the diversion works must cross a river, drainage, or other diversion system.
Be careful not to map lands where it is physically impossible to use the water.
Be specific as to the locations where water will be used. Remember, water rights records are as detailed as other real property records.
Show the diversion works, the river’s course, and land on which the water is currently used the way it exists on the ground, not the way it once appeared on original permit maps or subsequent maps.
Before you file the petition, review preliminary maps with BOC staff to ensure the map is right.
Brian Shuck is a Cheyenne attorney with offices located 3 blocks from the State Engineer’s Office. He has represented numerous Ag producers in Wyoming and Montana and successfully petitioned to move the place of use for a client’s water rights approximately 30 miles. Early in his practice, Mr. Shuck represented the State of Wyoming in the Big Horn River Adjudication and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015
March 7 and 21, 2015
Brian Shuck is a Cheyenne attorney with offices located 3 blocks from the State Engineer’s Office. He has represented numerous Ag producers in Wyoming and Montana and has represented clients across Wyoming in entering into TWUA’s and employing the two-step approach. Earlier in his practice, Mr. Shuck represented the State of Wyoming in the Big Horn River Adjudication and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015
Brian C. Shuck, P.C.
June 1, 2017
Brian Shuck, of Law Office of Brian C. Shuck, P.C., has been selected to the 2017 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.
Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.
May 16, 2015
By: Brian C. Shuck
With the Department of Labor’s proposed new regulations affecting migrant workers, the Obama Administration is continuing its assault against western agriculture. Although some mistakenly view the proposed regs as only a sheep industry issue, the proposed regs affect the cattle industry with equal force. Western grazing permittees already face numerous difficulties with federal agencies with respect to grazing permit renewals, threats to curtail domestic sheep grazing arguably to protect bighorn sheep, and limits on grazing to arguably protect other species that are neither threatened nor endangered, but the proposed labor regs threaten to end cattle and sheep grazing operations entirely. The Wyoming media acknowledges the proposed labor regulations would triple migrant worker wages and put many of Wyoming’s oldest agricultural producers out of business. See Wyofile article dated April 28, 2015. Wyoming livestock producers agree. “Our family’s cattle and sheep operations have been in operation for over 110 years and we have supported the Fremont and Sublette County’s tax base and local businesses for over 110 years. Not only would these proposed regulations end our 110-year grazing operations in 45 days, it would adversely impact the local tax base and local businesses,” explains Pete Arambel, who owns and operates Midland Livestock Company, Dunton Sheep Company, and other Wyoming livestock companies. Arambel explains that their sheep and cattle grazing operations would be run out of business if the proposed labor regulations are approved.
Other long-time agricultural producers in Wyoming express the same concern. Pat O’Toole of the Ladder Ranch, who runs both sheep and cattle operations, explains that the proposed regs “call for the elimination of an industry.” Further, John Raftopoulos, of the Diamond Peak Cattle Co., who runs cattle in Wyoming, Colorado, and Utah, explains: “They will mess up the system by trying to fix it and will make people not use the H-2A system and end up hurting the people they are arguably trying to help.” A recent ASI memo explains: “Simply forcing employers to triple their wages will only result in a flow of a projected $45 million out of the U.S. economy to foreign-herders’ home countries over the next 5 years; all while U.S. employers go out of business from the burden. Given the current domestic and international market, however, few, if any, of these employers will still be in business by 2020.” ASI further explains: “Each H-2A open-range herder position creates 8 U.S. full-time jobs, and the loss of each H-2A position will mean the loss of those jobs, mostly in small western towns.”
Livestock industry groups question the wisdom of doubling or tripling migrant workers’ wages when sheep industry wool and slaughter lamb prices are not sufficient to support such an increase in labor costs. Such groups also question the appropriateness of the definitions of “open range” and the job description attributed to these workers. “First, the Department of Labor must withdraw their proposed wage formulation and replace it with a new common sense rate that is sustainable. Second, the proposal attempts to re define the job description of open range livestock worker and sheep herder. [The proposed regs would] mean many ranchers will no longer be eligible to employ the herders due to fences,” explains Peter Orwick, Executive Director of the American Sheep Industry Association (ASI). Orwick urges cattle and sheep producers and government officials to file comments by e-mail on these issues before the June 1 deadline.
Many question the timing of the proposed rules, which originally only allowed for a 30-day comment period and fell during the time most sheep producers are shearing sheep and preparing for lambing and cattle producers are calving. Further, livestock producers report that their H-2A workers are happy and some have been coming back for the last 10-25 years. For this reason, livestock producers argue this is an attempt to fix a problem that does not exist and the proposed rules should simply be rejected. Further, many livestock producers question whether the proposed labor regs are really being pushed by environmental groups who seek to eliminate grazing on public lands and other multiple uses of federal land.
Given the dire consequences of the proposed regulations, the following steps must be taken to block the proposed regulations:
Cattle and sheep producers, Boards of County Commissioners, industry groups, and State agencies must submit comments to the Department of Labor before the June 1, 2015 deadline. It is late in the process to file comments by mail and is best to submit them via e-mail instead. A link to easily file comments by e-mail is available on ASI’s website.
Concerned livestock producers and industry groups should work with the Wyoming Attorney General’s Office and the Wyoming Governor’s Office and urge them to not only submit comments before the June 1, 2015 deadline, but build a coalition with other western States to submit joint comments urging the proposed rules be rejected. Wyoming Attorney General’s Office, acting to build its own coalitions and through the Conference of Western Attorney’s General (CWAG) and the National Association of Attorney’s General (NAAG), has been successful in the past in blocking proposed federal rules by submitting comments jointly with other States. Such an approach could be highly effective in opposing the proposed labor regs.
Brian Shuck is a Cheyenne attorney and he has represented numerous Ag producers in Wyoming and Montana. Early in his practice, Mr. Shuck represented the State of Wyoming as Senior Assistant Attorney General and was involved in opposing rulemaking proposed during the last several months of the Clinton administration and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015
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