Aug 25 2011
If you want to use water from an irrigation district, and you don’t have a standing agreement already, how much is a fair fee for use of the water right?
That was the key question in Marvin and Sherri Rageth v. Sidon Irrigation District, decided August 24 by the Wyoming Supreme Court. It was not finally resolved, since the court said that it needs more information first. But it did outline a path to setting a series of numbers.
The court said that “the central issue presented is, in the absence of an agreement, what water delivery fee may an irrigation district charge a non-member who has a perpetual right to convey that non-member’s adjudicated appropriation to that non-member’s land outside the irrigation district’s boundaries using the irrigation district’s canal and related facilities.”
The background, according to the court decision:
District owns the Sidon Canal in Big Horn County, Wyoming, which was constructed in 1900 and has been in operation to the present. District covers approximately 13,129.98 acres with 179.57 c.f.s. of adjudicated water rights diverted from the Shoshone River through the Sidon Canal. District also has a permit for supplemental supply from Bitter Creek.
In 2008, Rageths purchased 559.75 acres situated adjacent to the Sidon Canal with 8 c.f.s. of adjudicated water rights diverted from Bitter Creek at a structure built and maintained by District and conveyed through the Sidon Canal. Their water flows in Sidon Canal for a distance of approximately 6.5 to 7 miles to pump stations where the water is pumped above the canal and used in pivots to irrigate their land. Their land is not located within District’s boundaries, and Rageths are not members of District.
District and previous owners of Rageths’ land had agreements establishing their payments for delivery of their water through the Sidon Canal, but these agreements had expired before Rageths’ 2008 purchase of their land.1 After Rageths purchased the land, they and District negotiated without success to reach agreement establishing a delivery fee. In 2008, District billed Rageths the sum of $7,560.00 for delivering their 8 c.f.s., that sum representing 75% of the gross assessment for District’s members, which was based on $18.00 per acre at the time. In 2009, District billed Rageths the sum of $11,200.00, that sum representing 100% of the gross assessment for District’s members, which was based on $20.00 per acre at the time. Rageths paid these bills under protest, and District delivered their water throughout the irrigation seasons.
In July 2009, Rageths filed their action for declaratory judgment to establish a reasonable fee for the delivery of their adjudicated irrigation water through the approximately 6.5 to 7 mile stretch of the Sidon Canal and for reimbursement of alleged overpayments of delivery fees for the prior years. After the litigation was underway, the parties engaged in mediation and, as a result, they executed a stipulation, filed with the district court on April 28, 2010, that resolved issues of ownership and rights to the use of the Sidon Canal, but not the issues of establishing for the future a reasonable delivery fee and reimbursement of alleged overpayments of delivery fees for the prior years.
The court reflected, ” it is clear that the parties disagree on how to determine the expenses necessary for the proper maintenance and operation of the Bitter Creek Diversion and the Sidon Canal, for it is to those expenses that the parties will apply the ratio of 4.26% on which they agree.”
But: “Having carefully considered the parties’ briefs, the record, the pertinent statutory provisions, and the authority revealed by our independent research, we find there exist genuine issues of material fact that must be determined only after a full evidentiary hearing. Rageths’ proportionate share of the requisite expenses must be based on an equitable apportionment determined after consideration of the various relevant factors. Consequently, we reverse the district court’s orders in No. S-10-0141 and No. S-10-0184 and remand for further proceedings consistent with this opinion.”