Utah Supreme Court Clearly Establishes Partial Forfeiture
This month, in Delta Canal Co. et al v. Frank Vincent Family Farm, the Utah Supreme Court established that partial forfeiture has always been a part of Utah water law.
Plaintiffs were a group of irrigation companies in Millard County, referred to collectively as DMADC. Vincent purchased a farm in 1998, irrigated crops and operated a commercial bird-hunting operation. The State Engineer’s proposed determination recommended that Vincent’s predecessor be awarded 5,000 af annually to irrigate 1,051.5 acres of land. Under the Cox Decree, Vincent was awarded 22 cfs from March 1 through October 1 and could store 90% of its allocation in the Sevier Bridge Reservoir from March 1 to October 1. DMADC filed its compliant in 2008, alleging that Vincent only irrigated 830 acres from 1988 to 1998 and less than 900 after 1998. Vincent argued he had not irrigated all 1,051 acres because he was unable to because of water shortages that reduced his allocation each season because he could not take water for use on frozen in March and April.
The District Court held that Utah law did not provide for partial forfeiture prior to 2002 and that Vincent was protected from partial forfeiture after 2002 by an exception in Utah Code section 73-1-4(3)(f)(i). This section protects a water right from forfeiture when the water source does not yield sufficient water to satisfy the water right. The Court granted defendant’s motion for summary judgment. The Supreme Court reversed.
The Supreme Court concluded that the pre-2002 forfeiture statute “unambibuously” permitted partial forfeiture; that the exception in Utah Code section 73-1-4(3)(f)(I) is a physical-causes exception only; and that abandonment is a common-law cause of action, not statutory. The Court also clarified how forfeiture should be calculated.
The Court held that partial forfeiture has always been an available remedy under Utah case law. When viewed in isolation, the pre-2002 forfeiture statue is ambiguous, but “the Beneficial Use Statue erases all ambiguity from the Forfeiture Statute and requires us to conclude that the pre-2002 Forfeiture Statute permitted partial forfeiture.” P. 6. Beneficial use has existed in Utah law, even prior to codification. Beneficial use has two ongoing requirements: the type of use and the amount of use. The Court determined that “the only plausible reading of the Forfeiture Statue, when viewed in conjunction with the Beneficial Use Statute, is that a water right may be forfeited either in whole or in part. Under pre-2002 versions of the Forfeiture Statute, a water right has been partially forfeited if, during the statutory period, the appropriator failed ‘failed to use material amounts of available water’ without securing an extension of time from the state engineer. “ P. 11.
Forfeiture Post-2002; Physical Causes Exception
The Court rejected the District Court’s interpretation of the exception in Utah Code section 73-1-4(3)(f)(i) to mean that no forfeiture of any amount can occur when the source failed to fully satisfy the party’s water right. The Court interpreted the exemption to be a codification of the physical causes exemption, which protects a water user “insofar as they beneficially use material amounts of available water.” P.12. The Court clarified that a party may forfeit water even during a shortage if they fail to beneficially use material amounts of the available water.
The Court clarified that abandonment was a common-law cause of action, not a statutory claim, as the district court treated it. Abandonment has no time element, but has an intent requirement. Partial abandonment is available. To prevail, a party may show that a water user intentionally relinquished a portion of their water right.
Measurement of Forfeited Water Right
The part of the opinion that will prove most controversial is the Court’s articulation of how to determine the amount of water forfeited. The court interpreted Vincent’s water right as not being a continuous award, but an award of 5,000 acre-feet at the rate of 22 cfs—a maximum rate of diversion and a total volume allowance. The court instructed that a forfeiture analysis should focus the volume component of the water right:
“If during five consecutive irrigation seasons, an appropriator has failed to use material amount of its volume allowance, a forfeiture has occurred. The volume component of the water right should be reduced by the unused amount. The flow component may be reduced in proportion to the volume reduction, at the district court’s discretion . . . . Finally, the number of acres irrigated is not determinative in a forfeiture analysis, though it may be relevant insofar as it indicates whether water usage is beneficial. Farmers may reduce the total acres irrigated to grow a more water-intensive crop, or vice versa, so long as they beneficially use their full entitlement. The number of acres irrigated need not match the number listed on a proposed determination or a final decree from a general adjudication.11 The central question in any forfeiture proceeding is whether the appropriator used all of its water allowance in a reasonable manner and for a beneficial purpose.”
For irrigation water rights, beneficial use (quantified as irrigated acres multiplied by the duty of the area) has historically been the measure of a water right. If the Court’s analysis focusing on volume stands, this opinion could have huge implications on Utah water law. This firm represented DMADC in this case and has filed a motion for rehearing to try and clarify this portion of the Court’s opinion.