{"id":27,"date":"2016-10-10T21:38:06","date_gmt":"2016-10-10T21:38:06","guid":{"rendered":"http:\/\/blog.mwjlaw.com\/?p=27"},"modified":"2016-10-10T21:38:11","modified_gmt":"2016-10-10T21:38:11","slug":"utah-supreme-court-clearly-establishes-partial-forfeiture","status":"publish","type":"post","link":"http:\/\/blog.mwjlaw.com\/?p=27","title":{"rendered":"Utah Supreme Court Clearly Establishes Partial Forfeiture"},"content":{"rendered":"

This month, in <\/span>Delta Canal Co. et al v. Frank Vincent Family Farm<\/span><\/i>, the Utah Supreme Court established that partial forfeiture has always been a part of Utah water law.<\/span><\/p>\n

 <\/p>\n

Plaintiffs were a group of irrigation companies in Millard County, referred to collectively as DMADC. \u00a0Vincent purchased a farm in 1998, irrigated crops and operated a commercial bird-hunting operation. \u00a0The State Engineer\u2019s proposed determination recommended that Vincent\u2019s predecessor be awarded 5,000 af annually to irrigate 1,051.5 acres of land. \u00a0Under 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. \u00a0DMADC filed its compliant in 2008, alleging that Vincent only irrigated 830 acres from 1988 to 1998 and less than 900 after 1998. \u00a0Vincent 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. \u00a0<\/span><\/p>\n

 <\/p>\n

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). \u00a0This section protects a water right from forfeiture when the water source does not yield sufficient water to satisfy the water right. \u00a0The Court granted defendant\u2019s motion for summary judgment. \u00a0The Supreme Court reversed.<\/span><\/p>\n

 <\/p>\n

The Supreme Court concluded that the pre-2002 forfeiture statute \u201cunambibuously\u201d 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. \u00a0The Court also clarified how forfeiture should be calculated. \u00a0<\/span><\/p>\n

 <\/p>\n

Forfeiture Pre-2002<\/span><\/p>\n

The Court held that partial forfeiture has always been an available remedy under Utah case law. \u00a0When viewed in isolation, the pre-2002 forfeiture statue is ambiguous, but \u201cthe Beneficial Use Statue erases all ambiguity from the Forfeiture Statute and requires us to conclude that the pre-2002 Forfeiture Statute permitted partial forfeiture.\u201d \u00a0P. 6. \u00a0Beneficial use has existed in Utah law, even prior to codification. \u00a0Beneficial use has two ongoing requirements: the type of use and the amount of use. \u00a0The Court determined that \u201cthe 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. \u00a0Under pre-2002 versions of the Forfeiture Statute, a water right has been partially forfeited if, during the statutory period, the appropriator failed \u2018failed to use material amounts of available water\u2019 without securing an extension of time from the state engineer. \u201c \u00a0P. 11. \u00a0<\/span><\/p>\n

 <\/p>\n

Forfeiture Post-2002; Physical Causes Exception<\/span><\/p>\n

The Court rejected the District Court\u2019s 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\u2019s water right. \u00a0The Court interpreted the exemption to be a codification of the physical causes exemption, which protects a water user \u201cinsofar as they beneficially use material amounts of available water.\u201d \u00a0P.12. \u00a0The Court clarified that a party may forfeit water even during a shortage if they fail to beneficially \u00a0use material amounts of the available water. \u00a0<\/span><\/p>\n

 <\/p>\n

Abandonment<\/span><\/p>\n

The Court clarified that abandonment was a common-law cause of action, not a statutory claim, as the district court treated it. \u00a0Abandonment has no time element, but has an intent requirement. \u00a0Partial abandonment is available. \u00a0To prevail, a party may show that a water user intentionally relinquished a portion of their water right. \u00a0<\/span><\/p>\n

 <\/p>\n

Measurement of Forfeited Water Right<\/span><\/p>\n

The part of the opinion that will prove most controversial is the Court\u2019s articulation of how to determine the amount of water forfeited. \u00a0The court interpreted Vincent\u2019s water right as not being a continuous award, but an award of 5,000 acre-feet at the rate of 22 cfs\u2014a maximum rate of diversion and a total volume allowance. \u00a0The court instructed that a forfeiture analysis should focus the volume component of the water right: <\/span><\/p>\n

 <\/p>\n

\u201cIf during five consecutive irrigation seasons, an appropriator has failed to use material amount of its volume allowance, a forfeiture has occurred. \u00a0The volume component of the water right should be reduced by the unused amount. \u00a0The flow component may be reduced in proportion to the volume reduction, at the district court\u2019s 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.\u201d \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n

 <\/p>\n

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. \u00a0If the Court\u2019s analysis focusing on volume stands, this opinion could have huge implications on Utah water law. \u00a0This firm represented DMADC in this case and has filed a motion for rehearing to try and clarify this portion of the Court\u2019s opinion. \u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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 …<\/p>\n

Utah Supreme Court Clearly Establishes Partial Forfeiture<\/span> Read More »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"_links":{"self":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/27"}],"collection":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=27"}],"version-history":[{"count":1,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/27\/revisions"}],"predecessor-version":[{"id":28,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/27\/revisions\/28"}],"wp:attachment":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=27"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=27"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=27"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}