Albany County commissioners voted Tuesday to try joining a federal court case in which a three-judge panel of the 10th Circuit Court of Appeals ordered in December for Lake Hattie to largely be drained.
During the county’s spring runoff, some water from the Laramie River is often diverted to Lake Hattie, owned by the Pioneer Canal-Lake Hattie Irrigation District, helping to avoid flooding downstream. Under the 10th Circuit’s Dec. 13 decision, the irrigation district has said it loses its ability to store more than 80 percent of its water rights in Lake Hattie.
Many in Albany County now fear that federal judge’s decision will greatly exacerbate the flood risk in the city of Laramie.
“According to the flood map, there are businesses and residences located in the city of Laramie, Wyoming, that could be flooded when the Laramie River reaches flood stage in the city,” Albany County commissioners state in their resolution to join the lawsuit. “Additionally, flooding can negatively impact publicly-owned infrastructures such as parks, walkways, storm sewers, lift stations, sewer systems and drinking water systems.”
Cody Humphrey, co-owner of 9-H ranch and chairman of the irrigation district, said that in the past year, the district pulled as much as 800 cubic feet per second of water from the Laramie River during peak runoff.
The initial lawsuit was brought by home-owners and other property owners surrounding the reservoir, who protested the district’s practice of — when possible — filling Lake Hattie to its capacity of 94,960 acre-feet. That capacity also meant that water levels flooded the property of the adjacent landowners.
Dozens of property owners, including the Laramie Boat Club, joined in suing the district after pervasive erosion of their property.
To keep water levels below the levels of the cabins, Lake Hattie would need to be limited to 86,700 acre-feet.
Humphrey said that the 10th Circuit’s opinion will limit Lake Hattie to about 12,000 acre-feet.
The 10th Circuit determined that a map of the reservoir approved by the Department of Interior more than a century ago defines the district’s water right. The district had contended that the elevation listed for the reservoir’s high-water line at the time defines the extent of the district’s right-of-way.
Humphrey said the court’s decision could jeopardize the ability to get any Lake Hattie water through the spillway.
“It’s going to be hard,” Humphrey said. “There’s a current in that lake that brings the silt right to the headgates. With that amount of water, all it does is flood the pipes. … The water rights on Hattie aren’t the best, so anytime we get the chance, we store as much water as we can because it might be several years before you get another chance.”
Along with flooding concerns, Commissioner Terri Jones said the ruling could also impact the county’s fire suppression efforts.
“This impacts agriculture, emergency management, recreation, wildlife,” she said.
Brett Moline, director of public and governmental affairs for the Wyoming Farm Bureau Federation, said that the 10th Circuit ruling is also likely to impact the Lake Hattie Fishing Derby.
“I’m a member of the Laramie Plains Lions Club, and if the water level gets that low, we won’t have a place to hold 250 fishermen. We won’t have that fundraiser and you’ll lose the economic impact — from just that derby — of about 60-80 people coming from out of state and spending time in our community.”
On Dec. 27, Laramie attorney Greg Weisz filed a petition on behalf the irrigation district to ask the 10th Circuit Court of Appeals to rehear the case through an “en banc” hearing.
A panel of three judges initially heard the appeal from district court in 2019, and an en banc appeal would have at least 12 judges on the 10th Circuit consider the case.
However, an en banc hearing is rare, and the 10th Circuit has a local rule stating that for en banc to be granted, the case must have involve an “issue of exceptional public importance” or that it conflicts with precedent from the 10th Circuit or Wyoming Supreme Court.
For the 10th Circuit to grant an en banc hearing, the majority of all active judges on the circuit would have to be in favor.
If the 10th Circuit doesn’t accept the request for an en banc hearing, local parties could still ask the Supreme Court to take up an appeal through a writ of certiorari.
In joining the case, Albany County hopes to support the en banc request by filing a petition as an amicus curiae, or “friend of the court.” In federal cases, amicus briefs lend credence to the importance of a case beyond the scope of arguments that were previously made by plaintiffs and defendants.
Whether an amicus brief from Albany County is accepted, however, remains to be seen.
In a Jan. 3 order, the 10th Circuit gave the plaintiffs until Jan. 13 to file a response to Weisz’s brief.
The Federal Rules of Appellate Procedures state that an amicus brief must be filed within seven days of the petition filed on Dec. 27.
Albany County Attorney Peggy Trent said she only became aware of Weisz’s Dec. 27 petition within the last few days, and it’s possible that her deadline to file an amicus brief actually might’ve been Jan. 3.
Further confusing the issue is a local rule adopted by the 10th Circuit that states the court will “not file proposed amicus briefs on rehearing” and that “filing will be considered shortly before the oral argument on rehearing en banc if granted, or before the grant or denial of panel rehearing.”
Trent has spent the last few days trying to find an attorney specializing in water rights to file an amicus brief on behalf of the county.
Kermit Brown, former Wyoming House Speaker and current University of Wyoming trustee, initially agreed to write the brief; shortly before the county authorized an amicus brief Tuesday morning, Brown withdrew, based on a conflict of interest.
After being unable to find another attorney, Trent told the Laramie Boomerang on Wednesday that she may write the brief herself and file it on Monday, along with a request for the 10th Circuit to extend her deadline.
City of Laramie Attorney Bob Southard said the city has not yet decided to file an amicus brief, but even if the 10th Circuit allowed until Jan. 13 to file a brief, he said “that would be a hard deadline for my office to me, just being realistic.”
Trent said that, if the the Wyoming Attorney General’s Office were to try joining the case, there might be more opportunity for Albany County to express its concerns as a part of that brief.
The state likely has more power to file an amicus brief after the Jan. 3 deadline since federal rules state that “the United States or its officers or agency or a state may file an amicus brief without the consent of parties or leave of court.”
The A.G.'s office did not respond to a Wednesday request for comment.
Sen. Glenn Moniz, R-Laramie, said Tuesday that state negotiations are on-going.
“I’m in the process right now of working with the Wyoming Water Development Commission, the State Engineer’s Office, and Wyoming Game and Fish to sit down around a table and try to iron this issue out,” he said. “I think this issue goes beyond Albany County.”
The initial complaint said that property owners would be forced to leave their homes and fear “several homes will be destroyed or rendered uninhabitable, additional lands will be lost to erosion, and access to the entire neighborhood may be compromised from sub-irrigation of a nearby natural lake.”
The irrigation district’s counterclaim maintained that under an 1891 act, the district obtained the rights to transport and store water in the reservoir — and that easements acquired through this act allow the district to “modify, extend and/or enlarge the water storage and conveyance facilities.”
The counterclaim argues these rights were lawfully established before the private property lots were created, meaning the district has “the ability to store water to the fullest extent of its water rights, as well as the right to the use of an additional fifty feet from the high-water mark and limit of the easement.”
In June 2016, U.S. District Court Judge Scott Skavdahl denied the property owners’ request for a mandatory preliminary injunction.
After a trial in February 2018, Skavdahl ruled in favor in the irrigation district, determining that the district maintained its 1909 easement to occasionally flood the surrounding landowners’ lots.
The land-owners appealed the decision to the 10th Circuit.
Based on the strong legal basis for the 10th Circuit’s initial opinion, Trent said the best option to avoid the negative effects of the ruling would be for the plaintiffs and defendants to find a separate mediated solution.
“What we want is for the parties to come together,” she said.