LARAMIE — Without out offering an explanation, three judges for the 10th Circuit Court of Appeals rejected at attempt from Albany County and the city of Laramie to join a lawsuit regarding the amount of water that the Pioneer Canal-Lake Hattie Irrigation District can put into Lake Hattie.
Earlier this month, City Attorney Bob Southard and Albany County Attorney Peggy Trent filed an amicus curiae brief that asks for the 10th Circuit Court to reconsider its December ruling that irrigators claim would largely force them to drain the reservoir.
Trent and Southard collaborated on the brief and filed it Monday, asking the 10th Circuit to accept their arguments despite missing the deadline to file, which ended seven days after the irrigation district filed its petition Dec. 27 to have the case reheard.
“Only after the seven-day deadline to file this motion for leave did the County and City become aware of the adverse consequences the majority opinion would create regarding flood control, fire suppression, and public and private property throughout the County,” Trent and Southard wrote in their brief. “Additionally, after becoming aware of the adverse impacts of the majority decision, the County and the City took a closer look at the majority opinion and discovered significant legal errors not addressed by the petition for rehearing.”
During the county’s spring runoff, some water from the Laramie River is often diverted to Lake Hattie to help avoid flooding downstream. Under the Dec. 13 decision by a three-judge panel, the irrigation district has said it loses its ability to store more than 80% of its water rights in Lake Hattie.
Local officials contend that decision will exacerbate the flood risk to the city of Laramie.
The irrigation district asked the 10th Circuit to rehear the case via an “en banc” hearing, which would have at least 12 judges on the 10th Circuit consider the case.
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.
The landowners’ attorney, Brandon Jensen, asked the 10th Circuit to reject the Trent-Southard brief.
“This appeal has been pending since at least April 2018,” Jensen said. “If the potential consequences of the outcome of this appeal are as severe as claimed by the amicus curiae, then they should have become involved in this appeal much earlier, or perhaps should have sought intervention before the trial court. Instead, the amicus curiae did not involve themselves until well after any reasonable opportunity to do so.”
In response, Trent and Southard said they had no expectation that U.S. District Court Judge Scott Skavdahl’s original decision might be reversed and didn’t track the appeal closely.
“Skavdahl delivered a thorough, technical, well-reasoned opinion, and the County and City, understanding the facts and law, thought there was a good chance for confirmation,” they said.
After a trial in February 2018, U.S. District Court Judge Scott 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, which overturned Skavdahl’s decision.
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.