LARAMIE — City of Laramie Attorney Bob Southard joined Albany County Attorney Peggy Trent in filing an amicus curiae brief that asks for the 10th Circuit Court of Appeals to reconsider a December decision that jeopardizes the authority of the Pioneer Canal-Lake Hattie Irrigation District, which has 47 water-users, to fill Lake Hattie.
After Albany County commissioners approved last Tuesday for Trent to join the federal lawsuit, Trent said she was unable to find an outside law firm to write a brief.
Instead, 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 percent of its water rights in Lake Hattie.
Local officials contend that decision will exacerbate the flood risk to the city of Laramie.
“The economic impact of an inoperable Lake Hattie would be flagrant,” the amicus brief states. “The flooding can negatively impact publicly owned infrastructures such as parks, walkways, storm sewers, lift stations, sewer systems, and drinking water systems.”
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.
In a Friday court filing, those land-owners said the irrigation district’s claim of “far-reaching consequences” are “unfounded.”
“We want water and the ranchers want water. We just need help mitigating the erosion and flooding,” Giff Cutler, one of the plaintiffs, told the Laramie Boomerang in an email.
Dozens of property owners, including the Laramie Boat Club, joined in suing the district in 2016 after pervasive erosion of their property.
The initial complaint said that property owners would be forced to leave their homes as a result of Lake Hattie flooding 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 10th Circuit determined that a map of the reservoir approved by the Department of Interior more than a century ago defines the district’s right-of-way. 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.
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.
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.
The case revolves around the parties’ interpretation of a 1891 federal law that allowed Lake Hattie to be created. Trent and Southard argued that the 10th Circuit put “too much emphasis on one single portion” of the law — namely the requirement for a map of the reservoir to be drawn — and ignored another part of the law that states a ditch company’s easement continues to “the extent of the ground occupied by the water of any reservoir.”
Along with flooding concerns, the Trent-Southard brief contends that the 10th Circuit’s decision would affect the county’s wildlife.
“Lake Hattie is part of a complex riparian network,” the brief states. “The reservoir is hydrologically necessary for surrounding fisheries. The Lake is also crucial for connected habitat of the Wyoming toad, an endangered species endemic to Albany County.”
In their brief, Trent and Southard also mentioned the role of Lake Hattie in fire suppression, noting its use in combating the 2018 Badger Creek Fire on the south end of the Snowy Range.
During that time, Lake Hattie allowed for the use of scoop-type air tankers that could “load and return to the fire line in minutes rather hours.”
“The use of aerial retardant was discouraged due to the potential impacts on sensitive riparian areas,” Trent and Southard wrote. “Additionally, Heavy Air Tankers are filled at airbases in Colorado and could potentially have a turn time of an hour and a half to two hours per drop. The incident management team concluded that the most effective course of action would be to utilize Scoop-type Air Tankers. This type of aircraft is not commonly employed in the Rocky Mountain Region due to the lack of adequate lakes to accommodate their specific approach, length, and departure needs.
“Lake Hattie met those parameters, however, as the proximity of this unique water source enabled us to effectively suppress the fires advance towards values at risk. In this case a smaller body of water would not have met our needs and other tactics to suppress the fire would likely not have been as effective.”
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.
On Friday, plaintiffs for the land-owners surrounding Lake Hattie formally asked the 10th Circuit to reject an en banc hearing “because the Irrigation District fails to highlight some controlling matter of law or fact which may have been overlooked or misapprehended by the panel’s decision.”
“The panel’s decision does not conflict with a decision of the United States Supreme Court or any other United States Court of Appeals,” the plaintiffs’ attorney states. “To the contrary, the panel’s decision is consistent with Supreme Court precedent considering the scope of rights-of-way on federal lands.”