Carson, Shannon

English

University of Denver

Water Law Review Volume 12 Issue 2 Article 38 1-1-2009 Guitar Holding Co. v. Hudspeth County underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008) Shannon Carson Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Shannon Carson, Court Report, Guitar Holding Co. v. Hudspeth County underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008), 12 U. Denv. Water L. Rev. 522 (2009). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWA second argument of the City contended that Hamilton Trust'sgroundwater reservation violated the Texas Constitution's prohibitionagainst the establishments of perpetuities, but the court quickly dis-missed the argument. The City argued that because the HamiltonTrust failed to reserve access rights to the fifteen-acre tract, andthereby a means of reaching the groundwater, the severance of thegroundwater rights would result in permanent alienation of the waterresource, in contravention of public policy. Dismissing this argument,the court pointed out that Hamilton Trust would not need access tothe fifteen-acre tract to pump the groundwater from beneath it. Ham-ilton Trust may access the groundwater from its own adjacent ranch,and as a result, the reservation does not violate the Texas Constitu-tion's prohibition against perpetuities.For the foregoing reasons, the court affirmed the district court rul-ing, holding that Hamilton Trust validly reserved groundwater rights,and the City could not continue pumping groundwater from its fifteen-acre tract.Jeff McGaughranGuitar Holding Co. v. Hudspeth County Underground Water Conser-vation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008) (holding that water dis-tricts, when promulgating rules according to the Texas Water Code'sgoal of maintaining historic use, must consider both the amount ofwater historically used and the water's historical purpose).Texas established groundwater conservation districts to manage thestate's groundwater. These districts have broad authority to develop amanagement plan to conserve and protect groundwater within thatdistrict. The Texas Water Code ("Code") mandates the districts con-sider all types of groundwater uses and needs to develop fair and im-partial rules. However, when enacting rules limiting use, a district mayprioritize existing rights by safeguarding historic uses.Due to inefficient planning and an arid climate, Hudspeth CountyUnderground Water Conservation District No. 1 ("District") revampedits groundwater management plan. The new plan detailed three typesof permits: (1) validation permits, (2) operating permits, and (3) trans-fer permits. The District granted validation permits to well users whohad permits before the District promulgated this new plan. Thesepermits entitled those users to withdraw three to four acre-feet per yearfor every acre irrigated during a designated historic period. If the usercould not obtain a validation permit, the landowner could then applyfor an operating permit. This permit calculated water use based onsurface acreage, but operating permit holders could only extract waterwhen the aquifer's water table reached a certain elevation. So, unlikethe validation permit, which guaranteed a water right, an operatingpermit only granted water access during certain conditions. Finally,both validation and operation permit holders could apply for transferVolume 12COURT REPORTSpermits, which allow the landowner to transfer captured water out ofthe district. Thus, validation permit holders had a considerably greatertransfer right because they had guaranteed water rights based on his-toric use.Guitar Holding Company ("Guitar") challenged this water schemebecause despite owning significantly more land than other users, theDistrict permitted other landowners to withdraw more water based onincreased irrigation during the historic period. While the historicpermit holders used the water for irrigation, the new users transferredthe water out of the district. Under the new scheme, not only couldthe other landowners use more water, they could also transfer morewater.Both the District Court of Hudspeth County and the El Paso Courtof Appeals upheld the District's new management plan. Guitar arguedthe plan exceeded the District's authority under the Code's goal topreserve existing groundwater uses by granting certain landowners aperpetual franchise to transfer groundwater out of the district. Thecompany argued the plan's historic use requirement should link thetype of use to its historic use. Thus, because historic users did nottransfer the water out of the district, the District cannot now grandfa-ther in a new usufructuary transfer right. The District responded, ar-guing that historic use only referred to the amount of water, regardlessof its purpose.The Supreme Court of Texas determined the meaning of the word"use" in order to analyze the extent of the District's authority underthe Code to preserve historic or existing use. When interpreting astatute, the court understands otherwise undefined terms to carry anordinary meaning, as construed within the rest of the statute. "Use"ordinarily conveys some sort of purpose by the user, a meaning consis-tent with the application of the word in the rest of the Code. Addi-tionally, the Legislature's definition of "evidence of historic or existinguse" included evidence of water's beneficial use. Finally, policy con-cerns dictated a definition that includes purpose and amount becausethe District must effectively regulate groundwater and preserve existinguses. The court determined that when preserving a historic use, theDistrict must determine not only the amount of water withdrawn, butalso that water's purpose.Additionally, Guitar argued that a transfer permit is a new use.This classification is important because the District can impose morerestrictive conditions on a new permit application. The court agreedwith Guitar. If the District did not consider a transfer permit a newuse, certain landowners could convert their entire water supply into atransfer permit without any restrictive conditions.Finally, the court concluded that the new transfer rules did notprotect existing uses because the rules allowed permit holders tochange their use and transfer water out of the district. Once the userIssue 2WA TER LAW REVIEWtransferred the water out of the district, there would no longer be ajustification for protecting existing use because the user would not beutilizing the water for an existing use. The new rules did not protectexisting uses but, in effect, created franchises for certain landowners.Because the District did not uniformly apply the limitations, the courtfound it exceeded its statutory authority and the rules were thus inva-lid.The Supreme Court reversed the court of appeals' judgment andremanded the case for further proceedings.Shannon CarsonUTAHConatser v. Johnson, 2008 UT 48, 194 P.3d 897 (Utah 2008) (holdingthat the public's easement in state waters includes any lawful activitythat utilizes the water and any touching of privately owned river bedsincidental to these activities is lawful).In June of 2000, Plaintiffs Conatsers floated down Weber River in arubber raft. The Johnsons, Defendants in this case, privately ownedcertain parcels of the riverbed below the non-navigable waters of theWeber River. While the Conatsers floated down the Weber River,Kevin Conatser exited the raft and walked along the riverbed owned bythe Johnsons to fish and to remove the obstruction of a fence. Thebottom of the Conatsers' raft and the paddles touched the part of theriverbed owned by the Johnsons. Upon exiting the Weber River, aMorgan County Deputy Sheriff cited the Conatsers for criminal tres-pass. While the criminal trespass charges were pending, the Conatserssought a declaratory judgment in the Second District Court to deter-mine if the public's easement in state waters included the right totouch privately owned riverbeds. The district court held that the pub-lic's easement to state waters only included activities performed uponthe water; therefore, the public's right to touch privately owned river-beds only included touching incidental to the activity of floating. TheSupreme Court of Utah reversed.Utah law provides that the public has an easement over state wa-ters, regardless of who owns the riverbed below. The Court rejectedthe district court's narrow interpretation of the easement's scope andclarified that the public's easement includes the right to participate inany lawful activity that utilizes the water, not just activities performedupon the water. Therefore, in addition to the right to float upon thewater, the public's easement includes the right to participate in activi-ties such as fishing, hunting, and swimming.The Utah Supreme Court's departure from the district court's nar-row interpretation of the public easement demanded an equal depar-ture from the district court's narrow holding that only touching inci-dental to the activity of floating is lawful. Although the district court'sconclusion logically followed from the district court's interpretation ofVolume 12

Guitar Holding Co. v. Hudspeth County underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008)

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Guitar Holding Co. v. Hudspeth County underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008)

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