Summary of a Recent
Judicial
Development in
Administrative Law
Property Owner Has the Burden of Establishing Due and Sufficient Cause
for Nonuse of a Water Right
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Frick Farm Properties, LP v. Kansas, 190 P.3d 983 (Kan. Ct. App. 2008), the Court of Appeals of Kansas held that the Department of Agriculture Division of Water Resources had properly followed statutory procedures in determining that the appellant's water right was abandoned and that the appellant had the burden of showing due and sufficient cause for nonuse of the water right but had failed to do so; therefore, the court affirmed the Division's order of abandonment.
Background
The Debes were issued a water right for their property in 1982, and later sold the property, including the water right, to the Fricks in 2002. Id. at 985. In early 2003, the Debes received notice from the Department of Agriculture, Division of Water Resources (DRW) that the water right had not been used in three years. Id. Debes informed the Fricks of the notice, and Frick Farm submitted a water use statement to the DRW. Id. In early 2004, Frick Farm received notice that no beneficial use of water had been reported for three years and the water right would be terminated if the period of nonuse extended to five years. Id. The Fricks responded to the notice, informing the DWR that Debes' ongoing health problems had prevented them from using the water right, and that they had purchased the property in 2002. Id. at 985-86. The DWR subsequently conducted an investigation of the water right, and concluded that there had been nonuse of the right from 1985-2003 without due and sufficient cause. Id. at 986. After a hearing, the DWR determined that there had been an abandonment of the water right because Frick Farm had not established due and sufficient cause for the nonuse of water. Id. On appeal, the district court affirmed the DWR order, and Frick Farm appealed again. Id.
Arguments
Frick Farm argued that the water right was a real property right and that in terminating the water right, DWR committed numerous procedural errors and misapplications of law. Id.
Analysis and Holdings
The appellate court found that the DWR followed the statutory procedures in terminating the water right, so Frick Farm's due process rights were not violated. Id. at 988. The court further held that Frick Farm had the burden of proof to show lawful and beneficial use of the water, or due and sufficient cause for nonuse, and had failed to do so, and therefore affirmed the DWR order of abandonment of the water right. Id.
The case was decided on August 22, 2008.