Western U.S. water fights lead to new judge training

All across the American West, states are arguing over access to the Colorado River, tribes are grappling with governments and one Arizona community has already run out of water.

Water disputes have become so pervasive in Utah that the state Judicial Council established a new program last year that designates and trains judges to handle these cases.

“It was inspired by panic,” Senior Judge Kate Appleby said. She helped create the program, which taps district court judges to serve in this role. Appleby began dreaming it up when she got assigned in 2007 to a particularly unwieldy water case.

Litigation tied to what’s called general adjudication is so rare, lengthy and complicated that most judges, such as Appleby, aren’t familiar with how it works. “What inspired me was realizing that I have this humongous case, which would affect thousands of people and endure for decades, and that I had no idea what I was doing,” she said.

It took a while to turn Appleby’s dream into reality. Late last year, District Court Judge Laura Scott was named one of Utah’s first water judges. She has a general adjudication of her own, deciding water rights for the Utah Lake-Jordan River watershed, home to about 2 million people.

All across the American West, states are arguing over access to the Colorado River, tribes are grappling with governments and one Arizona community has already run out of water. The stakes are high: Although this year’s rainfall has been adequate, “last year we had 99% of the state in severe drought or worse,” says Laura Haskell, drought coordinator at the Utah Division of Water Resources.

General adjudication litigation exists only in the West, and just a few of these cases are going on at any given time. That’s why courts are starting to ask judges to specialize.

Water fights are here to stay as development grows and climate change worsens. “We’re one of the driest states in the nation, and we need to be very careful,” Haskell said.

In Colorado, a water court has been in place for decades; the judges there work on water cases full time. Utah’s law mandates that at least three district court judges specialize in water disputes in addition to handling other cases. Because of overwhelming interest, the state has 10 water judges. Nevada is following suit.

Scott handled some water-related real estate cases as a private attorney, and while on the bench she spent seven years overseeing the general adjudication before becoming an official water judge. But even with that experience, “I felt it was critical for me to develop expertise in this field because I would be presiding over the case for the rest of my judicial career,” she said.

The Utah Legislature granted funding for Scott to hire a trained water expert, or special master, to help. The Utah Division of Water Rights also has about 30 people helping handle the administrative work of adjudications.

Adjudication can affect anyone living in a watershed, but only a subset of people have a claim. Homeowners who get their drinking water from public waters don’t have water rights. Scott estimates that the Utah Lake-Jordan River adjudication may have 35,000 claims, filed by farmers, real estate developers, tribes and others.

The complexity led Scott to call veteran Idaho water judge Eric Wildman for advice. “He spent hours on the phone with me,” she said.

Scott is striving to be a similar resource. “This case may very well outlast my successor,” she said. “So one of the things we’re really trying to do is develop some expertise and training, so that when I retire from the bench and a new judge steps in, that new judge already has water law experience.”