§ 41-3-402 — Initiation by state engineer; hearing; appeal

(a) When any appropriator has failed, intentionally or
unintentionally, to use any portion of surface, underground or
reservoir water appropriated by him, whether under an
adjudicated or unadjudicated right, for a period of five (5)
successive years, the state engineer may initiate forfeiture
proceedings against the appropriator with the state board of
control, to determine the validity of the unused right. The
state engineer shall designate the area to be affected by the
proceedings, not to contain in area more than one (1) water
division. The total absence of water to divert during an
irrigation season precludes the inclusion of any period of
nonuse resulting therefrom in the computation of the successive
five (5) year period. The secretary of the board shall refer the
matter for a hearing to the superintendent of the water division
where the forfeiture is alleged to have occurred. This section
does not apply to any reservoir, lawful dam or diversion system
for which an extension has been granted during the period of
extension under W.S. 41-3-401(a).
(b) The superintendent shall send notices, by certified
mail, of the time, place, and purpose of the hearing to all
owners of lands covered by the appropriations involved in the
forfeiture proceeding. Such persons shall be joined as parties
to the forfeiture proceedings as contestees. The state shall be
designated as contestant. In a case where notice by certified
mail cannot be accomplished, an advertisement published once a
week for three (3) consecutive weeks in a newspaper of general
circulation in the county in which the forfeiture is alleged to
have occurred, naming the parties in the case and setting forth
the time, place, and purpose of the hearing, and a general
description of the water rights whose status is under
consideration, shall answer the requirements of notice. Notice
by certified mail shall first be attempted before notice by
advertisement is employed. Advertisement costs shall be paid by
the state engineer. In addition, whenever it appears necessary
for full and proper notice, the superintendent may post a notice
of the hearing in a conspicuous place on the land or at the
place where the water rights are attached or utilized, or on the
point of diversion.
(c) Any use of a contested water right, easement,
privilege, or portion thereof, by the water user, his lessees,
agents, transferees or assignees on or after the date of the
notice shall be inadmissible as evidence of beneficial use in
all hearings or appeals arising out of the alleged forfeiture.
(d) A transcript shall be made of the hearing. The record
shall be delivered to the superintendent. The state engineer
shall provide and pay for the costs of such record. At the
conclusion of the hearing, the transcript, all other evidence,
and the report of the superintendent shall be transmitted to the
board of control by the superintendent. At its next meeting, the
board shall vote by secret written ballot to declare the right
in question forfeited or to decline to do so. Any forfeiture
requires three (3) affirmative votes by the board.
(e) Whenever the state engineer has initiated forfeiture
proceedings, he shall not participate as a voting member of the
board of control in any determination of whether any water
right, easement, or privilege is to be forfeited, all other laws
to the contrary notwithstanding.
(f) Such proceedings shall not be initiated by the state
engineer after the use of a water right, easement or privilege
has occurred.
(g) Any time within two (2) years after the date the board
has entered an order forfeiting a water right, any person who
can demonstrate to the satisfaction of the board by written
petition, proof, or affidavits, that he was an owner, lessee or
beneficiary of the forfeited right, that he had no actual or
constructive notice of the forfeiture hearings, and that he has
been damaged thereby, may require the board to reopen the case
for a determination of whether such right shall remain forfeited
or be reactivated without loss of priority.
(h) Whenever the board has declared any water right
forfeited, it shall send a certified copy of the declaration to
each contestee within sixty (60) days. Such party may within
thirty (30) days after the date of mailing, appeal to the
district court of the district wherein the hearing was
originally held or in the district court of Laramie county.
(j) Nothing in this section shall be construed to allow
the state engineer to initiate forfeiture proceedings against
water rights which are being put to beneficial use, wholly or in
part.