FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          April 10, 2020

                                                                          Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 C. MARK CUPPS; MARK B. KOENIG;
 CHERYL L. KOENIG; DALE M.
 CARLSON; PEGGY CARLSON; JOHN
 E. MCINROY; ANN W. PECK; PHILLIP
 KOSKI; ANDREA KOSKI; ESTHER
 SANDOVAL; KAY YUEN HING
 REVOCABLE TRUST; FLOYD A.
 BARBOUR; WILLIAM G. CUTLER;
 BRUCE R. SMITH; DEBRA J. SMITH;                              No. 18-8024
 JOSEPH RUPINKSKI, JR.; LARRY                       (D.C. No. 2:16-CV-00086-SWS)
 WEYHRICH; KATHY WEYHRICH;                                     (D. Wyo.)
 LARAMIE BOAT CLUB, INC.;
 BARBARA J. BARBOUR,

       Plaintiffs - Appellants,

 v.

 PIONEER CANAL-LAKE HATTIE
 IRRIGATION DISTRICT,

       Defendant - Appellee.
                      _________________________________

                                     ORDER
                        _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, McHUGH, MORITZ, EID, and CARSON, Circuit
Judges.*
                 _________________________________


      *
        The Honorable Gregory A. Phillips is recused and did not participate in the
consideration of the Petition.
       This matter is before the court on Appellee’s Petition for En Banc

Consideration/Panel Rehearing (“Petition”). We also have a response from Appellants.

       Pursuant to Fed. R. App. P. 40, the request for panel rehearing is denied by a

majority of the original panel members.**

       The Petition and response were circulated to all non-recused judges of the court

who are in regular active service, and a poll was called. A majority of the participating

judges voted to deny the Petition. See Fed. R. App. P. 35(a). Consequently, Appellee’s

request for en banc rehearing is also denied.

       Chief Judge Tymkovich, and Judges Lucero, Hartz, Eid, and Carson voted to grant

en banc rehearing. Judge Carson has filed a separate dissent from the denial of en banc

rehearing. Judge Carson’s dissent is joined by Chief Judge Tymkovich and Judges

Lucero, Hartz, and Eid.


                                                Entered for the Court



                                                CHRISTOPHER M. WOLPERT, Clerk




**
  The late Honorable Monroe G. McKay participated in this appeal originally but passed
away on March 28, 2020. He did not, therefore, participate in consideration of the request
for panel rehearing that is resolved in this order. “The practice of this Court permits the
remaining two panel judges if in agreement to act as a quorum in resolving the appeal.”
United States v. Wiles, 

, 1516 n.* (10th Cir.1997); see also 28 U.S.C.
§ 46(d) (noting circuit court may adopt procedures permitting disposition of an appeal
where remaining quorum of panel agrees on the disposition). The remaining panel
members have acted as a quorum in agreement with respect to the request for panel
rehearing.
                                                2
18-8024, Cupps v. Pioneer Canal-Lake

CARSON, Circuit Judge, joined by TYMKOVICH, C.J., and LUCERO, HARTZ and

EID, dissenting from the denial of rehearing en banc.



Water is life, and its absence is death.

       Today, a bare majority of this Court votes to deny en banc rehearing of a panel

decision that could single handedly dry up thousands of acres of irrigated Wyoming

farmland. In reaching its decision, the panel fundamentally misinterpreted the Irrigation

Act of 1891 and ignored well-established federal riparian doctrines. For these reasons

and because this case involves issues of paramount importance that deserve consideration

by the full court, I respectfully dissent from the Court’s order denying en banc review.

                                              I

       In its efforts to settle the American West, the United States government faced an

inconvenient truth: most of the land was arid and not suitable for dry land agriculture.

Congress sought to alleviate this problem through laws encouraging the development of

projects that could capture water for irrigation and stock-raising. One such law was the

Irrigation Act of 1891 (the “1891 Act”), which Congress enacted to encourage the

irrigation, settlement, and economic growth of the American West. See, e.g., Chicala

Water Co. v. Lytle Creek Light and Power Co., 26 L.D. 520, 524 (1898). This lawsuit

involves Lake Hattie Reservoir—an 1891 Act project developed by Appellees’

predecessors to capture water for irrigating lands downstream. Lake Hattie’s surface area

exceeds four square miles and by some measures supports the irrigation of more than
28,000 acres of farmland, not to mention the stock water it provides to downstream

ranchers.

       Some forty years after Lake Hattie’s development and in an apparent effort to

expand recreational opportunities, the United States government platted, leased and later

sold “lakefront” lots adjoining Lake Hattie. The United States government issued patents

to Appellants’ predecessors that were expressly subject to “any vested and accrued water

rights . . . and rights to any ditches and reservoirs used in connection with such water

rights.” And as cabin lots changed hands over the years, many owners (including

Appellants) received title policies that excluded coverage for damage or loss by reason

of: “[a]ny and all instruments of record which relate to what are generally known as the

Lake Hattie Irrigation System . . . and any other instruments of record pertaining to

ditches, reservoirs, canals . . . .”

       Despite these warnings contained in the public record, some cabin owners built

their cabins below Lake Hattie’s high-water line—a line physically dictated by the height

of the reservoir’s spillway. Apparently, nobody noticed that some of the cabins were

built below the high-water line because for many years the area around Lake Hattie

experienced drought and low lake levels. But when sufficient water flowed downriver

and filled the lake back to capacity, some of the cabins flooded. Some cabin owners

(Appellants in this case) filed suit, arguing that Lake Hattie’s boundaries must be

permanently restricted to survey lines depicted on a 1909 map of the reservoir.

       Following a bench trial, the district court held that because a reservoir can only be

managed by controlling the water level, Lake Hattie’s boundaries must be set by a

                                             2
specific elevation level, i.e., by the high-water line of Lake Hattie’s dam. The district

court rejected Appellants’ argument to the contrary as nonsensical because two-

dimensional survey lines on a map cannot accurately reflect the ever-changing shoreline

boundary of a body of water. Applying well-settled law, the district court reasoned that

the survey lines on the 1909 map constituted meander lines rather than fixed, permanent

lines.1 Thus, the district court concluded that the extent of the ground occupied by the

water of the reservoir constituted the boundary of the easement.

       In an unpublished opinion, a panel of this court reversed the district court’s

decision. The panel held that the as-drawn survey lines on a 1909 map of the project

permanently fixed Lake Hattie’s shoreline boundaries.

                                             II

       The 1891 Act grants to “any canal ditch company, irrigation or drainage district” a

“right of way through the public lands and reservations of the United States . . . to the

extent of the ground occupied by the water of any reservoir and of any canals and laterals

and fifty feet on each side of the marginal limits thereof.” 43 U.S.C. § 946. But the grant

is not self-executing. A canal or ditch company or irrigation district “desiring to secure

the benefits” of the Act was required to file with the Secretary of Interior “a map of its

canal or ditch and reservoir.” 43 U.S.C. § 947. Only upon filing its map could the

company receive its easement. And, once the Secretary granted the easement, “all such



1
  Meander lines are transitory rather than fixed and change if the waterway changes, such
that the watercourse, and not the meander line, is the true boundary. Meander Lines,
Black’s Law Dictionary (2d ed. 1910).
                                              3
lands over which such rights of way shall pass [were] disposed of subject to such right of

way.”2

         In reversing the district court, the panel held that § 947 required that the boundary

of the reservoir be strictly defined by the survey lines on the map Appellees’ predecessor

submitted to the Secretary of Interior for approval. This conclusion, however, is wrong

for several reasons. To begin with, recall that § 946 grants the irrigation company a right

of way “to the extent of the ground occupied by the water . . . and fifty feet on each side

of the marginal limits thereof.” The panel’s construction effectively eliminates the reach

of that section and therefore violates well-established canons of statutory construction by

failing to construe the statute as a whole, giving effect to every clause and word. See,

e.g., Toomer v. City Cab, 

, 1194 (10th Cir. 2006).

         I submit the better interpretation, based on the statutory language and relevant

authority, is that § 946 defines the scope of the reservoir, while § 947 secures the grant

for the company seeking to secure the Act’s benefits, even where the “ground occupied

by the water” and the map are inconsistent.3 Consider the Supreme Court’s riparian



2
  The record supports the conclusion that Appellants own estates subject to the Lake
Hattie Reservoir easement. Any contrary suggestion ignores the express reservation in
their patents making the cabin lots subject to rights to any ditches and reservoirs.
3
  The survey lines on the map will inevitably conflict with the “ground occupied by the
water” because a body of water’s shoreline boundary changes over time. Jones v.
Johnston, 

, 155 (1855) (recognizing that “the water-line, though it may
gradually and imperceptibly change, is just as fixed a boundary in the eye of the law”).
Notably, a 1949 re-survey of Lake Hattie Reservoir revealed that the water line had
already moved, as portions of the map’s lines were visibly below the present water line of
the lake. Yet the panel still holds that a 111-year-old map permanently sets Lake Hattie’s
shoreline boundaries. The decision defies physics, as well as logic.
                                               4
jurisprudence in place at the time Congress passed the 1891 Act. At that time, maps

depicting bodies of water employed transitory “meander” lines “for the purpose of getting

[a reservoir’s] general contour . . . .” Mitchell v. Smale, 

, 413 (1891). The

use of meander lines as opposed to fixed lines resulted from the difficulty of accurately

surveying and mapping “all the various sinuosities of the water line.”

surveys of bodies of water relied on meander lines to capture “an average result”

that “shows the general form of the lake.”

words, by the time Congress passed the 1891 Act, courts had “decided

again and again that the meander line is not a boundary, but that the body of water whose

margin is meandered is the true boundary.”

see also Hardin v. Jordan, 

, 380 (1891) (“It has frequently been held, both by the federal and state courts,

that such meander lines are intended for the purpose of bounding and abutting the lands

granted upon the water whose margins are thus meandered, and that the waters

themselves constitute the real boundary.”). The text and structure of the 1891 Act

dovetails with the Supreme Court’s riparian jurisprudence and leads to the conclusion

that while § 947 required the irrigation company to file a map of the reservoir, the map

was intended only as an approximation, as no two-dimensional drawing could accurately

reflect “all the various sinuosities of the water line.” 

.

       Similarly, the Department of Interior’s own survey manual and administrative

rulings reflect that the lines on the map did not define the boundary of the reservoir

easement in this case. The Department’s 1902 survey rules required that “lands bounded

by water are to be meandered at mean high-water mark.” [Appellees’ App., Vol. VII at

                                              5
64]. The Department also noted only one year after Congress passed it, that the 1891 Act

“grants an easement in all the public land a person wishes to flow with water, and then

grants him fifty feet all around the meander line of his reservoir, or rather, it allows the

meander line to be run fifty feet outside of the high water line of the reservoir.” The

Pecos Irrigation and Improvement Co., 15 L.D. 470, 474 (1892) (emphasis added).

       The panel dismissed this administrative ruling and the survey rules and justified its

holding based on its conclusion that the Department of Interior never approved a map

with a specific high-water line. But given that the Department of Interior reviewed and

approved these applications, I find it highly probative that in their own administrative

rulings, they treated the survey lines as meander lines and interpreted the Act as

extending the boundaries to “the extent of the ground occupied by the water.” It also

seems incredibly unfair to hold that the reservoir boundary must strictly conform to the

map, when the Secretary of Interior’s own survey manual—in use when the reservoir was

built—instructed surveyors to “meander” shoreline boundaries. Considered in context,

the administrative rulings and survey manual must be construed as supporting the idea

that the reservoir boundary is defined by the extent of the body of water and not the lines

drawn on the map.

       Moreover, in order to receive approval from the Secretary of Interior, the irrigation

company had to demonstrate that state authorities had approved the project. The district

court specifically found that the chief engineer for Lake Hattie Reservoir certified on the

face of the map submitted to the Department of Interior that the surveys of the reservoir

and canals “represent level lines, which are the proposed water line of the reservoirs.”

                                              6
And in the state application for Lake Hattie Reservoir, the engineer included a map

containing a high-water elevation of 7,290 feet. Thus, at the time of the grant, the

Department of Interior would have necessarily recognized that the map reflected “the

extent of the ground occupied by the water” as determined by the high-water line of the

reservoir’s dam.4 Thus, I would conclude the district court properly found the Secretary

of Interior approved the reservoir based upon a specific high-water elevation.

         The panel decision is additionally inconsistent with the manner in which the

Supreme Court and this Circuit have decided cases under the strikingly similar Railroad

Right of Way Act of 1875. Under the first section of the 1875 Act, a “right of way

through the public lands of the United States is granted to any railroad company . . . to

the extent of one hundred feet on each side of the central line of said road.” 43 U.S.C.

§ 934. Section four of the 1875 Act states that any railroad company desiring to secure

the benefits of the Act “shall . . . file with the officer . . . a profile of its road.” 43 U.S.C.

§ 937.

         In a series of cases, various companies constructed railroads in locations different

than that shown on the profile submitted to and approved by the Department of Interior.

Landowners filed suit against the companies and argued that the grant to the railroad was

strictly limited to the lands shown on the profile. This Court and the Supreme Court

rejected the landowners’ argument and held that the actual location of the railroad



4
  The Bureau of Land Management internally interpreted the easement in favor of the
irrigation company as being granted based upon a high-water line of 7,290 feet.


                                                 7
controlled and that the filing of the profile map simply perfected the as-built grant in the

railroad company. Jamestown and N. R.R. Co. v. Jones, 

(1900) (the scope

of the grant depends on actual construction of the railway as defined in section one,

whereas the filing of the railway profile and plat secures, but does not define the scope of

the grant); Boise Cascade Corp. v. Union Pacific R.R. Co., 

(10th Cir. 1980)

(Breitenstein, J.) (rights acquired by actual construction even if construction includes

lands not depicted in filed profile); see also Minneapolis Railway Co. v. Doughty, 

(1908) (approval of map vests title in railway company, but the right of way is

determined by where the railway is actually built); Van Dyke v. Arizona Eastern R.R.

Co., 

(1918) (railway as constructed defined scope of grant, even where

constructed in location different from filed map). These 1875 Act cases further illustrate

that the map or profile simply vests title in the company, while the first section defines

the scope and boundary of the right of way.

       Finally, at least one practical concern cannot be squared with the panel’s decision.

The record and district court’s findings demonstrate that strictly adhering to the 1909

map results in some survey points being on dry ground and others being below water.

This fact, as found by the district court, shows that strictly applying survey lines in the

context of this reservoir is physically impossible and underscores the reason why the

Department of Interior instructed surveyors to meander bodies of water. It also explains

why § 946 of the 1891 Act must be construed as extending the right of way boundary to

“the ground occupied by the water” as the statute’s plain language commands.

       For these reasons, I respectfully dissent.

                                              8