SJC-12947, town of Concord,
the Littleton Water Department.
-: Okay, let's get started.
-: All right, good morning, Madame Chief Justice.
And may it please the members of the court,
My name is Brian Bertram,
and I'm here as counsel representing the interests
of the town of Littleton
and specifically the town's water department.
As the appellant Littleton, asks this court
to reverse the decision and final judgment
of the land court.
Now, as the court knows from our briefing
there is a core principle to Littleton's argument,
and that is the fundamental difference
between the subject matter of the 1884 Act
and the Water Management Act.
Now at a high level, both of course, speak to water
but each speaks to a different aspect as to how water users
such as the towns before you go about using water resources.
Here, the 1884 Act speaks to acquiring ownership rights
or interests through taking ownership
of Nagog Pond's waters.
The Water Management Act, on the other hand, speaks
to the regulatory authorization to withdraw water
once that access, once that ownership is obtained.
And unlike the 1884 Act, the Water Management Act,
of course, is not concerned with these specific towns
or with Nagog Pond, but instead with the statewide
coordination through registrations and permits
of cumulative withdrawal impacts
across all users and sources.
-: Mr. Bertram, can I ask you, so how would this work?
Littleton wants to exercise its rights.
Currently, Concord has a registered use
that it can keep renewing.
How would you displace them?
I'm not sure, and if not, I mean, don't
you need to displace their registration rights under the WMA
in order to exercise your rights to withdraw water
under the 1884 Act, so isn't there an inconsistency there?
-: Well, I don't believe so.
I think, so first off,
-: Tell me how you do it.
-: Well, I think there's a couple of ways we can do it,
but first, because the 1884 Act is speaking
to property rights, you know, we take, you know
we take the interests
-: I totally get that.
You, both your rights and Concord's rights.
Justice Cypher and I can't take water
out of the Nagog Pond,
you need some right to take water out of Nagog Pond.
-: How do you know I haven't been? (chuckles)
-: I get that, so how do we,
I get we need those underlying property rights
but keep going from there.
-: Well, at that point, I'm a property holder, your Honor.
And you know, at minimum I have all
of the rights that a common law property holder has.
So for example, I could go
to court if I really needed to, and I could, you know
mount whatever claims are available to me against Concord
to pursue my superior ownership interest
and to avoid an interference
with my ownership interest in Nagog Pond.
-: That's where I get confused, your superior interest,
because they have a registered right under the WMA.
You have no registered right
nor permitted right under the WMA.
So how do you exercise,
how is that statutory right from 1884 gonna be
exercised in a way that's not repugnant to the WMA?
-: Well, I'm a superior owner, your Honor,
when I take, you know, the nature of the property interest
that I have taken is superior.
You know, it's the same as anybody else
who may have a concurrent interest in property.
You know, the Water Management Act isn't concerned
with just this type of statutory right
or this kind of statutory taking it's concerned
with property rights that are private in nature as well.
So if you imagine for a moment
that you have two private property holders
one of whom holds a superior property interest
but may not have a registered withdrawal
and wants to start withdrawing,
I don't think anyone would argue
that that person couldn't go
and pursue their superior interest in the property.
-: How do they do that under the MWA?
because Concord has a superior right to you under the WMA.
So how do you exercise your superior 1884 Act consistently
with their superior WMA rights?
-: Well, let me start by pushing back.
I don't know that their rights are necessarily superior.
There's nothing in the Water Management Act
that makes a registration superior
to a permit or vice versa.
Now there's certainly less restrictions or conditions
the DEP can place on a registration as compared to a permit,
but there's nothing in the text of that act
that values one over the other.
But in any event,
-: Well, but there is.
If you have, their registered right, they can renew.
You have no permitted rights whatsoever,
and there's language in the WMA
which prevents sort of withdrawals that are
beyond the capacity of the pond, right.
-: The safe yield, yes, that's correct, your Honor.
-: Go ahead.
-: Well, again, my point would be is
that we're not doing it necessarily
through the Water Management Act.
-: But you have to transfer,
I mean, can you transfer,
can you force a transfer of their rights under the WMA?
-: Well, I don't agree that I need to.
I think that as a superior property holder,
I could simply go to court and say,
you're interfering with my use.
I wanna get a permit.
My rights are superior,
so you need to cease withdrawing to a level
where I can go get my permits.
You know, that's not through the Water Management Act.
-: But they're gonna say I've got a right,
I have a registered right under the WMA
to withdraw this water.
So you don't have any superior rights.
You have some ancient property right
that was displaced by the WMA.
-: Well, that's the issue to be decided
by this court, your Honor.
-: In deciding that issue doesn't
Justice Kafker's questions suggest implied repeal.
I mean, if we go right to the statute,
right to section three,
the statute says, that indicates its purpose is
to assure comprehensive and systemic planning and management
of water withdrawal and use in the Commonwealth.
And I appreciate that your view that comprehensive is
not the be all and end all of the analysis.
But if we're trying to figure out superior rights
under this 1884 Act and how complicated it is,
how do we reconcile that
with the comprehensive nature of the Water Management Act?
-: Well, I think it's pretty simple.
I think that, you know, the general court back
in 1884 gave us a superior right to take.
You know, if you go back to section 10 of the Act
it contemplates us taking the same water
that Concord may have taken in the past.
And so we've taken it as a superior holder
of an interest in property.
And when we go
-: But at this very moment, at this very moment,
Concord's rights to withdraw are superior to yours.
And if that's going to change based on the 1884 Act
that's really significant
in the face of comprehensive legislation.
-: Well, I don't necessarily agree.
I mean, property interests change hands all the time
behind these types of regulatory authorizations.
Someone can sell an ownership interest in land.
Someone could go acquire it.
I think, again, we need to step back
and realize that the Water Management Act deals
with common law property as well.
And certainly, you know, if someone leases
or deeds a right to use water on their own property,
but there's some form of trigger
where they can go back and use it later,
we wouldn't suggest that the Water Management Act
through creating a regulatory authorization
for withdrawals displaced the underlying common law rights
and interests in property.
And that's what we're getting to, your Honor, is
that we are taking by eminent domain
a property interest through the statute.
And so while there may be regulatory authorizations
that layer onto that,
and we certainly don't have that authorization yet,
but what our argument here is is that we would take
by eminent domain, which is what the statute
authorizes us to do, a superior property interest.
And we think we could vindicate
that in court to reduce Concord's withdrawals
to a level that would allow us to get permitted
within the safe yield to go to Justice Kafker's point.
But there may also be an avenue through DEP here.
You know, we have not gotten to that point yet.
And, you know, certainly DEP has
never confronted a situation either
where they need to deal
with the superior property interest holder
in terms of a registration or permits.
-: So it's not repugnant to the WMA
that you can push Concord aside, despite the WMA's concern
about protecting historical withdrawal.
-: Well, I think you need to look to the text of the MWA
in terms of what the concern was.
You know, the only thing that they do
with the registration is use it to determine
whether it's a new or existing withdrawal.
And the concern, if you go back to the history
of protecting historic withdrawals, was to avoid lawsuits
against the Commonwealth for cutting them off.
You know, what's happening here, your Honor, is
displacing Concord isn't changing anything
from before the Water Management Act.
We always had the 1884 Act before the Water Management Act,
and we always had that superior right.
So I wouldn't agree
that the Water Management Act was concerned
with retaining existing withdrawals just because
we wanted everybody to have their existing withdrawals.
There was a motivation there,
and it was to avoid that type of litigation.
And it certainly wasn't to change
the existing rights that had already been allocated,
that already existed under the special acts that came before
or under common law property holdings.
You know, when you look at those motivations
they're quite different.
And I would suggest that at the end of the day
-: Can I ask, before you go there, do we have to reverse
or at least rewrite FairHaven, which said,
I mean under your view, you say,
okay, you have a superior right
that some superior court's going to enforce,
that's going to require a readjustment
or may require a readjustment in Concord's allocation.
But didn't we say that Concord
with a registered right to withdraw water can
keep renewing it forever?
-: Well, the statute says they can keep renewing it,
but you know, the forever passage
to which you are referring, your Honor, appears
sort of at the beginning parts of the case,
and it's describing how the Water Management Act works.
And the issue presented in that case was solely
within the framework of the Water Management Act.
It was, you know, whether DEP could
put certain conditions on a registration.
And so in terms of that forever, you know, we don't dispute
that Concord could continue to register
under the provisions of that act.
But you know what our theory of the case here is is
that under the 1884 Act, we have a superior right
that's specific to this situation.
It sounds an ownership and different
from the type of regulatory regulation of withdrawals
and that is superior.
It does not, you know, it is not repugnant to the notion
that one would register an existing withdrawal
the sole purpose being to distinguish it
from a new withdrawal
which might need a permit or have conditions.
You know, that really, if you scour the text
of the Water Management Act is the singular purpose.
-: But so forever in your view meant forever
unless someone with a superior property right brings
an action to reduce your water amounts?
-: Well, I think that would be one instance.
I mean, again, if I own a parcel of land that abuts
yours, Justice Kafker, and you have some sort
of property interest to use water on my land
but there's some trigger that allows me to take it back.
I would be upset to have learned
if we had done that before the Water Management Act
that the legislature somehow cut off my rights simply
because you registered your withdrawals.
And, you know, again,
because the Water Management Act covers
both these types of special statutes,
but also private interests,
we sort of need a principle that cuts across both.
-: So tell me, and it's back to my original question.
So how would we, how do you proceed then?
So you go get your order
from the superior court saying, you have a superior right.
Do you ask them to then transfer
the registered amounts of water to you?
What do you do under the W,
'cause you have to deal with the fact
that they have rights under the WMA and you don't yet.
So how do we do this?
How do we take their registered water rights
and give it to you?
-: Well, I think the first thing we need to do is
actually go to DEP.
We need to do the taking
and we need to go to DEP to figure out, you know,
if we're gonna get a Water Management Act permit,
what that's gonna look like.
And part of the problem
with saying there's an implied repeal based
on a registration is that that's based
on some underlying facts that might change.
You know, for example, one could find out tomorrow
that the safe yield of the pond is actually higher
than it is and there's enough water for both of us,
but if we hold that there is an implied repeal today,
they simply on what's being done now,
we would actually cut off any right
of Littleton or Acton to access that water
through a permit in the future
which wouldn't present any conflict.
You know, but in any event we would go to that,
and I think, you know, our first path there would be to see
if there is some avenue through DEP to do that,
and DEP hasn't weighed in on that.
We don't know what they'd say, because that's a little bit
beyond the implied repeal issue in this case.
You know, I know it's always the first thing
that everyone's interested in
because we're trying to conceptually figure out
how this process works,
but we don't know how they're gonna deal with that.
Now, if that didn't yield the result we needed,
then ultimately, you know,
we have a common law interest in property.
And so if that withdrawal that Concord is making,
whether it's authorized by a registration
or anything else, interferes
with the use of our property which is superior,
you know, we believe we could go
to a court to vindicate that right.
It might be through an injunction or something else
that wouldn't displace the registration.
You know, the registration doesn't go away,
but it may mean that Concord simply can't withdraw
to the level of its registration,
that it need give way to our permits.
And, you know, in an interesting way
it almost serves the purposes
of the Water Management Act better
because if you look at that history, you know,
what we're really trying to do is subject
as many of these withdrawals as we can
to DEP's management, to its conditions,
to its conservation restrictions.
Under a permit, we would have to abide
by more of those conditions
and more of those restrictions than a registrant would.
And so to the extent there's an 1884 Act
or a property interest out there
that stops Concord independently
from withdrawing to the level of its registration,
you know, which in the private context could
certainly happen if you had two property owners,
one of whom had some property right,
to restrict a withdrawal not withstanding a registration,
you know, that could actually end up being better
from a water conservation standpoint
than what's happening now.
-: I'm gonna ask if Justice Kafker's had question answered.
Okay, let's move on to Attorney Roelofs.
-: Thank you, good morning.
May it please the court, I would like to follow up
on the questions that were presented.
First of all, there's a few distinctions
that I think need to be understood.
One is with respect to a taking versus a withdrawal
or a stripping of rights from Concord.
If Littleton enacted and proceeded to take
property rights pursuant to the 1884 Act,
the taking itself is of property rights
that would then be coincidental or common with Concord.
That action itself does nothing
to deprive Concord of anything that it has.
In order to then withdraw water from Nagog Pond,
any withdrawal has to comply
with the Water Management Act and large withdrawals would
require a permit from DEP.
That process would be
a lengthy comprehensive review process.
One of the issues, among many there, would be
the safe yield of the watershed
and the basin that the pond is in.
It has not been established that Concord is
withdrawing 100% of the capacity of Nagog Pond.
-: These are sort of a lot of what ifs issues.
We got to decide, sort of, you know
whether there's repugnancy here first, don't we?
And I guess didn't the land court judge go
a little too far here
because you need that 1884 Act too right?
'Cause without that 1884 Act,
you're like Justice Cypher and I just taking water
out of that pond without any rights, right?
So you need part of that act
to still be in place too, correct?
-: Yes, that is correct.
Acton and Littleton are aligned in that regard.
Acton's needs aren't so eminent as Littleton's, but yes.
It's a vital part of our...
-: So the land court judge wipes out
all of these special acts, right?
But we can't do that nor do you want us to do that, right?
'Cause then you're left without any property rights
in that pond, correct?
-: That is correct.
And related to that issue, I'd point out that
under section 11 of the act, which hasn't gotten any focus,
the Commonwealth itself reserved,
the Commonwealth reserved to itself
rights in Nagog Pond,
so I just ask the question
if Acton's and Littleton's rights under section 10 are
invalidated judicially here does that pronouncement
also invalidate the Commonwealth's reserved rights?
-: Okay, but so let's start focusing on the problem then.
So we clearly have
only a partial repugnancy here issue, right?
We need to have
underlying property rights established, right?
If you had only a short-term lease to this,
I guess that's, I get confused.
Okay, say you had a leasehold right to this water
for 10 years and they gave you a registered right.
Would that expire?
I'm trying to understand how much of the act is repugnant
to what we've got and how much isn't,
but they're clearly,
we've got some problems here
'cause it's not an all or nothing issue.
It's not either totally not repugnant
nor is it totally repugnant.
So I'm trying to sort this out in my head.
So can they force the transfer
of your registered rights under the act?
Does the act have a transfer process?
-: Justice Kafker, so I'm sorry,
I represent the town of Acton, right,
-: Okay, sorry, okay.
-: And my interests and Acton's interests are aligned
with Littleton, but you're correct
that the registration that Concord secured,
if Concord were acting under a 20 year lease term
and that term happened to coincide
with the registration period,
Concord went forward and obtained registration status,
securing that status would not somehow
expand the lease term.
It does not expand its property rights.
And in terms of the repugnancy issue, you're correct.
It's only in certain scenarios
where there's an apparent conflict
between the objectives of the Water Management Act
and, you know, the allocation issues.
There are scenarios that might play out
where there is no conflict at all.
In fact, I think the greater conflict.
-: Well, we have a scenario which is
that you're both competing for the water,
the problem is I thought you were,
I didn't realize we were dealing with Acton next,
so I'll save some of these questions for Mr. Durning.
-: Okay.
-: But again, how does it transfer?
So you want, do you have to transfer?
Say there's not enough water here.
Can you force the transfer
of Concord's rights under the WMA?
Do you have the capacity?
'Cause they have rights right now.
How many years left on their registration,
a number of years.
And if there's not a safe yield, do you have the right
to transfer that under the statute?
-: I don't think it's actually a transfer
that would come into play there.
And there's a number of assumptions that were made
in your questioning there.
The safe yield question is something that would be part
of the DEP review process.
It has not yet been established and it changes over time.
Number two, with respect to, neither a taking
nor securing of a Water Management Act permit
by Littleton or Acton would require a transfer
of the registration rights from Concord.
Only if DEP ultimately concluded
that there wasn't sufficient water to serve all needs,
and if DEP then were in a position of issuing a permit
that would require Concord to reduce its withdrawals,
that decision wouldn't be based
upon a sort of deflating of the registration right,
it's just an acknowledgement of the constraints
on Concord's statutory rights
just like in the lease scenario.
So if during a Water Management Act permit proceeding
Concord's 20 year lease expired,
DEP could more readily issue
a Water Management Permit to Acton or Littleton
because Concord's statutory rights no longer exist
so those withdrawals can no longer happen.
The priority there is based upon the statutory interest,
not a stripping of regulatory rights
or reallocation of regulatory rights.
-: But isn't your position,
basically the allocation of water is
all gonna be based on a hundred different special acts then.
The prioritization of who can take what won't be done
by DEP, it'll be done
by the legislature in 1894, 1906 or 1937.
And we're gonna have to sort out prioritization
through a hundred different special acts.
Is that really what the Commonwealth wanted to
have happen when they passed this comprehensive act?
-: No, what the Commonwealth wanted was
for DEP to take the lead in these allocations.
And so with respect
to all these special act property rights,
if there are competing users that have statutory rights,
because they're subject to the regulatory framework,
it's not enough to have a statutory right
to be able to access a certain water source.
You need to go to DEP
and also get their permission to do it.
So DEP does have the regulatory control and ability
to constrain withdrawals
even if the underlying property rights would
allow for larger withdrawals.
This really should, by asking this court
to reverse the land court judgment,
we're asking the court to allow
the Water Management Act program to play out.
By stripping Littleton and Acton of their rights
under the 1884 Act, you're essentially allocating 100%
of Nagog Pond to Concord by way of a judicial pronouncement
with no involvement whatsoever by DEP.
So we're asking the court to protect the statutory rights
and allow the Water Management Act process to then play out.
-: Okay, thank you.
-: Let's move on to Attorney Durning.
-: Thank you very much.
May it please the court, I'm Attorney Peter Durning.
I represent the appellee, the town of Concord.
10 years ago based primarily on the definition
of an existing withdrawal and section two
and the plain language in section five regarding
registrations and their renewals.
In Water Department of FairHaven versus DEP
the court concluded that the Water Management Act guarantees
that any registrant that registered its existing withdrawal
and timely renewed its registration may continue forever
to withdraw water at a rate of its existing withdrawal.
I think in the dialogue that we've had
so far this morning that important concept
that the Water Management Act instilled
this new comprehensive system was deliberately constructed.
And I think it's important to note
that while there's been some discussion
of Littleton and Acton's rights under the 1884 Act,
the language of section 10 says that nothing herein
in this act shall constrain Littleton and Acton,
but it also notes that they must
hereafter be authorized to take.
They have not so been authorized to take,
and I believe in earlier submissions
they acknowledged that such a authorization would
need to come through Mass DEP
in the Water Management Act process.
And I think that's where we get to the repugnancy.
-: I don't think they're gonna argue that.
They're gonna argue that you, by the way,
we do have to cut back
with the land court debt, right?
'Cause you need this special act yourself, right?
You don't have any property rights in this or do you?
-: I think we do insofar as the act was adopted in 1884,
some time passed, but in 1909, Concord actually took
the rights and registered its rights.
Not registered its rights,
it registered its eminent domain taking
in the registry of deeds.
-: Wouldn't all those be wiped out under your theory
by the WMA too, because they're all...
if the WMA is as comprehensive as you say it is
doesn't that mean everything else doesn't matter?
That DEP and the WMA exclusively control water
and its allocation, and none of these property rights
that pre-existed it have any meaning,
that can't be correct, can it?
-: I can concede that, your Honor,
and I do think that for the purpose of this analysis
and the resolution of this matter,
Judge Robert's finding of repugnancy
with respect to the 1884 Act,
to the Water Management Act would resolve the issue.
And I would note in...
-: But we've got, I guess we've got to deal
with hundreds of these special acts too.
So our decision, I take it, you want us
to have a limited repugnancy finding here,
that the priority provision in the 1884 Act is
repugnant to the WMA
particularly in that it's inconsistent
with the registration that gives you the right
to this water forever, as long as you renew.
Is that the holding you want at least?
-: I would agree with that, your Honor.
-: Okay, so then I'm trying to understand their property,
what does it mean for them if the statute stays in place
somewhat and they have a superior right of some kind,
I mean, if they have
a superior property right is it meaningless?
For example, if this were just a lease,
if Concord had only had a leasehold right
to this property until 2020
and that lease expired but the registration continued would
you still have the right to that water forever?
-: It is a curious hypothetical, your Honor,
and I don't think that the Water Management Act contemplated
that scenario playing out of a leasehold interest,
but I do think it points to your earlier question
to Littleton, and that is that there is no mechanism
within the act for the transfer
that Littleton and Acton would be advocating for.
-: So there's no transfer,
no ability to transfer rights under the act?
-: There's no mechanism for a permit holder
to demand a share of the registrant's holding.
There's no authority given to DEP to direct that outcome.
-: There's CMR-3608 and 3609.
What do those do?
Are those transfer provisions?
What are those provisions?
-: They are, but they're not self-actuating
and they're not mandatory.
And I would say that under the operation of the goals
of the Water Management Act at establishing registrations
that the registrant holder, nothing compels them
to transfer registration rights out.
-: Mr. Durning, your position may be right,
but it's sort of remarkable.
Number one, you're saying, okay,
we're gonna take implied repeal here
when the legislature knows how to repeal a statute
if it wants to repeal a statute.
And the result of the implied repeal is
that two municipalities that adjoin upon are,
at best inferior to your rights.
And here you are not adjoining the pond,
and you're saying that this statute changed property rights.
That's sort of a remarkable position.
-: There are other instances like this in the Commonwealth,
your Honor, and I don't find it all that remarkable.
Certainly the water supply for the city of Cambridge,
Taunton, and New Bedford, which are referenced
in these materials are similar to the right
that Concord exercises over Nagog Pond.
But I do think, remarkable as it is,
I do think that's what the general court was
setting out to do.
It was recognizing that
in ushering in the Water Management Act
there was going to need to be some realignment,
and with the additional constraints
that were going to be put on permit holders,
the compromise that they reached
in that legislative bargain was
to establish that concept of existing withdrawals
and to protect those rights under registrations.
-: So they contemplated that Littleton, right, right,
having half the pond, it's right there,
right in the town.
They don't have enough water.
They can't use this pond
if Concord isn't going to be able to satisfy its needs,
and we have a clear indication
of repeal or repugnancy in that circumstance
despite the fact that the legislature has referenced
and dealt with special legislation subsequent
to the passage of the Water Management Act.
-: Right, to that, your Honor,
I would say, as we acknowledge in our brief,
that to the extent the legislature amended some
of those prior special acts,
it was only as to issues
that did not involve water withdrawals.
And as we note in footnote seven, our recommendation is
that the former act only ceased to be operative so far
as they're clearly inconsistent with the new act.
But I think as our discussion went earlier,
in order for the Commonwealth to set forward
this new framework that would allow DEP to operate
to control water rights and water withdrawals
throughout the Commonwealth as a single hydrologic system,
they needed to establish a baseline
of how water rights were exercised
and then to modify those going forward.
And yes, and in that legislative bargain
there were certain holders,
certain existing withdrawals that did obtain some preference
by the creation of registrations.
The creation of registrations in section five
of the Water Management Act is significant,
perhaps even remarkable,
but the intention was to allow
those existing withdrawals to be so protected.
And I think the FairHaven case bears that out
in its analysis and its conclusion that because
of the nature of the legislative history of this act,
the time in which it was conceived
coming out of the droughts of the 1960s,
that it really was an ambitious plan
that they were putting forward.
-: So doesn't Fairhaven, at least as it relates
to its holdings, just deal with whether or not
DEP can impose conditions concerning conservation
without existing regulations?
I don't see Fairhaven
as some big statement resolving this complexity.
-: I agree, your Honor, that it was focused on that issue
of the ability of DEP to impose new restrictions
on registration renewals,
but I believe that the discussion of the significance
of section five is material to this action.
And as the, I believe it's in footnote four
and the structure of the act itself, the only thing
that FairHaven recognizes and that the statute allows
that can restrict a registration is the declaration
of a state of water emergency in the Commonwealth.
There's nothing written into the structure of the act
that would provide the backdoor allowance
for the holder of a prior special water right
to obtain a section of a registrant's withdrawal
which the legislature could have done,
and the regulations could have provided for that mechanism.
Neither the statute, nor the regulations provide that.
-: If Justice Lowy is satisfied,
in the course of your research
when you were looking at the passage of the WMA
and the regulations that that then were enacted,
in any of that did you see any legislative history
or history or discussion of the regulations
that referred back to the 1884 Act?
-: To the 1884 act specifically, no, your Honor.
-: Okay, thanks.
-: Can I, how does this,
but I'm just trying to get a sense of you both realize
that some of the 1884 Act has to survive.
So Acton and Littleton take the property,
which they'll do if we allow them to do it.
They take, they exercise their right,
and then we have both this 1884 Act and the WMA in play.
They're gonna argue their rights are superior.
You're gonna argue that you have this registered right.
Do you agree that they could go
to DEP and try to get permitted?
Or they certainly can take
their hundred thousand gallons, right, without any problem?
I'm just trying to figure out
what they can do under your scenario.
Can they take their hundred thousand?
-: Arguably, yes, they can take their 100,000, your Honor.
-: And can they go seek a permit
as long as it's not inconsistent with your registered water?
-: They could attempt to do that, your Honor.
-: Okay, so they can, so if we're a court
how would we decide that issue?
Say there's safe yield potential here.
Can they get a permit
as long as they don't violate your safe yield?
-: If there was a permit that they could obtain
that didn't violate our safe yield that could proceed.
As long as our registration was secured
we're not giving them any priority right, your Honor.
-: So the only repugnancy is if their permit would
require you to lose your registration, right?
That's the only repugnancy really in play under your view?
The land court finds all the special acts repugnant,
but I don't think any of you want us to wipe out
all the special act, including Concord, right?
-: It is repugnant insofar as it would take away
from Concord's registration, your Honor, I agree with that.
-: So the only issue that's,
the prioritization is the repugnancy.
-: That's right, and I believe that Justice Roberts found
that in her decision as well,
that it's the priority element of 1884 that is repugnant.
-: So we could write a decision that's narrow
that says these type of statutes
that define prioritization of use are
inconsistent with the WMA
which defines its own way of prioritizing, right?
-: I would agree with that, your Honor.
-: And that could be all we need to decide here.
Is that correct?
-: I agree with that.
-: Okay.
-: You're all set?
-: Yes, thank you, your Honor.
-: Thank you, counsel.