Fees piling up in Cyrus water case

The Keith Cyrus family may have lost an important battle in its war against the Squaw Creek Irrigation District.

Then again, maybe not.

In court again on Friday, September 7, the two sides argued over whether SCID had "converted" or taken Cyrus water when SCID shut off Cyrus irrigation in 1999.

The issue is important because if SCID "converted" Cyrus water, Keith Cyrus would be entitled to recover his legal fees. Matt Cyrus estimated those at about $150,000. SCID has spent close to $125,000 on this case.

The original dispute was over an assessment of approximately $2,000, according to Cyrus lawyer Michael Peterkin, plus claimed damages of about $4,500.

At the time SCID shut off Cyrus water, SCID Manager Marc Thalacker said Cyrus owed irrigation assessments. Cyrus claimed he owed nothing under a 1940 agreement with SCID.

The court restored the irrigation flow two months after it was shut off and ultimately ruled that Cyrus was correct, they were not to be charged under the 1940 agreement.

At issue on September 7 was water "lost" during the two month shutoff.

SCID says they took nothing. They simply did not divert Cyrus water and let it proceed down Squaw Creek, according to SCID lawyer Greg Lynch.

Cyrus lawyer Peterkin initially argued that letting the water "get away" was the equivalent under the law of "converting" the water, and further, that the district had "dominion and control" over the water. This was conversion, according to Peterkin.

"It is immaterial if (the water) went down the creek or to another user," Peterkin argued in court.

Judge Tiktin seemed skeptical, questioning Peterkin whether SCID had control just because the water "went into the (water works) and swirled around."

After recess, Peterkin seemed to amend his argument, saying he could prove the water was in fact diverted to other users. However, Cyrus had been denied SCID records that would prove his case, Peterkin said.

The judge faced a dilemma. He had agreed with SCID earlier in the year that the records were irrelevant and denied them to Cyrus. Now, the judge said, "they may be the most relevant records (in this part) of the case."

The judge indicated he felt that Peterkin had failed to show that evidence in the record proved that SCID had "converted" or taken Cyrus water.

Thalacker, manager of the Squaw Creek Irrigation District, claimed victory after Friday's hearing.

"The judge ruled that they hadn't proved conversion. As a result, the district is not liable for attorneys fees," Thalacker said.

"They will now go after records on diversion, which will show we were not diverting their water. If there was no diversion, there is no conversion. We would not be liable for their legal fees," said Thalacker.

Not so fast, according to lawyer Peterkin. It's unjust that SCID should now claim there's no evidence of conversion when SCID did not produce records that would prove whether or not diversion had occurred, Peterkin indicated.

Peterkin said he was directed by Judge Tiktin to file a brief as to whether SCID claims of insufficient evidence should be dismissed, or the trial reopened so evidence could be introduced.

SCID lawyer Greg Lynch disagrees.

"The judge ruled that Cyrus did not provide sufficient evidence of possession to support the conversion claim," said Lynch.

"Mr. Peterkin then made an oral motion to reopen the case to gather additional evidence. The judge gave him seven days to file a brief to support that oral motion," Lynch added.

Peterkin said he is certain the new evidence would show that Cyrus water was diverted.

Thalacker is equally certain he can prove it was not.

"I started (gathering) those records when Peterkin issued his second discovery request. We left the water in the stream," said Thalacker.

Since water does not come down Squaw Creek in labeled jars for each user, the issue may hinge on the priority of water rights and how water is distributed.

The parties return to court on September 17.