Laserfiche WebLink
separate obligations, the first of which applies expressly to <br />any diversion that is not necessary for application to a <br />beneficial use. Any statutory construction imputing to this <br />duty the further condition of material injury would make it <br />indistinguishable from the second obligation and effectively <br />read it out of the statute. <br />The CBM process therefore does not escape administration by <br />the engineers, whether it amounts to a beneficial use of the <br />extracted water or not. The question of beneficial use goes <br />only to the producer's right to have a permitted well and to <br />augment (or do whatever else is necessary) to acquire sufficient <br />right to divert out of priority. Whether, or under what <br />circumstances, CBM producers may be entitled to permitted wells <br />(as distinguished from having their diversions curtailed <br />altogether) is not a matter of concern to the plaintiff <br />appropriators, whose right to a declaratory judgment is <br />contingent upon a realistic threat of injury to their rights. <br />While I would therefore not address the question of <br />beneficial use at all, I believe that in resolving the matter as <br />it has, the majority erroneously (and unnecessarily) ties the <br />hands of the legislature by suggesting that CBM producers have a <br />constitutional right to appropriations for this purpose. Of <br />even greater concern, it appears to me that the majority <br />interprets "beneficial use" so broadly as to encompass virtually <br />2 <br />