dissenting.
I join in the dissent of the Chief Justice and separately dissent, as well.
It appears to me that the majority has gone to extreme lengths to justify the remand of this case to the district court to join additional parties and carry on a full-blown trial to develop facts that are not in dispute or important at this juncture with parties either before the court or in my view unnecessary in this proceeding.
There is only one simple issue to be decided, and that was presented by the Husky Oil Company in its action for a declaratory judgment. Boiled down, it and the State are only asking the court: “Must Husky make application to the State of Wyoming for a permit to impound waters under the facts presented?”
I have no end of trouble trying to find, let alone determine upon what authority *271the majority arrive at their conclusion that the board of control is a necessary party. I find no legislative permission1 for that agency to sue or be sued in any type of ease. It must be pointed out that the title of the case before us is “Husky Oil Company, Plaintiff, v. The State of Wyoming, by and through George Christopulos, State Engineer of the State of Wyoming, and Robert Sundin, Director of the Department of Environmental Quality, Defendants.”
There is in particular no authority to sue individual state officers and boards or even the State under the Uniform Declaratory Judgments Act. It was held in Retail Clerks Local 187 AFL-CIO v. University of Wyoming, Wyo.1975, 531 P.2d 884, that there is no legislative consent to sue the State to be found in the Declaratory Judgments Act. In Hjorth Royalty Company v. Trustees of University of Wyoming, 1924, 30 Wyo. 309, 222 P. 9, this court declared that a suit against an officer or board of the state is an action against the state, which rule was confirmed in Retail Clerks.
This court likewise in Retail Clerks spoke with approval from Ex parte: In the Matter of State of New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057, that determining who are parties to a suit is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.
The State of Wyoming answered through the attorney general of Wyoming in the name of the State of Wyoming. He and his assistants are the only counsel authorized to represent the State, its officers and agencies. Section 9-125, W.S.1957, provides in pertinent part:
“The attorney general shall prosecute and defend all suits that may be instituted by or against the State of Wyoming, the prosecution and defense of which is not otherwise provided for by law, and he shall represent the state in all criminal cases in the supreme court, and shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state. He shall be required to attend to the interests of the state in all suits, actions or claims in which the state is or may become interested in either the supreme court of the state, or in any of the United States courts. * * * ”2
While the State probably could have raised the defense of immunity, it elected instead to remain in court and assume the role of aggressor. It has never been questioned that the State cannot enforce its laws in the courts of this state. This court held in Zweifel v. State ex rel. Brimmer, Wyo.1974, 517 P.2d 493, that § 9-132, W.S. 1957,3 authorizes the attorney general to go into any court in the state to prosecute any proceeding which is in his opinion in the best interest of the State.
The State of Wyoming, then, in responding to the plaintiff’s complaint, prayed as follows:
*272“1. That the Court determine and declare that Plaintiff’s plan to impound effluent waters which have historically been returned to Crow Creek is a change and expansion of use and the storage of a direct flow water right which is within the jurisdiction of the State Engineer and State Board of Control;
“2. That the Court determine and declare that the State Engineer and State Board of Control have primary jurisdiction of Plaintiff’s proposed impoundment and that the Court shall refrain from assuming jurisdiction of this action until the Plaintiff exhausts its administrative remedies;
“3. That the Court determine and declare that the Plaintiff’s failure to treat its effluent waters and continue its return flows to Crow Creek would be injurious to downstream appropriators and would violate Wyoming law;
“4. That the Court order Plaintiff to meet the requirements of its discharge permit by some means other than total impoundment and continue its return flows into Crow Creek for the use of downstream appropriators.” (Emphasis added.)
Paragraph 2 raises the only issue with which we should concern ourselves. The briefs indicate that to be the primary issue. The other paragraphs are shotgun approaches.
The whole matter was heard by the district court on the pleadings and various affidavits under motions for summary judgments filed by both Husky and the State of Wyoming. While the answer of the State was not denominated a counterclaim, it certainly can be, and I would construe it as such. Rule 8(c), W.R.C.P., provides in part that
“ * * * When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
Obviously, the whole attitude of the State in the proceeding articulates its insistence that Husky apply for a permit to impound water, before it proceeds with its plan to construct an evaporation basin. I would hold that the state board of control cannot be a party to the action and whatever interest it may have is only as a satellite of the State and its interests are present and represented in the proceeding, without designation as a party.
Before I can adequately discuss the absence of any requirement that the City of Cheyenne be joined and explain why it is not a necessary party, the factual situation should be further set out. The majority do not explain sufficiently how this case arose. While I have no dispute with the facts in the majority opinion as far as they go, I wish to enlarge and express them in my own way, and in connection therewith explain the applicable law.
For almost 30 years Husky has purchased, and still purchases, large quantities of treated water from the City of Cheyenne’s municipal water system for use in its Cheyenne refinery. During a typical period from July, 1975, to February, 1976, Husky purchased a monthly average of 49,062,000 gallons of water, consumed approximately two-thirds of this total in its refinery process, and discharged the remainder, 16,338,-750 gallons (50,142 acre-feet) per month into the channel of Crow Creek. This monthly discharge was and is used by downstream appropriators with priority dates ranging from March, 1888, to June 18, 1970.
As required by the Wyoming Environmental Quality Act, Husky requested and was issued a water discharge permit by the Wyoming Department of Environmental Quality. The permit allowed for the discharge of certain pollutants until July 1, 1977, after which time Husky was required by its terms to conform to more stringent pollutant standards, as adopted by the Wyoming Department of Environmental Quality from federal pollution standards. See § 35-502.19, W.S.1957, 1975 Cum.Supp. and §§ 4(a)(1) and 9, Chapter II, Wyoming Water Quality Rules and Regulations. In order to comply with such pollution-control *273requirements, Husky agreed with the Department of Environmental Quality to construct facilities to transport, store, impound, reuse, recycle and otherwise utilize its refinery effluent without direct discharge into Crow Creek. The foregoing transaction took place between Husky and personnel of the State Department of Environmental Quality without any consultation with, knowledge of or reference to the state engineer.4 Section 35-502.9(a)(ii) requires consultation and cooperation between the Director of the Department of Environmental Quality and other agencies of the State. We were informed during oral argument that this lack of communication in water quality matters has since been corrected.
It is undisputed that the Department of Environmental Quality, in administering the Environmental Quality Act, did not and does not require Husky to adopt a system of total impoundment. What there appears to be here is a simple case of failure of a state agency and a water user, at the time the impoundment was approved, to even think about or consider the interests of others who might be affected. In response to the state engineer’s assertion of permit jurisdiction over this project, Husky initiated in the district court an action praying for declaratory relief that the state engineer had no jurisdiction to require a permit for the proposed refinery waste impoundment, and in the alternative, that § 35-502.18, W.S.1957, 1975 Cum.Supp.,5 of the Wyoming Environmental Quality Act was unconstitutional. Intervenors, as downstream surface and groundwater appropriators, alleging injury if the impoundment reservoir is constructed, were then permitted to intervene. Following delineation of the issues by pleadings, Husky and the State of Wyoming moved for summary judgment. In granting Husky’s motion, the district court concluded that the state engineer did not have the jurisdiction asserted and that downstream appropriators had no claim. No ruling was made on the constitutionality of § 35-502.18, the question not having been raised nor argued at the summary judgment hearing. This appeal immediately followed.
The basic question presented concerns whether or not the state board of control, and thereby the state engineer, has any permit jurisdiction over Husky’s proposed impoundment of its refinery effluent. As noted by all parties presenting briefs — the State, Husky and amicus curiae, City of Cheyenne — a finding of permit jurisdiction for the state engineer and board of control must be predicated upon constitutional grounds, implemented by statutory authority, most logically either the storage-facility permit statute, § 41-29.1, W.S.1957, 1975 Cum.Supp.,6 or the change-in-use statute, *274§ 41-4.1, W.S.1957, 1975 Cum.Supp.7 Of these two statutes, I believe the change-in-use, hereinafter referred to as “change” statute, provides the better basis. The storage-facility statute, by its provisions, deals only with storage of direct flow water rights, a situation somewhat different from the one at bar, though some direct flow water is involved. The water here has its source from wells and a pipeline from another watershed, mingled in reservoirs west of the City of Cheyenne, thereafter treated and distributed through the City’s system and ultimately acquired under contract by Husky. Husky has elected impoundment of polluted water issuing from its industrial facility, rather than a cleaning-up process and discharge back into the creek. There is no direct flow storage, except very indirectly-
By constitutional charge, all natural waters within the boundaries of Wyoming are considered to be the property of the State. Section 1, Article VIII, Wyoming Constitution. Yet, this ownership by the State has been found subject to a specific trust, well summarized from Wyoming precedent in Mitchell Irr. Dist. v. Sharp, 10 Cir. 1941,121 F.2d 964, 967, cert. den. Sharp v. Mitchell, 314 U.S. 667, 62 S.Ct. 129, 86 L.Ed. 534:
“The title to water in the natural streams in Wyoming is in the state but the water is subject to withdrawal for application to irrigation or other beneficial use. In other words, the water is owned by the state subject to appropriation for beneficial use. It has been said that the ownership of the state is subject to a particular trust — the trust being the right of appropriation for beneficial use. Willey v. Decker, 11 Wyo. 496, 73 P. 210, 100 Am. St.Rep. 939. * * * The state owns title to the water running in the stream, except as it may from time to time be lawfully diverted for application to authorized beneficial use, while the right of the appropriator attaches not to the water while running in the natural channel but to the use of a limited quantity thereof for beneficial use, in pursuance of an appropriation perfected and continued in compliance with the requirements of law. Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 50 L.R.A. 747, 87 Am.St.Rep. 918.” (Emphasis added.)
See also Lake De Smet Reservoir Company v. Kaufmann, 1956, 75 Wyo. 87, 292 P.2d 482, where it was wisely said in dealing with water, we cannot ignore the public interest and the relative rights to beneficial use in a regulated manner.8
*275The concept of beneficial use may thus be characterized as the ultimate foundation and measure of every water right held under the priority appropriation system prevailing in this and other arid states. Budd v. Bishop, Wyo.1975, 543 P.2d 368, 373; Lincoln Land Co. v. Davis, U.S.D.C.Wyo.1939, 27 F.Supp. 1006, 1008; McNaughton v. Eaton, 1952, 121 Utah 394, 242 P.2d 570. In Wyoming, its application and supervision, by constitutional provision, is entrusted to the board of control and the state engineer. Sections 2 and 5, Article VIII, Wyoming Constitution.
However, water is a valuable resource of this state and when beneficial uses are in conflict, one must bow to the other. A significant Wyoming constitutional provision, separate from Article VIII, bears on that subject. Section 31, Article I:
“Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved.”
In the case before the court are the interests of Husky’s industry, the agricultural interests downstream and environmental considerations, all of which have been and are of legislative concern and ours. We must draw a balance in use of this valuable resource. As pointed up in Bower v. Big Horn Canal Association, 1957, 77 Wyo. 80, 307 P.2d 593, 599-600, water must be subjected to the largest practicable use and beneficial uses and the prevention of wastage are major factors in determining who shall have the right to utilize water. Bower only held that as long as there was waste water, it could be put to use by a junior appropriator but the junior appropriator could not compel the continuance of waste, where the waste could be put to beneficial use through improved irrigation methods by the senior appropriator.
I am not contemplating the type of water waste considered in Binning v. Miller, 1940, 55 Wyo. 451, 102 P.2d 54, where seepage water of a prior appropriator was captured; the court there only held that a person could not appropriate a permanent right to such seepage because of the possibility that a better way of utilization, without waste and seepage, could occur and one cannot compel another to continue waste.
Husky is not proposing a better way to utilize the water by recycling but plans to run it into a basin for evaporation, which will serve no industrial use in the actual refining process. It only represents one way of satisfying environmental requirements for eliminating the discharge of polluted effluents, resulting from refinery procedures. The key fact in the disposition of the problem before us is that evaporation is not the only solution, as pointed out by unresisted affidavit. We do not have the details of how the water may be otherwise rescued but that is a matter for the technical skill of others. It is the presently existing fact, giving the state engineer and state board of control, jurisdiction, under their supervisory powers, because the water, after industrial use, would normally be restored to the control of the State, as it historically has been.
It is basic in this state that an appropriator cannot acquire a right that permits him to use more water than is reasonably necessary for beneficial purposes. Quinn v. John Whitaker Ranch Co., 1939, 54 Wyo. 367, 92 P.2d 568; Farm Investment Company v. Carpenter, 1900, 9 Wyo. 110, 61 P. 258, 50 L.R.A. 747, 87 Am.St.Rep. 918. The problem of the case before the court arose over a half-century ago in Pulaski Irr. Ditch Co. v. City of Trinidad, 1922, 70 Colo. 565, 203 P. 681, where Trinidad undertook to purify its sewage. The issue was whether the City could sell the water left after purification, for agricultural purposes, or whether that remainder must go downstream to prior appropriators, who had been using left-over water from a previous system of sewage disposal. An argument was made, in favor of selling, that once the City took possession, it had a right to destroy the water and *276might have disposed of its sewage by evaporating it away.9 The court decided that the right to destroy water by evaporation can only exist when there is no other practical method of sewage disposal. The court held that the water did not belong to the City to sell, under the circumstances there.
As was said in Wyoming Hereford Ranch v. Hammond Packing Co., 1925, 33 Wyo. 14, 236 P. 764:
“ * * * when waters have been used to the full extent intended by the appropriation, the quantity unconsumed and returned to the stream is then a part of the waters of the state.”
The court made it clear that nothing in Wyoming precedent10 should be taken “as establishing any principle that would authorize the city [Cheyenne] to control the rights of subsequent appropriators from a stream [Crow Creek] to which the city returns waters that have served the purpose of the appropriation by the city.” The court then went on to explain that once the City’s right to the beneficial use has been enjoyed and the water returned to the stream, it is subject to beneficial use by other appropriators, under state control.
One manner in which the state engineer and the state board of control fulfill their supervisory duty and control over beneficial use in the appropriation system is to require permit approval before the use of validly acquired water rights can be changed. Section 41-4.1. This required approval insures not only that the use will remain beneficial after the proposed change, but also that the proposed change itself will not adversely affect other valid appropriators from the same water source. The problem that arises is that although the statute designates specific factors to be considered, as, for instance, historic diversion, historic consumptive use, historic return flows, § 41-4.-1(a), it does not designate what specific manner of change is to be covered. Nevertheless, in light of the clear, dual purposes of the statute, one, to protect from injury the vested rights of other valid appropriators and, two, supervision of continued beneficial use, it should be readily apparent that any change of whatever character, which brings into question either of these two areas, should be covered.
In the litigation now before the court, the asserted change in question can be likened more to an enlargement of use rather than the traditionally accepted notion of change from one specific use to another. In any event, the water right use as changed in that respect, will be evaporated for pollution control, a new — “another use”. Yet, even such enlargements of use have been recognized as changes sufficient to bring under scrutiny the question of beneficial use as well as the rights of other appropriators. It was explained in East Bench Irr. Co. v. Deseret Irr. Co., 1954, 2 Utah 2d 170, 271 P.2d 449, 455, that:
“ * * * Such a change would enlarge the rights of the upper appropriators and impair the vested rights of the lower users because their rights were established on the basis that no such enlargement or changes of use would be made after the lower users had perfected their appropriation, and this is true of storage as well as direct flow waters.” (Emphasis added.)
Then, in City of Westminster v. Church, 1968, 167 Colo. 1, 445 P.2d 52, 55:
“ * * * Where an owner of decreed rights, after obtaining a decree permitting a change in point of diversion, enlarges or attempts to enlarge the use of his water rights to the injury of other appropriators, the permissive decree does not bar relief to the latter. Dry Creek No. 2 Ditch Co. v. Coal Ridge Ditch Co., 109 Colo. 556, 129 P.2d 292; New Cache La Poudre Irrigating Co. v. Water Supply *277& Storage Co., 74 Colo. 1, 218 P. 739.” (Emphasis added.)
The facts before the court in that respect have raised a new question, so in citing and quoting from the above cases, I do so only for the purpose of setting out principles. Those cases, I realize, do not present the interplay between environmental demands upon and beneficial use of water nor do they present the question of substantial water waste by one not an appropriator but as an industry having a preferred water right. Again, there is a question for the board of control, not at this time a question to be decided by the courts.
What is a water right? That is an important consideration in this case because § 41 — 4.1 (set out in full in footnote 7 of this dissent), which I would hold requires Husky to file an application for a change of use with the state engineer for consideration by the state board of control, provides in part that “[W]hen an owner of a water right wishes to change a* water right from its present use to another use, * * * he shall file a petition requesting permission to make such a change. * * * ”
A “water right” is defined by § 41-2, W.S.1957, as follows:
“A water right is a right to use the water of the state, when such use has been acquired by the beneficial application of water under the laws of the state relating thereto, and in conformity with, the rules and regulations dependent thereon. Beneficial use shall be the basis, the measure and limit of the right to use water at all times, not exceeding the statutory limit except as provided by section 122-117 Revised Statutes of Wyoming, 1931, as amended by chapter 105, section 1, Session Laws of Wyoming, 1935 [§ 41-181], Water being always the property of the state, rights to its use shall attach to the land for irrigation, or to such other purposes or object for which acquired in accordance with the beneficial use made for which the right receives public recognition, under the law and the administration provided thereby. Water rights for the direct use of the natural unstored flow of any stream cannot be detached from the lands, place or purpose for which they are acquired, except as provided in sections 122-402 [§ 41-3] and 122-403 [§ 41-4], Revised Statutes of Wyoming, 1931, pertaining to a change to preferred use, and except as provided in section 1 of this act [§ 41-213].” (Emphasis added.)
It should be noted that not once in that section is the word “appropriation” used.
Husky has a water right by reason of § 41-3, as follows:
“ Water rights are hereby defined as follows, according to use: Preferred uses shall include rights for domestic and transportation purposes, steam power plants, and industrial purposes; existing rights not preferred, may be condemned to supply water for such preferred uses in accordance with the provisions of the law relating to condemnation of property for public and semi-public purposes except as hereinafter provided. Preferred water uses shall have preference rights in the following order: First — Water for drinking purposes for both man and beast; Second — Water for municipal purposes; Third — Water for the use of steam engines and for general railway use, water for culinary, laundry, bathing, refrigerating (including the manufacture of ice), for steam and hot water heating plants, and steam power plants; and Fourth— Industrial purposes. The use of water for irrigation shall be superior and preferred to any use where water turbines or impulse water wheels are installed for power purposes; provided, however, that the preferred use of steam power plants and industrial purposes herein granted shall not be construed to give the right of condemnation.” (Emphasis added.)
Again, please note that the words “appropriation” or “appropriator” are not once mentioned. Husky, by acquisition of water through the City, therefore, is satisfying its “water right” for industrial purposes, subject to the administrative requirement that a permit be obtained for impoundment under the provisions of § 41-4.1. The latter *278section fits like the proverbial glove. The City only has an appropriation; Husky has the water right.
An “appropriation” of water and a water right are not necessarily synonymous. This court has held that the act of appropriation may be undertaken by someone other than the person who possesses the water and puts it to beneficial use. In Scherck v. Nichols, 1939, 55 Wyo. 4, 95 P.2d 74, the court was interpreting what is now § 41-201, W.S.1957, setting out the procedure for applying for a permit to make an appropriation. This court there held that the applicant for an appropriation need not be the user, the only requirement being that the water be put to beneficial use and not diverted to “idle purposes”. The court spoke approvingly of Colorado precedent in which the applicant for a permit for a water right was only an intermediate agent for the ultimate user of the water. I am satisfied that this court in Scherck dispels any concept that there is any magic in the City being the nominal appropriator of water for the use of others. Scherck pointed out that the statutes of this state place the main stress on the “beneficial use” of water. Scherck compared the acquisition of a water right by one for the benefit of another to contract with one for the benefit of another not a party to the contract.
It can further be said with respect to the role of the City as an appropriator that its water right is by § 41-3, limited to “municipal purposes.” I visualize those to be by way of example, not exclusively: fire protection, street and sewer flushing, a supply of water for use in its public buildings, etc. It is a matter of convenience that it provides an appropriation of water and distribution system to satisfy the individual water rights of others; drinking for “man and beast”; “culinary” and “bathing” for householders and; “industrial” for those business concerns not having a source except through the City’s system. These views are not original with me. This court said in Johnston v. Little Horse Creek Irrigating Co., 1904, 13 Wyo. 208, 233, 79 P. 22, 26, 70 L.R.A. 341, 110 Am.St.Rep. 986:
“ * * * The appropriator secured a property right. A portion of that right it sold to be beneficially applied to other lands. It sold, not water, but the right to use water; in other words, a water right.”
The City, as a distributor of water, is a public utility, § 37-l(e) providing, amongst other categories, designated “public utilities,” “Any plant, property or facility for the supply, storage, distribution or furnishing to or for the public of water for manufacturing, municipal, agriculture or domestic uses;”. The municipality, acting as a utility, is authorized by the legislature to contract for the furnishing of water for industrial use by § 15.1 — 470, W.S.1957, C.1965, which provides:
“Any city or town may contract to furnish water at and adjacent to the city or town for a term of years as agreed upon, to any railroad company for use in its shops, locomotives, and other railroad purposes, and to any subsidiary or affiliate of any such railroad company whose principal business at or adjacent to the city or town is the furnishing of material or service, or both, to the railroad company, and to any industrial user of water whose principal needs for water, at or adjacent to the city or town, are defined as preferred uses or [of] water after the industry or industries has established its own priority.” (Emphasis added.)
That statutory section cinches any question that Husky’s water right is a municipal water right. Husky must establish its own priority for industrial use, separate and apart from that of the City. I conclude ever so clearly that Husky has a direct obligation to the board of control with respect to its water right.
What Husky proposes here is an expansion of water utilization from its historical use under its industrial priority in the refining process alone to something more, to not only use in the refining process but to use in large-scale pollution abatement, as well. Tied up with this proposed-use-enlargement are innumerable possibilities which could affect not only such conditions as historic *279consumption and historic return flows but also the vested rights of junior appropriators to a continuation of historic stream conditions. It is well established that junior appropriators have vested rights in a continuation of stream conditions existing at the time of their appropriations and they may successfully resist proposed changes in points of diversion and use which in any way materially affect their rights. Farmers Highline Canal & Reservoir Co. v. City of Golden, 1954, 129 Colo. 575, 272 P.2d 629.11 That case also stands for the principle there expressed that a prior appropriator has no right as against a junior appropriator to use waste water.12
Actual physical possession of water does not give its appropriator nor its user, having a water right, the absolute, unqualified right to dispose of the water as he pleases. The use made must at all times fall within the outline of the shadow of beneficial use, for that is its limit as well as foundation. Budd v. Bishop, supra; Mitchell v. Sharp, supra; § 41-2, W.S.1957. Water appropriators and users do not live in a vacuum; their actions must be considered in light of the possible, foreseeable effects on other appropriators and those having water rights. Whether or not the change to “another use” — enlargement of use — proposed herein, falls within the shadow of beneficial use, as outlined by the numerous possible effects involved, is a decision the board of control has been mandated by the Wyoming Constitution and statute to make. Section 2, Article VIII, Wyoming Constitution; § 41-4.1, supra.
It is my view and I would hold that Husky must obtain two permits, one from the state board of control and the other from the Department of Environmental Quality. By legislative enactment, precious water must not only be fairly allocated and beneficially used but also must meet quality standards. The two concerned agencies of the State cannot each go its own way. The state engineer, in issuing a permit, must consider water quality. The Department of Environmental Quality must consider beneficial use and interests of downstream appropriators. I make no attempt to prescribe the mechanics of how those two important agencies of the state will carry out their mutual problems. Changes in their procedural regulations or even legislative changes may be required but it is not the function of a court to carry out those executive and legislative jobs.
In summary then, and in order that there be no misunderstanding, I would only hold that the state engineer and board of control have jurisdiction and that Husky, as one claiming an industrial water right, must apply for a permit, for consideration by the board of control. I would not hold that a permit must be granted nor, if issued, what its conditions must be. I have outlined the law only to bracket the only question and to point out that the undisputed facts and circumstances of this case compel activation of the supervisory powers of the board of control and the state engineer over the waters of the state before the water involved may be impounded. The situation herein has been created by historical actions and reliance, and a holding which did not consider such undisputed background would be judicially shortsighted. The backdrop of both facts and law, however, only serves the purpose of charting a course that requires acquisition of a permit by Husky from the board of control.
With those considerations in mind, I now move to the reasons why I dissent from the position taken by the majority that the case must be remanded to the district court for joinder of the City of Cheyenne and a full trial of the many issues the majority thinks the trial judge must consider. I consider it judicial wheel-spinning, without progress.
This court has specifically held, in a comparable case involving the City of Chey*280enne, that the City is not a necessary party to the ultimate disposition of waters that have served their municipal purpose. In Wyoming Hereford Ranch v. Hammond Packing Co., supra, it was contended that this court should not entertain an appeal because the City of Cheyenne had not been joined. The dispute in that case was between Wyoming Hereford Ranch, as a user of waters on Crow Creek, and Hammond Packing Company, which had entered into a contract with the City of Cheyenne to buy discharge sewage water for industrial purposes. The ranch contended that the waters became a part of the public water subject to appropriation and the packing company contended it had a right to the water from the City. This court decided that the question could be fully determined without bringing the City in as a party and a motion to dismiss on the ground that the City was a necessary party was denied. See also Wyoming Hereford Ranch v. Hammond Packing Co., 1924, 30 Wyo. 31, 222 P. 1027, a different phase in the same case, where there was a motion to dismiss filed before the case was considered by this court on its merits, because the City of Cheyenne was not joined in the appeal, though it had been a party below. This court said in that case that since the City’s appropriation of water for municipal purposes was in no wise affected, it did not appear to be a necessary party to the appeal. The court also noted that it was of significance that the City was not seeking to be made a party. The question was finally disposed of in the later 1925 appeal, as first here discussed.
Once the City allows under contract an industry the right to take water through the City’s distribution system under the industry’s own priority, it has exhausted one of the purposes of its appropriation. It has acted as far as it can. It never claimed any of the water diverted back into Crow Creek. It now has no objection to Husky evaporating any water left after its industrial use. Its appropriation is not in any wise affected. The disposal I suggest neither takes away nor gives the City anything of any sort.
The City’s only interest is expressed in the opening to its amicus brief, filed in this court, where it is stated as follows:
“The City, as Amicus, is chiefly concerned that this litigation might create a precedent which would be interpretted [sic] as a [sic] compelling the City to discharge its treated affluent [sic] water into Crow Creek and that it would not be able to sell such water to prospective industrial customers. Another concern is that this litigation might take away from the City its historic prerogative of selling its municipal water to its customers without interference from the State Engineer.”
Its brief tracks that of Husky and it neither suggests nor even hints of any additional claim to the water it has furnished Husky, under the latter’s own water right and which is the only subject matter of this action.
Section 1-1061 of the Declaratory Judgments Act, relied upon by the majority, says no more than our Rules 19 and 20, W.R.C.P., with respect to joinder of parties and should cast no more spell over us than those rules.
Rule 19(a) is almost in the same language as § 1 — 1061 which, in pertinent part, is as follows:
“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. * * ”
Rule 19 provides as follows:
“A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or *281otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. “(b) When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to service of process, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein does not affect the rights or liabilities of absent persons.
“(c) In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.”
Rule 20 is in the following language:
“(a) All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
“(b) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.”
Of particular interest in Rule 20 is sub-paragraph (b) and I am convinced that it is applicable here. 7 Wright & Miller, Federal Practice and Procedure: Civil, § 1660, is explanatory of the Federal Rules 19 and 20, identical to those of Wyoming of the same number. It is there said:
“The general philosophy of the joinder provisions of the federal rules is to allow virtually unlimited joinder at the pleading stage but to give the district court discretion to shape the trial to the necessities of the particular case. [Footnote omitted.] Rule 20(b) furthers this policy by giving the court authority to order separate trials or make any other order to prevent a party from being embarrassed, delayed, [Footnote omitted] prejudiced, or put to unnecessary expense by the join-der of a party against whom he asserts no claim and who asserts no claim against him * * (Emphasis added.)
There would be unnecessary delay and expense to all of the parties to this action to insist upon inclusion of the City, against whom the plaintiff makes no claim; the defendants make no claim against the City; the intervenors make no claim against the City; nor, is there any indication of any sort that the City has any claim against anyone. To, at this late date, require the addition of the City for the ultimate purpose of going through useless motions is wasteful of not only money but of legal and judicial time, as well.
To only hold that the state engineer and board of control have jurisdiction is as far as we must or need go would mean that *282when application is made by Husky for a permit under the provisions of § 41-4.1, the board would give notice of the public hearing, at which the City of Cheyenne could appear, and there would be considered all facts and law it considers pertinent, to include the following:
“(i) The economic loss to the community and the state if the use from which the right is transferred is discontinued;
“(ü) The extent to which such economic loss will be offset by the new use;
“(iii) Whether other sources of water are available for the new use.
“(b) In all cases where the matter of compensation is in dispute, the question of compensation shall be submitted to the proper district court for determination.”
It is an unconstitutional intrusion by this court upon the responsibility and function of the board of control to require the district court to consider any issue other than whether the board of control and the state engineer have jurisdiction. Section 2, Article VIII, Wyoming Constitution, bestows upon the board of control those initial determinations when it mandates:
“There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state.” (Emphasis added.)
The legislature has prescribed the regulations with respect to the “diversion” of the water from a historical use and requires any determinations in that regard to be made by the board of control. Section 41-4.1. We will have plenty of time in which to involve our judicial hand when we review that board’s action, if requested. Pri- or to that time, any determinations made are improper judicial interference and further a violation of § 1, Article II, Wyoming Constitution:
“The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
It was intended by the authors of our Constitution that the board of control settle matters such as that brought to our attention by this case. In Farm Investment Company v. Carpenter, 1899, 9 Wyo. 110, 61 P. 258, 50 L.R.A. 747, 87 Am.St.Rep. 918, Justice Potter, himself a member of the Constitutional Convention, quoted from the Journal and Debates of the Constitutional Convention for the State of Wyoming, p. 503, where it was said on the floor:
“When we appoint a board of control to manage this water system, that we say belongs to the state, let us give them authority to control it for the highest and best uses of the people of the state, and don’t fix that control by saying that appropriation shall settle the matter. Leave it to the board of control to say what equities enter into this matter of the use of water, and let them consider every question that arises in connection with its appropriation, and then say under all the equities of the case who shall be entitled to the use of that water, and not say that the matter of prior appropriation shall settle it.”
The board of control is better equipped to handle matters relating to water. White v. Wheatland Irrigation District, Wyo.1966, 413 P.2d 252. The board of control should be utilized to settle water matters because of its peculiar knowledge and expertise as to the technicalities involved, as well as the realities pertaining to water use. Kearney Lake, Land and Reservoir Company v. Lake De Smet Reservoir Company, Wyo.1970, 475 P.2d 548, supplemented 487 P.2d 324. This court has encouraged use of the board of control and mentioned, “[t]he ludicrous spectacle of learned judges solemnly decree*283ing water rights.” Louth v. Kaser, Wyo. 1961, 364 P.2d 96.
I would reverse the district court in such a manner as to require Husky to apply for a change-of-use permit with the state engineer and board of control.
. Before a suit may be brought against the State, § 8, Article I, Wyoming Constitution, requires that the state legislature must direct the manner in which it must be done.
. While no question is raised by the majority opinion with respect to the Department of Environmental Quality, also named, Section 35-502.92, W.S.1957, 1975 Cum.Supp., imposes specific duties on the attorney general:
“(d) In addition to any penalty provided in subsections (b) or (c) of this section, whenever the office determines that a person is violating any of the provisions of this section, it shall refer the matter to the attorney general who may bring a civil action on behalf of the state in the district court in and for the county of Laramie for injunctive or other appropriate relief against the violation and to enforce the act or a permit issued hereunder, and upon a proper showing a permanent or preliminary injunction or temporary restraining order shall be granted without bond.”
I find no authority to sue the department or any of its officers in any sort of action.
.Section 9-132, W.S.1957, in pertinent part, is as follows:
“ * * * The attorney general, his deputy or any of his assistants are hereby authorized to go into any of the courts of the State of Wyoming or the United States and prosecute or defend on behalf of the state whenever in the opinion of the attorney general the interest of the state would be best served by so doing.”
. The board of control has “supervision of the waters of the State and of their appropriation, distribution and diversion.” Section 2, Article VIII, Wyoming Constitution. The state engineer has “general supervision of the waters of the state.” Section 5, Article VIII, Wyoming Cooastitution.
. Section 35-502.18 provides:
“(a) No person, except when authorized by a permit issued pursuant to the provisions of this act [§§ 35-502.1 to 35-502.56], shall: “(i) Cause, threaten or allow the discharge of any pollution or wastes into the waters of the state;
“(ii) Alter the physical, chemical, radiological, biological or bacteriological properties of any waters of the state;
“(iii) Construct, install, modify or operate any sewerage system, treatment works, disposal system or other facility, capable of causing or contributing to pollution;
“(iv) Increase the quantity or strength of any discharge;
“(v) Construct, install, modify or operate any public water supply.”
.Section 41-29.1 provides:
“The holder or owner of an adjudicated water right to the direct use of the natural unstored flow of any surface stream of the state may store such direct flow so long as no other Wyoming appropriator or user is injured or affected thereby. Prior to the commencement of the storage of water under a direct flow water right, the appropriator shall submit a request for such storage in writing to the state engineer and shall obtain the approval of the state board of control. The state board of control may permit storage at any time so long as there is no interference with existing water rights or uses. The state engineer is authorized and empowered to prescribe such rules and regulations as may be necessary or desirable to enable *274him to effectively administer the provisions of this section.”
. Section 41 — 4.1 provides:
“(a) When an owner of a water right wishes to change a water right from its present use to another use, or from the place of use under the existing right to a new place of use, he shall file a petition requesting permission to make such a change. The petition shall set forth all pertinent facts about the existing use and the proposed change in use, or, where a change in place of use is requested, all pertinent information about the existing place of use and the proposed place of use. The board may require that an advertised public hearing or hearings be held at the petitioner’s expense. The petitioner shall provide a transcript of the public hearing to the board. The change in use, or change in place of use, may be allowed, provided that the quantity of water transferred by the granting of the petition shall not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use, nor increase the historic amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators. The board of control shall consider all facts it believes pertinent to the transfer which may include the following:
“(i) The economic loss to the community and the state if the use from which the right is transferred is discontinued;
“(ii) The extent to which such economic loss will be offset by the new use;
“(iii) Whether other sources of water are available for the new use.
“(b) In all cases where the matter of compensation is in dispute, the question of compensation shall be submitted to the proper district court for determination.”
. An interesting discussion of relative and reasonable beneficial uses of water appears in “The Concept of Recoverable Beneficial Use in the Law of Surface Streams”, Trelease, 12 Wyoming L.J. 1. The author observed a developing rule that a particular use must not only be in an accepted class of beneficial uses but it *275must also be reasonable and economic in the light of either present and future demands on the source of supply. See in particular pp. 6-7, 16-17 and 19-21.
. For an informative law review article dealing for pollution abatement with the problem created when water is evaporated, see XII Land and Water L.R. 431, “Water Law — Cessation of Return Flow as a Means of Complying with Pollution Control Laws” by Robert G. Berger.
. Edwards v. City of Cheyenne, 1911, 19 Wyo. 110, 114 P. 677, reh. den. 122 P. 900; Holt v. City of Cheyenne, 1913, 22 Wyo. 212, 137 P. 876.
. See also City of Grand Junction v. Kannah Creek Water Users Association, Colo. 1976, 557 P.2d 1173; City of Boulder v. Boulder and Left Hand Ditch Company, Colo. 1976, 557 P.2d 1182.
. Citing Enlarged Southside Irr. Ditch Co. v. John’s Flood Ditch Co., 1947, 116 Colo. 580, 585, 183 P.2d 552, 554.