Ridenbaugh Press/Water Rights

The Snake River Basin Adjudication isn’t the first general water rights adjudication in Idaho: There have been many, all smaller in scope than the SRBA but widely scattered around the Snake River Basin. One of the difficult issues in the SRBA for years has involved reconciling those earlier and more limited adjudications, which are generally not considered to be invalid, with the current one.

That came up in a subcase (65-23481) decided on February 27 by Judge Eric Wildman, bringing into play earlier adjudications in the Lemhi River and Payette River basins.

The specific case concerns a late claim to rights claimed by Allen Ranch LLP in the Payette River area, earlier reviewed by a special master.

In his description of the background, Wildman noted “The Special Master’s initial recommendation analyzed the late claim under two separate components: the stockwater claim; and the early and late period of use irrigation claim. The Special Master initially determined that the filing of the early and late period of use portion of the late claim was barred for failure of the claimant, Allen Ranch, LLP, to have the right adjudicated in the Payette Adjudication. The Special Master reasoned the Payette Adjudication decreed all rights to the Payette River established prior to October 19, 1977.

“As such, any rights established prior to that date but not adjudicated in the Payette Adjudication were deemed lost under principles of res judicata as well as the express language of the Payette Decree. Thereafter, the Claimant filed a Motion t0 Aller or Amend the Special Master’s Recommendation asserting this Court’s decision in Order Conditionally Granting Motion to File Late Notice of Claim; 0rder Requiring Filing of Amended Claim; Order Requesting Amended Director’s Report if Amended Claim is Filed, Subcases 74-15015 and 74-15861 (Jan 12, 2009). The Special Master followed the holding in Riggan and recommended that the claim be allowed to proceed based on law-of-the-case but recommended that the Court re-evaluate the holding in Riggan.”

The surprise in the case was the new decision’s ruling that the holding in the Riggan case was erroneous:

“Although, the Court’s ruling was not contested, it was in error in two respects. First, even if a “window” existed for the filing of a beneficial use claim, the claim would still have had to be confirmed in the final judgment, which it was not. … Similarly, in the instant case, the “window” is also irrelevant. The Payette Decree by its express language decreed all water rights established prior to October 19, 1977, and provided further that such rights having earlier priorities that were not claimed were deemed forfeited.”

Wildman said that he agreed with the special master’s legal reasoning, however, and because of that the claimant had not met the standard needed to support a late notice of claim.

He concluded, “this Court adopts the Amended Special Master ’s Report and Recommendation except for the part of the recommendation that the Claimant “be granted leave of court to file a beneficial use claim for the early and late irrigation season with a priority date no earlier than May 20, 1971, and no later than July l, 1971.” For the reasons previously explained, the Court rejects this part of the recommendation on the basis that the Claimant has failed to meet the “meritorious position” standard.”

The November 20 SRBA Court decision on a water right claim didn’t reach the interesting question of whether the adjudication could set a water right decree in a case in which there was no water.

That claim was filed by the Idaho Water Resources Board, seeking zero cubic feet per second in Snake River flow at the Milner Dam. The flow at that point ordinarily is siphoned off completely by water users, and replenished below the Milner.

The claim was objected to by Idaho Power Company, which said both that the claim should not exist as requested, and that the state had not followed proper procedures in requesting it.

Other parties also objected, including the Idaho Water Users Association and a number of water districts.

A decision by a special master in the case held inn favor of the state board. An oral argument was held in October.

In reversing a decision by one of the adjudication’s special masters, it did disallow a water right with prejudice.

SRBA Judge Eric Wildman said that, first, the state did not provide for a zero-water right “when it adopted the 1976 State Water Plan as a matter of law.”

The plan does provide for a protected flow of 0 cfs at Milner Dam gsging station, and “the Special Master agreed with the Board’s position that when it adopted the above-quoted language in Policy 32 it appropriated, pursuant to its constitutional power, a water right for a zero cfs minimum stream flow at the Milner Dam Gaging Station. This Court disagrees.”

Willdman said that the Idaho Constitution (in Article 17, Section 7) “grants the Board two separate and distinct constitutional powers at issue here. First, it grants the Board the authority to ‘formulate and implement a state water plan.’ Second, it grants the Board the authority ‘to appropriate public waters as trustee for Agency projects.’ That the board has the constitutional authority to appropriate public waters is unquestioned. However, its authority in this respect is not unbridled. The plain language of Article 15, Section 7 itself provides that the Board may only exercise its authority ‘under such laws as may be prescribed by the legislature.’ And in this case the Legislature has enacted laws to regulate the method and means by which the Board may exercise its constitutional right to appropriate water.”

The board did not follow the prescribed “application, permit and license procedures” in the case of the Milner claims, Wildman said.

And, he said, the “plain language” of the 1976 water plan did not specially create a water right claim at the Milner Dam.

He noted that “the Board argues thst memorializing the zero cfs minimum stream flow established by Policy 32 as a water right is necessary to avoid uncertainty and confusion to water users as well as the water master in administering rights.”

But the judge countered, “a number of provisions already exist which effectively memorialize and provide for the enforceability of the policy. These include the 1976 Water Plan itself, which the Idaho Supreme Court held became effect upon adoption …”

More important, he said, was the SRBA General Provision 4 in Basin 02 (the mid-Snake River area). It effectively provides for the right in question, the judge concluded.

Judge Eric Wildman on June 28 issued his decision and order on a challenge to a plan for delivering a final unified decree in the SRBA.
There were numerous challenges, involving a long list of parties and law firms in various ways weighing in on the final decree.

“Whether the term ‘persons’ rather than the term ‘parties’ should be used in reference to those who are bound by the Uniform Final Decree?”
“Whether duplicates of partial decrees entered pursuant to federal reserved water right settlement should be included in Attachment 2 to the Final Unified Decree with a remark cross-referencing the applicable settlement documents included in Attachment 4?”

“Whether the Court should issue a new order clarifying the definitions of de minimis ‘domestic’ and ‘stock water’ claims and the procedures for adjudicating deferred claims?”

“Whether the Final Unified Decree should include language clarifying that the results of water right transfers initiated and completed after the entry of a partial decree but prior to the entry of the Final Unified Decree are not superseded by the Final Unified Decree?”

“Whether the Final Unified Decree should include a finding that ‘Each partial decree was the result of a specific factual investigation related to the underlying water right,’ and that “Because the evidence adduced for each partial decree varied, the Final Unified Decree does not address what evidence is admissable in any subsequent proceeding?”

“Whether the Final Unified Decree should include a finding that the elements of each water right reflect the extent of beneficial use as of November 19, 1987?”

“Whether the Final Unified Decree should state that the quantity element of each water right defines the maximum amount of water that may be diverted?”

“Whether the tolling of the forfeiture period during the SRBA precludes the Director from considering beneficial use in water distribution proceedings?”

The first four of those, Wildman noted, were not opposed and “the Court set forth on the record at oral argument that it concurred with the reasoning in support of the Challenge and would adopt the proposal advanced by the party who raised the issue.”

The next four, sought by the city of Pocatello and several ground water districts, involved more complex questions, to “define the scope of the preclusive effect of the partial decrees included in the Final Unified Decree …”

Wildman said he “rejects the inclusion of the proposed provisions. As a general matter, the Court declines to include provisions in the Final Unified Decree for the purpose of advising or influencing tribunals in future proceedings as to the legal effect of a partial decree issued in the SRBA. The issue of what pre-decree evidence may be discoverable, relevant and/or admissable in a given future post-decree proceeding is simply not an issue propoerly before this Court at this time and will not be considered.”

He ordered that the term “persons” rather than “parties” would be used in the final order.

He said that “duplicates of partial decrees entered pursuant to federal reserved water right settlements should be included in Attachment 2.”

The Idaho Department of Water Resources has posted on its web site lengthy lists of “potentially unclaimed water rights by basin.”
The basins included in the list are 23, 24, 25, 43, 51, 55, 57, 61, 81, 82, 83, 84, 85, and 86 – many of the basins for which objections all have been cleared.

Hundreds of water rights around the Snake River basin are listed.
The lists include the water right numbers, the basis (some decreed, licensed or by statutory claim), the water source and use and the owner or owners of record – specifically named in most cases, and including both public and private parties.

The page can be found at http://www.idwr.idaho.gov/WaterManagement/AdjudicationBureau/Reports_Presentations/Unclaimed.htm

Attorney for the Black Canyon Irrigation District, the Pioneer Irrigation District and the Boise Project Board of Control on June 8 called for something uncommon and generally discouraged in recent years in the SRBA – designation of a new basin-wide issue.
If approved, it would be designated Basin Wide Issue 17.
SRBA Judge Eric Wildman on June 11 gave notice of a hearing on the issue on September 10 (at 1:30 p.m.) at the Twin Falls SRBA courthouse. Briefing by the initial parties and others will be allowed.

Basin-wide issues are legal questions of consequence to all or significant parts of the Snake River Basin, impacting water rights across a large region. More than a dozen were designated in the early years of the SRBA as a way of disposing of broad legal issues, but few have been approved more recently as judges have moved toward shutting down the case.

The attorneys in this case, however – Albert Barker, Scott Campbell, Charles McDevitt (a former Supreme Court justice) and Shelley Davis – are not newcomers to work in the adjudication.
And the matter at issue has considerable implications for water storage around the basin – and even, the proponents seem to suggest, beyond the SRBA and throughout the state of Idaho.

Their proposed issue: “Does Idaho law require a remark authorizing storage rights to ‘refill’ space vacated for flood control?”
The issue has become an abruptly heated one. Numerous motions on the subject of refills were filed, involving those districts and others, during the month of June.

The filers noted that “In certain on-going SRBA proceedings [they included a list in a separate exhibit] on Basin 01 storage water rights in American Falls and Palisades reservoirs, the Bureau of Reclamation and the State of Idaho have taken the position that a remark is ‘necessary’ on those storage rights for those reservoirs to administer water entering Reclamation reservoirs after water has been released from those reservoirs for flood control, or other operational mandates. While the parties disagree substantially on the form of remark, those parties nevertheless agree that some remark is required.

“Of concern to the Petitioners, the State of Idaho has argued broadly that 1) there can be no refill of any kind of storage rights unless there is a remark authorizing refill, and 2) that ‘Idaho law requires that storage ‘refill’ be subordinate to all existing and future water rights.’ The State’s argument is not limited to only the storage subcases at issue in that proceeding, but appears on its face to have broad applicability to all storage rights in all reservoirs in the state of Idaho.”

The issue has not touched on many subcase rights already issued by the SRBA Court, over a period of years.

The attorneys point out that “Most of the storage rights within within the jurisdiction of the SRBA have already been issued partial decrees without any remark concerning refill, much less the remark urged by the State in the Basin 01 proceedings. The Basin 63 Boise River storage rights, and the and the Basin 65 Payette River storage rights have no such remark and have historically refilled to protect the spaceholders in priority …”

They advised as to impact that “Early resolution of this issue through designation as a Basin Wide Issue will serve the purpose of judicial economy by ensuring an early and unified legal determination in the SRBA which can then be applied to individual storage water rights, even those which have already gone to partial decree. Without a Basin Wide Issue to resolve this matter prior to the SRBA’s entry of a Unified Partial Decree, then storage rights in other than American Falls and Palisades Reclamation facilities would be prejudiced.”

The Idaho Department of Water Resources reported in May that it has a number of recommendations remaining that are “based on permit,” some of which have been licensed and some not.

It was asking the SRBA Court how best to proceed.
The department said that about 60 such recommendations have been partially decreed but not licensed. Another 29 have been partially decreed and later licensed by the IDWR. And it said that about 4 recommendations based on permit have not been partially decreed, or licensed by the department.

A dispute about who should pay attorney’s fees led in May to a May 4 court decision that shines a light on the meaning of prevailing in the adjudication.

The case involved Subcase 37-21112 on the Malad River, an irrigation right split from another water right. The claim was by Marathon Partners.

It was challenged by the Big Wood Canal Company and several individual parties, who challenged the diversion rate, period of use and whether the right should be denied because of abandonment.

A special master and court decision eventually allowed the right for Marathon. On March 14 this year, Marathon filed a Memordandum of Attorney’s Fees and Costs, seeking from the opposition $13,267 in discretionary costs and $27,729 in attorney’s fees – a total of $40,997.

That proposal was challenged by the other parties.

Judge Eric Wildman wrote that “The first issue before the Court is whether Marathon is a prevailing party. … The determination of who is a prevailing party is committed to the sound discretion of the trial court and will not be disturbed onb appeal absent an abuse of that discretion. Furthermore, a trial court need not find a prevailing party in every action; rather, it has the discretion to determine that there is no overall prevailing party.”

He continued: “In this case, the Court in an exercise of its discretion finds that there is no overall prevailing party. A review of the case in its entirety reveals that Marathon prevailed in part and that the Objectors prevailed in part. The [special master and court rulings] reflect that Marath prevailed in its position that no forfeiture or abaondment of its water right occurred in full or in part. The SF5 and Partial Decree further reflect that Marathon prevailed on its position that the period of use of its water right should extend until November 15, instead of October 31 as asserted by the Objectors. However with respect to the quantity issue the Objectors prevailed in gettng the following remark placed under the explanatory materials section of the SF5, against the wishes of Marathon who refused the inclusion of such a remark for over a year: ‘A portion of this water right is used for conveyance.’

“Marathon argues that the inclusion of Explanatory Material Remark in the SF5 is not a significant concession on its part because remarks found under the explanatory material section of a SF5 do not get placed into the Partial Decree. So in essence Marathon received in the Partial Decree everything recommended in the Director’s Report. Further, Marathon argues the substance of the Remark is also insignificant because it merely states the obvious …”

Wildman said that “However, such remarks nonetheless may have significance. In the early stages of the SRBA, in an effort to facilitate a preference for sdtandardizing and simplifying the form and content of a Partial Decree, the determination was made not to include in the face of the Patrial Decree every legal principle or factual detail that might be relevant to future administration of the water right unless it was determined to be absolutely necessary … explanatory material still provides clarification, guidance and relevant information to the Department when examining the water right for purposes in conjunction with a future administrative proceeding.”

Marathon’s attorney fee request was denied.

The Idaho Supreme Court on March 22 upheld the Snake River Basin Adjudication Court on a complex case involving Pocatello wells, water rights and questions of diversion.

The court did not, however, reach a decision on a couple of significant issues put to on appeal.

The decision, in City of Pocatello v. State of Idaho, was written by Justice Daniel Eismann and got unanimous support on the court.

The court’s summary said, “This is an appeal from the decision of the district court in the Snake River Basin Adjudication holding: (a) that Pocatello cannot use its wells as alternate points of diversion for its surface water rights; (b) that it can use its interconnected wells as alternate points of diversion for all of the associated water rights on the condition that doing so will not change the priority date and quantity of water that can be pumped from each well; (c) that one groundwater right was properly classified as for an irrigation purpose; and (d) that Pocatello failed to establish earlier priority dates for two of its groundwater rights. We affirm the judgment of the district court.”

The case evolved from the city’s 1990 filing of its water right claims, which it later amended. The case was sent a special master, but disputes involving it continued for a long time.
The court noted in description, “Water for Pocatello’s in-town service area is pumped into an interconnected distribution system from twenty-two wells supplied by twenty-one groundwater rights. The wells were developed at different times and are located throughout the in-town service area. Because the interconnected water distribution system was in operation prior to November 19, 1987, Pocatello contended, pursuant to Idaho Code section 42-1425, that each of these wells had become an alternate point of diversion for each of the twenty-one water rights, which would permit it to withdraw water under its most senior groundwater rights from any well. IDWR recommended that each well in the system could serve as an alternate point of diversion for each of the 21 water rights if the water rights were subject to a condition stating, “To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs.” IDWR did not recommend that condition for three of Pocatello’s groundwater rights that supplied water to the in-town system (29-2274, 29-2338, and 29-7375) because those rights were subject to administrative transfer No. 5452, which did not include the condition and occurred after 1987.”

On the questions before it:

? Did the District Court Err in Upholding the Condition Attached to Pocatello’s Ground Water Rights?

The Supreme Court said that it did not.

? Did the Department of Water Resources Have the Authority to Recommend the Condition that Was Attached to Pocatello’s Ground Water Rights when It Had Not Done So in Prior Similar Cases?

The Supreme Court declined to address that question.

? Did the District Court Err in Holding that the Condition Applied to Water Rights Acquired Prior to May 26, 1969?

The court did not address this question.
? Did the District Court Err in Holding that Pocatello’s Wells Were Not Alternate Points of Diversion for Its Surface Water Rights?

The court said the SRBA Court did not err.

? Did the District Court Err in Affirming the Special Master’s Findings as to the Priority Dates for Water Rights 29-13558 and 29-13639?

It said the SRBA Court did not err here either.

? Is the State Entitled to an Award of Attorney Fees Pursuant to Idaho Code Section 12-121?

The Supreme Court decided that it was not.

Work toward completion of Basin 27 (the Blackfoot River basin), which has been one of the most problematic, took a substantial step ahead on February 29 when SRBA Judge Eric Wildman issued an order disallowing unclaimed water rights in that basin.

The state Department of Water Resources director’s report for the basin dates back to November 2005. About three years after that, the SRBA Court issued an order setting April 10, 2009 as a deadline for filing late claims in that basin.

Wildman noted that “The Order closing late claims takings was entered in response to a Motion to Set a Date Certain for Filing Late Notices of Claim in Basin 27 filed by the State. At the time the State’s motion was file, several hundred objections had been filed by the United States and the Shoshone-Bannock Tribes to various water rights located in Basin 27 involving the absence of an annual volume limitation. The Court’s Order closing late claims takings in Basin 27 was entered to facilitate the settlement of these objections by providing certainty to the number of claims filed in Basin 27.”

The state of Idaho last November 14 filed a notice of recommendations on unclaimed water rights in the basin; it asked that those rights be disallowed since no claim for them had been filed. (It didn’t include deferrable de minimis or stockwater uses.) A hearing on this was held on February 21.

Wildman said that no one appeared in opposition to disallowing the claims.

So, he wrote, “It is hereby ordered that all unclaimed water rights represented by the water right numbers listed on Attachment I hereto, except for any deferrable domestic and/or stockwater portion of such rights, are hereby decreed as disallowed.”

The Idaho Supreme Court on January 5 affirmed the judgment of the district court in an appeal from the decision of the district court in the Snake River Basin Adjudication on water rights for the city of Pocatello.

The Supreme Court held (a) that Pocatello cannot use its wells as alternate points of diversion for its surface water rights; (b) that it can use its interconnected wells as alternate points of diversion for all of the associated water rights on
the condition that doing so will not change the priority date and quantity of water that can be pumped from each well; (c) that one groundwater right was properly classified as for an
irrigation purpose; and (d) that Pocatello failed to establish earlier priority dates for two of its groundwater rights.

The SRBA case came out of filings by the city of Pocatello.

The Supreme Court noted in background, “In April 1990, the City of Pocatello filed its water right claims, and it later filed amended claims. Pursuant to its statutory duties, IDWR filed Director’s Reports with respect to Pocatello’s claims. The disputed matters were tried to a hearing officer, and Pocatello then challenged several of the hearing officer’s findings of fact and conclusions of law in the district court. The court entered a judgment affirming the hearing officer’s recommendations, and Pocatello filed a motion to correct or amend the judgment. After that motion was denied, it timely appealed.

“Water for Pocatello’s in-town service area is pumped into an interconnected distribution system from twenty-two wells supplied by twenty-one groundwater rights. The wells were developed at different times and are located throughout the in-town service area. Because the interconnected water distribution system was in operation prior to November 19, 1987, Pocatello contended, pursuant to Idaho Code section 42-1425, that each of these wells had become an alternate point of diversion for each of the twenty-one water rights, which would permit it to withdraw water under its most senior groundwater rights from any well. IDWR recommended that each well in the system could serve as an alternate point of diversion for each of the twenty-one water rights if the water rights were subject to a condition stating, “To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs.” IDWR did not recommend that condition for three of Pocatello’s groundwater rights that supplied water to the in-town system (29-2274, 29-2338, and 29-7375) because those rights were subject to administrative transfer No. 5452, which did not include the condition and occurred after 1987. Pocatello also had a separate water delivery system to provide water to its airport.”

Those claims came with disputes. The Supreme Court noted that “Pocatello contended that each of the wells in its two interconnected water distribution systems had become an alternate point of diversion for all water rights associated with that system.” The SRBA Court said that had to be limited – it attached a condition to that effect.

The Supreme Court agreed with the lower court: “If Pocatello could have each well be an alternate point of diversion for each water right without the attached condition, as stated by IDWR in its supplemental Director’s Report, “the City would be allowed to withdraw water under its most senior priority water right from any well location.” Recognizing the transfers without the attached condition would injure junior water rights holders by diminishing their priorities. The district court did not err in upholding the attached condition.”

Also, “On appeal, Pocatello argues that IDWR committed an error in law by issuing the license for the use requested by the city. Idaho Code section 42-108 states, “Any person desiring to make such change of point of diversion, place of use, period of use, or nature of use of water shall make application for change with the department of water resources under the provisions of section 42-222, Idaho Code.” Section 17(b)(3) of Administrative Order No. 1 adopted by the SRBA court states, “Claimants seeking a change in their claimed water right under I.C. § 42-222 shall contact IDWR.” That is what Pocatello must do to change the purpose of water right 29-7770. The district court did not err in so holding.”