In a decision on hydropower rights at the Minidoka and Palisades reservoirs, SRBA Judge Eric Wildman reviewed the back history of decrees connected to those rights and their relationship to the SRBA, and their linkages to state control of water rights under the McCarran Amendment.
He upheld in the process a decision on the case by Special Master Terry Dolan, which has been contested by parties including the Surface Water Coalition (many of the major Magic Valley and eastern water users).
The Department of Water Resources director’s report which triggered the case came on December 19, 2006, when rights at Minidoka were recommended for the federal Bureau of Reclamation, with attached conditions which included subordination – the BOR couldn’t make a call for its hydropower rights there other than against other hydropower users which were more junior. It also required that traditional water uses be respected.
The recommendations drew objections from both many of the surface water users and, in some respects, from the Bureau of Reclamation itself. Supporters of the recommendation included the state of Idaho, Idaho Power Company and a group of ground water users.
This was followed up: “On April 11, 2008, the Director filed a Supplemental Director ‘s Report with respect to the above-captioned water right claims, wherein he set forth the basis for his recommendation that the decrees for those rights include the Subordination Remark. In that Report the Director states that the Subordination Remark was recommended because of the past historical practice of treating BOR’s power water rights as subordinate to junior upstream non-hydropower rights” and because the ‘system is operated with a preference for irrigation and other non-hydropower water rights.’”
Wildman said in his review of the case that the contracts related to the Palisades reservoir and the 1968 Eagle Decree, a court decision on water rights in the area, were critical. He noted:
“The development of the Palisades Dam and Reservoir project was originally authorized in 1941 and reauthorized in 1949. Pub. L. No. 864 (1950). However, the authorization and funding of Palisades Dam and Reservoir was contingent upon the securing of an adequate water supply for the reservoir:
The continuation of construction of Palisades Dam beyond December 31, 1951, or such later controlling date fixed by the Secretary as herein provided, is hereby made contingent on there being a finding by the Secretary by the controlling date that contracts have been entered into with various water users’ organizations of the Upper Snake River Valley in Idaho that in his opinion will provide for an average annual savings of one hundred and thirty-five thousand acre-feet of winter water.
“In an attempt to secure the additional water required, negotiations commenced between the USBOR and Upper Snake River Basin water users. Issues discussed included the historical practice in the area of diverting water into canals during the winter season for stock and domestic purposes as well as the practice of passing water though Minidoka Dam in the winter for power generation. Both practices resulted in the loss of water from the system which could otherwise be stored. An agreement was reached on these and other issues, and over a period of several years more than 50 formal contracts were entered into by the USBOR and various water users in the Upper Snake River Basin memorializing the agreement. These contracts are collectively referred to as the “Palisades Contracts.”
A number of water users, including the A&B Irrigation Districts among others, entered into the deal.
He said that “The Eagle Decree professed to adjudicate rights to the use of water from the Snake River and its tributaries above Milner Dam. However, the rights decreed were expressly made supplemental to prior decrees previously entered in the following cases,” listing several local cases involving the Twin Falls Canal Company and a number of others.
How does the Eagle decree fit into the reclamation rights picture? In general, Wildman said, it doesn’t: “One of the issues addressed on summary judgment was whether the terms of the Eagle Decree are binding on the USBOR and the State of Idaho. In particular, the SWC argue that summary judgment should have been precluded in this matter because the remarks proposed by the State and USBOR fail to reflect the “common plan” established in the Eagle Decree and unlawfully expand the subordination of the rights beyond that subordination recognized and confirmed by the Decree.
The Special Master held that the Eagle Decree was not binding on the State or the USBOR because neither entity was a party to the Eagle Decree Adjudication and because the Adjudication was not a general adjudication. On Challenge, the SWC argues the Eagle Decree is, in essence, a dejure and de facto general adjudication that is binding upon the USBOR and the State. For the reasons set forth below this Court disagrees.”
The Eagle decree was not a general adjudication, he said, and consequently didn’t fall within the terms of the federal McCarran Amendment, which is the law requiring federal agencies to be subject to state water regulation: “Since the adjudication proceeding resulting in the Eagle Decree did not include the rights of all claimants on the Snake River and all of its tributaries, it did not fall within the term of the McCarran Amendment.”
Wildman also said, however, that “Neither the Palisades Contracts nor the Eagle Decree preclude the USBOR from subordinating its water rights.”
Wildman concluded, “For the reasons set forth above, the SWC’s Challenge is hereby denied. Pursuant to I.R.C.P. 53(e)(2) and AOl section 1 3f, this Court has reviewed the Findings of Fact and Conclusions of Law contained in the Special Master’s Order Granting Motions for Summary Judgment and Special Master Report and Partial Recommendation and Order Denying Joint Motion to Alter or Amend and wholly adopts them as its own. When the above-captioned water rights are partially decreed, the “priority date” and “other provisions necessary” remarks proposed by the State and USBOR shall be included as recommended by Special Master Dolan.”
The case was certified for appeal to the Idaho Supreme Court.