Jul 26 2012
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initiated and completed after the entry of a partial decree but prior to the entry of the Final Unified Decree are not superseded by the Final Unified Decree?”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.”
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