A&B Irrigation Dist. v. Idaho Dep't of Water Res. & Gary Spackman in His Official Capacity of the Idaho Dep't of Water Res.

• Decision Date: 14 September 2012
• Docket Number: No. 39196–2011.,39196–2011.
• Citation: 154 Idaho 652,301 P.3d 1270
• Parties: A & B IRRIGATION DISTRICT, Petitioner–Appellant, v. The IDAHO DEPARTMENT OF WATER RESOURCES and Gary Spackman in his official capacity as Interim Director of the Idaho Department of Water Resources, Respondents.
• Court: Idaho Supreme Court

154 Idaho 652

301 P.3d 1270

A & B IRRIGATION DISTRICT, Petitioner–Appellant,

v.The IDAHO DEPARTMENT OF WATER RESOURCES and Gary Spackman in his official capacity as Interim Director of the Idaho Department of Water Resources, Respondents.

No. 39196–2011.

Supreme Court of Idaho, Twin Falls, August 2012 Term.

Sept. 14, 2012.

Paul L. Arrington, Barker Rosholt & Simpson LLP, Twin Falls, argued for appellant.

Garrick L. Baxter, Deputy Attorney General, Boise, argued for respondents.

EISMANN, Justice.

This is an appeal out of the SRBA court in Twin Falls County. The appellant had filed a petition for reconsideration of an administrative order issued by the Idaho Department of Water Resources, and, when the Department failed to decide the merits of the petition within twenty-one days, the appellant filed a petition for judicial review of the Department's order, contending that the petition for reconsideration was deemed denied pursuant to Idaho Code section 67–5246(4). The Department later decided the petition for reconsideration and issued an amended order. The district court held that section 67–5246(4) did not require the Department decide the merits of the petition for reconsideration within twenty-one days; it only had to agree to consider the petition within that time frame. The court therefore dismissed appellant's petition for judicial review on the ground that the order it sought to have reviewed had been superseded by the amended order. We vacate the dismissal because the petition for reconsideration was deemed denied by section 67–5246(4) when the Department failed to decide it within twenty-one days, and the amended order was therefore a nullity because the Department did not have jurisdiction to issue it.

I.Factual Background.

On April 27, 2011, the Idaho Department of Water Resources (IDWR) issued a final order in an administrative proceeding entitled "In the Matter of the Petition for Delivery Call of A & B Irrigation District for the Delivery of Ground Water and for the Creation of a Ground Water Management Area." On May 11, 2011, A & B Irrigation District (A & B) timely filed a petition for reconsideration pursuant to Idaho Code section 67–5246(4). That statute provides, "The petition is deemed denied if the agency head does not dispose of it within twenty-one (21) days after the filing of the petition."

On June 1, 2011, IDWR issued an order granting the petition for reconsideration, but the order did not address the merits of the petition. It merely ordered "that the Petition is GRANTED for the sole purpose of allowing additional time for the Department to respond to the Petition. An order responding to the merits of the Petition shall issue no later than June 9, 2011." On June 9, 2011, IDWR issued an amended order granting the petition for reconsideration in which it ordered "that the Petition is GRANTED for the sole purpose of allowing additional time for the Department to respond to the Petition. An order responding to the merits of the Petition shall issue no later than June 30, 2011."

On June 27, 2011, A & B filed a petition for judicial review pursuant to Idaho Code section 67–5273(2), which provides that "if reconsideration is sought, [the petition must be filed] within twenty-eight (28) days after the service date of the decision thereon." Because the director had failed to dispose of the petition for reconsideration by ruling on its merits within twenty-one days, A & B considered the petition to have been deemed denied pursuant to Idaho Code section 67–5246(5)(b).

On June 30, 2011, IDWR issued a decision on the merits of the petition for review, granting it in part and denying it in part. On the same date, it issued an amended final order based upon its decision on the petition for reconsideration.

On July 7, 2011, IDWR moved to dismiss the petition for judicial review on the ground that the petition sought review of the April 27th order, that the order had been superseded by the June 30th order, and that the only final agency action was now the latter order. The district court agreed and dismissed the petition for judicial review. A & B timely appealed.

II.

Analysis.

The issue in this appeal is the meaning of the term "dispose of" as it is used in subsections (4) and (5) of Idaho Code section 67–5246, which state:

(4) Unless otherwise provided by statute or rule, any party may file a motion for reconsideration of any final order issued by the agency head within fourteen (14) days of the service date of that order. The agency head shall issue a written order disposing of the petition. The petition is deemed denied if the agency head does not dispose of it within twenty-one (21) days after the filing of the petition.

(5) Unless a different date is stated in a final order, the order is effective fourteen (14) days after its service date if a party has not filed a petition for reconsideration. If a party has filed a petition for reconsideration with the agency head, the final order becomes effective when:

(a) The petition for reconsideration is disposed of; or

(b) The petition is deemed denied because the agency head did not dispose of the petition within twenty-one (21) days.

(Emphases added.)

IDWR argued to the district court that an agency could "dispose of" a petition for reconsideration without deciding that petition on the merits. Thus, it contended that it disposed of the petition for reconsideration when it granted the petition for the sole purpose of gaining additional time to consider the petition's merits.

The district court found that the verb phrase "dispose of" was ambiguous and held that IDWR's interpretation of the statute was entitled to deference under J.R. Simplot Co. v. Idaho State Tax Commission, 120 Idaho 849, 820 P.2d 1206 (1991). In that case, we held that "[i]n determining the appropriate level of deference to be given to an agency construction of a statute, we are of the opinion that a court must follow a four-prong test." Id. at 862, 820 P.2d at 1219. The first prong of the test is whether "the agency has been entrusted with the responsibility to administer the statute at issue. Only if the agency has received this authority will it be ‘impliedly clothed with power to construe’ the law." Id.

Idaho Code section 67–5246 is part of the Idaho Administrative Procedure Act, I.C. §§ 67–5201 to 67–5292 (IAPA). IDWR contends that it was entrusted with the responsibility to administer the IAPA by Idaho Code section 42–1701A(1) which states, "All hearings required by law to be held before the director of the department of water resources shall be conducted in accordance with the provisions of chapter 52, title 67, Idaho Code [IAPA], and rules of procedure promulgated by the director." A legislative directive that IDWR comply with the IAPA cannot reasonably be construed as delegating to IDWR the responsibility for administering the IAPA. IDWR has not been entrusted with the responsibility of administering the IAPA. That Act applies to "each state board, commission, department or officer authorized by law ... to determine contested cases." I.C. § 67–5201(2).¹ Therefore, any interpretation by IDWR of the provisions of the section 67–5246 is not entitled to deference. Westway Constr., Inc. v. Idaho Transp. Dept., 139 Idaho 107, 115, 73 P.3d 721, 729 (2003).

The interpretation of a statute is a question of law over which we exercise free review. Gooding County v. Wybenga, 137 Idaho 201, 204, 46 P.3d 18, 21 (2002). It must begin with the literal words of the statute, Thomson v. City of Lewiston, 137 Idaho 473, 478, 50 P.3d 488, 493 (2002) ; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole, State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001).

When a party in a contested case files a petition for reconsideration, Idaho Code section 67–5246(4) requires that "[t]he agency head shall issue a written order disposing of the petition." (Emphasis added.) The statute further provides that the petition is deemed denied "if the agency head does not dispose of it within twenty-one (21) days after the filing of the petition." (Emphasis added.) The words "dispose of" mean "to deal with conclusively < disposed of the matter efficiently>." Merriam–Webster, Inc., Merriam–Webster's Collegiate Dictionary 335 (10th ed., 1993); accord Barnes & Noble Books, Webster's New Universal Unabridged Dictionary 414 (1992) (dispose of means "to deal with conclusively, settle").

IDWR's orders issued on June 1 and June 9 did not dispose of the petition for reconsideration because those orders did not address the merits of the petition. They merely stated that the petition for reconsideration was granted "for the sole purpose of allowing additional time for the Department to respond to the Petition" and that "[a]n order responding to the merits of the Petition shall issue" at a later date. Giving the words "dispose of" their normal meaning, these orders clearly did not dispose of the petition nor did they purport to. It was not until June 30, 2011, that IDWR issued an order addressing the petition's merits.

IDWR contends that its construction of the statute "is in accord with the leading commentary on Idaho's Administrative Procedure Act, The Idaho Administrative Procedure Act: A Primer for the Practitioner, 30 Idaho L.Rev. 273 (1993), written by Michael S. Gilmore & Dale D. Goble" and "is also consistent with the written explanatory comments that accompany the Idaho Attorney General's Model Rules of Administrative Procedure."²

We must base our decision on the actual wording of the statute. The statute does not state that the petition is deemed denied if, within twenty-one days, the agency head does not "accept" the petition or "agree to reconsider the final order." Rather, the agency head must "dispose of" the petition within that time period. The only reasonable construction is that to dispose of the petition for reconsideration, the agency must decide it on the...