A&B Irrigation Dist. v. Idaho Dep't of Water Res. & Gary Spackman (In re Petition for Delivery Call of A&B Irrigation Dist. for the Delivery of Ground Water & for the Creation of Area)

• Decision Date: 02 August 2012
• Docket Number: 38422.,Nos. 38403,38421,s. 38403
• Parties: 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. A & B IRRIGATION DISTRICT, Petitioner–Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES and Gary Spackman, in his official capacity as Interim Director of the Idaho Department of Water Resources, Defendants–Respondents, and The Idaho Ground Water Appropriators, Inc. ; The City of Pocatello; Fremont Madison Irrigation District; Robert & Sue Huskinson; Sun–Glo Industries; Val Schwendiman Farms, Inc. ; David Schwendiman Farms, Inc. ; Darrell C. Neville; Scott C. Neville; Stan D. Neville, Cross–Appellants.
• Court: Idaho Supreme Court

153 Idaho 500

284 P.3d 225

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.

A & B IRRIGATION DISTRICT, Petitioner–Appellant,

v.IDAHO DEPARTMENT OF WATER RESOURCES and Gary Spackman, in his official capacity as Interim Director of the Idaho Department of Water Resources, Defendants–Respondents,andThe Idaho Ground Water Appropriators, Inc. ; The City of Pocatello; Fremont Madison Irrigation District; Robert & Sue Huskinson; Sun–Glo Industries; Val Schwendiman Farms, Inc. ; David Schwendiman Farms, Inc. ; Darrell C. Neville; Scott C. Neville; Stan D. Neville, Cross–Appellants.

Nos. 38403

38421

38422.

Supreme Court of Idaho, Boise, February 2012 Term.

Aug. 2, 2012.

Barker, Rosholt & Simpson, LLP, Twin Falls, for appellants. Travis L. Thompson argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent Idaho Department of Water Resources. Christopher M. Bromley, Deputy Attorney General argued.

Racine Olson Nye Budge Bailey, Pocatello, for respondent Idaho Ground Water Appropriators, Inc. Candice M. McHugh argued.

White & Jankowski, LLP, Denver, CO, for respondent City of Pocatello. Sarah A. Klahn argued.

BURDICK, Chief Justice.

This case involves the Director (Director) of the Idaho Department of Water Resources' (IDWR) application of the Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules), IDAPA 37.03.11, in response to a ground water to ground water delivery call filed by the A & B Irrigation District (A & B). The Director's Final Order found that A & B was not materially injured and was affirmed by the district court on nearly all points. A & B now appeals to this Court, contending that the Director and the district court erred in their analyses. Cross-appeals by the City of Pocatello (Pocatello) and the Idaho Ground Water Appropriators, Inc. (IGWA) allege that the district court erred by requiring that the Director's finding of no material injury must be supported by clear and convincing evidence, rather than a preponderance of the evidence. We affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

1. Introduction and History

The A & B Irrigation District is located in south-central Idaho near the town of Rupert. Underlying the A & B project is the Eastern Snake Plain Aquifer (ESPA), which serves as the project's water source.¹ As described by the district court, the ESPA is predominately composed of fractured quaternary basalt that, at some locations, may have an aggregate thickness that exceeds several thousand feet, decreasing to shallower depths in the Thousand Springs area. The northern two-thirds of the project are dominated by basalt while the southern third is composed of basalt layered with sediment. "Snake River basalt is the principal water-bearing formation, and it yields water copiously to wells." The United States Bureau of Reclamation (USBR) describes the southern third as an area "[w]here the flow sheets are made up of dense, and massive basalt and/or is covered, penetrated, or innerbedded with fine sediment, the water yield is small to moderate. One such area is in the southwest part of Unit B located mostly in T9S/R22E where several low yielding wells are found."

With this understanding of the hydrogeologic environment, the USBR constructed the North Side Pumping Division of the Minidoka Project. The project was begun in the early 1950s with the intention of developing arable land in Jerome and Minidoka Counties. At this time aquifer levels had peaked, and by the time the project was completed in 1963 the levels began to decline. As a result, roughly half of the project's wells had been redrilled by 1965.

Originally, the project had an open discharge design where water was pumped from the ground into surface ponds and delivered through open lateral systems to the user. This system experienced a conveyance loss estimated at eight percent. In the 1980s, A & B began converting its gravity flow system to sprinkler irrigation, which reduced conveyance losses to five percent.

2. A & B's Senior Water Right 36–2080.

A & B's delivery call is based on its senior water right, 36–2080. This water right was licensed by IDWR in 1965 and authorized the diversion of 1,100 cfs from 177 individual points of diversion in order to irrigate 62,604.3 acres. A & B also irrigates roughly 4,000 additional "enlargement acres" under this water right. Water right 36–2080 did not identify a specific place of use with each diversion point.²

In 2003, the Snake River Basin Adjudication (SRBA) partially decreed the water right in a decree that is substantially similar to the 1965 license. One difference between the partial decree and the license is that the decree states that A & B, pursuant to transfer, is authorized to divert water from 188 points of diversion. Of those 188 authorized points of diversion, 177 of A & B's wells are currently in active production. These individual wells comprise over 130 separate "well systems."

3. A & B's 1994 Delivery Call and Subsequent Procedure

On July 26, 1994, A & B filed a petition for delivery call, which sought both an administration of junior-priority ground water rights from the ESPA and a designation of the ESPA as a ground water management area (GWMA).³ Among other things, the petition alleged that junior priority groundwater pumping from the ESPA had, since 1959, lowered the water table an average of twenty feet and up to forty feet in some areas, which resulted in a 126 cfs reduction of A & B's diversion rate. On May 1, 1995, A & B, IDWR, and others entered into an agreement that stayed the petition for delivery call until a Motion to Proceed was filed with the Director. That Motion to Proceed was filed electronically by A & B on March 16, 2007, and sought the same outcome as in the original delivery call. At a September 20, 2007 status conference the Director notified the parties that the stay was lifted from the 1994 delivery call and that retired Chief Justice Gerald Schroeder (Hearing Officer) was appointed to oversee a hearing " and issue a recommendation pursuant to IDAPA Rule 37.01.01.410, .413...." Those sections of the administrative code are IDWR's Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules).

Shortly after the stay was lifted, the Director, in accordance with Rule 42, issued an Order Requesting Information that asked A & B to provide IDWR with information that the Director deemed relevant in making a determination of injury. On January 29, 2008, the Director issued a final order (January 2008 Final Order) finding that A & B was not materially injured and denying A & B's request to designate the ESPA as a GWMA. A & B then filed a petition for rehearing.

A & B's petition was granted, and after some preliminary matters a hearing commenced on December 3, 2008. At the hearing, evidence and testimony was presented by IDWR, A & B, IGWA, and Pocatello. On March 27, 2009, the Hearing Officer issued an Opinion Constituting Findings of Fact, Conclusions of Law and Recommendations (Recommendations). Among the Hearing Officer's pertinent findings:

[T]he Idaho Ground Water Act is applicable to the administration of water rights involved in this case, including those rights that preexisted the adoption of the Ground Water Act in 1951, and are subject to administration consistent with the subsequent amendments to the Act.

....

It is proper to consider the system as a whole.

....

[T]here is an obligation of A & B to take reasonable steps to maximize the use of [interconnection] to move water within the system before it can seek curtailment or compensation from juniors.

....

Crops may be grown to full maturity on less water than demanded by A & B in this delivery call.

....

The conditions in the southwest area that make the recovery of water from the wells difficult do not justify curtailment or other mitigation.

....

That A & B has not been required to exceed reasonable pumping levels.⁴

The recommendations of the Hearing Officer were accepted by the Director in a Final Order Regarding the A & B Irrigation District Delivery Call (Final Order) issued on June 30, 2009. In response, A & B filed a Petition for Review with the district court.

The district court issued an order and accompanying memorandum on May 4, 2010.⁵ This order affirmed the Director's Final Order on all pertinent substantive issues, but found that the Director erred by applying an improper evidentiary standard when analyzing whether A & B was materially injured. The district court remanded for the purpose of applying the clear and convincing evidence standard. After receipt of petitions for rehearing, the district court issued a memorandum decision and order affirming its prior ruling. On November 23, 2010, the district court filed a judgment pursuant to its May 4, 2010 Memorandum Decision and Order on Petition for Judicial Review. A & B timely filed a Notice of Appeal to this Court on December 29, 2010. Pocatello timely filed a Notice of Appeal to this Court on December 30, 2010, and IGWA timely filed a Notice of Appeal on January 4, 2011.

II. ISSUES ON APPEAL

1. Whether the Director erred in concluding that A & B's 1948 water right is subject to the provisions of the 1951 Idaho Ground Water Act ( I.C. §§ 42–226 to 42–239 ) and its subsequent amendments.

2. Whether the Director erred in finding that A & B has not been required to pump water beyond a "reasonable ground water pumping level" even though the Director failed to identify a specific pumping level.

3. Whether the Director erred in failing to analyze water availability at the 177 individual wells or points of diversion for purposes of an injury analysis to A & B's senior water right; and whether the Director unconstitutionally applied the CM Rules by finding that A & B must interconnect individual wells or well systems across the project before a delivery call can

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