Avondale Irrigation Dist. v. North Idaho Properties, Inc.

• Decision Date: 15 March 1978
• Docket Number: 12482,Nos. 12174,s. 12174
• Citation: 99 Idaho 30,577 P.2d 9
• Parties: , 8 Envtl. L. Rep. 20,458 AVONDALE IRRIGATION DISTRICT, Dalton Gardens Irrigation District, and Hayden Lake Irrigation District, Plaintiffs, v. NORTH IDAHO PROPERTIES, INC., an Idaho Corporation, et al., Defendants, and United States of America, Intervenor-appellant, and Robert J. Adamson et al., and R. Keith Higginson, Director of Water Administration, Idaho State Department of Water Administration, Intervenor- respondents. John SODERMAN and Martha Soderman, husband and wife, Farrell Stoor and Margaret Stoor, husband and wife, Frank Stoor and Pat Stoor, husband and wife, Oscar Vias and Verda Vias, husband and wife, Alfred Vias, a single man, Jack Nuffer and Phyllis Nuffer, husband and wife, Leith R. Somson and Virginia Somson, husband and wife, and Dan Moran, a single man, Plaintiffs, v. Dr. Evan KACKLEY and Lois Kackley, husband and wife, J. C. Smith and Vera D. Smith, husband and wife, Blue Mountain Grazing Association, Inc., a corporation, United States of America through the United States Forest Service, Department of Agriculture, the Bureau of Indian Affairs, Department of the Interior, the State Engineer, Department of Reclamation, State of Idaho, Defendants. R. Keith HIGGINSON, Director, Idaho Department of Water Resources, Cross- claimant, Appellant, v. UNITED STATES FOREST SERVICE, Cross-defendant, Respondent.
• Court: Idaho Supreme Court

Page 9

577 P.2d 9

99 Idaho 30, 8 Envtl. L. Rep. 20,458

AVONDALE IRRIGATION DISTRICT, Dalton Gardens Irrigation District, and Hayden Lake Irrigation District, Plaintiffs, v. NORTH IDAHO PROPERTIES, INC., an Idaho Corporation, et al., Defendants, and United States of America, Intervenor-appellant,

and

Robert J. Adamson et al., and R. Keith Higginson, Director of Water Administration, Idaho State Department of Water Administration, Intervenor- respondents.

John SODERMAN and Martha Soderman, husband and wife, Farrell Stoor and Margaret Stoor, husband and wife, Frank Stoor and Pat Stoor, husband and wife, Oscar Vias and Verda Vias, husband and wife, Alfred Vias, a single man, Jack Nuffer and Phyllis Nuffer, husband and wife, Leith R. Somson and Virginia Somson, husband and wife, and Dan Moran, a single man, Plaintiffs, v. Dr. Evan KACKLEY and Lois Kackley, husband and wife, J. C. Smith and Vera D. Smith, husband and wife, Blue Mountain Grazing Association, Inc., a corporation, United States of America through the United States Forest Service, Department of Agriculture, the Bureau of Indian Affairs, Department of the Interior, the State Engineer, Department of Reclamation, State of Idaho, Defendants.

R. Keith HIGGINSON, Director, Idaho Department of Water Resources, Cross- claimant, Appellant, v. UNITED STATES FOREST SERVICE, Cross-defendant, Respondent.

Nos. 12174, 12482.

Supreme Court of Idaho.

March 15, 1978.

Rehearing Denied May 1, 1978.

Wayne L. Kidwell, Atty. Gen., Josephine P. Beeman, Asst. Atty. Gen., Boise, for Dept. of Water Resources.

Paul L. Westberg, U. S. Atty., Boise, Larry G. Gutterridge, U. S. Dept. of Justice, Washington, D. C., for United States.

BAKES, Justice.

These two cases, which have been consolidated on appeal, raise common issues concerning federal reserved water rights for non-consumptive use to the natural flow of several streams in two national forests. ¹ A brief statement of the cases' histories will place these common issues more clearly in focus.

I

Soderman v. Kackley. This action was originally commenced by private parties to adjudicate their water rights in Gravel, Lincoln (Harrison) and Wayne Creeks in Caribou County. The Department of Water Resources and the United States were named as defendants. ² In its answer, the United States asserted as an affirmative defense that under the federal reservation doctrine it had non-consumptive water rights to the entire natural flow of these three creeks from the point where they arise in the Caribou National Forest to the point where they exit that national forest. The United States claimed that water right dated from January 15, 1907, the date the Caribou National Forest was reserved pursuant to presidential proclamation. The Department of Water Resources filed a cross complaint against the United States disputing the validity of that non-consumptive water right.

Following a trial in November of 1974, the district court found that the entire natural flow of these streams was necessary to preserve the forest ecosystems and fish and wildlife, to serve as fire barriers, and for recreational and aesthetic purposes. The district court concluded that these purposes were among those for which the Caribou National Forest was created, and therefore, under the federal reserved water rights doctrine, the United States was entitled to the non-consumptive water rights it claimed. A judgment to this effect was entered on April 14, 1975. However, because private parties had requested additional time to submit material for incorporation in a stipulation, that judgment did not adjudicate the water rights of those private parties. The Department of Water Resources appealed that judgment, but this Court dismissed the appeal because no final judgment had been entered adjudicating all the water rights between all the parties. Soderman v. Kackley (Soderman I), 97 Idaho 850, 555 P.2d 390 (1976). After a judgment determining the rights of the other parties had been entered by the district court, the Department filed this second appeal. ³

II

Avondale Irrigation Dist. v. North Idaho Properties, Inc. This action was originally commenced by three Idaho irrigation districts to adjudicate water rights in Hayden Lake and its tributaries. The United States, as an intervenor, asserted water rights under the federal reserved water rights doctrine. The Idaho Department of Water Resources, also an intervenor, contested that claim. The district court ruled that the United States did hold reserved water rights, but required that those reserved rights be quantified. On appeal from that decision, this Court ruled that the United States is required by state law to quantify the amount of water claimed under the reservation doctrine at the time of a general adjudication of water rights. This Court remanded the case to allow the United States an opportunity to quantify those rights. Avondale Irrigation Dist. v. North Idaho Properties, Inc. (Avondale I), 96 Idaho 1, 523 P.2d 818 (1974). On remand, the district court reopened the proceedings for quantification of the reserved water rights, but in its order provided that "the Idaho Department of Water Resources may . . . raise the issue of law of whether the United States is entitled to include in such quantification minimum stream flows."

The United States claimed a non-consumptive right dating from November 6, 1906, the date the Coeur d'Alene National Forest was reserved by presidential proclamation, to the entire natural flow of the Yellow Banks, Mokins and Hayden Creeks within the boundaries of the Coeur d'Alene National Forest. All three creeks originate in the Coeur d'Alene National Forest and are tributaries of Hayden Lake. The Yellow Banks and Hayden Creeks enter Hayden Lake on non-federal land. Mokins Creek enters the lake on national forest land, but only after crossing two intervening parcels of non-federal land. Various witnesses called by the United States testified that the entire natural flow of all three creeks is necessary to preserve fish cultures and for wildlife, recreational and aesthetic purposes. The testimony introduced at trial, however, primarily supported the claim that the entire natural flow is necessary to preserve the fish habitat. In addition, the United States introduced in evidence the historical maximum stream flow and annual volume within the boundaries of the national forest of these three creeks. ⁴ The United States also claimed a minimum stream flow of 3.57 cfs from April 1 to June 30 of each year in the downstream part of Hayden Creek flowing through private land. Testimony indicated that this minimum stream flow is necessary to enable fish in Hayden Lake to swim upstream to the national forest for spawning.

The district court concluded that a claim to the entire natural flow is not a sufficient quantification and therefore ruled that any non-consumptive water rights of the United States would be limited to those maximum quantities specifically set out in evidence; any water in excess of those amounts would be subject to appropriation. The district court further ruled that the purposes for which the United States claimed these non-consumptive water rights preservation of fish and wildlife, recreation and aesthetics, and fire and erosion control were not the purposes for which the national forest was created and therefore the United States was not entitled to water rights for those purposes under the federal reserved water rights doctrine. The district court concluded that the forest was reserved only for purposes of timber management and watershed protection, and found that the United States had failed to prove that a non-consumptive right to the entire natural flow or any minimum stream flow was necessary to accomplish these two purposes. The district court further concluded that the reservation doctrine does not apply to those portions of a stream crossing private land and therefore ruled that the United States was not entitled to the seasonal minimum flow of 3.57 cfs in the downstream portion of Hayden Creek on private land. The United States has appealed from that decision. ⁵

In these two appeals the United States is not arguing that it has consumptive rights, rights to divert and consume the entire natural flow of the streams, but only that it has the right to the non-consumptive or instream use of the natural flow. Accordingly, the water rights claimed by the United States generally would not affect appropriators downstream of the national forests. The exceptions would be the minimum stream flow claimed in the portion of Hayden Creek crossing private land downstream of the Coeur d'Alene National Forest and downstream appropriators who divert water upstream on the national forest for gravity flow or storage purposes. In theory the rights claimed by the United States would affect upstream users, but in these cases the streams involved all originate within the national forests. The claimed water rights would affect appropriative rights appurtenant to non-federal land within these national forests. The amount of non-federal land within the boundaries of these national forests is not insignificant. Testimony in Avondale, for example, indicated that within the Coeur d'Alene National Forest there are approximately 44,000 privately owned acres and 13,480 acres owned by the State of Idaho.

The United States claims that these non-consumptive water rights date from the time these national forests were created the Coeur d'Alene National Forest in 1906, the Caribou National Forest in 1907. Accordingly, the United States acknowledges that the reserved rights it claims would be subordinate to water rights with priority dates prior to the creation of these national forests.

The Idaho Department of Water Resources does not dispute the federal reserved water rights doctrine or its applicability to these cases, but does dispute: (1) that the non-consumptive rights claimed by the United...