A & B v. Aberdeen-American Falls

• Decision Date: 16 August 2005
• Docket Number: No. 29942.,29942.
• Citation: 118 P.3d 78,141 Idaho 746
• Parties: In Re: SRBA Case No. 39576 (Subcases 36-02080, et al, A & B Irrigation). A & B IRRIGATION DISTRICT, Appellant, v. ABERDEEN-AMERICAN FALLS GROUND WATER DISTRICT; Bingham Ground Water District; Magic Valley Ground Water District; Estate of Mack Neibaur; Ralph E. Breding; Tim Deeg; and State of Idaho, Respondents.
• Court: Idaho Supreme Court

118 P.3d 78

141 Idaho 746

In Re: SRBA Case No. 39576 (Subcases 36-02080, et al, A & B Irrigation).

A & B IRRIGATION DISTRICT, Appellant, v. ABERDEEN-AMERICAN FALLS GROUND WATER DISTRICT; Bingham Ground Water District; Magic Valley Ground Water District; Estate of Mack Neibaur; Ralph E. Breding; Tim Deeg; and State of Idaho, Respondents.

No. 29942.

Supreme Court of Idaho.

June 21, 2005.

Rehearing Denied August 16, 2005.

COPYRIGHT MATERIAL OMITTED

Ling, Robinson & Walker, Rupert, for appellant. Roger D. Ling argued.

Givens Pursley, LLP, Boise, for respondent Aberdeen-American Falls Ground Water District. Jeffrey C. Fereday argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent State of Idaho. David J. Barber argued.

SCHROEDER, Chief Justice.

This appeal arises from an order issued by the district court affirming a special master's partial summary judgment regarding five water enlargement claims brought by A & B Irrigation District (A & B) in the Snake River Basin Adjudication (SRBA). At issue is whether the district court erred in finding that (1) the source of water used by A & B to irrigate enlarged acres is ground water rather than recaptured drain, waste, or seepage water, or a combination thereof, (2) A & B's use of recaptured water to irrigate enlarged acres causes injury to junior water appropriators, (3) A & B's use of recaptured water should be subordinate to junior water appropriator's rights, (4) the repeal of Idaho Code § 42-1416 and simultaneous enactment of Idaho Code § 42-1426 did not create a vested right in favor of A & B's beneficial use of recaptured water on its enlarged acres, and (5) alternatively, A & B's use of recaptured water created an enlargement under I.C. § 42-1426 with rights subordinate to junior appropriators prior to July 1, 1985, rather than April 12, 1994. The Aberdeen-American Falls Ground Water District, Bingham Ground Water District, Magic Valley Ground Water District, Estate of Mack Neibaur, Ralph E. Breding and Tim Deeg (collectively Ground Water Users) and the State of Idaho (State) dispute all of A & B's claims. Ground Water Users request attorney fees.

I. BACKGROUND AND PRIOR PROCEEDINGS

A & B is a water irrigation district located in Jerome and Minidoka Counties. Originally developed by the United States Bureau of Reclamation (BOR), the district is now maintained and operated by A & B. The district is divided into two units, "A" and "B", with the B unit irrigated by ground water pumped from the Eastern Snake River Plain Aquifer (ESPA). Water right 36-02080 authorizes the diversion of 1100 cfs for the irrigation of 62, 604.3 acres in A & B's district. Only those lands irrigated in the "B" portion of the district are at issue in this suit.

Due to the geographic layout and soil conditions within A & B's irrigation district, not all of the 1100 cfs under water right 36-02080 are consumed upon initial irrigation. Some of this water becomes run-off and collects in ponds or drains situated at the end of the district's fields. Between March 25, 1963, and November 19, 1987, A & B began using some of this excess run-off to irrigate additional acres not included within the scope of water right no. 36-02080.

Prior to 1963 water rights could be appropriated based upon a constitutional or beneficial use method. However, enactment of Idaho Code § 42-243, required any water user claiming a constitutional or "beneficial right" to file a claim with the Idaho Department of Water Resources (IDWR). I.C. § 42-243(2003). On or around November 23, 1984, A & B and BOR filed an application with IDWR under water right no. 36-04265 for a beneficial use ground water right in accordance with. I.C. § 42-243. Included in this application, A & B and BOR claimed an expansion of licensed right no. 36-02080 for 2363.1 acres irrigated with excess run-off. BOR eventually withdrew this expansion application based on the enactment of I.C. § 42-1416, which provided a rebuttable presumption granting water rights in favor of those users who had enlarged their prior water rights in violation of Idaho's mandatory permit scheme but who had not caused injury to other water right holders.

The SRBA commenced in 1989. A & B and BOR filed another application in the SRBA based on the same water right, no. 36-04265, filed with the IDWR. In 1992 IDWR recommended A & B and the BOR's request for enlargements pursuant to I.C. § 42-1416(2) but included a provision that the priority dates associated with these claims be determined by evidence of when the enlarged water use occurred. A & B and BOR filed objections to the director's report, but not regarding the priority dates recommended by IDWR.

On February 4, 1994, the SRBA court held I.C. § 42-1416(2) unconstitutional. While the court's decision was on appeal, the Idaho Legislature repealed I.C. § 42-1416 and subsequently enacted I.C. § 42-1426 granting amnesty for enlargements where there was no added diversion and no injury to junior appropriators or otherwise where a mitigation plan was in place. Where either of these conditions was not apparent, the statute required subordination. Based on the legislature's actions, this Court dismissed the appeal regarding I.C. § 42-1416. The Court found I.C. § 42-1426 constitutional in Fremont-Madison v. Idaho Ground Water Appropriators, 129 Idaho 454, 926 P.2d 1301 (1996).

On September 19, 1997, IDWR filed an Amended Director's Report based on the holding in Fremont-Madison. IDWR again recommended the enlargement claims of A & B and BOR and included a provision that the enlargements be subordinated to all junior appropriators of rights prior to April 12, 1994, the date I.C. § 42-1426 was enacted. The Amended Report further determined the enlargement's source of water to be ground water. The Ground Water Users and State filed a Joint Response supporting IDWR's conclusion. A & B and BOR filed objections to IDWR's Amended Report and included objections regarding the recommended priority dates.

On January 24, 2001, Ground Water Users and the State moved for partial summary judgment. The special master determined that the source of the "B" rights was groundwater and that the priority dates for such rights should be the date the water was first put to beneficial use, subject to the subordination remark recommended by IDWR. A & B's motion to alter or amend the special master's ruling was denied. A & B filed a notice of challenge in which the BOR participated. The district court affirmed the special master's decision and subsequently denied A & B's motion to reconsider. A & B appealed.

II. STANDARD OF REVIEW

Review by the Supreme Court of an entry of summary judgment is the same as that required by the district court when ruling on the motion. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). A district court determines a motion for summary judgment based on whether there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c)(2004); Id. In determining whether there are genuine issues of material fact the court reviews all evidence in the light most favorable to the non-moving party. I.R.C.P. 56(c); Id. If the evidence shows no disputed issues of material fact, what remains is a question of law, over which the appellate court exercises free review. Id.

Subcases referred to the SRBA special master are governed by the Idaho Rules of Civil Procedure and the Idaho Rules of Evidence. I.C. § 42-1411(5); SBRA AO1 9(b), 11(d); State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 740, 947 P.2d 409, 413 (1997). The special master's conclusions of law are persuasive but not binding. Id. (citing Rodriguez v. Oakley Valley Stone, Inc., 120 Idaho 370, 378, 816 P.2d 326, 334 (1991)). To the extent the district court adopts the special master's findings of fact and conclusions of law they are considered to be the findings and conclusions of the court. I.R.C.P. 52(a); id. This Court has free review of conclusions of law and a district court's compliance with rules of procedure and evidence. Id. (citing Harney v. Weatherby, 116 Idaho 904, 906-07, 781 P.2d 241, 243-44 (Ct.App.1989)).

III. THE NATURE OF THE WATER

A & B asserts that the source of a water right is a key element in filing a water right claim and for the scope of appropriation in times of water shortage. Owen L. Anderson et al., Water and Water Rights, § 12.02(d)(1991). A & B agrees with the district court that the majority of water used on the enlarged acres originated as ground water pumped from the ESPA but asserts that following irrigation it is collected with other diffuse water in irrigation drains whereby it is transformed into an independent source, that of "waste" or "drain" water. See Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 680, 619 P.2d 1130, 1133 (1980); Jensen v. Boise-Kuna Irrigation Dist., 75 Idaho 133, 141, 269 P.2d 755, 759 (1954); Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 179, 157 P.2d 1005, 1007 (1945); Sebern v. Moore, 44 Idaho 410, 415-16, 258 P. 176, 177 (1927). According to A & B, an original appropriator is entitled to use waste or drain water so long as it is put to beneficial use, even if a junior appropriator has been using the same water for some time. Hidden Springs Trout Ranch, 101 Idaho at 680, 619 P.2d at 1133. Waste or drain water is surplus water which results from delivery of dedicated water. See Jensen v. Boise-Kuna Irrigation Dist., 75 Idaho 133, 135, 269 P.2d at 755, 756 (1954). A & B maintains that the water used on its enlargements originates as ground water but becomes surplus upon delivery as it is recaptured in drains at the end of the irrigation fields.

Ground Water Users respond that to be granted amnesty under I.C. § 42-1426 the source of the enlarged right must be tied to the diversion of an existing right. In this case the only existing right is...