Barron v. Idaho Dept. of Water Resources

• Decision Date: 06 February 2001
• Docket Number: No. 25828.,25828.
• Citation: 18 P.3d 219,135 Idaho 414
• Parties: In the Matter of Application for Transfer No. 5116 in the Name of Charles L. Barron. Charles L. BARRON, Applicant-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, Respondent.
• Court: Idaho Supreme Court

18 P.3d 219

135 Idaho 414

In the Matter of Application for Transfer No. 5116 in the Name of Charles L. Barron.

Charles L. BARRON, Applicant-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, Respondent.

No. 25828.

Supreme Court of Idaho, Twin Falls, November 2000 Term.

February 6, 2001.

Arkoosh Law Offices, Gooding, for appellant. C. Thomas Arkoosh argued.

Hon. Alan G. Lance, Attorney General; Phillip J. Rassier, Deputy Attorney General, Boise, for respondent. Phillip J. Rassier argued.

WALTERS, Justice.

This is an appeal from a decision by the Department of Water Resources denying Charles Barron's application to transfer a water right. We affirm the Department's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Barron's transfer application concerns water right number 37-02801B, which has a 1905 priority date for six cubic feet per second (cfs) of water in Camas County. Barron proposed to split this right into two separate rights: 37-02801C and 37-02801D. The first (37-02801C) would divert 1.2 cfs of the original right at a location approximately fifteen miles upstream from the licensed place of use. The second (37-02801D) would divert the remaining 4.8 cfs at a location downstream approximately eighty miles from the licensed place of use.

Although the source for 37-02801B is listed as Camas Creek, it is apparent that the stream has also been called Malad Creek at some previous times. Additionally, Idaho Department of Water Resources (IDWR or Department) agent Jim Stanton, in a memo discussing Barron's application, stated that the source of Barron's right is Threemile Creek. Thus, there is some confusion in the record as to the source of the right.

The origin of water right 37-02801 can be traced to the filing of an application in 1905 for the use of 12 cfs of water from Camas Creek. It appears from the record that the original point of diversion was located on Camas Creek approximately four miles upstream from the place of use. Water was then conveyed by a ditch to the licensed place of use because, according to information provided by the applicants in 1905, water did not flow below the point of diversion past the middle of July.

In 1948, an individual named E.F. Wilson applied to the Department of Reclamation¹ to change the place of diversion for 6 of the 12 cfs authorized under 37-02801. Wilson sought to change the diversion from the point four miles upstream on Camas Creek to a location near the confluence of Threemile Creek and Camas Creek. The stated reason for the change in the place of diversion was that the original point of diversion was impracticable because of the low grade at which the four-mile ditch was constructed. Wilson's application included a hand-drawn map indicating that the point of diversion was to be located on Camas Creek, just below the confluence with Threemile Creek. However, the map submitted by the IDWR in its appellate brief places the current point of diversion on Threemile Creek, above the confluence. The placement of the point of diversion on Threemile Creek is consistent with the map submitted by Barron in his application.

In 1968, an individual named Rocco Perry filed an application for a second alternative point of diversion at a point closer to the confluence with Threemile Creek. Perry stated in the application his intent to use a portable pumping system that was to be moved between the two alternate points of diversion. The Department of Reclamation approved the addition of the second alternative point. Perry's hand-drawn map also indicates that the second point of diversion is located on Threemile Creek. Thus, the confusion as to the source of 37-02801B seems to be that while the 1905 application and all subsequent applications list the source as Camas Creek, since Wilson's 1948 transfer the water has actually been diverted from Threemile Creek.

There is also some confusion in the record as to the relationship between 37-02801B and licensed groundwater right 37-07295, both of which are appurtenant to the same land. Groundwater right 37-07295 was established in 1973 by Lynn Stevenson, who currently owns the 311 acres of land to which 37-02801B is appurtenant. Surface water right 37-02801B, as the principal water supply for the authorized use, is the "primary right" for this land. Groundwater right 37-07295 is a "supplemental right"—an additional appropriation of water to make up a deficiency in supply from an existing water right, here 37-02801B.

Barron filed his application on June 16, 1997. Citing concerns over the nature of Barron's water right and the potential for injury to other users, IDWR agent Jim Stanton filed a memorandum on July 17, 1997 recommending that the transfer application be denied. The IDWR subsequently published notice of the application as required by Idaho law. No protests were received in response to the published notices. Also pursuant to Idaho law, the Department obtained the recommendation of the watermaster in the local water district. The watermaster, who expressed concern over the potential injury to downstream water users, advised against approving Barron's transfer.

Barron and the IDWR subsequently exchanged correspondence concerning the transfer application. On five separate occasions, the IDWR requested that Barron provide additional information to address the agency's concerns. Although Barron responded in writing to each of the Department's requests, the IDWR indicated in its final letter that Barron had still not presented sufficient information for the Department to approve his transfer application.

On October 28, 1998, the IDWR issued a preliminary order denying Barron's application. Before the order became final, however, Barron appealed directly to the district court. The district court affirmed the Department's action denying the transfer in a decision issued on August 6, 1999. Barron then brought this appeal from the district court's decision.

ISSUES

Barron presents three issues on appeal. First, Barron contends that the Department's decision denying Barron's application was not supported by substantial and competent evidence. Second, he questions whether the Department's decision denying his application was in violation of constitutional or statutory provisions. Finally, Barron argues that the IDWR's decision denying his application exceeds the Department's statutory authority.

DISCUSSION

A. Standard of Review

Idaho Code section 67-5240 provides that all proceedings by an agency other than the Public Utilities Commission or the Industrial Commission that may result in the issuance of an "order" are governed by provisions of the Idaho Administrative Procedure Act (IAPA). See I.C. § 67-5201 et seq. Under the IAPA, the IDWR's decision may be overturned only where its findings: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The party attacking the Department's decision, here Barron, must first illustrate that the IDWR erred in a manner specified in I.C. § 67-5279(3), and then establish that a substantial right has been prejudiced. See Price v. Payette County Bd. of Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998)

.

In an appeal from the decision of a district court acting in its appellate capacity under the IAPA, this Court reviews the agency record independently of the district court's decision. See Corner v. County of Twin Falls, 130 Idaho 433, 437, 942 P.2d 557, 561 (1997)

; Howard v. Canyon County Bd. of Comm'rs, 128 Idaho 479, 480, 915 P.2d 709, 710 (1996). The Court will not substitute its judgment for that of the agency as to the weight of the evidence presented. See I.C. § 67-5279(1). In other words, the agency's factual determinations are binding on the Court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial competent evidence in the record. See id; see also I.C. § 67-5240(d). With this standard in mind, we first turn to whether the Department's decision was supported by substantial evidence in the record.

B. The Department's Decision

Water transfers in Idaho are governed by Idaho Code section 42-222. This section provides that any person who desires to change the point of diversion or the place, period, or nature of use of the water must apply to the IDWR for approval. See I.C. § 42-222(1). Upon receipt of the application, the Department's director is instructed to provide written notice to the public of the proposed change as well as advise the watermaster of the district in which such water is used. See id. The watermaster in turn makes a recommendation to the director concerning the application. In determining whether or not to approve the transfer, the director is instructed to "examine all the evidence and available information," including the watermaster's recommendation, and to approve the change in whole or in part if "no other water rights are injured thereby, the change does not constitute an enlargement in use of the original right, the change is consistent with the conservation of water resources within the state of Idaho and [the change] is the local public interest . . . ." Id.

1. Injury to Other Water Users

Barron argues that the IDWR's findings pertaining to injury are not supported by substantial and competent evidence in the record. He asserts that the watermaster's recommendation and the Stanton memorandum, upon which the Department partially based its decision to deny Barron's transfer application, do not constitute competent evidence.

Barron first contends that the watermaster's statements should be disregarded because they are merely conclusory remarks typed onto a preprinted form provided by the Department. It is apparent from the form, however, that it does not...