Briggs v. Golden Valley Land & Cattle Co., 11717

Decision Date11 February 1976
Docket NumberNo. 11717,11717
PartiesGlen BRIGGS et al., Respondents, v. GOLDEN VALLEY LAND & CATTLE COMPANY, a corporation, and Golden Valley Mutual Water Company, a corporation, Appellants, and Ore-Ida Foods, Inc., et al.
CourtIdaho Supreme Court

Page 382

546 P.2d 382
97 Idaho 427
Glen BRIGGS et al., Respondents,
v.
GOLDEN VALLEY LAND & CATTLE COMPANY, a corporation, and Golden Valley Mutual Water Company, a corporation, Appellants,
and
Ore-Ida Foods, Inc., et al.
No. 11717.
Supreme Court of Idaho.
Feb. 11, 1976.

Page 383

[97 Idaho 428] Lloyd J. Walker, of Walker & Kennedy, Twin Falls, for appellants.

Joseph Novak, Salt Lake City, Utah, Herman E. Bedke, of Nielson & Bedke, Burley, for respondents.

BAKES, Justice.

This appeal presents a variety of questions concerning (1) the proper procedure and forum for securing review of an order of the director of the Idaho Department of Water Resources administering ground water rights in a designated critical ground water area, (2) the authority of the Idaho Department of Water Resources vis-a-vis the district courts to determine which underground water users have water rights of a priority which entitles the users to withdraw water from the aquifer within a designated critical ground water area, and (3) the administration of ground water rights within a designated critical ground water area. We reverse the order of the district court restraining the director of the Idaho Department of Water Resources from administering underground water rights contrary to an earlier decree of the district courrt; set aside the judgment of the district court vacating the director's order administering those rights; and remand the cause to the district court for further proceedings.

Page 384

97 Idaho 429

HISTORY OF THE LITIGATION

This appeal arises from the same ground water rights dispute we considered in the case of Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973). All the parties to this appeal were parties to that appeal or are successors in interest to parties to that appeal. This litigation has the following history.

In 1965 several ground water users in the Cottonwood Creek-Buckhorn Creek area of Cassia County brought suit to enjoin other ground water users in the area from pumping from their wells until such time as the plaintiffs' wells resumed normal production. In February of 1969 the case was tried in the district court of Cassia County. Voluminous hydrological and other data were introduced into evidence. On October 5, 1971, the district court entered its amended findings of fact, conclusions of law and decree. The district court found that the parties before it had been withdrawing water from a common aquifer that was being recharged at an average rate of 5500 acre feet per year and the court held that Idaho's Ground Water Act, I.C. §§ 42-226 et seq., forbade the 'mining' of water from the aquifer, i. e., the Act limited the ground water users on the aquifer to a total annual withdrawal from the aquifer of 5500 acre feet, the average annual recharge of the aquifer. The court also made findings of fact concerning the ground water rights and priorities of each of the parties to the action. Although the water rights in question were licensed in terms of a volume of water per second, the court qualified the various rights on an annual basis, i. e., for each water right under consideration it determined the volume of water in acre feet that could be annually extracted from the aquifer under that right. See footnote, 3, infra. In order to prohibit 'mining' of the aquifer, the court enjoined further pumping from the aquifer by those water users whose ground water rights were not among those which the court had determined to be the senior 5500 acre feet of annual ground water rights licensed to extract ground water from the aquifer. The judgment of the district court was appealed and our decision in that appeal is reported in Baker v. Ore-Ida, supra.

The appellants in Baker v. Ore-Ida made certain assignments of error challenging the constitutionality of the Idaho Ground Water Act and contesting the trial judge's findings of fact and conclusions of law with respect to (1) the acquisition of ground water rights by prescription or adverse use, (2) the effect of a change in a point of diversion or place of use upon a party's water right and the priority of such rights, and (3) the sufficiency of the evidence to support the findings that the parties had been extracting water from a common aquifer which was being recharged at the rate of 5500 acre feet per year. The appellants also assigned as error the failure of the trial court to defer primary jurisdiction in the matter to the state reclamation engineer. 1

The trial court determined that there was an annual water right associated with each water license and awarded as that right the volume of water, quantified in acre feet, that would have been withdrawn from the aquifer had water been pumped at the licensed rate for 24 hours a day for a 180 day period (Finding of Fact XVII, Clk.Tr. Vol. II, p. 416, Baker v. Ore-Ida

Page 385

[97 Idaho 430] Foods, Inc., supra). The award was not based upon findings that water had been withdrawn and applied to beneficial use at the licensed rate for 24 hours a day for a 180 day period. No party to the first appeal assigned this method of calculation of an annual water right as error, nor did any party assign as error the trial court's conclusion that an annual water right could be associated with each license, i. e., that a water right licensed in terms of a volume of water per second could be quantified as a right to a volume of water per year. Moreover, the trial court made no finding of the number of days that water had been pumped under the licenses, either for a given year or as an average over the years, or whether water had been applied to beneficial use at the licensed rate. No assignments of error were made regarding the absence of such findings. 2

In Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973), we affirmed the decision of the district court with regard to the issues raised by the assignments of error. With the exception of the assignment of error concerning the doctrine of primary jurisdiction, we reached the merits of all the assignments of error and upheld the trial court in all respects. We did not reach the issue of whether the district court should have found primary jurisdiction in the Department of Water Administration to determine the water rights of the parties involved because we said:

"This point need not be considered further because the trial court effectively mooted the primary jurisdiction question by relinquishing the entire matter to the IDWA for administration and possible future modification." 95 Idaho at 586, 513 P.2d at 638.

Before the appeal was concluded the matter had been relinquished to the IDWA by the district court, and the director apparently concluded that he had primary jurisdiction to make findings of the parties' water rights and, upon the petition of Golden Valley, he conducted a hearing commencing April 12, 1972, to determine which water users held licenses with a priority that entitled the licensees to pump from the aquifer. The petition of Golden Valley raised three issues: (1) the anticipated average rate of annual recharge; (2) the

Page 386

[97 Idaho 431] total amount which may be...

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