Dovel v. Dobson
| Decision Date | 01 April 1992 |
| Docket Number | No. 19007,No. 65-12842 and A,No. 65-03104,65-12842 and A,65-03104,19007 |
| Citation | 122 Idaho 59,831 P.2d 527 |
| Court | Idaho Supreme Court |
| Parties | In the Matter of Application for Permitpplication for Transfer of Water RightGeorge DOVEL, Petitioner-Appellant, v. Steve DOBSON and/or Tom Oliver; Idaho Department of Water Resources, Respondents. Boise, February 1992 Term |
Jack C. Riddlemoser, Meridian, for respondents, Steve Dobson and Tom Oliver.
Larry J. EchoHawk, Atty. Gen., Phillip J. Rassier, Deputy Atty. Gen., for respondent, Idaho Dept. of Water Resources. Phillip J. Rassier argued.
This is a water rights case concerning the transfer of one water right and a permit for another water right. The primary issue presented is whether there is substantial and competent evidence to support the decision of the director (the director) of the Department of Water Resources (the department) approving the transfer and the permit.
We affirm the decision of the director. We also conclude that the director imposed sufficient conditions on the transfer and the permit to protect prior appropriators and the local public interest. We do not address the portion of the director's order allowing the diversion of the same amount of water upon the transfer, because this issue is not properly before us.
THE BACKGROUND AND PRIOR PROCEEDINGS.
Steve Dobson and Tom Oliver (referred to jointly as Dobson), own farmland adjacent to Porter Creek, a tributary of the Payette River. The Dobson property consists of 504 acres, of which approximately 135 acres are irrigated. Dobson has a decreed right to divert Porter Creek water (the Porter Creek water right) to irrigate ninety-six of the acres farmed. There is also a decreed right to divert water from the Payette River for application to the ninety-six acres.
Porter Creek is primarily a snowmelt-fed stream. In the springtime, Porter Creek experiences an abundance of water that diminishes throughout the summer and into the fall. Dovel is a user of Porter Creek water, with a right junior to Dobson's right. Dovel's point of diversion lies upstream from Dobson's point of diversion.
In May, 1988, Dobson applied to the department for a new water permit (the permit) to divert .84 cubic feet per second (cfs) for irrigation purposes and a transfer (the transfer) of the Porter Creek water right appurtenant to eighteen acres in order to supply water for property not covered in the original water right.
The Porter Creek water right covers three different fields, totalling ninety-six acres--a seventy-eight acre field (the first field), a twelve acre field (the second field), and a six acre field (the third field).
Dovel objected to the transfer alleging that a portion of the Porter Creek water right had been forfeited and that the transfer would result in an enlargement of the existing right. Dovel also objected to the issuance of the permit, contending that there was an insufficient water supply to allow the permit and that the permit would reduce the water available to existing water rights. Dovel also urged that both the transfer and the permit were not in the local public interest.
After a hearing, the director approved both the permit and the transfer. In approving the permit, the director found that there are periods in most years when sufficient water is available to satisfy the requested diversion without injuring senior water rights. The director found that existing water rights would not be injured through proper delivery of water by the watermaster.
In approving the transfer, the director found that the consumptive use appurtenant to the third field had been forfeited by nonuse but approved the transfer of the water right appurtenant to the second field. The director did not reduce the 1.6 cfs diversion, which had been historically diverted for the three fields. The director concluded that the transfer would not change the amount of use authorized by the water right and ordered that a measuring device be placed at the point of diversion to insure that there would be no injury to senior water rights.
Dovel sought review by the district court. The district judge concluded that the director's decision was neither clearly erroneous nor characterized by abuse of discretion. Dovel appealed to this Court.
STANDARD OF REVIEW.
This appeal involves two separate issues--the approval of the transfer and the approval of the permit. Our standard of review is the same with regard to each of these issues.
I.C. § 42-1701A(4) directs that judicial review of a final decision of the director shall be governed by I.C. §§ 67-5215 and 67-5216. In an appeal from an agency decision, our review is limited to the record. St. Alphonsus Med. Ctr. v. Canyon County, 120 Idaho 420, 816 P.2d 977 (1991). We review the agency's decision independently of the district court's decision. Ferguson v. Board of County Com'rs, 110 Idaho 785, 718 P.2d 1223 (1986); First Interstate Bank of Idaho, N.A. v. West, 107 Idaho 851, 693 P.2d 1053 (1984).
I.C. § 67-5215(g) governs the scope of our review:
(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or,
(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A reviewing court may reverse the agency decision only under these limited circumstances. State Ex Rel. Richardson v. Pierandozzi, 117 Idaho 1, 784 P.2d 331 (1989).
In essence, Dovel asserts that the director's decision is clearly erroneous in A finding of fact without any basis in the record would be clearly erroneous. Tappen v. Department of Health & Welfare, 98 Idaho 576, 570 P.2d 28 (1977). Also, a finding of fact lacking substantial and competent evidence to support it is clearly erroneous. Hubbard v. Canyon Cty. Com'rs, 106 Idaho 436, 680 P.2d 537 (1984). In order to uphold an agency's finding, we must find more than a mere scintilla of evidence. Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 715 P.2d 927 (1986).
[122 Idaho 62] view of the evidence. In order for us to uphold an agency's decision under this clearly erroneous standard we must conclude that the record contains "some reliable, probative, and substantial evidence in support of its position." Idaho County Nursing Home v. Department of Health & Welfare, 120 Idaho 933, 821 P.2d 988 (1991).
If we cannot find any support for the agency's decision in the record, we can reverse the decision or remand the case for further proceedings. Idaho County Nursing Home v. Department of Health & Welfare, 120 Idaho 933, 821 P.2d 988 (1991); Love v. Board of County Com'rs, 105 Idaho 558, 671 P.2d 471 (1983).
THE TRANSFER.
The transfer of the Porter Creek water right is governed by I.C. § 42-222(1). The pertinent part of this statute states:
(1) Any person, entitled to the use of water whether represented by license issued by the department of water resources, by claims to water rights by reason of diversion and application to a beneficial use as filed under the provisions of this chapter, or by decree of the court, who shall desire to change the point of diversion, place of use, periods of use or nature of use of all or part of the water, under the right shall first make application to the department of water resources for approval of such change...
The director of the department of water resources shall examine all the evidence and available information and shall approve the change in whole, or in part, or upon conditions, provided no other water rights are injured thereby, the change does not constitute an enlargement in use of the original right, and the change is consistent with the conservation of water resources within the state of Idaho.
Dovel challenged the proposed transfer alleging that a portion of the water right had been forfeited through nonuse and that the transfer constituted an enlargement of the original right. Forfeiture of water rights are governed by I.C. § 42-222(2) which states in part:
(2) All rights to the use of water acquired under this chapter or otherwise shall be lost and forfeited by a failure for the term of five (5) years to apply it to the beneficial use for which it was appropriated and when any right to the use of water shall be lost through nonuse or forfeiture such rights to such water shall revert to the state and be again subject to appropriation under this chapter.
Pursuant to this statute, an appropriator who fails to apply the water right beneficially for a period of five (5) consecutive years loses all rights to use such water, regardless of intent. Sears v. Berryman, 101 Idaho 843, 623 P.2d 455 (1981); Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).
In Jenkins v. Department of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982), the Court reiterated some of the basic principles relating to forfeitures:
Statutory forfeiture is based upon the legislative declaration in I.C. § 42-222(2) that water rights may be lost if they are not applied to a beneficial use for a period of five continuous years.... [I]f use of the water right is resumed after the five year period, but before any third parties make a claim in the water, then the courts will decline to declare a forfeiture.
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