Idaho Water Resource Bd. v. Kramer, 11803

Citation97 Idaho 535,548 P.2d 35
Decision Date10 March 1976
Docket NumberNo. 11803,11803
PartiesIDAHO WATER RESOURCE BOARD, an Agency of the State of Idaho Plaintiff-Respondent, Idaho Power Company, a Maine Corporation, Intervenor-Respondent v. Donald R. KRAMER, as Secretary of The Idaho Water Resource Board, Defendant-Appellant.
CourtUnited States State Supreme Court of Idaho

William D. Collins, of Collins & Manly, Boise, for defendant-appellant.

Philip E. Peterson, Lewiston, Chapman & Cutler, Chicago, Ill., for plaintiff-respondent.

James E. Bruce, Paul L. Jauregui, Boise, for intervenor-respondent.

McQUADE, Chief Justice.

This action was initiated by plaintiff-respondent, Idaho Water Resource Board (hereinafter respondent) against defendant-appellant, Donald R. Kramer (hereinafter appellant), as Secretary of respondent, for the issuance of a writ of mandate to compel appellant to execute the joint application of respondent and intervenor, Idaho Power Company (hereinafter intervenor), with the Federal Power Commission for a power license to operate power generation facilities on the Snake River. The action was brought after appellant refused to execute the joint application although directed to do so by respondent. An alternative writ of mandate was issued by the trial court, ordering appellant to execute the joint application or to show cause why he should not do so. Subsequent to the issuance of this writ, the intervenor filed a complaint in intervention adopting the position of respondent as its own, and joining with respondent in asking that the alternative writ of mandate be made permanent. The trial court issued an order permitting the intervention. Appellant filed an answer setting forth his reasons for refusing to execute the joint application, and asking that the alternative writ be vacated and that the peremptory writ be denied. A hearing was held and findings of facts and conclusions of law were entered. The trial court entered final judgment in favor of respondent and intervenor, and against appellant, directing that a peremptory writ of mandate be issued, and ordering appellant and his successor in office to execute the joint application by affixing his signature to it. Appellant has appealed the trial court's judgment. We affirm the judgment of the trial court.

BACKGROUND

Before addressing the assignments of error raised by appellant, it is necessary to chronologically retrace some of the pertinent legislative history which relates to this action. In 1964, art. XV of the Idaho Constitution was amended by addition of a new section to read as follows:

' § 7. State water resource agency.-There shall be constituted a Water Resource Agency, composed as the Legislature may now or hereafter prescribe, which shall have power to formulate and implement a state water plan for optimum development of water resources in the public interest; to construct and operate water projects; to issue bonds, without state obligation, to be repaid from revenues of projects; to generate and wholesale hydroelectric power at the site of production; to appropriate public waters as trustee for Agency projects; to acquire, transfer and encumber title to real property for water projects and to have control and administrative authority over state lands required for water projects; all under such laws as may be prescribed by the Legislature.'

In 1965, the Legislature enacted Chapter 320, Session Laws of 1965, codified at I.C. §§ 42-1731 to 42-1738, inclusive, establishing respondent as the constitutional water agency pursuant to the provisions of art. XV, § 7Of the Constitution, and providing for its organization, powers and duties. Also enacted was Chapter 319, Session Laws of 1965, codified at I.C. §§ 12-1739 to 42-1749, inclusive, authorizing the issuance of revenue bonds for the purpose of constructing water projects. Such bonds were to be payable solely out of revenues of respondent from special funds, and not from appropriate moneys.

HISTORY OF THE SWAN FALLSGUFFEY PROJECT

Prior to 1969, the United States Bureau of Reclamation developed a plan for the maximum use and development of the water, land and related resources of Southwestern Idaho. This comprehensive plan is known as the 'Southwest Idaho Water Development Project.' In September of 1969, intervenor submitted a proposal to respondent to partially fulfill a portion of this Bureau or Reclamation plan. Intervenor, who owned and operated a dam and power plant at the Swan Falls site on the Snake River pursuant to a Federal Power Commission license, proposed to respondent that they jointly reconstruct the existing Swan Falls dam and power plant, and construct a new dam and power plant downstream in the Guffey area to reregulate the flow from the reconstructed Swan Falls dam. Under this proposal, respondent was to construct and own the two dams and lease them to intervenor, who in turn was to construct and own all power generation facilities. The proposal provided for intervenor to make annual lease or rental payments to respondent. These payments were designed to cover respondent's costs for financing the construction of the dams. Any surplus funds available as a result of the intervenor's annual payments were to be applied by respondent for future irrigation development.

In 1970, the Legislature appropriated funds to prepare a feasibility study of hydroelectric development on the Grandview-Guffey Reach of the Snake River. 1

[97 Idaho 542] The feasibility study was prepared by International Engineering Company, Inc. of San Francisco, California, and consisted of an evaluation report dated October, 1970, and a supplemental evaluation study of Swan Falls-Guffey Hydro dated February, 1971. In essence, these reports reached the conclusion that either state ownership or the joint venture project proposed by the intervenor for the development of Grandview-Guffey Reach of the Snake River was feasible.

At a meeting held on January 18, 1971, respondent adopted a resolution whereupon it recited that it had reviewed the conclusions reached in the evaluation report for state or joint venture development of the dams at the Swan Falls and Guffey sites, and had concluded that the development of these dams would be in the public interest of the state and constitute optimum use of the state's water. It thereafter directed its staff and counsel to submit enabling legislation permitting either state or joint venture ownership at the next session of the Legislature, and directed that negotiations continue with the intervenor concerning the joint venture proposal and licensing by the Federal Power Commission of the proposed project.

Subsequent to the adoption of this resolution and during February of 1971, respondent, pursuant to the provisions of I.C. § 42-1734(b), 2 conducted a series of public hearings in connection with the preparation of a state water plan. These hearings were held in Mountain Home, Boise and Nampa, to consider the feasibility of developing dams at the Swan Falls and Guffey sites, and to discuss the alternatives of state versus joint venture development.

The Legislature in March of 1971, enacted Chapter 265, Sess.Laws of 1971, as amended by Chapter 270, Sess.Laws of 1971. As this legislation is crucial to the issues raised in this appeal, we set it out in its entirety Chapter 265 as amended:

SECTION 1. The legislature finds and declares that the development of the Grandview-Guffey Reach of the Snake River by the Idaho water resource board is in the public interest and that it is a public purpose that the Idaho water resource board exercise the powers authorized in sections 2, 3, 4, 5 and 6 of this act to:

(a) maximize the recreational potential, development of fish and wildlife habitat, and uses of the water resources of Idaho;

(b) Facilitate irrigation of the arid lands of Idaho by providing means of utilizing the water resources of Idaho; and

(c) by contributing to the development of necessary electrical energy for use in the Ada-Canyon County area of southwest Idaho, achieve economy in the generation of electricity through the use of water resources thereby meething the future power needs of the state of Idaho and its inhabitants.

SECTION 2. That the Idaho water resource board is authorized to plan, finance, construct, acquire, operate, own, and maintain a water project in the Grandview- SECTION 3. In carrying out the powers granted by this act, if exercised in a joint venture with a privately owned electric utility company, or other entity, the Idaho water resource board shall be liable only for its own acts with regard to the financing, planning, construction, acquisition, operation, ownership, or maintenance of the water project, including jointly owned facilities, and in the event of a joint venture, any such agreement or contract providing for such joint venture shall so provide. No monies or other contributions to the joint venture supplied by the Idaho water resource board for the planning, financing, construction, acquisition, operation, or maintenance of jointly owned facilities shall be credited or applied otherwise to the account of any other participant in the joint venture.

Guffey Reach of the Snake River consisting of a dam or dams at sites known as Guffey and Swan Falls, or at such other sites in the Grandview-[97 Idaho 543] Guffey Reach of the Snake River as may be approved by the federal power commission, together with all necessary works and facilities for the generation and wholesale of hydroelectric power at the site of production in connection with such water project and together with all other necessary related structures and equipment, and subject to the provisions of this act, to negotiate and to enter into contracts for the wholesale of hydroelectric power at the site of production for sale of power generation of electric power and for the transmission thereof, and to make such plans and enter into such contracts and agreements as are necessary...

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