Kunz v. Utah Power & Light Co.

• Decision Date: 03 April 1990
• Docket Number: No. 18076,18076
• Citation: 792 P.2d 926,117 Idaho 901
• Parties: Wayne KUNZ; Olive Kunz; Glenn V. Turner; Carol Turner, Plaintiffs-Appellants, v. UTAH POWER & LIGHT COMPANY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 926

792 P.2d 926

117 Idaho 901

Wayne KUNZ; Olive Kunz; Glenn V. Turner; Carol Turner, Plaintiffs-Appellants, v. UTAH POWER & LIGHT COMPANY, Defendant-Respondent.

No. 18076.

Supreme Court of Idaho.

April 3, 1990.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for appellants. Louis F. Racine, Jr., argued.

Merrill & Merrill, Pocatello, for respondent. Stephen S. Dunn argued.

Webb, Burton, Carlson, Pedersen & Webb, Twin Falls, for amicus Salmon River Canal Co. Lloyd J. Webb argued.

Hon. Jim Jones, Attorney General, Boise, for amicus Department of Water Resources. Deputy Atty. Gen. John W. Homan argued.

BAKES, Chief Justice

This case concerns an action brought in federal court by Kunz and various other landowners ("landowners") against Utah Power & Light Company ("Utah Power") for damages to real and personal property caused when Utah Power discharged water from an artificial storage system into a natural stream channel thereby flooding the riparian landowners' property. The United States District Court dismissed all of the landowners' theories of liability except for the negligence theory. The jury found that Utah Power was not negligent in its operation of the water storage system. The landowners appealed to the United States Court of Appeals, Ninth Circuit, alleging, among other things, that the district court erred in dismissing their alternative non-negligence theories. The Ninth Circuit was unable to determine whether, under Idaho law, an action may be maintained pursuant to strict liability, trespass, or private nuisance for damages caused by the storage and intentional, but non-negligent, discharge of water stored for irrigation and related purposes. Accordingly, the following three questions were certified to this Court by the Ninth Circuit 871 F.2d 85, pursuant to I.A.R. 12.1:

(1) Under Idaho law, may one be held liable without proof of fault for damages caused by the intentional discharge of water?

(2) Under Idaho law, may one be held liable pursuant to a direct trespass theory for damages caused by the intentional discharge of water?

(3) Under Idaho law, may one be held liable pursuant to a private nuisance theory for damages caused by the intentional, but non-negligent, discharge of water?

In its order certifying these questions, the Ninth Circuit provided this Court with the following factual summary of the case as it existed in federal court. ¹

Bear Lake lies on the border between Idaho and Utah. Bear River begins high in the Uinta Mountains of Utah, meanders back and forth between Utah and Wyoming, flows north some distance into Idaho, and finally turns back south into Utah, where it terminates in the great Salt Lake. Bear River does not naturally enter Bear Lake; instead it flows past it a few miles to the north. In about 1917, however, the predecessor of Utah Power constructed Stewart Dam on the river, diverting the river's flow southward via canals into Mud Lake, which connects with Bear Lake. Bear Lake is thereby utilized as a reservoir. After the water reaches Bear Lake, it flows northward out of the lake, by gravity or through pumping, via an outlet canal to rejoin the old natural bed of Bear River some distance north of Stewart Dam. Between certain maximum and minimum limits (the height of the release gates and the depth of the pumping intake facilities), Utah Power can control the flow out of Bear Lake, and it can close the lake so that the flow continues directly down the river. The use of Bear Lake for water storage is the central feature of the whole system. The dam, canals, and control facilities are located within Idaho.

Utah Power operates the system under the authority of various federal statutes, a court decree, and the Bear River Commission (established by the Bear River Compact, a joint effort of Idaho, Utah, and Wyoming). The explicit purposes for which Utah Power is commissioned to operate the system are (1) to store water for irrigation throughout the valley in Idaho and Utah below the Bear Lake facilities and (2) to generate hydroelectric power. In addition, as Kunz I [Kunz v. Utah Power & Light Co., 526 F.2d 500 (9th Cir.1975) ] conclusively established, Utah Power is required to use the facilities for flood control, particularly as to the spring runoffs of the watershed. Flood control is not one of the specified purposes imposed by the authorizations but is imposed by common-law negligence principles. See generally Kunz Utah Power regulates the storage capacity of Bear Lake by adjusting the lake's elevation. The key period is spring because during that period the runoffs cause a substantial rise in the lake's elevation. The full capacity level of the lake is 5923.65 [ft.]. In regulating the lake elevation Utah Power balances the competing factors, including, irrigation, flood control, fish and wildlife, recreation, and power generation.

                [117 Idaho 903] 526 F.2d at 502-04. 2  Additionally, the Bear River Compact establishes a minimum irrigation reserve level requirement.  Under the dictates of the compact, Bear Lake must be maintained at an elevation of 5914.61 [ft.]
                

Landowners are numerous farmers who own or lease riparian lands, and a private irrigation company, located along the Bear River below Bear Lake. Prior to 1917 much of these lands were devoted to orchard grasses and wild hays, which were dependent upon flooding from natural spring runoffs to maintain their growth. The installation of the water storage system in 1917 harnessed the spring runoffs and stopped the flooding, so the ranchers converted their operations to alfalfa and cereal crops, which will not tolerate floods.

During the period between 1983-1986, the spring runoffs were unusually heavy. During this period, Landowners' lands were flooded by stored and naturally flowing waters which were respectively discharged and "bypassed" by Utah Power from Bear Lake into the natural channel of Bear River in amounts exceeding the carrying capacity of the natural channel.

In its certification order the Ninth Circuit noted what it concluded was the existence of two distinct lines of Idaho cases that appeared to apply different liability standards in cases that involve flood damage. It described one line of cases as requiring a showing of negligence to hold a party liable for damages resulting from the escape, seepage, or percolation of water carried in an artificial channel, such as an irrigation canal or ditch. In these artificial channel cases non-negligence based theories of liability, such as strict liability, trespass, or private nuisance, are not recognized. See e.g., Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 288 P. 421 (1930); and Burt v. Farmer's Co-operative Irrigation Company, Ltd., 30 Idaho 752, 168 P. 1078 (1917). The Court of Appeals described another line of our cases which involve situations where a natural channel is altered or obstructed through the placement of barriers which diminish the ability of the channel to carry its natural volume thereby causing flood damage to another riparian landowner. Under these factual circumstances, the injured riparian landowner may not be limited to a "negligence only" cause of action. See e.g., Campion v. Simpson, 104 Idaho 413, 659 P.2d 766 (1983); Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Boise Development Company, Ltd. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917); and Fischer v. Davis, 19 Idaho 493, 116 P. 412 (1911). Our task essentially is to determine which line of cases more closely applies to the factual circumstances presented here, which involve an artificial water diversion and storage system (Bear Lake) which is subsequently discharged into a natural channel (Bear River) and thereafter causes flooding. For the reasons set forth below, we hold that the Stephenson and Burt line of cases applies to the facts of this case, and that negligence is the only basis for imposing liability on Utah Power. Accordingly, we respond in the negative to each of the certified questions.

The starting point in our analysis of which line of cases applies to the present Idaho's extensive agricultural economy would not exist but for the vast systems of irrigation canals and ditches which artificially deliver stored or naturally flowing water from Idaho's rivers and streams into abundant fields of growing crops. Many of these irrigation systems depend on dams which divert naturally flowing water, storing it in reservoirs and later releasing it for use on irrigated lands through canals and ditches. These artificial water storage systems serve an additional need for flood control, power generation, recreation, and provide beneficial environments for fish and wildlife.

                [117 Idaho 904] case is to explain why a distinction exists between them.  For instance, why does Idaho case law limit the theories of liability which can be brought against a irrigation system operator whose canal floods over its banks when other cases arguably place no such limitations on the theories of liability which can be brought against someone who erects a breakwater into the natural channel that causes damage to the property owner on the opposite bank of the stream?   The answer to this legal question is based almost entirely on the unique circumstances of Idaho's geography and economy.  "The water of this arid state is an important resource.  Not only farmers, but industry and residential users depend upon it."  Miles v. Idaho Power Company, 116 Idaho 635, 645-646, 778 P.2d 757, 767-768 (1989).  Because Idaho receives little annual precipitation, Idahoans must make the most efficient use of this limited resource.  "The policy of the law of this State is to secure the maximum use and benefit, and least wasteful use, of its water resources.  Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189 [ (1900) ];  Van Camp v. Emery, 13 Idaho 202, 89 P. 752 [ (1907) ];  Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481 [

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