Snake River Basin Water System, In re

Decision Date13 October 1988
Docket NumberBOISE-KUNA,17275,Nos. 17267,s. 17267
Citation764 P.2d 78,115 Idaho 1
CourtIdaho Supreme Court
PartiesIn re the General Adjudication of Rights to the Use of Water from the SNAKE RIVER BASIN WATER SYSTEM. (Two Cases) The STATE of Idaho, ex rel. R. Keith HIGGINSON in his official capacity as Director of the Idaho Department of Water Resources, Petitioner-Respondent, v. The UNITED STATES of America; the State of Idaho; and all claimants of water from the Snake River Basin Water System, Defendants.IRRIGATION DISTRICT, Nampa & Meridian Irrigation District, New York Irrigation District, Wilder Irrigation District and Big Bend Irrigation District, Defendants-Appellants, v. The STATE of Idaho, ex rel. R. Keith HIGGINSON in his official capacity as Director of the Idaho Department of Water Resources, Petitioner-Respondent, and The United States of America; The State of Idaho, Defendants-Respondents, and Twin Falls Canal Company and North Side Canal Company, Intervenors-Respondents. STATE of Idaho, ex rel. R. Keith HIGGINSON in his official capacity as Director of the Idaho Department of Water Resources, Petitioner-Respondent, v. The UNITED STATES of America, the State of Idaho, and all claimants to the use of water from the Snake River Basin Water System, Defendants-Respondents. STATE of Idaho, ex rel. R. Keith HIGGINSON in his official capacity as Director of the Idaho Department of Water Resources, Petitioner-Respondent, and Twin Falls Canal Company and North Side Canal Company, Intervenors-Respondents, v. WEISER IRRIGATION DISTRICT, Defendant-Appellant, and Water District 67A and all Users therein, Defendants.

Hawley, Troxell, Ennis & Hawley, Boise, for defendants-appellants, Wilder Irr. Dist., Don A. Olowinski, argued.

Ringert, Clark, Harrington, Reid, Christenson & Kaufman, Boise, for defendant-appellant, Nampa & Meridian Irr. Districts. William F. Ringert, argued.

Givens, McDevitt, Pursley, Webb & Buser, Boise, for defendant-appellant, New York Irr. Dist. Raymond D. Givens, argued.

Jim Jones, Atty. Gen., Clive Strong, Deputy Atty. Gen., Boise, for petitioner-respondent, State of Idaho. Clive Strong, argued.

Maurice O. Ellsworth, U.S. Atty., and Jeffery G. Howell, Asst. U.S. Atty., Boise, and William B. Lazarus, Asst. U.S. Atty. (argued) of Dept. of Justice, Lands Div., Washington, D.C., for defendants-respondents.

Nelson, Rosholt, Robertson, Tolman & Tucker, Twin Falls, for intervenors-respondents, Twin Falls Canal Co. and North Side Canal Co. Terry Thomas Uhling, argued.

JOHNSON, Justice.

This case involves the adjudication of water rights in the Snake River basin. The primary issue presented is whether the trial court properly included the Boise River and Weiser River sub-basins in defining the boundaries of the water system to be adjudicated. We affirm the commencement order of the trial court requiring the inclusion of these sub-basins in the adjudication. We hold that their inclusion is required in order to obtain jurisdiction over the United States under the McCarran Amendment (43 U.S.C. § 666).

I.

THE FACTS AND PRIOR PROCEEDINGS.

This case is a sequel to the decision of this Court in Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983). In that case this Court held that the subordination clause included in the Federal Power Commission license granted to Idaho Power Company for the Hell's Canyon project applied only to the water rights at the Hell's Canyon project and not to those at Swan Falls or to any other dams further up the Snake River. This Court remanded the case to the trial court for further proceedings to resolve the affirmative defenses.

[115 Idaho 3] Idaho Power responded by filing a second lawsuit naming as defendants the State of Idaho and approximately 7500 persons claiming water rights in the Snake River basin. Idaho Power Co. v. Idaho Department of Water Resources, Ada County Civil Case Number 81375.

In 1984 in an effort to resolve these cases an agreement was entered into among the State of Idaho, the governor of the state of Idaho, the attorney general of the state of Idaho, and Idaho Power Company. As part of this agreement the parties agreed to support legislation for the commencement of an adjudication of the water rights of the Snake River basin.

In 1985 the Idaho Legislature enacted two bills--H.B. 70 and H.B. 267 (1985 Idaho Sess.Laws chs. 18, 118, pp. 27, 287)--which together constitute I.C. § 42-1406A. Section 1 of H.B. 70 enacted I.C. § 42-1406A (1) and (2). H.B. 267 amended I.C. § 42-1406A by adding a new subparagraph (3). H.B. 267 read as follows:

CHAPTER 118

(H.B. No. 267)

AN ACT

RELATING TO THE ADJUDICATION OF WATER RIGHTS IN THE SNAKE RIVER BASIN; AMENDING SECTION 42-1406A, IDAHO CODE, AS ENACTED BY HOUSE BILL NO. 70, FIRST REGULAR SESSION, FORTY-EIGHTH IDAHO LEGISLATURE, TO PROVIDE INSTRUCTIONS TO THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES WHEN HE ADJUDICATES THE SNAKE RIVER BASIN FROM THE OREGON BORDER UPSTREAM; TO ALLOW THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES TO ADJUDICATE THE WATER RIGHTS OF THE MAIN STEM OF THE SNAKE RIVER WHICH FORMS THE BOUNDARY BETWEEN THE STATE OF IDAHO AND THE STATES OF OREGON AND WASHINGTON, AND TO INCLUDE WITHIN HIS PETITION FOR ADJUDICATION ANY ADJUDICATED TRIBUTARIES; AND TO PROHIBIT THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES FROM READJUDICATING ANY TRIBUTARY OF THE SNAKE RIVER DOWNSTREAM WHICH PREVIOUSLY HAS BEEN ADJUDICATED UNLESS IT IS NECESSARY TO OBTAIN THE CONSENT OF THE UNITED STATES OR OTHER NECESSARY PARTIES.

Be It Enacted by the Legislature of the State of Idaho:

SECTION 1. That Section 42-1406A, Idaho Code, as enacted by House Bill No. 70, First Regular Session, Forty-eight Idaho Legislature, be, and the same is hereby amended to read as follows:

42-1406A. SNAKE RIVER BASIN ADJUDICATION--COMMENCEMENT. (1) Effective management in the public interest of waters of the Snake River basin requires that a comprehensive determination of the nature, extent and priority of the rights of all users of surface and ground water from that system be determined.

Therefore, the director of the department of water resources shall petition the district court to commence an adjudication within the terms of the McCarran amendment, 43 U.S.C. section 666, of the water rights of the Snake River basin either through initiation of a new proceeding or the enlargement of an ongoing adjudication proceeding. The petition shall describe:

(a) The boundaries of the system within the state to be adjudicated;

(b) Any class of water users within the system and the boundaries of any hydrologic sub-basins within the system for which the director intends to proceed separately with respect to the actions required or authorized to be taken pursuant to sections 42-1408 through 42-1414, Idaho Code; and

(c) The uses of water, if any, within the system that are recommended to be excluded from the adjudication proceeding.

(2) Upon issuance of an order by the district court which:

(a) Authorizes the director to commence an investigation and determination of the various water rights to be adjudicated within the system;

(b) Defines the boundaries of the system within the state to be adjudicated;

(c) Defines the classes of water users within the system and the boundaries of any hydrologic sub--basins within the system for which proceedings may advance separately pursuant to sections 42-1408 through 42-1414, Idaho Code; and

(d) Defines any uses of water excluded for the adjudication proceedings;

the adjudication shall proceed in a manner provided under the provisions of chapter 14, title 42, Idaho Code, with the exception of sections 42-1406 and 42-1407, Idaho Code.

(3) In exercising his authority under subsection (1) of this section, the director of the department of water resources:

(a) Shall petition the district court to commence an adjudication of the water rights of all of the Snake River basin within the state of Idaho upstream from the point at which the Snake River leaves the state of Idaho and enters the state of Oregon in section 14, township 4 north, range 6 west, Boise Meridian; b) May petition the district court to commence an adjudication of the water rights of the main stem of the Snake River which forms the boundary between the state of Idaho and the states of Oregon and Washington. The director may include within his petition under this paragraph any unadjudicated tributaries. The director shall not include in the petition filed under this paragraph any adjudicated tributary unless the United States, or other parties whose consent is necessary, refuse to consent to the jurisdiction of the district court to adjudicate all federal or Indian water rights claims pursuant to the McCarran amendment, 42 U.S.C. section 666.

1985 Idaho Sess.Laws, ch. 118, p. 287.

The legislative history of H.B. 267 is clear that by "any adjudicated tributary" the legislature intended to refer to the Boise, Payette, Weiser and Lemhi Rivers (the adjudicated tributaries). The record demonstrates that none of these adjudicated tributaries have been fully adjudicated as to all water rights of the United States pursuant to the McCarran Amendment.

In 1987 the director of the Idaho department of water resources (the Director) filed a petition in the trial court "for the general adjudication inter se of all rights arising under state or federal law to the use of surface and ground waters from the Snake River basin water system and for the administration of such rights." In this petition the director alleged that the trial court had jurisdiction of all claims of the United States under the McCarran Amendment. The McCarran Amendment states in part:

Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of the rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of...

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