SRBA Case No. 39576, In re

Decision Date01 September 1995
Docket NumberNo. 21869,21869
Citation912 P.2d 614,128 Idaho 246
PartiesIn re SRBA CASE NO. 39576. STATE of Idaho, ex rel. R. Keith HIGGINSON, as Director of the Department of Water Resources, Idaho Ground Water Appropriators, Inc., Petitioners-Appellants, and Legislature of the State of Idaho, Intervenor-Appellant, v. The UNITED STATES of America; Boise-Kuna Irrigation District, New York Irrigation District, Wilder Irrigation District, Big Bend Irrigation District; Nampa-Meridian Irrigation District, Grindstone Butte Mutual Canal Co., Rim View Trout; Pioneer Irrigation District, Sinclair Oil d/b/a Sun Valley Co., Payette Water Users Association, Inc., Thompson Creek Mining; Big Lost River Irrigation District, A & B Irrigation District, Burley Irrigation District, Falls Irrigation District, Aberdeen-Springfield Canal Company; Hagerman Water Right Owners Association; Idaho Power Company, Twin Falls Canal Company, North Side Canal Company; Fremont-Madison Irrigation District and Mitigation Group; J.R. Simplot Company; Nez Perce Tribe; Big Lost River Water Users Association; Richard F. Smith, Dick Smith Farms, Danny Summers, Bart H. Webster, Franko Farms, Craig J. Smith, John H. Smith & Sons, Upper Valley Irrigators Association; Certain Upper Valley Irrigators; Burgess Canal, Butler Island, Craig Mattson Canal,Corbett Slough, Foster Argo, Idaho Irrigation District, Independent Canal Company, Island Canal Company, Kite & Nord, Labelle Irrigating Company, Long Island Irrigation Company, North Rigby Irrigation, Parks & Lewisville Canal, Poplar Irrigation District, Rudy Canal Company, Snake River Valley Irrigation, Sunnydell Irrigation, West Labelle Irrigation, Respondents. Boise, April 1995 Term
CourtIdaho Supreme Court

Alan G. Lance, Attorney General, Clive Strong, Deputy Attorney General, Boise, for petitioner-appellant State of Idaho. Clive Strong argued.

Givens, Pursley & Huntley, Boise, for petitioner-appellant Idaho Ground Water Appropriators, Inc. Jeffrey C. Fereday argued.

Hopkins, Roden, Crockett, Hansen & Hoopes, Idaho Falls, for intervenor-appellant. C. Timothy Hopkins argued.

Betty H. Richardson, U.S. Attorney, Boise, William B. Lazarus, Dept. of Justice, Washington, D.C., for respondents U.S.A. William B. Lazarus argued.

Hepworth, Lezamiz & Hohnhorst, Twin Falls, for respondent Hagerman Water Rights Owners Association. John C. Honhorst argued.

Hollifield, Tolman & Bevan, Twin Falls, for respondent Big Lost River Water Users Association. William R. Hollifield argued.



McDEVITT, Chief Justice.


This case presents no disputed facts. As explained in In re Snake River Basin Water Sys., 115 Idaho 1, 764 P.2d 78 (1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989), the Legislature, in response to the Swan Falls controversy, enacted H.B. 70 and H.B. 267 establishing a general adjudication of the water rights on the Snake River Basin. H.B. 70, 267, 1985 Idaho Sess.Laws Ch. 18, pp. 27-31; Ch. 118, pp. 286-88. In 1986, prior to the commencement of the Snake River Basin Adjudication (SRBA), the Legislature added to and modified Title 42, Chapter 14 of the Idaho Code, governing the adjudication of water rights. H.B. 642, 1986 Idaho Sess.Laws Ch. 220, pp. 558-84. These changes were enacted, in part, to bring the SRBA within the terms of the McCarran Amendment, 43 U.S.C. § 666. The McCarran Amendment waives federal sovereign immunity in certain general water adjudications, allowing the United States and Indian tribes' water rights to be determined in state-court proceedings.

The 1986 statutes detailed the duties of the Director (the Director) of the Idaho Department of Water Resources (IDWR) to investigate and report the rights of water users in the water system, I.C. § 42-1408 (1986), and provided that the Director would be a party in the adjudication. I.C. § 42-1401A(7) (1986). The methods of filing objections to the Director's report and claimed water rights, filing responses to those objections, and judicial resolution of the issues are provided by I.C. § 42-1412 (1986). That section also provides that "[t]he report of the director, objections, responses to objections, notices of claims and any negotiated agreement between the state of Idaho and any federal reserved water right claimant shall constitute the pleadings." I.C. § 42-1412(4) (1986).

When no objections have been filed to a portion of the Director's report, the statutes provide that those portions "shall be admitted as true facts." I.C. § 42-4212(9) (1986). When an objection has been filed to a water right claimed or to the contents of a portion of the Director's report, the district court is directed to "conduct [a] trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure." I.C. § 42-1412(7) (1986).

In 1987, the Director filed a petition for the commencement of the SRBA in accordance with the statutes, and the district court issued a commencement order on November 19, 1987. On appeal, this Court affirmed the order commencing the SRBA. In re Snake River Basin Water Sys., 115 Idaho 1, 764 P.2d 78 (1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989).

After the commencement of the SRBA, this Court issued a Supplemental Order Granting Additional Powers to District Judge. In that order, this Court granted the district court "the authority and power to modify the procedure for making service of pleadings, motions, notices of hearing and other documents and the procedure of giving notice of hearings and trials before the court or any masters appointed by the court." In response to this order, the district court issued SRBA Administrative Order 1, supplementing the applicable Rules of Civil Procedure with specialized procedures "to the extent necessary to allow for the fair and expeditious resolution of all claims or issues in the SRBA."

During the course of the proceedings, the role of various state agencies, including the role of the Director, became a significant issue in the SRBA. When the Director failed to comply with discovery requests from the Hagerman Water Rights Owner's Association (Hagerman), Hagerman filed a motion to compel discovery with the district court. Following oral argument, the district court granted Hagerman's motion to compel and awarded costs and attorney fees to Hagerman. The district court further ordered that "[t]his sanction shall not be paid out of the Water Resources' Adjudication Account." IDWR filed a motion for permissive appeal from the award of fees, which the district court denied.

In 1993, owners of water rights governed by the SRBA filed a petition for a writ of mandate to compel the Director to deliver water sufficient to fulfill their previously adjudicated rights. The district court issued the writ of mandate and awarded attorney fees against the Director, finding that the Director and IDWR had no reasonable basis in law or fact to justify denying the request for delivery, and that the Director and IDWR's defense of the suit was frivolous, unreasonable, and without foundation. This Court affirmed the district court on appeal. Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

An injunction was also sought, seeking to prohibit the Idaho Department of Fish and Game (Fish and Game) from diverting water from Niagara Springs Creek. The injunction was based on the Director's report, which was objected to by Fish and Game. During the proceedings, the Director and Fish and Game were both represented by the Idaho Attorney General's office, despite the fact that they were arguing adversarial positions.

In response to the controversy surrounding the role of the Director, the district court designated basin-wide issue number two. The district court framed that issue as: "What is the role of the Director, i.e., The Idaho Department of Water Resources, as a party in this statutory adjudication requiring the judicial determination of each claimant's right to the use of water in the Snake River Basin."

Prior to the district court's ruling on basin-wide issue two, the Legislature significantly revised and amended the SRBA statutes. H.B. 969, 990, 1994 Sess.Laws Ch. 454, pp. 1443-78; Ch. 455 pp. 1478-91. Under the amended statutes, the Director was no longer included in the definition of "Party," I.C. § 42-1401A(7) (1994), and the Director's reports, notices of claimed water rights, objections to those claims, responses to objections, and negotiated agreements were no longer referred to as pleadings. I.C. § 42-1412(4) (1994). The code section setting out the requirements for the Director's report was amended to grant the Director more discretion in defining the form and content of the report. I.C. § 42-1411 (1994).

Idaho Code Sections 42-1401B and 1401C (1994) were adopted to define, respectively, the role of the Director and the role of various state agencies in the SRBA. I.C. § 42-1401B(1) (1994) provides that "[t]he director's role under this chapter is as an independent expert and technical assistant...." Subsections two and three of that statute provide that the Director is neither a claimant on behalf of the State nor a party in the SRBA. I.C. §§ 42-1401B(2), (3). Under I.C. § 42-1401C(1), the Idaho Water Resource Board and each state agency, with the exception of IDWR, "may file a claim and appear separately in any adjudication through the attorney general." The Legislature also enacted I.C. § 42-1423, which provides that the State and all state agencies are immune from awards of costs or attorney fees other than those costs required under I.C. § 42-1414 for appearing in a water rights adjudication. When the time for filing objections to the Director's report has expired, but before any trial is commenced, the 1994 statutes also require that the...

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