State, Dept. of Parks v. Idaho Dept. of Water Administration

• Decision Date: 31 December 1974
• Docket Number: No. 37-7108,No. 11455,37-7108,11455
• Parties: , 5 Envtl. L. Rep. 20,508 In the Matter of Permit Applicationin the Name of the State of Idaho Department of Parks (Malad Canyon Springs). STATE of Idaho, DEPARTMENT OF PARKS, Respondent, Idaho Water Users Association et al., Respondents and Cross Appellants, v. IDAHO DEPARTMENT OF WATER ADMINISTRATION, Appellant and Cross Respondent
• Court: Idaho Supreme Court

Page 924

530 P.2d 924

96 Idaho 440, 5 Envtl. L. Rep. 20,508

In the Matter of Permit Application No. 37-7108 in the Name of the State of Idaho Department of Parks (Malad Canyon Springs) STATE of Idaho, DEPARTMENT OF PARKS, Respondent Idaho Water Users Association et al., Respondents and Cross Appellants, v. IDAHO DEPARTMENT OF WATER ADMINISTRATION, Appellant and Cross Respondent.

No. 11455.

Supreme Court of Idaho

Dec. 31, 1974.

Nathan W. Higer, Deputy Atty. Gen., for Department of Water Administration, appellant and cross respondent.

John A. Rosholt, Parry, Robertson, Daly & Larson, Twin Falls, for respondents and cross appellants Idaho Water Users Association, Twin Falls Canal Company and North Side Canal Company.

W. Anthony Park, Atty. Gen., and Matthew J. Mullaney, Deputy Atty. Gen., for respondent Department of Parks.

SHEPARD, Chief Justice.

This is an appeal and a cross-appeal from a judgment of the district court in an action wherein the Idaho Department of Parks, pursuant to statute, sought to appropriate in trust for the people of Idaho certain unappropriated waters of the Malad Canyon. The case presents for consideration three primary questions:

1. May an agency of the State of Idaho, without express constitutional authority, appropriate waters and obtain a priority water right;

2. Does the appropriation of water for the purposes of recreation and the preservation of scenic views constitute a 'beneficial use';

3. In Idaho may there be created a valid appropriative water right in the absence of an actual physical diversion of the water from its natural locus or condition.

In 1971 the Idaho Legislature enacted I. C. § 67-4307. ¹ In essence the statute directs the Department of Parks of the State of Idaho to appropriate in trust for the people of Idaho certain unappropriated natural waters of the Malad Canyon in Gooding County, Idaho. Additionally, it declares (1) that the preservation of the waters for scenic beauty and recreation uses is a beneficial use of water; (2) that the public use of those waters is of greater priority than any other use save domestic consumption, and (3) that the unappropriated state land located between the highwater marks on either bank of these waters is to be used and preserved in its present condition as a recreational site for the people of Idaho.

Pursuant to the statute the Idaho Department of Parks filed an application for a permit to appropriate the waters specified by the statute. The waters in question arise in part at least from springs in the canyon and are natural waters. There appears no argument but that there is unappropriated water available for appropriation.

That application was protested by the Idaho Water Users Association, Twin Falls Canal Company, and North Side Canal Company under the provisions of I.C. § 42-203. Those parties are cross-appellants herein and are hereafter designated 'Water Users.' The parties stipulated that the answers to the following legal issues were dispositive of the matter.

1. Is it constitutional for an Idaho State agency to appropriate, without express constitutional authorization, the waters of a natural stream, thereby obtaining a water right having priority over water rights on the same stream which may be subsequently appropriated by private parties? 2. Are the uses described in I.C. § 67-4307 (scenic beauty and recreational purposes) 'beneficial uses' which support a water appropriation under the Idaho Constitution?

3. Can there be created in Idaho a valid appropriative water right without an actual physical reduction to possession of the claimed water through an actual diversion of the water from, or artificial control of the water in, the water's natural locus or condition?

The Department of Water Administration issued a decision July 6, 1972 holding that a state agency can lawfully appropriate waters of a natural stream and that recreation and aesthetic uses are beneficial uses of water, but found that in Idaho there can be no valid appropriation of water without at least a proposed physical diversion or reduction of water to possession. Finding that there was no proposed physical diversion or reduction to possession intended on the part of the Department of Parks, the Department of Water Administration refused to issue the permit.

The Department of Parks appealed this decision as to issue 3 to the district court, and the Water Users cross-appealed upon issues 1 and 2. The parties filed motions for summary judgment. The district court held that a valid appropriation can be effected without actual physical diversion or reduction of water to possession and granted the motion of Parks as to issue 3. The motions of the Department of Water Administration and Water Users as to issues 1 and 2 were denied. The Department of Water Administration has appealed the decision of the district court and the Water Users have cross-appealed.

I.

The Water Users are the only parties which assert that the district court erred when it held that a state agency can constitutionally appropriate unappropriated waters of natural streams. The Water Users argue that to allow such an appropriation would eliminate the availability of that water for appropriation by private parties, thus violating article 15, section 3 of the Idaho Constitution. In pertinent part it is stated therein:

'The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied * * *.'

Authority for the assertion of the Water Users is not found in the plain language of that constitutional provision since there is no limitation therein to 'private parties' as distinguished from the state or a state agency. We deem it common knowledge and it is pointed out in the decision of the Department of Water Administration that in Idaho and throughout the western states, state agencies frequently appropriate water, i. e., the Fish and Game Department appropriates water for pisciculture, state universities appropriate and consume water, the Department of Parks utilizes water to maintain state parks. See also 1 W. A. Hutchins, Water Rights Laws in the Nineteen Western States, ch. 7, pp. 250-251 (1971). It is true, as argued, that if a state agency is allowed to appropriate water the quantity of unappropriated water is thereby reduced. Nevertheless, the same is true of any appropriation regardless of the identity of the appropriator. We have not been supplied, nor has our research discovered, any authority from our sister states having constitutional provisions analogous to ours which supports this contention of the Water Users.

The Water Users assert that their position is supported by State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779 (1936). In Enking a state statute creating the State Water Conservation Board and defining its duties and powers was declared unconstitutional. We deem the dispositive issue in that case to be that the act in question had in effect created a corporation and was thus invalid under either article 3, section 19, or article 11, section 2 of the Idaho Constitution. In candor, however, we must state that Enking contains language supportive of the Water Users position herein. Nevertheless we deem such language to be arguably dictum and only supportive of the court's conclusion that the Water Conservation Board therein was a corporation. Certain of the language from Enking, albeit probably dictum, could be construed to indicate that our constitution imposes an absolute prohibition against the state's appropriating water. The Water Users have adopted this view, asserting that the constitution must be amended prior to state agencies being allowed to appropriate water.

It is our opinion that the fears of the Enking court which prompted its construction of article 15, section 3, are totally inapplicable to the case at bar. The court in Enking speaks of that Board's power 'to appropriate any or all the unappropriated public waters of the state' and 'the settler (being) thereby forced to ultimately pay arbitrarily fixed water rates for the use of water.' The court in Enking also expressed considerable alarm at the Board's authority to 'condemn private water rights,' to 'monopolize' water rights, and to 'appropriate and sell the unappropriated waters of the state.' In contrast with the situation in Enking and the fears of the court expressed therein, I.C. § 67-4307, at issue herein, only authorizes the Department of Parks to appropriate, in trust for the public, certain clearly designated waters for nonconsumptive use. We are of the opinion that the legislature in the instant case has not adopted an insidious scheme in an attempt to monopolize the state's unappropriated waters or to condemn already appropriated waters. Only in a geographical sense can there be said to be any interference with a future private appropriative right since the legislatively authorized use is nonconsumptive and once the waters have left the area delineated by the statute they are and will be subject to routine private appropriation.

We hold that I.C. § 67-4307 does not constitute a disobedience of the constitutional mandate that the 'right to divert and appropriate the unappropriated waters * * * to beneficial uses, shall never be denied.' The only authority contrary to that holding is the language we determine to be arguably dictum in Enking, and to the extent that this opinion is inconsistent with that language we overrule the latter.

II.

The Water Users also assert error in the trial court's determination that the preservation of aesthetic values and recreational opportunities for the citizens of this state is a beneficial use in the sense that they will support an appropriative water right under the Idaho Constitution.

The foundation of the Water Users' argument is that the five uses specified in article 15, section 3 of the Constitution, i. e., domestic, agriculture, mining,...