State ex rel. Tappan v. Smith

• Decision Date: 23 July 1968
• Docket Number: No. 10006,10006
• Citation: 92 Idaho 451,444 P.2d 412
• Parties: STATE of Idaho ex rel. Carl E. TAPPAN, State Reclamation Engineer, Plaintiff-Respondent, v. Clyde E. SMITH and Bonnie Smith, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 412

444 P.2d 412

92 Idaho 451

STATE of Idaho ex rel. Carl E. TAPPAN, State Reclamation Engineer, Plaintiff-Respondent, v. Clyde E. SMITH and Bonnie Smith, husband and wife, Defendants-Appellants.

No. 10006.

Supreme Court of Idaho.

July 23, 1968.

Rehearing Denied Sept. 10, 1968.

Anderson, Kaufman, Anderson & Ringert, Boise, for appellants.

Allan G. Shepard, Atty. Gen., and William D. Collins, Asst. Atty. Gen., Boise, and Stephen W. Boller, Sp. Asst. Atty. Gen., Shoshone, Herman E. Bedke, Pros. Atty. of Cassia County Burley, for appellee.

SMITH, Chief Justice.

Respondent, the state reclamation engineer, seeks to enjoin appellants, Clyde E. Smith and wife, from withdrawing underground water from a well on their farm, and from changing the point of diversion and place of use of water from two other wells. Respondent prays for an injunction restraining appellants from doing any act violative of respondent's orders of July 3, 1964, and August 25, 1964, and any act violative of the provisions of I.C. § 42-222, relating to change of place of use of water.

Appellants own at least three irrigation wells at the north end of Raft River Valley in Cassia County, Idaho, any they own and farm the lands irrigated by water from the wells. The three wells involved in this action are referred to hereinafter as Section 11 well, Section 12 well, and Section 28 well, describing the geographic location of each well in appellants' farming area.

July 23, 1963, Carl E. Tappan, the then state reclamation engineer issued the 'Raft River Critical Ground Water Area Order,' declaring a large portion of the Raft River drainage basin to be a critical ground water area. The order stated that it was issued in compliance with I.C. § 42-226 to § 42-239, inclusive.

In the summer of 1964, appellants drilled the Section 11 well on their land. Prior to drilling the well, appellants attempted to follow the statutory appropriation procedure of filing application for and obtaining permit from respondent for appropriation of the ground water to be obtained from the well, but respondent would not entertain the proceeding because of the Critical Ground Water Order. The Section 12 and Section 28 wells were drilled prior to the Critical Ground Water Order, and the statutory application and permit procedure was followed in both instances, a water license having been issued for the Section 28 well. Also, in 1964, appellants filed with the state reclamation engineer an application to change the point of diversion and place of use of the waters of the Section 28 well, to appellants' lands in Section 11. Respondent declined to hear or process the application.

July 3, 1964, respondent issued a written order that 'no water be withdrawn from said well at the center of Section Eleven (11), Township Eleven (11) South, Range Twenty-six (26) East, Boise Meridian, at any time until further notice by this office.' Respondent issued a similar order on August 25, 1964. Respondent's complaint alleges that appellants withdrew ground water from the Section 11 well on August 19, 1964, and on September 6, 1964, contrary to respondent's orders. The present injunction action resulted from appellants' repeated failures to comply with respondent's orders.

Most of the evidence pertains to the geography and water capacity of the Raft River Valley, and to the accuracy of the 1963 Critical Ground Water Area Order. The evidence shows that the Raft River Valley, which lies in northern Utah and southern Idaho, includes approximately a million acres situate in Idaho. Raft River flows in a northerly direction, and empties eventually into Snake River; at its northern extremity, Raft River has been dry during certain portions of many years.

The water supply of the Raft River Basin is derived from precipitation in the basin. The water is consumed by the combination of evaporation and plant transpiration, by crops, and by irrigation. All water, both surface water and underground, not consumed by evapo-transpiration and irrigation, flows into the Snake River Basin, and is lost to irrigation in the Raft River Valley. The evidence demonstrates that there is ground water flowing from the Raft River Basin and being lost to the basin, which water could be diverted and appropriated by wells and used for irrigation.

Respondent testified that he based his Critical Ground Water Order, and subsequent orders to appellants, on a survey of the total water yield of the basin conducted by the U.S. Geological Survey in 1954-1955, and published in 1961. (Nace Report-Geological Survey Water-Supply Paper 1587) The Nace Report summarizes its conclusions by stating, in pertinent part, as follows:

'The preliminary general conclusion is reached that sufficient uncommitted water is available and recoverable in the Raft River Basin to irrigate about 25,000 to 30,000 additional acres of properly situated land.

'Estimates in this report indicate that a moderate increase in irrigation would further deplete the water supply only moderately. However, this indication is the result of a series of estimates and extrapolations made on the basis of scanty data. The analysis of hydrologic factors and the estimates of water yield were made carefully, but the result is still only an estimate which probably will be revised in time.

'Conservatism is advisable in further development in the Raft River basin. If the water yield estimated in this report is much higher than the actual yield, the consequence of rapid exploitation might be unfortunate. Overdevelopment might occur before positive symptoms of it were detected by hydrologic means, but the authors believe that development on the scale suggested above would be conservative. If increased draft on the water supply were made in increments of a few thousand acre-feet per year, it would be feasible by hydrologic means to detect symptoms of over-development before it became excessive. Two factors will potentially limit the development: the amount of water available, and the amount of the available supply that can be recovered economically from wells.' P. 106.

A subsequent U.S. Geological Survey report (Mundorff report-Geological Survey Water-Supply Paper 1619-CC) was prepared on the Raft River Basin, which report was published in 1963 and based on studies made in 1960. The Mundorff report estimated ¹ that the average quantity of ground water occurring each year and leaving the basin was about 200,000 acre feet, as compared with the Nace report's estimate of 140,000 acre feet. The Mundorff report thus determined that there was substantially more ground water susceptible to diversion for irrigation than was determined by the Nace report.

Respondent testified that he relied on the conclusions in the Nace report, as opposed to the more recent Mundorff report, in issuing the Raft River Critical Ground Water Area Order, because 'they seemed to be on the conservative side; seemed to be more reasonable and more easily understood; more easily defined.' He further testified, in response to questions concerning his choice of survey:

'I did look at Mr. Mundorff's report, but my conclusion was Mr. Nace had better information and a better treatise on the conditions in the valley. * * * After some perusal of literature and my knowledge of the methods, it occurred to me that the Nace report would prehaps be more reasonable in view of the lack of information that all those reports needed, or were short of.'

Respondent then stated that he rejected the conclusions of the Mundorff report as to the amount of water in the basin because, 'it seemed to me he lacked the same information that Nace did, * * * as far as precipitation and stream flows and underground water return.'

In addition to the estimates contained in the Nace and Mundorff reports, two other estimates of the water yield of the Raft River Basin were introduced in evidence. Horton G. Haight, a civil engineer and former employee of the State Department of Reclamation, prepared studies on ground water conditions in the Raft River Basin, in 1964 and 1965, and estimated that there was about 75,500 acre feet of annual uncommitted ground water as of 1965. Keith Anderson, a consulting engineer and geologist and expert witness for appellants testified that he estimated that there was, after the existing commitments of available water in the basin, about 180,000 acre feet of annual uncommitted ground water. Anderson estimated that two-thirds of such uncommitted ground water would be recoverable, and that 80,000 acre feet per year would be available for further irrigation.

Respondent stated that the amount of water in the valley already appropriated for irrigation, together with the amount of water for which permits to appropriate had been issued prior to the Critical Ground Water Order, constituted a serious drain in the water supply of the valley, and that the withdrawal of underground water was approaching the estimated amount of water available. His Critical Ground Water Order, and the specific orders to appellants, are based upon such conclusions.

The trial court ruled that the evidence demonstrated a lowering of the water table in the area of the wells in question, and dangerous depletion of the underground water supply in the particular area of the wells. The court then held the critical ground water declaration to be valid and enforceable.

The trial court concluded that appellants should be enjoined from pumping water from their Section 11 well. The court, by its judgment, ordered appellants to cap that well, and to remove therefrom the motor and turbine pump, and affirmatively required appellants to comply with the orders of the state reclamation engineer of July 3, 1964, and August 25, 1964, and with all provisions of Idaho Code, Title 42, Chapter 2, as amended. Finally, the court, by such judgment, denied appellants' application to change the place of use of the water from the Section 28 well to the area of...