State v. Hagerman Water Right Owners, Inc., s. 39576

Decision Date26 April 1996
Docket Number91-00010,Nos. 39576,s. 39576
Citation947 P.2d 400,130 Idaho 727
PartiesIn re SRBA, Caseex rel. Partial Forfeiture Re Basin-Wide Issue 10, Entered
CourtIdaho Supreme Court

Alan G. Lance, Attorney General; Cheri C. Copsey, Deputy Attorney General (argued), Boise, for appellant State of Idaho.

Betty H. Richardson, U.S. Attorney, Boise; William B. Lazarus (argued), Department of Justice, Washington, D.C., for appellant United States of America.

Givens, Pursley & Huntley, Boise, for appellants Idaho Ground Water Appropriators, Inc., and Chemical Lime Company of Arizona. Jeffrey C. Fereday argued.

Beeman & Hofstetter, P.C., Boise, for appellant North Snake Ground Water District. Dana L. Hofstetter argued.

Hepworth, Lezamiz & Hohnhorst, Twin Falls, for respondent Hagerman Water Right Owners, Inc. John C. Hohnhorst argued.

Elam, Burke, P.A., Boise, for respondents Bogus Basin Recreational Assoc., et al. Jeffery C. Ventrella argued.

Ringert Clark, Chtd., Boise, for Intervenors Nampa and Meridian Irrigation District, et al. Daniel V. Steenson argued.

SCHROEDER, Justice.

I. FACTS AND PRIOR PROCEEDINGS

This case arises from the general adjudication of water rights in the Snake River water basin, commenced in 1987 pursuant to the Idaho Legislature's enactment of legislation in 1985 and 1986 requiring the Director ("Director") of the Idaho Department of Water Resources ("IDWR") to initiate a judicial proceeding to accomplish the adjudication within the terms of the McCarran Amendment. 43 U.S.C. § 666. On June 17, 1987, the Director filed a petition in the district court on behalf of the State, naming the United States and other water users of the In the course of conducting the SRBA, specialized rules of procedure have been developed. See SRBA Administrative Order 1, amended 9/30/96 ("SRBA AO1"). These rules of procedure allow "[a]ny party to the adjudication [to] file a Motion to Designate Basin-Wide Issue if that party believes an issue materially affects a large number of parties to the adjudication." SRBA AO1, 17.a. (1).

Snake River water basin as defendants and seeking an order from the court commencing a general stream adjudication. The Snake River Basin Adjudication ("SRBA") was commenced by order dated November 19, 1987. In re Snake River Basin Water System, 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 Hagerman Water Rights Owners, Inc. ("HWRO") filed a motion to designate Basin Wide Issue Number 10 ("BW10") for a determination of whether Idaho's forfeiture statute contemplates partial forfeiture of a water right for non-use. On January 20, 1996, the district court designated BW10 as follows: Are water rights in Idaho subject to partial forfeiture for nonuse?

On April 26, 1996, the district court issued a decision holding, as a matter of law, that water rights in Idaho are not subject to partial forfeiture for non-use. The SRBA court determined that the issue is one of first impression to be resolved by construing Idaho's forfeiture statute, I.C. § 42-222(2). That section provides in relevant part:

All rights to the use of water acquired under this chapter or otherwise shall be lost and forfeited by a failure for the term of five (5) years to apply it to the beneficial use for which it was appropriated....

I.C. § 42-222(2) (1996) (emphasis added).

The district court focused on the word "all" in this section and reasoned that the plain and ordinary meaning of this provision is that "partial forfeiture is not provided for in this statute." The State of Idaho, the Chemical Lime Company of Arizona and Idaho Ground Water Appropriators, Inc., and North Snake Ground Water District, together with the United States ("appellants") filed a motion for reconsideration, or in the alternative, permission to take an interlocutory appeal pursuant to I.R.C.P. 11(e). HWRO, together with the other respondents, opposed the motion for reconsideration. The district court denied the motion for reconsideration and granted the motion for interlocutory appeal. This Court granted interlocutory appeal on August 5, 1996.

In addition to the primary issue on appeal, HWRO cross-appeals for an award of costs and attorney fees pursuant to I.C. § 12-121 and the private attorney general doctrine.

II.

THE ISSUE OF WHETHER I.C. § 42-222(2) PERMITS PARTIAL FORFEITURE OF WATER RIGHTS HAS NOT BEEN RAISED PREVIOUSLY AS AN ISSUE ON APPEAL TO THIS COURT.

The appellants maintain that case law establishes this Court's recognition of statutory partial forfeiture. However, the question of whether part of a water right may be forfeited pursuant to I.C. § 42-222(2) has not been raised directly as the issue on appeal to this Court, although the subject has been discussed by this Court in determining the issues that have been raised. The parties cite to several of these cases which are taken up below.

In Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418 (1924), Albrethsen brought an action to have a portion of the respondent Wood River Land Company's water right declared forfeited. 1 The respondent We are of opinion that this statute intends that a right to the use of water, although based upon a decree of a court, may be lost by abandonment, unless it thereafter be beneficially used, and that in any action to obtain a decree and to determine the question of abandonment or forfeiture evidence is admissible which shows or tends to show that after the water had been decreed it had not been put to a beneficial use, but had been abandoned for the statutory period, after the entry of such decree.

Wood River, was the predecessor in interest to Riley who was decreed 5,595 inches of water out of the Big Wood River, with a priority date of March 24, 1883, for use upon lands described in a decree entered in Frost et al. v. Alturas Water Co. (December 13, 1909). Albrethsen claimed that the evidence established that some 2,100 inches of the water right were not put to beneficial use between 1910 and 1914 and were allowed to flow back into the Wood River. Albrethsen and other farmers owning land in the Wood River Valley claimed that 3,850 inches of Wood River's water right were subject to reapplication by the watermaster. Albrethsen presented witnesses and evidence that Wood River's canal could not carry in excess of 3,850 inches. On rehearing, the Court concluded:

One of the most conclusive methods of showing that an amount of water decreed to a particular system has not been beneficially used is to show that the canal or other diverting works through which the appropriation must be diverted ... does not have the required carrying capacity to divert and distribute the full amount of the appropriation and carry the same to the point of intended use.

40 Idaho at 59-60, 231 P. at 421-22.

The issue before the Court in Albrethsen was limited to "the single assignment that the evidence is insufficient to sustain the findings of fact and conclusions of law and judgment entered thereon." 40 Idaho at 52, 231 P. at 419. Albrethsen involved resolution of the factual inquiry of whether the canal in question could have ever delivered the quantity of water decreed, not whether the forfeiture statute provided for partial forfeiture. Nonetheless, the result was that a decreed water right was reduced by the amount of water that had not been applied to a beneficial use. Partial forfeiture, as a remedy, was assumed.

In Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1943), the appellant/defendant owned 160 acres, referred to as the Lenman Tract. Appellant was decreed 3.2 cfs of water from Three Mile Creek in the case of Frost et al. v. Alturas Water Co. (December 13, 1909) with a priority date of April 1, 1907. Respondent/plaintiff alleged that he began to divert and apply this water by adverse possession in March of 1916. It was respondent's theory that the appellant had abandoned the use of the water. The district court held for the respondent and, with respect to abandonment, found that the Lenman Tract was dry farmed, that no attempt had ever been made to use any part of the water with one exception, and that use of the water was abandoned upon the Lenman Tract. While acknowledging that there was evidence in the record to support the findings that the Lenman Tract had never been irrigated, the appellant nonetheless claimed error. In this case, the Court addressed only whether the findings were supported by competent In Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976), lessors, the Olsons, brought an action to terminate a ten-year lease in part because the lessees allegedly failed to put to beneficial use "all decreed water on the ranch each year" and to "use and protect all existing water rights" which allegedly failed material terms of the lease. Id. at 827, 555 P.2d at 158. The "existing water rights" referred to included a decreed annual right to water from the Raft River and all of the waters of Rusty Spur Creek, which the lessor alleged was a private creek. The district court held that Olsons' claim regarding loss of water rights to the Raft River...

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