State v. Hagerman Water Right Owners, Inc.

947 P.2d 400, 130 Idaho 727, 1997 Ida. LEXIS 128
Idaho Supreme Court·Decided September 10, 1997·No. 23214·Published·Cited by 42 cases

Opinion

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 MeCarran 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 *729 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).

In the course of conducting the SRBA, specialized rules of procedure have been developed. See SRBA Administrative Order 1, amended 9/30/96 (“SRBA AOl”). 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 AOl, 17.a.(l).

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 respon *730 dent, 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. Albreth-sen 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. Albreth-sen presented witnesses and evidence that Wood River’s canal could not carry in excess of 3,850 inches. On rehearing, the Court concluded:

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.
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.

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State v. Hagerman Water Right Owners, Inc., 947 P.2d 400, 130 Idaho 727, 1997 Ida. LEXIS 128 (Idaho 1997).

947 P.2d 400 (State v. Hagerman Water Right Owners, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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