State v. Idaho Conservation League

955 P.2d 1108, 131 Idaho 329, 1998 Ida. LEXIS 46

• Court: Idaho Supreme Court
• Decided: April 6, 1998
• Docket: Nos. 23340, 23341 and 23342
• Status: Published

Opinions

SILAK, Justice.

A Special Master of the Snake River Basin Adjudication (SRBA) district court struck General Provision 2 from the Director’s Report for Reporting Area 2 (Basin 57). That area is also known as the Reynolds Creek Basin, and was the subject of an earlier general adjudication (the Reynolds Creek Adjudication). The Special Master further ruled that the doctrine of res judicata did not require him to accept and adopt the Reynolds Creek Decree. The district court affirmed the Special Master, and the State of Idaho, Jerry Hoagland, and the Payette River Water Users Association, Inc. (collectively referred to as the Appellants) appeal.

I.

FACTS AND PROCEDURAL BACKGROUND

A. Facts.

At issue in this case is General Provision 2, contained within the Idaho Department of Water Resources (IDWR) Director’s Report for Reporting Area 2 (Basin 57). General Provision 2 concerns the administration of so-called “excess flow” water in the Reynolds Creek Basin. The provision is the resolution of an on-going dispute between water users in the “Upper Basin” and those in the “Lower Basin” of Reynolds Creek.

A general adjudication for Reynolds Creek was commenced in 1978 to determine the respective water rights in that basin. A final decree was issued on March 18, 1988. In that decree, the district court not only determined the respective rights of water users within Reynolds Creek, but also decreed rights to “excess water,” based upon a stipulation by the parties.

Reynolds Creek, a mountain stream, is located in Owyhee County. The term “excess” water refers to the fact that during spring runoff, the flow in Reynolds Creek is high, and the creek contains more water than can be used. However, later in the year, the flow becomes nearly nonexistent. General Provision 2 is identical to a stipulation entered into by the parties during the Reynolds Creek Adjudication, and filed with the Third Judicial District Court on March 4,1988 (the Reynolds Creek Adjudication Stipulation). That stipulation was based on historic practices in the Reynolds Creek Basin regarding “excess” water.

General Provision 2 is included in full as Attachment A to this opinion. To summarize its provisions, “excess” water is defined as the amount of water flowing at the Upper Basin Tollgate weir in excess of 37 cubic feet per second (c.f.s.) and the amount of water flowing at the Outlet weir in excess of 57 c.f.s. If the flow at the Tollgate weir is less than 37 c.f.s., or the flow at the Outlet weir is less than 57 c.f.s., the Upper and Lower Basins are administered as one basin. If the flow at the Outlet weir exceeds 57 c.f.s., the Upper Basin Users (Upper Users) are permitted to divert the “excess” amounts, even though diverting those amounts will mean that the Upper Users are diverting more water than that permitted by their respective water rights. Further, the Upper Users are not permitted to store any excess water during the irrigation season.

General Provision 2 also provides that the Lower Basin Users (Lower Users) waived their right to object to the Upper Users’ diversion when the flow at the Outlet weir exceeds 57 c.f.s. Lower Users may also apply for a storage permit for Reynolds Creek; however, such a permit is conditional on those users waiving their right to require an Upper User to cease diverting excess water in order to satisfy the storage rights. However, the Lower Users retained the right to protest storage permit applications by another Lower User.

B. Procedural Background.

When the Director filed the Director’s Report for Basin 57, the Reynolds Creek Basin, he included the stipulation and other provisions of the Reynolds Creek Decree as General Provision 2 to the Director’s Report. The State of Idaho, the United States and Jerry Hoagland, who is an Upper User, participated in support of the General Provision 2. The Idaho Conservation League, Idaho Rivers United, and the Idaho Wildlife Federation contested the provision. Those parties held an informal settlement conference, and reached a further stipulation (the SRBA stipulation) regarding the language of General Provision 2. That stipulation was filed with the SRBA District Court on March 4, 1996. The Special Master found that the only significant difference between the original and the stipulated versions of General Provision 2 was that the latter uses the term “high flow” instead of “excess” water. The Special Master declined to accept the stipulation before hearing evidence and argument regarding the necessity of any general provisions.

After hearing evidence and argument on the matter, the Special Master ruled that General Provision 2 would not be decreed, because it was not necessary to define or administer water rights. Further, the Special Master held that res judicata did not require the SRBA district court to accept and adopt General Provision 2, because the parties in the SRBA and the Reynolds Creek Adjudication were not identical; the SRBA involved a different claim; and because no rights to “excess” water were determined in the Reynolds Creek Adjudication.

The State of Idaho, Jerry Hoagland, the Conservation Groups, the Payette River Water Users Association, Boise-Kuna Irrigation District, Wilder Irrigation District, New York Irrigation District, and Big Bend Irrigation District challenged the Special Master’s findings on appeal to the district court. The court adopted the Special Master’s Report and Recommendation, as well as its findings of fact and conclusions of law.

II.

ISSUES

The issues on appeal are:

1. Whether General Provision 2 properly describes a right to divert “excess” water or “high flows” in the Reynolds Creek Basin.

2. Whether General Provision 2 is necessary for the efficient administration of a water right.

3. Whether the Reynolds Creek Decree is res judicata as to the use of excess water in the Reynolds Creek Basin.

III.

STANDARD OF REVIEW

This case requires this Court to consider whether General Provision 2 should be included in the SRBA decree. Whether a General Provision from the Director’s Report should be included in the SRBA decree presents a mixed question of law and fact over which we conduct free review. State v. Nelson, 131 Idaho 12, 14, 951 P.2d 943, 945 (1998).

IV.

ANALYSIS

It is important to note at the outset what the district court did not rule. Contrary to the Appellants’ assertion, the district court did not rule that the Reynolds Creek Decree was void. Rather, the district court ruled that because the parties and issues differed, the Reynolds Creek Decree was not entitled to res judicata and collateral estoppel effects in the SRBA.

A. General Provision 2 Does Not Properly Describe A Right To Divert “Excess” Water Or High Flows In The Reynolds Creek Basin.

During the course of litigation regarding General Provision 2, the parties involved in the Reynolds Creek portion of the SRBA devised a stipulation modifying that general provision’s terms. We agree with the district court that the only significant difference between the original general provision' and that reached by stipulation is that the term “high flow” was substituted for “excess” water. The effect of the two provisions is identical, as the parties agreed. Therefore, we will consider the “original” General Provision 2.

The SRBA district court ruled that General Provision 2 would not be decreed because that provision did not contain the elements of a water right, thereby defining a water right, and because it was not necessary for the administration of a water right. For several reasons,-we agree with the district court that General Provision 2 does not set forth the elements of a water right, and that the water users in the Reynolds Creek Basin do not have a water right in the excess water.

First, we have ruled in a companion case to this one that “excess” water cannot be decreed as a water right. A & B Irrigation Dist. v. Idaho Conservation League, 97.20 ISCR 971, 973, — Idaho -, -, 958 P.2d 568, 573 (Oct. 3, 1997). General Provision 2 does not set forth a priority date, quantity, legal description of the place of use, nor any of the other elements of a water right. Second, our conclusion that the Reynolds Creek water users have not established a legal water right to excess flows is bolstered by express language in Paragraph 5(a) of the provision itself, which states that: “The parties to this Stipulation [the Reynolds Creek Adjudication Stipulation] do not intend hereby to establish or set the priorities or quantities of any rights to excess water, or to establish that any presently perfected right does or does not include or authorize the use of excess water.” In addition, Paragraph 3(b) provides, in relevant part, that “the Lower Users shall not have the right to object to the diversion by the Upper Users of water in excess of the amounts specified for their respective water rights in the Findings, or to require that the Upper Users limit their diversions to the amounts specified for their respective water rights in the Findings.” (Emphasis added).

Although Idaho Code § 42-1411(2) provides that “[t]he director shall determine the following elements, to the extent the director deems appropriate and proper, to define and administer the water rights acquired under state law ...,” thereby giving the director some discretion in determining which elements to include in his report, the elimination of all of the elements of a water right, particularly the essential elements of priority date and quantity, vitiates the existence of a legal water right in the “excess” water. (Emphasis added).

Thus, General Provision 2 does not establish a water right to “excess” water. The district court did not err in so holding.

B. A General Provision Dealing With The Administration Of Water Rights Is Statutorily Authorized.

Despite our holding that General Provision 2 does not establish any rights to a water right to “excess” water, the question remains whether General Provision 2 is “necessary ... for the efficient administration of the water rights.” I.C. § 42-1412(6). The argument has been made that if the “excess” water is not subject to a water right, a general provision regarding “excess” water cannot be necessary for the efficient administration of a water right, because there is no right to administer. We disagree, and further note that this issue was not squarely faced by the trial court, because the issue was not framed in that manner.

Idaho Code § 42-1412(6) states, in relevant part, that “[t]he decree shall also contain an express statement that the partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights.” (Emphasis added). In a case in which we upheld the validity of the portions of the Idaho Code which permit general provisions in a decree, we stated that “the requirement that the district court include in its decree those provisions necessary for the executive to administer the rights decreed is not an impermissible delegation.” In re SRBA Case No. 39576, 128 Idaho 246, 262, 912 P.2d 614, 630 (1995). We also noted the following:

“But because it was within the legislative power to provide administrative machinery to supervise the common use of water in a flowing stream by those having a lawful right to appropriate the water of that stream for beneficial use, it does not result that the decree entered by the court below was in excess of its authority. On the contrary in view of the absence of legislative action on the subject, and of the necessity which manifestly existed for supervising the use of the stream by those having the right to take the water in accordance with the decree which, undoubtedly to that extent, the court was authorized to render, we think the action taken by the court did not transcend the bounds of judicial authority, and therefore is not justly amenable to the attack made upon it.”

Id. (quoting Silkey v. Tiegs, 51 Idaho 344, 358, 5 P.2d 1049, 1055 (1931)). Therefore, the law is clear that provisions which set forth or clarify the manner in which water is to be administered may be included in a water rights decree.

The issue of whether I.C. § 42-1412(6) means that “excess” water may be administered along with existing rights,- even though there is no water right in the “excess” water itself, is a question of statutory interpretation. We recently set forth the rules we use when interpreting a statute:

The question ... turns on interpretation of a statute, which is a question of law over which the Court exercises free review ... [I]f the statutory language is clear and unambiguous, the Court need merely apply the statute without engaging in any statutory construction. Statutory interpretation begins with the words of the statute, giving the language its plain, obvious, and rational meanings.

State v. Hagerman Water Right Owners, Inc., 130 Idaho 727, 732, 947 P.2d 400, 405 (1997) (citations omitted). Further, I.C. § 73-113 provides that “[wjords and phrases are construed according to the context and the approved usage of the language.”

The language used in I.C. § 42-1412(6) is disjunctive, not conjunctive. In order to be included in a final decree, a general provision need not be necessary to define and administer a water right. Instead, the provision need only be necessary to define or administer a water right. Further, nothing in the statute requires that a general provision be on equal footing with a water right. In other words, the provision need not be a right or set forth a right in and of itself, but may be included in a decree if it is necessary to administer the rights set forth in the body of the decree.

In a companion case to this one, A & B Irrigation Dist., we ruled that a firefighting provision would be decreed because “[t]he proposed provision provides that firefighting purposes is an alternate use for which any water right may be used, and firefighting is recognized as a lawful use of water with or without a water right.” A & B Irrigation Dist., 97.20 ISCR at 972, — Idaho at -, 958 P.2d at 572. Firefighting use is ancillary to existing water rights, and that provision is necessary to efficiently administer water rights. Similarly, while General Provision 2 does not set forth a water right in “excess” water, it does describe a procedure by which those who have water rights may use “excess” water, and the provision thus may be necessary for the efficient administration of water rights.

C. General Provision 2 Is Necessary For The Efficient Administration Of Water Rights In The Reynolds Creek Basin.

In this ease, the record clearly reflects that there was testimony regarding the historical practice of using “excess water” or “high flows.” It is a system of water use which has apparently been used successfully for decades in the Reynolds Creek Basin. As we have already stated, General Provision 2 lacks the statutorily required elements and therefore does not establish the right to use excess water. However, it does describe a long-standing system of allowing those who otherwise have water rights in the Reynolds Creek Basin to use excess water when it is available. There was testimony during the proceedings before the Special Master and district judge regarding historic practices in the Reynolds Creek Basin regarding “excess” water, and the necessity of having such a general provision. This provision assures the efficient administration of the water rights because it avoids controversy among the water rights holders by clearly notifying them' of the mechanism for the administration of excess water in the Reynolds Creek Basin. Thus, the efficient administration of water within the Reynolds Creek Basin depends on the system mandated by General Provision 2, and General Provision 2 is necessary to govern the administrative role of the IDWR. We therefore hold that General Provision 2 should be included in the SRBA decree, and we vacate the district court’s order in this regard.

Although it is not permissible for a court to be required to actively administer the rights in its decree, the general provisions are binding once they become part of the decree, and the executive branch will be required to administer the water rights in conformity with the decree in this case. See, e.g., In re SRBA Case No. 39576, 128 Idaho at 262, 912 P.2d at 680. If it no longer becomes possible to administer the water in Reynolds Creek in accordance with General Provision 2, or if anyone wishes to change the way “excess” water is administered in the Reynolds Creek Basin, those modifications must be accomplished by an amendment to the General Provision.

Because we are vacating the district court’s order and holding that General Provision 2 should be included in the Basin 57 portion of the SRBA decree, we need not reach the additional issue of whether res judicata or collateral estoppel principles require that .the Reynolds Creek Decree be included in the SRBA decree. See Kennedy v. Forest, 129 Idaho 584, 588, 930 P.2d 1026, 1030 (1997) (holding that “[d]ue to our decision remanding this case to the Commission for a determination of whether an employment relationship existed based on an implied-in-fact contract, we need not reach [the additional issues on appeal]”); State v. Hobby Horse Ranch Tractor & Equipment Co., 129 Idaho 565, 568, 929 P.2d 741, 744 (1996) (holding that “[b]ecause we hold that Hobby Horse waived its right to object to the Demand, we do not reach the issues raised by Hobby Horse in its appeal”).¹

V.

CONCLUSION

We hold that General Provision 2 does not contain the necessary elements of a water right, and those in the Reynolds Creek Basin therefore do not have a water right to “excess” water. However, those who have other water rights in that basin are part of a longstanding practice of utilizing “excess” water, and to that extent, we hold that General Provision 2 is necessary to the efficient administration of water rights in that basin. The judgment of the district court is affirmed in part, and vacated in part and remanded for further proceedings in accordance with this opinion.

No attorney fees or costs on appeal are awarded..

SCHROEDER and WALTERS, JJ., and DRESCHER, J. Pro Tern, concur.

1 . In reviewing the record in this appeal, we noted a potential subject matter jurisdiction issue in this case. The Reynolds Creek Decree was issued on March 23, 1988, four months after the SRBA was commenced on November 19, 1987. The law in Idaho is that “once SRBA was commenced, jurisdiction to resolve all of the water rights claims within the scope of the general adjudication is in the SRBA district court only.” Walker v. Big Lost River Irr. Dist., 124 Idaho 78, 81, 856 P.2d 868, 871 (1993). If we were called upon to determine the validity of the Reynolds Creek Decree, we would be squarely confronted with this issue. However, the appeal before us concerns the appropriateness of General Provision 2 of the Director’s Report for the Reynolds Creek Basin, not the validity of the Reynolds Creek Decree itself. Thus, we need not address the subject matter jurisdiction issue.