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City of Eagle v. Idaho Department of Water

February 7, 2011

CITY OF EAGLE, PETITIONER-APPELLANT,
v.
IDAHO DEPARTMENT OF WATER RESOURCES, RESPONDENT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. D. Duff McKee, District Judge.

The opinion of the court was delivered by: Burdick, Justice

2011 Opinion No. 19

Stephen W. Kenyon, Clerk

Dismissal of petition for judicial review, affirmed.

In 2005, Appellant City of Eagle (Eagle) filed two applications to appropriate water for municipal use. On July 3, 2008, Respondent Idaho Department of Water Resources (IDWR) signed and served the Order on Reconsideration, which confirmed the Final Order approving Eagle's applications subject to certain limitations and conditions. IDWR failed to properly serve Eagle and another party on July 3, 2008. To correct the error, IDWR re-served the July 3, 2008 Order on Reconsideration on July 16, 2008, this time properly serving all parties. On August 11, 2008, Eagle filed a petition for judicial review of the Order on Reconsideration. The district court dismissed Eagle's petition as untimely, holding that the twenty-eight-day appeal period began to run on July 3, 2008. Eagle appeals, arguing that the appeal period began on July 16, 2008. We affirm.

1

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 19, 2005, Eagle filed two applications for permits to appropriate water for municipal use. On July 17, 2007, the hearing officer issued a preliminary order approving the applications. Numerous parties filed petitions for reconsideration, and on October 4, 2007, the hearing officer issued an Amended Preliminary Order. Eagle and Joseph Moyle, Lynn Moyle and Mike Moyle (the "Moyles") filed exceptions to the hearing officer's order. On February 26, 2008, the Director of IDWR issued the Final Order, which approved the applications subject to limitations and conditions. The explanatory sheet that accompanied the Final Order stated that appeals were due "within twenty-eight (28) days . of an order denying petition for reconsideration."

Eagle and the Moyles filed independent petitions for reconsideration. On July 3, 2008, IDWR issued its Order on Reconsideration, which confirmed the Final Order. The Order on Reconsideration states, "any party aggrieved by this order and the Final Order . . . may appeal the orders to district court by filing a petition for judicial review within twenty-eight (28) days of the service date of this order." IDWR served the Order on Reconsideration on the same day it was issued, July 3, 2008; however, IDWR failed to properly serve Eagle and another party. IDWR served the Order on Reconsideration with the Corrected Certificate of Service on July 16, 2008. The letter accompanying the Corrected Certificate of Service states:

Enclosed is a corrected Certificate of Service for the "Order on

Reconsideration Confirming Final Order Issued February 26, 2008" ("order") issued by the Director on July 3, 2008. Service of this order on Mr. Smith and Mr. and Mrs. Purdy was not proper. Therefore, for the purpose of filing an appeal, the date of service referred to in the enclosed order is now July 16, 2008.

On August 11, 2008, Eagle filed a petition for judicial review. Eagle asserted that IDWR's Final Order and Order on Reconsideration were arbitrary, capricious, an abuse of discretion, in violation of statutory and constitutional provisions, in excess of IDWR's statutory authority, made upon unlawful procedure and not supported by substantial and competent evidence. On May 1, 2009, IDWR filed a motion to dismiss for failure to file a petition for judicial review within the time required by law. IDWR argued that the last day Eagle could file a timely petition for judicial review of the July 3, 2008 Order on Reconsideration was on July 31, 2008. On August 18, 2009, the district court dismissed the appeal as untimely and did not reach the merits. Eagle appeals.

2

II. STANDARD OF REVIEW

Whether the district court had jurisdiction over the action is a question one of law, over which this Court exercises free review. Troupis v. Summer, 148 Idaho 77, 79, 218 P.3d 1138, 1140 (2009). The failure to file a timely petition for judicial review is ...


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