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Re: Srba v. the State of Idaho

March 22, 2012

RE: SRBA
CITY OF POCATELLO,
PETITIONER-APPELLANT,
v.
THE STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Twin Falls County. The Hon. Eric J. Wildman, District Judge.

The opinion of the court was delivered by: Eismann, Justice.

2012 Opinion No. 54

THIS IS A SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED JANUARY 5, 2012 IS HEREBY WITHDRAWN.

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This is an appeal from the decision of the district court in the Snake River Basin Adjudication holding: (a) that Pocatello cannot use its wells as alternate points of diversion for its surface water rights; (b) that it can use its interconnected wells as alternate points of diversion for all of the associated water rights on the condition that doing so will not change the priority date and quantity of water that can be pumped from each well; (c) that one groundwater right was properly classified as for an irrigation purpose; and (d) that Pocatello failed to establish earlier priority dates for two of its groundwater rights. We affirm the judgment of the district court.

I. Factual Background

In 1985, the legislature enacted legislation to commence an adjudication of the water rights of the Snake River basin. On June 17, 1987, the Director of the Idaho Department of Water Resources (IDWR), filed a petition in the name of the State to begin the Snake River Basin Adjudication (SRBA), and on November 19, 1987, the adjudication was commenced. In April 1990, the City of Pocatello filed its water right claims, and it later filed amended claims. Pursuant to its statutory duties, IDWR filed Director's Reports with respect to Pocatello's claims. The disputed matters were tried to a Special Master, and Pocatello then challenged several of the Special Master's findings of fact and conclusions of law in the district court. The court entered a judgment affirming the Special Master's recommendations, and Pocatello filed a motion to correct or amend the judgment. After that motion was denied, it timely appealed.

Water for Pocatello's in-town service area is pumped into an interconnected distribution system from twenty-two wells supplied by twenty-one groundwater rights.*fn1 The wells were developed at different times and are located throughout the in-town service area. Because the interconnected water distribution system was in operation prior to November 19, 1987, Pocatello contended, pursuant to Idaho Code section 42-1425, that each of these wells had become an alternate point of diversion for each of the twenty-one water rights, which would permit it to withdraw water under its most senior groundwater rights from any well. IDWR recommended that each well in the system could serve as an alternate point of diversion for each of the twenty- one water rights if the water rights were subject to a condition stating, "To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs." IDWR did not recommend that condition for three of Pocatello's groundwater rights that supplied water to the in-town system (29-2274, 29-2338, and 29-7375) because those rights were subject to administrative transfer No. 5452, which did not include the condition and occurred after 1987. Pocatello also had a separate water delivery system to provide water to its airport. That system was supplied by three water rights pumped from three wells. IDWR recommended that the condition be attached to two of those water rights (29-7450 and 29-13638). The Special Master recommended that the condition be attached to the water rights as suggested by IDWR, and the district court agreed.

Pocatello also has four surface water rights, one in Gibson Jack Creek and three in Mink Creek.*fn2 It contended that because those creeks had previously been a source of potable water and they feed the aquifer from which it pumps water from its wells, those wells were alternate points of diversion for the surface water rights. The Special Master concluded that the creeks and the aquifer were separate sources, and Idaho Code section 42-1425(2) did not provide for changes in the source of a water right. The district court agreed.

In 1984, Pocatello submitted an application for a groundwater right, stating that the proposed use was to irrigate crops located outside the city. On July 1, 1987, the city asked that the proposed use be changed to domestic, commercial, municipal, and industrial, but IDWR refused to do so. Based upon the city's application, in January 2003 IDWR issued the city license number 29-7770 for an irrigation purpose. Pocatello contended that this water right should be changed to a municipal purpose pursuant to Idaho Code section 42-1425(2) because it was using the water in its biosolids program. The Special Master rejected that argument because the statute only applied to changes in use of water rights that occurred prior to November 19, 1987. Because the city did not obtain this water right until January 2003, the statute did not apply. The district court agreed with the Special Master.

The Director's Report recommended a priority date of July 16, 1924, for water right number 29-13558 and a priority date of October 22, 1952, for water right number 29-13639. Pocatello contended that the priority dates should be 1905, and December 31, 1940, respectively. The Special Master concluded that the city had failed to prove the claimed earlier dates. However, because the evidence showed that the well related to water right 29-13639 pre-existed the date of the application for a license, the Special Master moved the priority date of that right forward by one day to October 21, 1952. The district court upheld the Special Master, although it affirmed moving the priority date of 29-13639 only because the state did not object.

II. Did the District Court Err in Upholding the Condition Attached to Pocatello's Ground Water Rights?

Pocatello contended that each of the wells in its two interconnected water distribution systems had become an alternate point of diversion for all water rights associated with that system pursuant to Idaho Code section 42-1425(2). That statute provides, insofar as is relevant, as follows:

Any change of place of use, point of diversion, nature or purpose of use or period of use of a water right by any person entitled to use of water or owning any land to which water has been made appurtenant either by decree of the court or under the provisions of the constitution and statutes of this state, prior to November 19, 1987, the date of commencement of the Snake River basin adjudication . . . may be claimed in the applicable general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the original right.

IDWR recommended that each well could be an alternate point of diversion for all water rights associated with an interconnected system only if the water rights had an attached condition stating, "To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs." IDWR asserted that the condition was necessary to avoid injury to other water rights and to assist in the administration of water rights in times of shortage. The district court agreed, writing:

Specifically, injury to an existing water right is not limited to the circumstance where immediate physical interference occurs between water rights as of the date of the change. Injury also includes the diminished effect on the priority dates of existing water rights in anticipation of there being insufficient water to satisfy all rights on a source (or in this case a discrete region of the aquifer) and priority administration is sought. Even though the priority administration may occur at some point in the future, injury to the priority date occurs at the time the accomplished transfer is approved.

The court also noted, "The very fact that Pocatello contests the condition is an acknowledgment that without the condition the priorities of existing water rights will be diminished in favor of the alternative point of diversion for one of Pocatello's more senior rights. i.e injury."

Pocatello claims that the district court erred in requiring the condition in order to prevent injury to any existing water rights, where no actual injury to any other water right was shown. According to Pocatello, "[N]o injury analysis should even be triggered under § 42-1425 unless there has been a third party objection filed to a claim" and "Future injury is also not a proper concern under the terms of § 42-1425, as only injuries to the other water right holders on the date of the change could justify denial of a claim." Pocatello is wrong on both counts.

Pocatello's water distribution system consists of twenty-two wells that each pump water into an interconnected distribution system, allowing the entire distribution system to be the place of use for each well. When each well began diverting water, it had an associated water right with a specific priority date and a specific quantity of water that could be pumped from the well. Idaho Code section 42-1425 does not permit Pocatello to change the priority date of the water right associated with any well or the quantity of water that can be pumped from the well. It validates "[a]ny change of place of use, point of diversion, nature or purpose of use or period of use of a water right . . . [that was accomplished] prior to November 19, 1987, . . . provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the original right." I.C. § 42-1425(2). "Proceeding under section 42-1425 a water user cannot obtain a transfer that constitutes either an enlargement of the water right or otherwise injures water rights existing on the date of the change." Fremont-Madison Irrigation Dist. and Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 458, 926 P.2d 1301, 1305 (1996).

"An increase in the volume of water diverted is an enlargement and is not allowed under I.C. § 42-1425." Id. Likewise, "there is per se injury to junior water rights holders anytime an enlargement receives priority." A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist., 141 Idaho 746, 753, 118 P.3d 78, 85 (2005). "Priority in time is an essential part of western water law and to diminish one's priority works an undeniable injury to that water right holder." Jenkins v. Idaho Dept. of Water Res., 103 Idaho 384, 388, 647 P.2d 1256, 1260 (1982). "The limitations in section 42-1425 protect other water users from injury to their rights resulting from a recognition of the transfers that are memorialized in the adjudication." Fremont- Madison, 129 Idaho at 458, 926 P.2d at 1305 (emphasis added). If Pocatello could have each well be an alternate point of diversion for each water right without the attached condition, as stated by IDWR in its supplemental Director's Report, "the City would be allowed to withdraw water under its most senior priority water right from any well location." Recognizing the transfers without the attached condition would injure junior water rights holders by diminishing their priorities. The district court did not err in upholding the attached condition.

III.

Did the Department of Water Resources Have the Authority to Recommend the Condition that Was Attached to Pocatello's Ground Water Rights when It Had Not Done So in Prior Similar Cases?

Pocatello argues on appeal that the condition recommended by IDWR was a change from the position it had taken in prior similar cases involving cities with multiple wells and an interconnected delivery system and that it could not make that change without going through the rule-making process. Pocatello did not timely raise this issue in the district court.

In its post-trial brief submitted to the Special Master, Pocatello argued: "When IDWR

recommended Pocatello's state law claims in 2003, it added condition language to every water right recommended with alternate points of diversion under the accomplished transfer statute. IDWR's inclusion of the condition provision is a change in position that it instituted in 2003." However, it did not include that issue in its challenge to the district court of the Special Master's recommendations.*fn3 It raised that issue for the first time to the district court in its motion pursuant to Rule 59(e) of the Idaho Rules of Civil Procedure to alter or amend the judgment.

"The purpose of motions under that rule is 'to allow the trial court . . . to correct errors both of fact and law that had occurred in its proceedings.' Consideration of I.R.C.P. 59(e) motions must be directed to the status of the case as it existed when the court rendered the decision upon which the judgment is based." First Sec. Bank of Idaho, N.A. v. Webster, 119 Idaho 262, 266, 805 P.2d 468, 472 (1991) (citations omitted). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." ...


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