A & B Irrigation Dist. v. Idaho Dep’t of Water Res.

A & B Irrigation Dist. v. Idaho Dep’t of Water Res., 284 P.3d 225 (Idaho 2012) (holding that the district court did not err in ruling (i) the Ground Water Act applied to the administration of appellant’s water right; (ii) the Director had sufficient evidence to support his decision not to set a reasonable groundwater pumping level; (iii) the Director could force appellant to interconnect prior to filing for a delivery call; and (iv) a clear and convincing evidence standard was proper when a court analyzes the Director’s determinations). 

This case was an appeal of the District Court of Minidoka County’s (“district court”) decision regarding the Director of the Idaho Department of Water Resources’ (“Director”) application of the Rules for Conjunctive Management of Surface and Groundwater Resources (“CM Rules”) to a groundwater delivery call filed by A & B Irrigation District (“A&B”).  A&B’s delivery call was based on its senior water right on the Snake River, which it acquired in 1948, three years prior to the enactment of the Idaho Ground Water Act (“Act”).  The Idaho Department of Water Resources (“IDWR”) licensed and authorized the diversion of 1,100 cfs from 177 points of diversion in order to irrigate approximately 62,000 acres in south-central Idaho.  Underlying the A&B project is the Eastern Snake Plain Aquifer (“ESPA”), which serves as the Minidoka Project’s (“project”) water source.  A&B’s delivery call petition sought an administration of junior-priority ground water rights from the ESPA and a designation of the ESPA as a groundwater management area (“GWMA”).  The delivery call petition alleged that junior priority groundwater pumping from the ESPA lowered the water table an average of twenty feet, which resulted in a 126 cfs reduction in A&B’s diversion rate.

The Director concluded that A&B was not materially injured and denied A&B’s request to designate the ESPA as a GWMA. In doing so, the Director accepted a Hearing Officer’s conclusions that A&B had an obligation to take reasonable steps to maximize the use of interconnection to move water within the system before it could seek curtailment or compensation from juniors.  The Director also noted that while conditions in the southwest area make recovery of water from the wells difficult, it is not justification for curtailment.  Further, A&B did not need to exceed reasonable pumping levels.  In response, A&B filed a petition for review with the district court. The district court affirmed the Director’s findings on all parts except for the standard applied to whether or not A&B suffered a material injury.  Therefore, the District Court remanded the proceedings in order to apply the clear and convincing evidence standard.  A&B appealed to the Idaho Supreme Court (“Court”) alleging that: (i) the Director erred in concluding that A&B’s water right is subject to the Act; (ii) the Director erred in finding that A&B was not required to pump water beyond a reasonable ground water pumping level, even though the Director did not provide a specific level; (iii) the Director erred in applying the CM Rules to find that A&B must interconnect wells or well systems across the project before it could file a delivery call; and (iv) the district court erred in imposing the clear and convincing evidence standard.

A&B pointed to a line in the Act that states, “[t]his act shall not affect the rights to the use of ground water in this state acquired before its enactment.” A&B argued that the Act unambiguously does not apply to their water right since it has a priority date that predates the Act.  The district court looked at the Act in its entirety and found that the legislature intended a distinction between the “right to the use of ground water” and “the administration of all rights to use of ground water.”  On appeal, the Idaho Supreme Court agreed and held that Section 4 of the Act provided “the administration of all rights to the use of ground water, whenever or however acquired, shall, unless specifically excepted therefrom, be governed by the provision of this act.”  The Court, after relying on precedent for emphasis, found that a plain reading of the Act shows that the Act applies to the administration of all groundwater rights in Idaho, and therefore it applies to A&B’s water right.

While the district court acknowledged that the Director failed to establish a reasonable groundwater pumping level, it also found the Act gave the Director discretion to determine whether to establish groundwater levels in conjunction with a delivery call.  Additionally, the district court noted that ground water pumping levels have never been treated as an element of a water right.  The Court agreed and held a plain reading of the duties of the Director showed he has a duty to respond to a delivery call and determine whether the right holder suffered an injury, but not to establish a reasonable groundwater pumping level.

A&B argued that Idaho law did not require that it interconnect its separate points of diversion as a condition to administer junior priority groundwater rights.  A&B’s claimed the mandate is unconstitutional, the Director’s actions contradict the language of A&B’s water right decree, there is no mention in the CM Rules of a need to interconnect, and interconnection would not solve the problem of diminished groundwater supply.  The Court rejected each of these arguments in turn by deferring to the Director’s discretion.

Finally, A&B argued that the district court erred in applying the clear and convincing evidence standard of review because Idaho law did not support this higher evidentiary standard. The Court examined a plethora of cases on the matter and concluded that it is Idaho’s longstanding rule that proof of no injury by a junior appropriator in a water delivery call must be by clear and convincing evidence and that all changes to an existing decree must be supported by clear and convincing evidence.  The Court therefore affirmed the district court’s ruling.

The Court held the Act applied to A&B’s water right; the Director did not need to provide a specific reasonable groundwater pumping level; A&B could be forced to interconnect before a delivery call; and that the district court was not wrong in applying a clear and convincing evidence standard. Affirmed.