In re SRBA

In re SRBA, Nos. 40974, 40975, 2014 WL 3810591 (Idaho Aug. 4, 2014) (holding that (i) the Snake River Basin Association (“SRBA”) court abused its discretion in defining an issue as basin-wide where it did not promote judicial economy, and (ii) the SRBA court did not abuse its discretion by ruling that the director of the Idaho Department of Water Resources (“IDWR”) may determine when storage water rights are considered “filled”).

This case evolved out of several individual SRBA cases that dealt with the issue of whether storage water rights holders may refill reservoirs, under priority, to account for water released for flood control when junior appropriators have not filled their rights for the first time. The State of Idaho and the Bureau of Reclamation argued that a remark was necessary to authorize storage water right holders to refill after releases of floodwater excess. Storage right decrees already existed without a remark for several irrigation districts across the Snake River Basin, and these districts worried that a remark requirement could negatively affect their storage water rights. Because the issue was so pervasive, the SRBA court combined dockets to adjudicate the issues in a basin-wide proceeding. The SRBA court designated the question of whether “Idaho law require[s] a remark authorizing storage water rights to ‘refill’ under priority, space vacated for flood control” as Basin-Wide Issue 17.

The SRBA court ruled that Basin-Wide Issue 17 was a question of law and would not consider any specific factual scenarios in ruling on the issue, noting that circumstances would differ from reservoir to reservoir. The SRBA court reasoned that it cannot consider specific facts in a basin-wide issue, and a remark is unnecessary because a storage water right cannot be refilled until junior appropriators have satisfied their allotments. The SRBA court did not address when a storage water right is considered filled because such a determination would require the development of a factual record.

The Supreme Court of Idaho (the “Court”) addressed two predominant issues on appeal. The Court first considered if the SRBA court correctly designated whether “Idaho law require[s] a remark authorizing storage rights to ‘refill,’ under priority, space vacated for flood control” as a basin-wide issue. Next, the Court considered whether the SRBA court abused its discretion by declining to define when a storage water right has been filled, leaving that determination to the discretion of the IDWR.

In addressing the first issue, the Court confirmed the SRBA court’s authority to designate a basin-wide issue. SRBA Administrative Order 1 gives the SRBA court the authority to combine cases with similar interests and claims into a basin-wide issue to promote judicial economy. Basin-Wide Issue 17 addressed whether water released for flood control counts towards the storage water right owner’s allotment. That is, the SRBA court sought to clarify whether refilling a reservoir after flood control releases counted as an initial or secondary fulfillment of the water storage right. The SRBA court determined that the question should be addressed exclusively as a matter of law in a basin-wide proceeding, and would not develop a factual record in order to answer it. However, the Boise Project Board, the Surface Water Coalition and others (the “Coalitions”) wanted the SRBA court to rule on when a storage water right is considered filled, not if the storage water right was considered filled under the circumstances articulated in Basin-Wide Issue 17. Fundamentally, the Coalitions never raised the question the SRBA court ultimately answered. Consequently, the Court found that the SRBA court’s designation of Basin-Wide Issue 17 did not promote judicial economy and was therefore made in error.

The Court clarified its first holding by explaining that the SRBA court did not abuse its discretion “in declining to designate the question of whether flood control releases count toward the ‘fill’ of a water right as a basin-wide issue,” but agreed that the question of fill presents a mixed question of law and fact. Because this question requires a factual record, the SRBA court can only address it on a case-by-case basis, and not in a basin-wide proceeding. Whether floodwater release counts towards reservoir fill would be an issue of first impression for the Court to consider, and could have extensive repercussions. The Court declined to issue such an important decision with no alleged injury and without a complete factual record.

Next, the Court ruled that the SRBA court was correct not to address when a storage water right is considered filled because that determination is an administrative function of the IDWR. The Coalitions argued that a storage water right is a property right, and therefore can only be dispensed by decree. Accordingly, they questioned whether the director of the IDWR (“the Director”) was determining property rights that should instead be determined by law.   The Court noted that the Director is required to allocate water rights based on the constitutional principal of beneficial use and according to the prior appropriations doctrine. Idaho Code section 42-602 requires the Director to be highly credentialed and to have at least five years of experience in specific fields including civil or agricultural engineering, geology, or hydrology. Tempered by these high standards, the law also affords the Director a high degree of deference in choosing a methodology to determine when a storage water right has been filled. Because the determination of storage water rights is allocated by law and overseen by a highly qualified officer, the Court found that the Director does not choose to whom the storage water rights belong, but rather to whom the law has allocated those rights. The Court further emphasized that the discretion to determine when those rights have been filled is implicit in the Director’s duty to allocate storage water rights according to the doctrine of prior appropriation.

Accordingly, the Court ruled that the SRBA court abused its discretion in designating Basin-Wide Issue 17 because doing so did not promote judicial economy. However, the Court held that the SRBA court did not abuse its discretion in declining to address the question of when a storage water right is filled, because that duty is reserved to the director of the IDWR.


The title image features the Snake River near the Grand Tetons. This image is part of the public domain.