WSP12258 - Laserfiche WebLink

Home Browse Search

0015b": . WESTERN March 18, 1994 Issue No. 1035 TATEtR[~c}l# . -----==-' 1. " 1 A TEQTc_c.~).m!..'..~:;;P::;:r 1\' [ I' I L. ' \..~_ ....."..,:...~"'===,J TIIE WEEKLY NEWSLETrER OF TIIE WESTERN STATES WATER COUNCIL Creekview Plaza, Suite A-201 /942 East 7145 So. / Midvale, Utah 84047 / (801) 561-5300 / FAX (801) 255-9642 Chairman - Dave Kennedy; Executive Director - Craig Bell; Editor - Norm Johnson; Typist - Carrie Curvin UllGAllON/WATER RIGHTS General Adjudicationlldaho/Musser v. Higginson . The Idaho Supreme Court has upheld a district court decision requiring the Idaho Department of Water Resources to distribute water to property owners with a decreed 1892 right to the flow of a ground water-fed tunnel regardless of the effect on third parties, Musser v. Higginson, No. 20807 (Idaho Sp, Ct., Feb. 28, 1994). The court also upheld the district court award of attorney fees in the case. . The case arose after Gooding County real property owners with a right to 4.8 cubic feet per second of water from a tunnel failed to receive their entire allocation. The tunnel is fed by underground springs. According to the court, the springs are tributary to the Snake River and hydrologically connected to the Snake Plain Aquifer. In May 1993, the property owners demanded delivery of their decreed right. The director responded that he was not authorized to conjunctively administer ground and surface water without a formal determination that conjunctive use is appropriate. The property owners filed suit, seeking a writ of mandamus to compel delivery of their decreed right, and control of water use in the aquifer to protect their priority date. The director then issued a notice of intent to promulgate rules to conjunctively manage surface and ground water in the aquifer and an order for a contested case to provide a forum to determine the method of delivery of water to the landowner pending completion of the rules. These actions, the director said, made the landowners' request moot. In the alternative, the director said the petition should be dismissed because using a writ of mandamus was an inappropriate way to determine the relationship between senior and junior ground water rights. The trial court dismissed the director's arguments, finding he owed the landowner "a clear legal duty to distribute water under the prior appropriation doctrine." The court said the director's failure to comply was a breach of a "mandatory, ministerial duty," and issued the writ of mandamus. On appeal, the Idaho Supreme Court upheld the district court's findings. It said the writ of mandamus was proper, noting that the director had "a clear legal duty" to distribute the water. The court dismissed the director's assertion that the writ was improper because Idaho statutes gave him discretion concerning his response to calls for water. It also rejected his claim that he is required by statute to act "in the public interest" in determining whether the property owners are unreasonably blocking full use of the resource. The court noted that these statutory requirements were enacted in 1951, and did not affect the director's duty to distribute water with an 1892 priority date. The court also rejected the director's argument that administrative remedies should have been exhausted before the writ of mandamus could be considered. Both courts required the attorneys fees to be paid to the property owners from the director's operating budget, rather than from the Snake River Basin adjudication account. WATER RESOURCES Water Supply Outlook According to the U.S. Soil Conservation Service, February precipitation was above to well above average across most of the West. Snowpack conditions improved slightly, but remain near to well below average. While many basins show improved outlooks, west-wide runoff is generally projected to be