State, Dept. of Parks v. IDAHO DEPT, WATER ADMIN.

Aрplication In the Matter of Permit 37- No. 7108 in the Name of the State Idaho Department Canyon (Malad of Parks Springs). Idaho,

STATE of DEPARTMENT OF PARKS, Respondent, al., Idaho Water Users Association et Respondents Appellants, and Cross IDAHO DEPARTMENT OF WATER AD- MINISTRATION, Appellant Respondent.

Cross No. 11455. Supreme Court of Idaho.

Dec. Gen., Higer, Deputy Atty.

Nathan W. Administration, Department Water appellant and cross respondent. Rosholt, Parry, Robertson, Daly A. John Larson, Falls, respondents Twin appellants

cross Users Asso- ciation, Company and Twin Falls Canal Company. North Side Canal Park, Gen., Anthony Atty. and Mat- W. Gen., Mullaney, Deputy Atty. thew J. respondent Department of Parks. SHEPARD, Chief Justice. cross-appeal appeal and a

This is in an judgment of the district court from a Department of the Idaho action wherein statute, Parks, sought appro- pursuant cer- priate for the trust unappropriated tain preserved waters of the Malad waters is to be used and in its Canyon. presents present The case for considera- as a site condition recreational for primary questions: people tion threе of Idaho. May agency 1. of the State of Ida- Pursuant to the statute the Idaho De- ho, express constitutional authori- partment application of Parks filed for

ty, appropriate priority waters and obtain permit appropriate speci- the waters right; water fied statute. The waters in 2. Does the water part arise in springs at least from in the preser- purposes and the of recreation canyon and ap- are waters. There vation of scenic views constitute a “benefi- pears argument unap- but that there is use”; cial propriated water appropria- available for tion. may a val- 3. In Idaho there be created appropriative id water the absence application protested by That was an actual diversion of the wa- Association, Idaho Water Users Twin ter from its natural locus or condition. Company, Falls Canal and the North Side Legislature enacted I. In 1971 the Idaho Company provisions Canal under the of I.C. the statute di- C. 67-4307.1 In essence § parties cross-appel- 42-203. Those are Department the State rects the of Parks of lants herein and are hereafter designated appropriate in trust for of Idaho to parties stipulated “Water Users.” The unappropriated

people of Idaho certain that the answers the following legal is- Canyon in the Malad natural waters of dispositive sues were of the matter. County, Additionally, Gooding Idaho. 1. Is it constitutional for an Idaho preservation (1) declares agency appropriate, without ex- and recreation beauty waters for scenic press authorization, constitutional the wa- water; (2) that use of ‍‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‍uses is a beneficial stream, thereby ters of a natural obtaining greater is of public use of those waters right having priority a water over water any domestic priority than other use save unappro- on same stream which consumption, (3) priated state land located between subsequently appropriated by private par- on either of these highwater marks bank ties? Canyon Appropriation

1. Malad [park 67—4307. permit — of to and recreation board] or the people in trust devoted therewith, —Lands issued in connection license park [park recreational use. —The state board any upon proof issue at time of benefi- hereby and recreation authorized board] cial use to which said waters are now dedi- appropriate for the and directed to trust cated. unappropri people of the state of Idaho park [park board], The board and recreation spring arising upon the ated natural flow successor, or its shall be deemed to be the follows, area described as to-wit: permit, holder trust for the quarter (%) public The south half of the southwest state, unap- and the use of the (%) (14), half of the south- propriated and the south specific in the area herein twenty-five (25), quarter (14), east of section greater priority described is declared to be of (13) township (6) south, range except six thirteеn than other use that of domestic Meridian; east of the Boise consumption. quar- (%) belonging The north half northwest lands quarter (14) (14), northwest high ter and the state of Idaho between the water mark thirty- quarter (14), of section (1) high the northeast on one bank to the mark on (36), township (6) south, range bank, described, thir- opposite six six of the area (13) hereby public east of the Boise Meridian. teen declared to be devoted to preservation area de- preservation of water with the connection beauty place and recreational present scribed for its scenic area in its condition as a necessary purposes all citi- and desirable for recreation the citizens of the state of hereby by 1971, declared [I.G., zens of the state of Idaho. added p. beneficial use of such water. 912]. ch. required No fee shall be connection park board said the state appropriation by private Are the uses described 67- pur- parties, violating beauty and thus article (scenic recrеational pertinent poses) support uses” which Idaho Constitution. “beneficial part it appropriation under the Idaho is stated therein: Con- ? stitution “The to divert and any natural unappropriated waters a of 3. Can there be created Idaho valid uses, never without an actual stream beneficial appropriative to * * possession physical to of the denied reduction through an actual diversion claimed water the assertion of the Water Authority for from, artificial control of the water or of language of plain in the Users is not found in, natural locus or the water the water’s is provision since there that constitutional ? condition parties” as “private no limitation therein to Department The Administra- of Water state distinguished from state or July 6, holding tion issued decision knowledge agency. deem common We lawfully agency appropri- that a state can in the decision of and it out pointed is waters of natural stream that ate and that Department of Administration Water аnd uses recreation aesthetic are beneficial throughout the western Idaho and water, of that in Idaho uses found states, appropri- frequently agencies state be no there can valid of wa- Depart- water, e., Fish and Game ate i. physical proposed ter without at least a di- pisciculture, appropriates water for ment to posses- version reduction of consume appropriate and state universities Finding proposed was no that there sion. water, utilizes Department Parks physical posses- or reduction to parks. also state water to maintain part Depart- sion intended on the Hutchins, Rights Laws W. A. Water Parks, Department ment of of Water 7, pp. 250- States, ch. Nineteen Western permit. Administration refused to issue the true, that if argued, is as (1971). It Department appealed The of Parks this appropriate wa- allowed agency state is court, decision as to issue district quantity ter cross-appealed upon and the Water Users Nevertheless, the samе thereby reduced. parties 1 and 2. filed issues The motions of the regardless any appropriation true summary judgment. The district court have identity appropriator. We held that a valid can be ef- discov- has our research supplied, been nor fected without actual diversion or states ered, authority from our sister possession grant- reduction water to analogous provisions having constitutional ed the motion of issue The Parks supports contention to ours this Department motions of of Water Ad- the Water Users. ministration issues and Water Users posi that their The assert Water Users Department 1 and were The denied. Conserva supported tion is Water appealed de- Administration has Water P. Enking, tion Board cision district court and the Water statute a state Enking 2d 779 cross-appealed. Users have Conservation Water creating the State powers defining duties Board and

I. deem We unconstitutional. was declared to be that dispositive issue par The are the only Water Users created had in еffect the act in ties which assert district court ei under corporation thus invalid and was agency erred when it a state held that can 11, sec or article constitutionally ther article appropriate unappropriated In can Idaho Constitution. tion waters of streams. The Water Enking however, dor, we must state argue appro to allow such an Users the Water supportive of language priation availability contains would eliminate the authority contrary nied. The position Users herein. Nevertheless we to that holding language arguably language deem such dictum is the we to be determine only supportive arguably Enking, conclu- the ex- court’s dictum opinion sion that the Board tent that this Conservation inconsistent Water corporation. language therein was a Certain of the we overrule latter. language Enking, probably albeit dic- tum, could be construed indicate that II. imposes prohi- our constitution an absolute error Users also assert Water against bition the state’s wa- apprоpriating in the trial court’s determination adopted this ter. Users have preservation recre of aesthetic values and view, asserting that the constitution must opportunities ational for the citizens prior being agencies amended to state is a use in the sense allowed to water. appropriative support an they that will opinion It is our that the fears of the water Constitution. under Enking prompted court which its construc- Users’ ar- foundation of Water totally tion of article section are in- in gument specified uses is that five applicable the case in to at bar. The court Constitution, article section i. speaks

Enking power that Board’s “to e., domestic, agriculture, mining, manufac- appropriate any unappropriated all turing power and thus and are exclusive public waters of the state” and “the settler cognizable that are uses bene- thereby [being] ultimately pay forced to re- ficial uses under our Constitution. We arbitrarily fixed water rates for the use of ject argument. wаter.” The court ex- Enking also pressed support position considerable find no for the alarm at the Board’s We report- authority in the private to “condemn discussions Water Users Convention, rights,” “monopolize” rights, to ed in II Idaho Constitutional “appropriate (1912), to as unappropriated Proceedings and sell the and Debate 1889 ap- waters pertaining of the state.” In article It contrast with the to Enking pears particular situation in and the fears of the that insofar as uses were expressed therein, debates, court in the was at mentioned discussion herein, only issue Depart- prefer- authorizes the confined to the establishment of appropriate, ment of Parks to in trust for uses over others under ences certain public, clearly designated certain wa- certain establishment circumstances. Such nonconsumptive ters for preferences appears use. are of to We be common opinion legislature that the in the in- feature of water law the west. See adоpted Hutchins, stant case has not an in the Rights insidious A. Laws W. Water attempt States, scheme in monopolize an supra. the Nineteen it Western While unappropriated state’s waters or to con- water law well established western already appropriated demn Only waters. of water must an geographical use,” sense can there be said made for a “beneficial nevertheless any pri- interference with a generic future in Idaho at least the term “benefi- appropriative vate legisla- since the judicially cial use” never been or statu- has tively authorized use is nonconsumptive dis- torily research does not defined. Our and once the waters have left the area any de- close in which has at- case court they lineated the statute are and will be tempted to define the term “beneficial subject private Comment, routine Appropriation use.” Water Recreation, I Land and Re- Water Law We hold that I.C. 67-4307 does not 209, 210 (1966). view constitute a disobedience of the constitu- tional mandate that “right question divert of the statute Consideration and appropriate clearly legislature herein indicates * * * uses, to beneficial shall never be de- has preservation declared “[t]he (1972) described for its scenic P.2d 1029 earlier cases of area necessary Sandpoint Light Company

beauty purposes v. recreational Company, 11 Development all citizens of the state Panhandle Ida- and desirable for * * * hereby (1905), to be benefi- and Hutchinson declared ho 83 P. nu- Slough Ditch cial use of water.” We note Watson recog- suggest- P. (1909) other western states have can read merous requires through legislation ing that utilization our an actual nized constitution purposes physical in order to water for scenic or recreational diversion of water However, Hutchins, appropriative right. A. Wa- claim an W. use. reading close cases indicates that Rights ter the Nineteen those Laws Western holdings States, insofar legisla- the actual cases pp. ch. Such they necеssity of an actual binding ef- relate tion in other states carries no but, physical statutory are based on in the absence fect on court requirements. persuasive contrary, law appear indicate that use does not hold that our Constitution We aes- recreational and providing require actual diversion. We pleasure represents rec- emerging thetic the en- it clear that until time of deem ognition in social this and other states of herein actment statute values and benefits from the of water. regulating ap- statutory Idaho’s scheme Report Final to the President and contemplated propriation has of water by the Congress the United States of 42- physical I.C. actual diversion. See E, Commission, 7, sec. National Water Ch. 101, 42-201, Com- 42-202. See however p. seq. ques- et The statute (1973). 271 ment, Prerequisite Di- of Man-Made The tion aesthetic recrea- recognizes herein version in the Water Appropriation ac- benefits which will tional values and Miranda, Reynolds v. Rights- ex rel. —State respect tо crue to the of the state 13 Nat- (1972); N.M. 493 83 P.2d 409 Canyon. find waters of Malad We ural Resources J. upon basis which to disturb declara- constitution note that the Colorado We in this instance legislature tion of the 15, section article is similar to Idaho’s “bene- values and benefits constitute those provides: district uses.” The decision of the ficial unappropriated “Diverting upon issue affirmed. court this * * unap- to divert *—The III. stream propriated waters of natural denied uses shall never to beneficial as now reach the final issue We * * *” XVI, Constitu- sec. physi there must be an actual whether tion Colorado. sup in order to cal diversion of port appropriation. This issue was an Westfall, 141 Colo. In Genoa upon appeal by Department raised both held court the Colorado (1960) P.2d 370 and the Administration Water was not physical diversion actual in the Users, both of whom assert error long so appropriation necessary a water physi trial court’s determination apply the intends appropriator necessary. cal not diversion was actually ap- use and a beneficial waters to rationale that use. The plies sec- them to language of article precise suspect decision after the became question Genoa tion does not bear on Riverside in Lamont v. court the Colorado merely right to divert declares “[t]he (Colo. District, P.2d 1150 Irrigation appropriate the have been appears to the matter 1972), but any natural stream to beneficial ** following Colora- the 1973 laid at rest lan- now Certain be denied never statutory its law wherein legislation Dale do late case of Glenn guage permit was amended appropriation so Ranches, Shaub, Idaho Inc. v. actual diversion. directed in 67-4307. I.C. § Laws, 1973, Any nullify Colorado ch. 442. other Session construction would Further appear purpose it does not obvious of I.C. Courts Colorado 67-4307. possible construing courts have relied should if statute their constitution give physical interpretation to establish actual it an does diversion re- quirement. nullify effect the statute. DeRousse v. Higginson, Idaho P.2d 321 An statutory examination of the law of Idaho problem. however reveals a different judgment of the district court is af- general proposition As a one must set forth firmed case is to the De- description pro- the location and and the remanded posed partment for fur- ap- Water Administration diversion of water in an plication permit proceedings ther consistent for a with views appropriate water. respondent. I.C. contained herein. legislature 42-202. The Costs compliance statutory 1971 made with the DONALDSON, J., concurs. permit procedure mandatory. Idaho Ses- Laws, sion Ch. (1971); 42- See I.C. § BAKES, opin- in an J., specially concurs 103,42-201. ion to follow. us, In the statute before I.C. § legislature clearly has stated a BAKES, (concurring specially) : Justice policy at previous general odds concur result reached Chief statutory scheme of water Shepard in al- plurality his opinion, Justice parks 67-4307 directs “to necessarily though everything stated and appropriate’] 'divert thе unappro- [not Additionally, therein. I wish to address priated spring natural flow” of the Malad a different manner the whether Canyon and “preservation declares the preservation or not the of the waters of water in the area described for its scenic Canyon in a is a Malad bene- beauty and recreational purposes” is a ben- may appropriated ficial use that be Furthermore, eficial use. the statute states the II and (Parts means of diversion. that “license shall any upon issue at time III of opinion). that proof of beneficial use to which said wa- question The first be consid ters are now dedicated.” deem it We clear any ered is whether uses other than the legislature intended no di- 3, 15, uses to in referred Article of the version of water be required in appro- domestic, mining, agri Idaho priation subject waters. Constitution— cultural manufacturing be benefi —can It is general axiomatic that where stat- cial uses of water under the Idaho Consti specific ute and a deal statute with the tutiоn. un This section has remained subject conflict, same matter and are in changed adoption since the of Idaho provisions specific statute must except Constitution for an amendment late 80, Roderick, v. control. State 85 Idaho language in the 1920’s added 375 (1962); P.2d Taylor ex rel. granted regulate the state the wa Taylor, ‍‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‍v. power purposes. ter use for amend This (1938). It also clear that where two scope ment narrow did not was of af expression statutes conflict the latest of fect the of For structure the section. legislative will prevail. Employ- must reason, I not believe that the amend do Security ment Agency Class “A” Joint ment change was intended to restric School District No. Idaho may original tions there have been in the P.2d regarding beneficial uses men We deem to be the intent of the Idaho this, question tioned Given therein. be Legislature to dispense any physical comes, did the draftsmen Idaho requirement in the case of the Constitution intend the scheme priority upon expressly under use of water Artiсle considerations found domestic, language mining, agricultural and manu- within the of the Constitution it- facturing purposes self to be an list- or the constitutional debates. exclusive ing of all beneficial uses ? the Idaho does Article Constitution explicit- not concern itself with abstract notions

The Idaho Constitution does not relationship ly pre- such as the between citi question. answer debates zenry government, their instead ceding adoption of Article very practical concerns itself with the show that uses were listed so that definite priorities question rights. think we between uses would be elevated very practical should look to considerations constitutional status. Idaho Constitu- Convention, attempting to construe it. Prior Proceedings tional and De- bates, 1154-66, 1330, adopted time that the Constitution was II, pp. Vol. 1331-33, 1340-43, uses of there were a number common 1350-65 The de- domestic, min water which were neither bates the section do not deal with ing, agricultural manufacturing. A matter nor of whether or not these are the rather, community in a tаnk for only possible uses; would store water they fighting operator simply political address use fires. themselves to the livery stockyard stable or a would preferred of which be uses shall kept operations Logging over the stock there. language the others. Neither transport logs and for used water both to concerning the section nor the debates storage ponds. adoption in mill of the section intent Communities show an wagons their limit the to settle dust on uses which beneficial uses priorities to those dirt streets.1 The railroad used water of which are listed engines in the its steam related to question posed section. If the other uses is to answered, operation All of the answer the railroad.2 must be based fighting recognized Research as beneficial uses has not uncovered a case in which were case, precise point presented parties even has been explicitly though they mentioned in the Consti- whether or not use other than one were not 3, may mentioned be a bene tution. fiсial but there are eases in which it has apparently transcript case of been assumed that uses are 2. A review of the City City Springs, Murray, Idaho Beus v. Soda beneficial. Pocatello v. early (1940), (D.C.Idaho 1913), P.2d 151 reveals 206 F. 72 affirmed adjudi- (C.A.9, 1914), interpreting had F. 214 as 1902 district court i>riority right, City date of with a of Pocatello a water the contract between the cated adoption operators franchise, (before Con- and the of its waterworks 1885 stitution), part question quantity used for which was the of the of water which purposes obligated in Article those listed other than the franchisees were to deliver was par- 15, a number of Be ns case In the § at issue. It was said in that case that the litigating put by to remove their were uses to was to the ties which be Ledge Creek, sprinkling municipality near a small stream included street and Springs. Oregon protection against Line Rail- Short fire. The franchisees Soda party suit, Company claiming they to a was made road the case were were not agreed parties obligated to the thе suit all the to as the to deliver as much water regard following stipulation City rail- with to of Pocatello demanded. If it had been rights, general contemplation in the trial court’s as set out law at road’s Finding city IV: of Fact time that a could not “ par- hereby [by stipulated settling all the ‘It is on its streets or water for dust controversy fires, between storage fighting exists that no ties] the franchisees right respect city parties probably argued to with had would have Company, Oregon put right Line Railroad Short all the water to the uses Oregon putting it, that said it be decreed and thus the fran which it was Company is the owner obligation Railroad Line Short under no to deliver chisees were a cubic city to the use of entitled But much water as the demanded. % Ledge per Creek opinion challenge of waters second foot the city’s right reveals no April priority Thus, i)ut date . . with these . water to uses. by of Fifth sprinkling Decree as decreed and fire- seem that street it would undoubtedly question The next these uses were considered whether the use at beneficial, domestic, issue in this case is but none of them were beneficial. The uses mining, agricultural manufacturing. by enumerated Article or have been § by by do raised to the adopting not believe that Article status of beneficial uses Constitution, they of the Idaho that it will remain ben- Constitution was § long intended that uses these could no eficial uses so as the such as Constitution longer unchanged. be considered beneficial uses. But we have before us a use On contrary, purposes. expectation the universal scenic and recreational legislature Even though must have been that such uses has declared could con- beneficial, subject appro- tinue and could use to be is the of an Court priation. Many final arbiter of the Ida- uses still construction of the those continue Constitution, today, ho changing and the and therefore we must de- needs of our soci- ety whether or generating new uses for termine not scenic rec- domestic, reational uses in this are a “beneficial agricultural, are neither 15, 3, meaning use” within mining manufacturing. nor As of Article an exam- § ple, Moyie many privately public Village of the Constitution. owned swim- pools Springs, Manufacturing ming applied have Idaho v. Aurora or health facilities for and received 353 P.2d licenses to drill their own supply wells to their water Natural needs. exception With the of those uses elevat- springs hot water extensively have been 15, 3, by ed to beneficial status Article resorts, developed g., into health e. Lava Constitution, concept of what or Springs, upon assumption Hot necessarily is not a must beneficial use they have obtained to the use a valid change changing conditions. For ex- of the water in their uses facilities. Such ample, presented if we were now with a domestic, could not be considered as min- using of whether water to or ing, agricultural manufacturing or as used operate public swimming pool, a foun- 15, 3, unduly Article broaden- tain, provide tract flood a ice for terms, ing yet the definitions of the such uses, good a skating rink were beneficial uses are no doubt beneficial from a so- argument presented could point cietal they of view that contribute uses, domestic, mining, agri- although not general citizenry; welfare uses, manufacturing were nev- cultural or and unless a valid water could be ob- say But ertheless beneficial. we cannot tained for such a would soci- alwáys uses will be beneficial be- that such ety uses, suffer the loss of such but a change might cause so conditions great capital deal of which has in- been unjustifiable use of uses be an these validity vested in reliance purposes. The no- water needed for other right to such a use for water would be beneficiality use must include tion of jeopardy. I therefore conclude that uses requirement of reasonableness. With other than those enumerated in Article implicitly declared to exception uses is al- can be there beneficial uses. be beneficial operation trains, e., in the (cid:127)Tudicial District Court and for Bannock i. water for of its watering County, April 6, 1902, engines’ boilers, dated the ease in [in steam and for use stipulation stockyard. least of Wetzel v. and which in At Nichols]’ stock in transit hereby approved adopted by perhaps one, are non- and the of these uses and both ; court and said have been which water is for use of It must uses. § Oregon Company parties Short Line Railroad for these the suit assumed the operation sup- unassailable, appropriations or such of its trains and for the were into, ply stockyards depot stipulation and of said have been entered would not (Clk.Tr. company pp. that non-Article railroad . . . .” evidence This is further 729-730). recognized the territorial uses were early days validity parties stipulated in All and state- to the times in Idaho into the 1930’s. hood and railroad’s Payette possibility Big Lake, ways a uses the waters of I.C. other beneficial §§ Priest, in one era will be in another vice 67-4301 to and of Pend not and Lakes, Irrig. As stated in Tulare v. Orielle and Coeur d’Alene versa. Dist. §§ Dist., Lindsay-Strathmore 67-4304 states of Irrig. to 67-4306. Our sister Cal.2d Oregon, have (1935): 45 P.2d Texas California also provided by used statute that water use, course, is a “What beneficial de- beneficially purposes ap- recreational pends upon the facts and circumstances plied, this while New Mexico has reached may of each case. be a What reasonable 536.300(1), result under case law. ORS §§ use, present water is in beneficial where (a), 543.225(3) ; 537.170(3) (a) Tex.Civ.Code needs, excess of all would a rea- not be Annot,, (1970 Supp.); art. 7471 Cal.Water sonable beneficial use in an area of 1243; Code State ex rel. Game great scarcity great need. isWhat Valley Red Commission v. River may, use a beneficial at one time because P.2d (N.Mex.1945). N.Mex. conditions, changed become a waste provide Oregon statutes further of water at later time.” use to maintain scenic attractions have we decided this is that What case purpose. I is a this issue am beneficial On us, specif- although now before use agreement plurality this with the ically listed Article of the Con- states and with the other named. because, stitution, considering is beneficial circumstances, today’s legislative classi- However, in determin addition to is reasonable on the record. fication based use, ing this is a we whether beneficial holding to today’s restrict the nar- must the Con decide whether or not also the use before proposition row us requires appropriations that all stitution as, as, long long so so through made of a diversion or means use in of water the state circumstances legislature may, as was done whether the that it is changed the extent have here, provide that an use at longer reasonable to continue this made when the benefi diversion expense of desirable more uses with provided cial use for can be achieved urgent should receive the more needs. It plurality opinion As out a diversion. treatment all other non-constitu- same points out, there has been no authoritative use us beneficial uses. The before tional 15, 3, holding that of Article construction ab- when considered is beneficial requires a for there that section non-consumptive use of stract because does appropriation; neither valid preserve Canyon Malad a sce- water at explicitly that section of Constitution attraction, both for aesthetic and recre- nic appro require for there to be a diversion purposes, and benefi- is desirable ational to other priation. again must look We cial, upon demands because the ques answering for guidance sources resources of this state are not so se- tion. that this which is beneficial when vere of water common law doctrine alone, becomes considered unreasonable system riparian was based and not beneficial when considered con- which limited the use of water junction with all water resource de- adjacent stream, to the or to lands stream sup- velopment state. This needs in the to be returned required bed and ports legislative determination pre- thus drainage, stream’s non-consumptive appropriations of water effectively dimin- venting waterways in natural for scenic and recre- from the others, ished removed can, the water purposes, among under ational use; permanent on a basis. circumstances, channel stream proper be a beneficial riparian system of water use While the precedents ap- similar follows history support early in had in some by legislature 1927 of propriations west,3 vert apparent it was soon and productive to beneficial most use in these arid waters of natural stream of water ” . . “di- accomplished by limiting use . the use the word areas could not be by vert” in that the Constitutional adjoining use of to lands water drainage, stream and Convention In 1890 was a constitutional and in the stream’s prior supremacy stream requiring recogntion return of the water to appropriation on the concomitant point from which it was taken at a doctrine with riparian used, right and remove the stream upon land which it to waters from was them, system rights riparian a bed not thus different and return over the water system require necessary. was Idaho was several which would in one of effect by my western states com- view the adopting which remain stream. In England mon law in Idaho use (1864 of the word “divert” was not used with Laws, 527, early by p. Session had an the intention 1), the framers the Consti- history riparianism which, by appropriative cus- tution that right first no diversion, tom by legisla- and a later in 1881 territorial obtained could be Laws, (1881 p. tion guarantee Idaho Session was the right inserted to of an §§ 1-20), supplanted appropriator was water from the remove the Earhart, 2 doctrine. Drake v. Idaho stream consume it in a beneficial particularly 23 P. 541 note dis- (1890), summary, return In and not it. word Berry, sent J.; Hutchinson Watson in v. “divert” used was Co., Slough Ditch 101 P. supremacy prior appro- mandate However, riparian priation riparian system doctrine over the totally rejected were not (R.S. 3180— constitutionally and not to limit the manner §§ 3190 (1887)), but the extent prior appropriator which could obtain riparian doctrine conflicted right. his water Thus, doctrine of as re- apprоpriative an does Where cently court, v. Weeks require a diversion make effective McKay, (1963), beneficial, the absence statute held that riparian both the where doctrine appears requiring diversion there co-ex- doctrine could practical why should reason a diversion ist, that riparian still in doctrine was required. example, As an in a case case, force in In Idaho. a down- produced which a scenic waterfall had appropriator stream enjoin sued to growth mist which caused unusual of at- upstream maintenance of dam ri- said, vegetation, “If nature tractive it was parian owner. The Court held while accomplishes recognized a result which riparian upstream owner in- could not utilized, process by man change of terfere with the natural flow of the stream and, unnecessary,” would seem “Undoubt- to which the appropriator downstream was edly may rely a landowner effi- entitled appropriative under his by nature, and application cient need do no right, appro- nevertheless the downstream himself affirmatively more than to avail priator require riparian could not own- ” it; Empire . . Power . &Water er to impounded release water dam his (8 205 F. 123 Co. Town v. Cascade long so as the natural flow was not inter- 1913). Steptoe Livestock Co. v. Cir. fered with. in a Gulley, (Nev.1931), 295 P. As I view Article Consti- a natural which cattle were watered tution, ‍‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‍guarantees stream, di- said with- it was that “we “[t]he Hutchins, Rights 3. 1 dissenting) (1890) ; (Berry, J., Laws in the Nine P. 541 States, pp. 130-225; see Union Denniff, teen Western v. 24 Mont. 60 P. 398 Smith Mining Mill Dangberg, Haines, (1900) ; Co. v. F. Nev. 249 Vansickle (C.C.D.Nev.1897) ; Earhart, Drake v. authority support Shepard’s out import the view the that to conclusion that dear appropriation dispense any constitute an where the stat of with I.C. 67-407 is § require utes physical use of requirement. artificial means of diversion water, diverting or where no diversion was granting district court order a sum- required, might that such appropriation be mary the judgment reversing decision independent made of both either or diver Department the Administration of Water sion or per the use of artificial means permit application in dеnying # fecting appropriation.” P. at 775. should be affirmed. Steele, also Stevenson v. 93 Idaho (1969). 453 P.2d these I find deci DONALDSON, J„ concurs. persuasive sions to be the contention for constitutionally that a is not nec diversion McQUADE, (dissenting). Justice essary appropriation. for an If a benefi I Mc- join in the dissent Justice cial can be made of the water in its Fadden, my- compelled but feel to address channel, should not upon self passed to an issue was not require superfluous the effort of construc agree the ma- his dissent. do not with precondition tion of a diversion as a for jority’s position there created However, obtaining an appropriative the ab- valid water diversion, appropriation an without a actual sence of an diversion right acquired is not to the stream flow water from its or natural locus condition. system, riparian was the under the required A in or generally specific to the use amount of water approp by perfect rights der water subject right.4 which is That in his on treatise Hutchins amount must and efficient be a reasonable riation.1 2 quotes water in the western states use of the Salmon River water. Glavin v. approval following language from Co., Ltd., Canal 258 P. 532 case, a California (1927); Elevator Union Grain & Co. 216, 240 McCammon Ditch appropriation of “To constitute a valid P. 443 water, always three elements must exist: (1) apply An intent it to exist- Appellant argue that some Users even Water use; ing contemplated require (2) or if the diver- constitution does not sion, actual diversion the natural relating to nevertheless the statutes from by channel appropriations Regardless some mode do. sufficient for application requirements appropria- purpose-, and general (3) statutes, to some water within reasonable time tions I concur with Chief Justice high Canyon appro- (1) regard mark bank to the natural 4. With Malad springs bank, opposite priation, provides: or of the on the 67-4312 they upon specifically arise Permits under described “67-4312. permits in this act. sections lands listed 67-4307 —67-4311.—The [park park and recreation in this act “The state board described shall waters permits apply upon first for those board] be issued determination which, arising land at director administration for water administers, enactment, the board time of historical water flow and he shall issue Any permit controls, future or owns.” amount. specifically de- Wiel, Rights in 1. Western See S. Water granted act above scribed Hutchins, 1911) ; (3rd ed. States 36T-367 §§ the flow limits set the director shall Developments Background and Modem detract from involve diversion that shall Water-Rights Law, in 1 Waters interpre- geological or interfere with (R. Rights 20.3, ed. 22.2 Water Clark significance, value, historical tive 1967). public use under scenic attraction park Hutchins, Rights Nine- Laws in the board administration 1, p. States, [park Yol. teen and recreation stream Western board] high mark on one the natural

451 exception application, permit li- . . .” [Emphasis beneficial use. censing requirements of I.C. 42-103. I. § added] requires permit a C. 67-4307 and li- that § concludes, expresses This Hutchins cense issued in connection with these not judiciary, western consensus of the waters. opinion оnly when was written sec. 3 of the Idaho Constitu- currently.3 in pertinent part, tion reads requirement I the diversion believe appropriate statutory “The to divert and clear and constitutional opin- any majority waters language state. The of this uses, shall never be up until stream beneficial ion concedes that the time denied, except may regu- state that enactment I.C. 67-4307 regu- power late and limit statutory “. the use thereof for . . Idaho’s scheme purposes.” [Emphasis lating appropriation of water has con- added] templated physical an actual diversion.” conjunctive significant It is that was I. opinion suggests The that in when 1971 written, used was i. when Constitution enacted, Legislature C. 67-4307 was e., divert and rather than the turnabout, at policy made and stated a disjunctive, e., appropriate. i. divert or In statutory previous general odds with its any contrary evidence, the absence of we appropriation. do not scheme of I presume should that the framers of the interpretation. am not agreе this conjunctive Idaho Constitution chose 67-4307, enacting conviced I.C. § deliberately they intended it be long abrogate the Legislature intended to ordinary meaning. its accorded requirement physical diver- standing Finally, underpinning the constitutional coupled apply sion be with an intent to of the diversion has been rec- requirement appro- water for beneficial use before an ognized by past this Court in In decisions. priative right recognized. would be Shaub,5 Ranches, this Glenn Dale Inc. v. year passing upon appellant’s the same I.C. en- charge 67-4307 was Court acted, respondent prove prior was to read I.C. 42-103 amended failed pertinent part: stated, appropriative right unappro- “Indeed,

“The the use of the record fails to show that re- priated . . spondent’s predecessor . within this in interest actual- acquired only by state shall ly put diverted the water in hereafter application, per- under the Absent such a use. mit procedures provided and license showing, as respondent can claim title, in this unless this appropriation antedating its owner- hereinafter title excepted.” [Emphasis ship property.” added] pro- application, licensing permit and majority opinion is incorrect when it cedures for the all of water holding concludes the actual in that encompass There physical diversion.4 as it necessity insofar relates to the brought has not been to our attention an actual diversion was based on language opinions Irrigation Company, 3.Id. There is of our v. Lehi 10 Crawford expressed ; (1960) sister states where courts 350 McPhail Utah 2d 147 P.2d necessary support ; Forney, Wyo. 556, (1894) that a view diversion is 4 v. P. 35 773 authority Stricklin, While Hutchinson v. Or. P.2d 146 28 binding certainly persuasive us, (1933) ; Clough Wing, it is 2 Ariz. v. thought indicative this area. See P. 453 Reynolds v. State of New Mexico ex rel. seq. 4. 42-201 et §§ ; Miranda, (1972) 83 N.M. Milling, Gates v. Settlers’ Canal Reservoir P.2d (1907) ; P. Okl. Sherlock (1938) ; Greaves, 106 Mont. P.2d scrutiny statutory requirements. A careful and benefit of all the citizens ** not, however, of that case indicates that the Court was *. This is Constitution, relying upon sense, the Idaho art. interest or title in proprietary 15, sec. 3 to establish and substantiate the but rather sovereign capacity requirement.6 representative all the for purpose gtiaranteeing that the com- McFADDEN, (dissenting). Justice mon all shall equally pro- be 15, 3 the Article section of Idaho Consti- tected and that no one shall be denied provides pertinent part that: tution proper his use and benefit of this com- appropriate right the “The to divert necessity.” 241-242, mon 22 Idaho at waters of unappropriated (emphasis added). 125 at 814 P. uses, never be beneficial stream to law, In “appropriate” the verb denied, except may regu- that the state acquire right “public means to to use wa power use thereof for late and limit the Irrigation ter.” See Boise & Land Co. v. (Emphasis added.) purposes.” Stewart, 38, 49, 10 (1904); Idaho 25P. 77 view, “appropria- the so-called my In Lake Duck Shore Club v. Lake View Duck consti- by I.C. 67-4307 authorized tion” Club, 309, 76, 50 Utah 166 310-311 P. right to constitutional denial of the tutes a ; Hutchens, (1917) The Idaho Law of Wa unappropriated waters the appropriate 1, Rights, ter 5 Idaho L.Rev. 7 (1968); Canyon Springs. Malad Hutchins, Problems in Law Selected state, West, Rights in its acting Dept, U.S. recognize appropriate Agriculture capacity, may (1942). wa- Misc.Pub. No. 418 An proprietary 3; 15, appropriation may “private” offending Article be made for ter without appropriators, “public” for private beneficial beneficial in the case of but as Co., depends upon Irrigation supra, Land appropriative right use. Boise the state’s 48-49, However, 10 Idaho at to a “beneficial 77 P. 25. if application of water case, however, sovereign capacity already the state in its state In this use.” unappropriated right “public has the to hold to use water” for agency is directed certain obviously beneficial it “in trust for cannot waters right words, beauty “acquire” recreational other “scenic for state” —in “appropriate” state If the state cannot water in such a purposes.” I.C. 67-4307. case, right it cannot “acquire” because to hold were already purposes, certainly it would that it has. these See State ex rel. State ‍‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‍trust for Co., Valley capacity; it Game Comm. v. Red River acting proprietary in a 51 207, 421, my nothing (1945). than it al- N.M. 182 P.2d 432 doing more view, the in-stream duty sovereign ca- use of natural stream ready to do its had 496, Olaveson, purposes for recreational and for scenic Idaho 82 pacity. Poole v. beauty 502, public is a beneficial use which in Walbridge v. (1960); ownership Robinson, 236, 241-242, sovereign heres in the state’s 22 125 P. Idaho Therefore, since the al v. such water. state Power & Trans. Co. (1912); 812 Idaho water, 418, 429, ready right has to so use the Stephenson, 101 P. 821 16 Idaho Hutchins, acquire right “appropriate” cannot Law of Wa- (1909); The Idaho purposes. for 1, these Rights, 3 As ter 5 L.Rev. Idaho Walbridge: court stated in Moreover, “appropriation” purported objectionable grounds much more on public waters of title to “[T]he inconsistency. weighty logical than mere for the use in the state state vested (1909) ; Carter, 1059, Sandpoint v. 88 1063 Cantlin also Water & P. Id. fn. 6. See ; 761, (1964) Co., 179, 186, Development Light 397 P.2d Panhandle Idaho v. Co. 352-353, McIntire, (1905); Idaho Neil v. 83 P. Jones (1939) ; Hutchins, Parker, 91 P.2d 19 Idaho son Rights, ; (1911) Idaho L.Rev. Law of Water v. Watson Hutchinson P. Co., Slough 20-21 Ditch added). provision Under of the Idaho section 3 The Idaho makes an ex ception Constitution, power by purposes water held the state —not though sovereign capacity being public (and be- demands of the interest —even public purposes neficially general used recreation scenic —is specific subject being appropriated beauty). allow To the state to effect private (or proprietary) beneficial uses. reserve water from in fur Thus, public unappropriat- non-proprietary, non-power in-stream use of therance of purposes purposes ed water for recreational and for the framers of the Consti —when subject beauty contemplated scenic tution private to diminution users appropriate being could exercise constitutional held appropriate private proprie- by the (or capacity— watеr for its sovereign tary) nothing ex amounts beneficial uses. rel. State a denial less than Valley Game v. Red su- Comm. River constitutional pra. type “appropriation” “unappropriated of autho- waters” of recognized words, rized what it real- stream. here was for “In other state cannot ly by by legislative is following the author of the ex- act agency authorize its own cerpt : monopolize very rights withdraw the * * * section 3 article 15 the Constitui of many Oregon “In streams of tion never says cshall be denied’ the that form beautiful falls or that are fa- state.” Water Conservation of fishing

mous waters have been reserved Bd. Enking, 58 P.2d gover- In Idaho (1936). 783 The proper means to au appropriate nor authorized to the wa- thorize such (or “appropria a withdrawal peo- ter of certain lakes in trust for the tion”) is to amend the Constitution to so preservation ple, the lakes and the of for provide. beauty, health, pur- scenic and recreation poses is declared beneficial use to be a beyond dispute It is scenic beauty [citing the water I.C. §§ importance recreation both of vital although in is not an 4304], reality this day modern life But Idaho. this does appropriation, Oregon but like laws a ipso facto mean the has right prevent reservation water to promote by these beneficial ends with- bring appropriated mundane more for drawing appropriation, given waters from purposes.” Trelease, Concept guarantee contained in Con- the Law Reasonable Use in Beneficial note, however, stitution. that the effect Streams, 1, 12 Wyo.L.J. Surface proposed appropriation upon of a scenic (1956) (emphasis added]. beauty recreation can and should be by Such a unap- reservation the state of determining considered whether use propriated completely waters is unauthor- contemplated is “beneficial” within the by ized Comment, our Constitution. Unlike con- meaning the Constitution. states, Recreation, stitutions of some other western Appropriatiоn provide Idaho’s Constitution does not Land L.Rev. & Water appropriate be words, pro- “shall never de- a other where the benefits except nied posed when such demanded outweighed by denial the attendant use are by public recreation, interest.” Our Constitution beauty and detriment to scenic provides use,” appropriate un- and the the use is not “beneficial appropriated denied, permit waters “shall never be application except may public that the state regulate lim- be de- that use should it the power purposes.” always, use thereof of beneficial nied. As Const, (emphasis Art. sec. case use must determined on a be XV, 6; Wyo. except 1. Neb.Const.art. is demand- be ed whensuch denial denied see also (“No appropriation publicinterests”). Const. art. basis, particular since the benefits appropriation may

proposed outweigh the beauty. detriment to recreation and scenic “beneficial” is a Whether a use of water is question of fаct to resolved a con present in sideration of circumstances particular County City case. of Den Sheriff, 193, 96 ver v. P.2d Colo. Irrig. As in Tulare stated Dist., Lindsay-Strathmore Irrig. Dist. v. 972, 1007(1935): P.2d Cal.2d course, use, de- is beneficial “What pends upon the facts and circumstances case. reasonable each What present in where water is needs, all not be a rea-

excess of in an sonable beneficial use area scarcity great great need. What ‍‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‍may, a beneficial at one time because conditions, changed become waste of water at later time.” conclusion, although believe that beauty can and should recreation scenic into on a be taken consideration case basis, they cannot be used an ex- deny all future cuse purposes, least until the water for other at is amended. Constitution SONS, proprietorship, & a sole ED SPARKS Plaintiff-Appellant, CAMPBELL JOE CONSTRUCTION COM- Corporation, PANY, an and Fire- Compa- Insurance man’s Fund American ny, Defendants-Respondents.

No. 11615. Supreme Idaho. Court of

Dec. Rehearing 30, 1975. Denied Jan. Racine, Huntley, Jr.,

Robert Hunt- C. Pocatello, ley Olson, plaintiff-appel- lant.

Case Details

Case Name: State, Dept. of Parks v. IDAHO DEPT, WATER ADMIN.

Court Name: Idaho Supreme Court

Date Published: Dec 31, 1974

Citation: 530 P.2d 924

Docket Number: 11455

Court Abbreviation: Idaho