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Background Information on the Bear River Basin Adjudication What is a general stream adjudication? How will the adjudication affect me? What are the basic procedures in the adjudication? How are some important issues decided? What do I need to do to protect my interest? Questions and Answers 1. What role does IDWR and the Director of IDWR take in this adjudication? 2. What is a Special Master? 3. What can I do if I did not file a notice of claim or an objection in the SRBA? 4. What can I do if there is a mistake on my notice of claim? 5. What is a subcase? 6. Who will participate in my subcase? 7. Will my water right be determined in these subcases? 8. How can I communicate with the Special Master, Presiding Judge or court staff? Can I mail a letter or make a phone call? 9. Can I communicate with other persons in my subcase? 10. Can I settle my subcase without going to trial? 11. How can I protect myself in litigation with all these major parties who have extensive financial and technical resources? Will I need a lawyer? 12. What happens next? What is the schedule? 13. Must I attend all these hearings and conferences? What happens if I don't? What happens if I have a conflict? 14. What is discovery? What happens in the discovery process? 15. In a subcase, to whom should I send the documents I file with the court? 16. What is the "docket sheet"? Where can I get a copy of the docket sheet? 17. What is IWATRS"? 18. What should I do if I find an error on my Partial Decree? 19. What are my responsibilities if I buy or sell property? 20. Where can I get more information
Background information on the Bear River Basin Adjudication This material provides background information about this Bear River Basin Adjudication (BRBA) and offers some suggestions about how water users can protect their interests in this general stream adjudication. The BRBA is a statutorily-created lawsuit to inventory all surface and ground water rights in the stream system. On June 17, 2020, the Idaho Supreme Court appointed District Judge Eric Wildman as Presiding Judge for the BRBA and designated Twin Falls as the county of venue. Parties to the BRBA, known as claimants, objectors, or respondents include: individuals, corporations, the state of Idaho, cities and counties, the federal government, Native American tribes and other entities. Parties filed claims for all uses of water (surface water, groundwater, agricultural, industrial, hydropower, aquaculture, and municipal and federal reserved rights). Because the BRBA is a general adjudication of an entire stream system, the United States will appear in state court and file its claims under a congressional waiver of sovereign immunity (the McCarran Amendment, 43 United States Code, Section 666). The U.S. will file claims for federal departments or agencies and on behalf of any Native American tribe with water claims within the boundary of the BRBA. A special court system was created to manage this large and complex case. The court uses Special Masters to conduct hearings and make recommendations on contested rights. Partial and final decrees will be entered by the Presiding Judge. The case is governed by the Idaho Rules of Civil Procedure and the Idaho Rules of Evidence. Under authority granted by the Idaho Supreme Court to modify portions of these rules, the Presiding Judge will adopt ADMINISTRATIVE ORDER 1, RULES OF PROCEDURE. In addition, special forms will be developed to assist parties who need to file documents with the court.
What is a general stream adjudication? A general stream adjudication is a lawsuit to inventory the water rights of an entire stream system by deciding their nature, extent and priority. Priority is especially important in Idaho where a water user with an early priority date (senior water right) is generally entitled to use water before others with later priority dates (junior water right). The BRBA Court will issue decrees defining the elements of each water right in the entire Bear River Basin. This process may not be completed for many years.
How will the adjudication affect me? The BRBA will determine the rights to the use of both surface and ground water in the Bear River Basin and its tributaries. Geographically, the BRBA includes all or part of Bannock, Bear Lake, Caribou, Cassia, Franklin, Oneida and Power Counties. Thousands of water users are involved in this lawsuit. The final decree will set forth the elements of each water right including: ownership, source, quantity, priority date, point of diversion or beginning and ending points for instream flows, purpose of use, period of use, place of use, description of reservations, and applicable general provisions. If you claimed a water right in the BRBA, you should monitor the case carefully to protect your rights. If, for some reason, you or a prior owner of your property failed to claim water uses on your property, you should immediately decide whether you can do so at this late date by contacting the Idaho Department of Water Resources, or a lawyer.
What are the basic procedures in the adjudication? It is anticipated that the claims taking process in the Bear River Basin will begin in September 2022. Approximately 14,000 water right claims are expected to be filed with the Idaho Department of Water Resources (IDWR). IDWR must investigate all state law based claims and file a Director’s Report recommending how and whether the claims should be decreed by the court. There are 4 IDWR administrative basins in the BRBA and a Director's Report will be filed for each basin on a controlled schedule. Parties who disagree with a recommendation in a Director’s Report can file objections and responses with the BRBA Court. Objections, responses and other pleadings to a single water right create a "subcase." A "Special Master," appointed by the Presiding Judge, will conduct hearings in each subcase and may order settlement conferences to assist the parties in resolving water rights without a trial. If required, the Special Master may preside over a court trial to resolve disputes (jury trials are not permitted in the BRBA). After trial, or complete settlement by the parties, the Special Master will file a report and recommendation with the Presiding Judge. Any party to the BRBA disagreeing with the Special Master's report and recommendation may file a motion to alter or amend the recommendation and a challenge. The Presiding Judge will then hear and decide all challenges and may adopt, modify or reject the Special Master's recommendation. The Presiding Judge may also hold additional evidentiary hearings or recommit the subcase to the Special Master. The Presiding Judge will enter a Partial Decree for the water right after all challenges are resolved. Appeals from a Partial Decree may be taken to the Idaho Supreme Court pursuant to Idaho Rules of Civil Procedure (I.R.C.P.) 54(b) or Idaho Appellate Rule (I.A.R.) 12. If you claim a water right or file an objection or response to a water right, the Clerk of the BRBA Court will notify you in writing, at the address on file with the BRBA Court, when that subcase is taken up by the Special Master. Most often, after objections and responses have been filed, the first document you will receive is an order of reference assigning the subcase to a Special Master. Next, you may receive a notice setting an initial hearing before the Special Master. YOUR ATTENDANCE AT THE INITIAL HEARING IS MANDATORY. At the initial hearing, you will be given an opportunity to meet with representatives from IDWR as well as the other parties to your subcase in the hope that an agreement can be reached. If you are able to reach an agreement, the Special Master will enter your agreement on the record. If no agreement is reached, the Special Master will discuss the issues with the parties and determine a schedule for trial.
How are some important issues decided? The BRBA Court must hear and decide, for the first time, many important legal issues. For instance, the court must decide how to determine the priority dates of water rights and the quantity of water that will be awarded for different types of uses. Issues that affect a significant number of water rights may be designated "basin-wide issues" by the Presiding Judge. When an important legal issue is decided as a basin-wide issue, the Special Masters will apply that ruling in later cases involving the same or similar issues. Basin-wide issues are generally heard by the Presiding Judge and notice is given to all parties through the Docket Sheet published monthly by the court. The recommendations made by the Special Master and decreed by the Presiding Judge in each subcase will be binding upon the parties involved and may also be of precedential value for other subcases. If a party in a later subcase disagrees with the application of an earlier ruling, the party must show the Special Master that circumstances in the later case differ, that new or additional evidence requires a different result or that there are other reasons why the earlier ruling should not apply.
What do I need to do to protect my interests? There are six basic steps to protect your interests in the BRBA. While these steps will not guarantee that you will be awarded the water rights that you claimed, they will allow you to be heard by the Special Master on matters that are important to you. 1) Be sure that a claim is filed for the water right(s) to which you believe you are entitled. Contact IDWR at 800-451-4129 to find out whether your water rights have been claimed and, if not, for information about the process of filing a claim or a late notice of claim. 2) Use the Internet to follow developments in the main adjudication case. If you have a computer with Internet access, you can log onto the BRBA Web site at www.BRBA.idaho.gov. From there you can track administrative orders, check the calendar for upcoming hearings, download court forms or track the activity in your subcase(s). Contact the BRBA Court (208-736-3011) for information or assistance with this web site or for information regarding your subcase. 3) Review all the documents filed with the BRBA Court that relate to the water right in which you are interested. Whether you are the claimant, objector or respondent, you should study the Director’s Report, the objections to the Director’s Report and IDWR's working file on each water right for which a notice of claim was filed. This working file can be accessed through IDWR's web site at idwr.idaho.gov or at IDWR's regional offices or at its main office in Boise during normal working hours – please contact the IDWR Adjudication Hotline at 800-451-4129 to determine where to go to review this file. 4) Be an active participant in all proceedings relating to the water right(s) in which you are interested. Once a subcase is "at issue," or active, you must attend all conferences and hearings ordered by the Special Master. You should also review and respond to all legal notices and pleadings you receive. Responses to some pleadings (for example, interrogatories or questions sent by another party) must be made within a certain time period or severe consequences may occur. Never assume that another person will represent your interests (unless that person is your lawyer). You or your lawyer must be present to state your position or protect your interests. 5) Determine whether or not to hire a lawyer to advise or represent you. General stream adjudications are complicated lawsuits, and while not every person in the BRBA needs a lawyer to participate effectively, many people do need legal assistance or representation in complex matters. At a minimum, seriously consider consulting with a lawyer for assistance in understanding your subcase and your interests. Then you can make an informed decision on whether to hire a lawyer or represent yourself in the remainder of the proceedings. Appearances or representation of parties may be made as follows: a) Individuals may appear and represent themselves or be represented by a lawyer admitted to practice in Idaho. b) A business entity (such as a corporation, LLC, or partnership) may only be represented by a lawyer. c) An unincorporated association may only be represented by a lawyer. 6) KEEP BOTH IDWR AND THE BRBA COURT INFORMED OF YOUR CURRENT ADDRESS OR IF YOU BUY OR SELL PROPERTY WITH WATER RIGHTS. The BRBA Court needs your current mailing address to mail notices and other legal documents. It is your responsibility to notify IDWR and the BRBA Court of any changes in your address or changes in the ownership of your property. IDWR has a standard form available for these changes. If you are buying or selling property, do not assume that the realtor will automatically take care of notifying IDWR.
QUESTIONS AND ANSWERS Concerning the Bear River Basin Adjudication
Q: What role does IDWR and the Director of IDWR take in this adjudication? A. The 1994 Idaho legislature changed the adjudication statutes to remove IDWR and its director as parties to these types types of cases. Idaho Code Sec. 42-1401B now defines the role of the director as "an independent expert and technical assistant to assure that claims to water rights acquired under state law are accurately reported. . . ."
Q: What is a Special Master? A: A Special Master is appointed by the Presiding Judge to hear subcases in this general stream adjudication. Special Masters are lawyers with unique qualifications to conduct hearings in subcases and submit reports and recommendations to the Presiding Judge.
Q: What can I do if I did not file a notice of claim or an objection in the BRBA? A: If your water right is located in an area that has been reported to the court in a Director's Report, you can file a Motion to File a Late Notice of Claim before the Presiding Judge or a Motion to File a Late Objection before the Special Master. Your motion must state good cause for failure to file the claim or objection in time. All motions are filed with the Clerk of the BRBA Court and copies must be mailed to other parties involved in the subcase. The court hears motions for late claims monthly. Once your motion is filed, the BRBA court will set your motion for hearing within the next 2 or three months. The BRBA Court has a standard form available for filing motions for late claims and motions for late objections. If your area has not been reported to the court in a Director’s Report, you should contact IDWR at 800-451-4129.
Q: What can I do if there is a mistake on my notice of claim? A: If you find a mistake on your notice of claim, you may amend the notice with IDWR any time before the filing of a Director's Report. Additional fees may be required if a claim is amended. If you find a mistake on your notice of claim after the filing of a Director's Report, you should file an objection. You may also wish to consider filing an amended claim.
Q: What is a subcase? A: Objections, responses and other pleadings filed against water rights in a Director’s Report have been organized into individual subcases. Each subcase has been assigned a unique number (for example "95-05197"). IDWR originally assigned this number and the clerk's office uses it for organization and reference. Any communication sent to the Special Master or parties in the subcase must give this number in the caption of the document.
Q: Who will participate in my subcase? A: The parties in a subcase consist of the claimant, objectors, respondents and any party who files a challenge to a Special Master’s report and recommendation. A special pleading, called a Motion to Participate, must be filed and granted by the Special Master for anyone else who wishes to participate but did not file an objection, a response, or a motion to alter or amend. More limited participation is available, by permission of the Special Master, for persons who want to comment as an amicus curiae or friend of the court. An amicus may file legal arguments or comments with the court, but is not a party to the litigation and is not bound by the litigation.
Q: Will my water right be determined in these subcases? A: Yes. The goal in each subcase is to accurately determine the water right at issue. After hearing objections to the Director’s Report, the Special Master will prepare a report and recommendation and submit it to the Presiding Judge. If you or another party disagree with the Special Master's report and recommendation, you may file a challenge with the Presiding Judge. Any challenge to the Special Master's report and recommendation will be heard by the Presiding Judge. After those challenges are resolved, the Presiding Judge will enter a Partial Decree that will ultimately become a final decree after all subcases in the BRBA are resolved.
Q: How can I communicate with the Special Master, Presiding Judge or court staff? Can I mail a letter or make a phone call? A: You may call the BRBA Court for general answers to procedural and scheduling questions. You MAY NOT call the court staff or Special Master to discuss the evidence that you believe supports your claim. Court personnel, judges and Special Masters are neutral and must remain neutral so that fair decisions can be made. Such decisions are possible only after everyone has a chance to present their facts in a properly noticed hearing. Any letters, pleadings or other documents sent to the Special Master must be filed with the BRBA Court clerk's office in Twin Falls. A copy of the document must also be provided to all other parties in your subcase as well as the IDWR Document Depository. First-class mail is an acceptable way to file and serve your documents. You may also hand deliver documents, and some documents are accepted by FAX. You may talk about your subcase in a settlement conference, status conference, or hearing before the Special Master.
Q: Can I communicate with other persons in my subcase? A: Yes, but remember to include everyone who is a party to your subcase and if a party is represented by a lawyer, you must make contact with the lawyer. For example, parties may agree that certain evidence is genuine, agree to certain facts and even agree to settle the subcase before coming to court.
Q: Can I settle my subcase without going to trial? A. Yes. Parties can always meet to discuss issues in a subcase. These discussions should include all parties to the subcase. IDWR is available to assist in these discussions. If all parties agree to settle the subcase, they must give a copy of the agreement to IDWR using the BRBA Court Standard Form 5 (SF5). Then, the agreement must be filed with the court. If IDWR disagrees with the agreement, it will notify the court and parties. In any event, the court cannot accept an agreement that is not supported by the law.
Q: How can I protect myself in litigation with all these major parties who have extensive financial and technical resources? Will I need a lawyer? A: General stream adjudications are complex legal cases that affect people's water rights. Like any lawsuit involving important legal issues, it is usually to your advantage to consult with qualified legal counsel early in the process. Even if you ultimately decide not to hire a lawyer, early consultation with a lawyer may help you in making that decision. You may wish to talk to other individuals named in a subcase to see if your interests and positions are the same. If they are, you may wish to join together to hire a lawyer. Also, you may find that some of the major parties have competing positions and that other major parties, though not representing you, are actually supporting your position on an issue. You always have the right to appear before the court at a formal hearing to present your case if you do not agree with another party.
Q: What happens next? What is the schedule? A: Proceedings in each subcase usually begin with an initial hearing and an attempt at settlement. If no settlement can be reached, then a scheduling conference is set followed by, discovery, motion practice and final hearing. As a party, you will be notified of any hearing dates or filing deadlines. Only the Special Master can make changes, revisions and updates to the schedule. You should review ALL documents received in the mail to keep track of important dates.
Q: When you are notified that your subcase has been set for some event, you or your lawyer must attend. The majority of BRBA hearings allow for telephone or video participation. Check your hearing notice for instructions on accessing the hearing by telephone or video conference. You must also attend any scheduled depositions where you will be asked questions as a party or a witness and comply with all filing deadlines. If you fail to attend court-ordered conferences or hearings, you may forfeit your opportunity to participate and be heard on the issues. You may be giving up your right to provide the Special Master with information necessary to define your water right. You may also forfeit your opportunity to argue a position that is shared by many other water users in the BRBA. Ultimately, you may have your claim, objection or response dismissed if you fail to attend a hearing scheduled in your subcase.
Q: What is discovery? What happens in the discovery process? A: Discovery refers to a set of pretrial procedures that can be used by one party to obtain facts and information about the subcase from another party or from other persons. These procedures include interrogatories (written questions addressed to another party), requests for admission (written questions addressed to another party requiring an "admitted" or "denied" response), requests for the production of documents, requests for inspection (such as the inspection of a headgate), and depositions (oral questions asked of a party or witness, with the responses recorded by a court reporter and, sometimes, on videotape). The BRBA is a civil lawsuit and discovery is allowed by the Idaho Rules of Civil Procedure. If you are a party in a subcase, you may be able to use these discovery procedures to obtain information important to the preparation of your subcase.
Q: In a subcase, to whom should I send the documents I file with the court? A: Any document filed with the BRBA Court must also be served on all parties to the subcase. This includes all objectors, respondents and other parties who are participating. IDWR is a participant, but not a party, to to all subcases. The service of documents in any subcase may be made by personal delivery or first-class mail properly addressed. If you have any questions about where to send documents, contact the BRBA Court.
Q: What is the "docket sheet"? Where can I get a copy of the docket sheet? A: The docket sheet is a chronological record of documents filed with the BRBA Court during a one-month period and includes a schedule of upcoming hearings for the next three months. The docket sheet does not include detailed information about the individual subcases. The docket sheet is published on the 7th day of each month and lists information for the previous month. The docket sheet is available for inspection at all IDWR offices and each county courthouse within the boundaries of the BRBA. The docket sheet is also posted on the BRBA Web site at www.BRBA.idaho.gov. A subscription to the docket sheet is available for a fee of $7.50 from the BRBA Court.
Q: What is IWATRS? A: IWATRS is the court's automated registry of actions that lists all pleadings and documents filed with the court and all orders entered by the Presiding Judge and Special Masters. These pleadings and documents can be viewed and/or downloaded by using the hot links in the register of actions. IWATRS also provides additional information such as lists of all upcoming hearings. The public can access IWATRS information from the Internet address www.BRBA.idaho.gov.
Q: What should I do if I find an error in my Partial Decree? A: Review your Partial Decree carefully upon receipt. If you find an error on the decree, you should contact either IDWR or the BRBA Court. Depending on the type of error, time limits may apply.
Q: What are my responsibilities if I buy or sell property? A: It is your responsibility to notify IDWR and the BRBA Court if you purchase property with a water right that is subject to the adjudication. If you purchase property, contact IDWR at 800-451-4129 as soon as possible. They can assist you in determining if your water right is subject to this proceeding or not. Do not rely on your realtor to automatically take care of notifying IDWR. There are standard forms available for making these changes.
Where to Get More Information For information about filing pleadings, reviewing subcase files, obtaining copies of pleadings, upcoming events and proceedings or ordering the docket sheet: BRBA District Court 253 3rd Avenue North P O Box 2707 Twin Falls, ID 83303-2707 208-736-3011 www.brba.idaho.gov For information about your notice of claim, director's reports or other publications and reference material concerning IDWR: IDWR State Office 322 East Front Street PO Box 83720 Boise, ID 83720-0098 208-287-4800 800-451-4129 FAX: 208-287-6700 info@IDWR.idaho.gov Remember, IDWR cannot provide legal advice and does not speak for the court.
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