Date Number Title Issues and Decision Comments
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10/15/87 Doc. # 87-10-007 Memorandum Opinion on Commencement Boundaries established; Lower Snake tributaries must be Hurlbutt
of Adjudication included to obtain McCarran jurisdiction over the U.S.; It is See, decision of Ida. Sup.
necessary to include previously adjudicated tributaries to Ct. on appeal at 115 Idaho
maintain McCarran jurisdiction over U.S.; Domestic & stock 1, 764 P.2d 78 (1988).
water claimants must be included in order to maintain
McCarran jurisdiction over U.S.
11/19/87 Doc. # 87-11-002 Commencement Order A general adjudication is commenced under I.C. 42-1406A; Hurlbutt
Memorandum opinion on commencement is adopted; Boundaries
Findings of Fact & Conclusions described; All classes of water uses & all sub-basins are included;
of Law Claimants will file claims; Director is authorized to take action.
02/19/88 Doc. # 88-02-021 Supplemental Order Granting District judge granted authority to modify procedures for Shepard
Additional Powers to District making service of pleadings, motions, notices of hearings
Judgment & other documents.
02/24/88 Order Establishing Docket Sheet Hurlbutt
Procedure
01/17/89 Doc. # 89-01-012 Findings of Fact, Conclusions of De Minimis domestic & stock water right claimants shall be Hurlbutt
Law and Order Establishing Proc- joined as parties & shall be bound by decrees; De Minimis
edures for Adjucicatication of claimants may elect to full adjudication now or postpone
Domestic and Stock Water adjudication by following the Paragraph 3 alternative
Uses. procedure.
12/27/90 Doc. # 90-12-027 Memorandum Decision on the State of Idaho's 5th Amendment due process protections do not extend to the Hurlbutt
Motion for Partial Summary Judgment; U.S. United States; U.S. is not a "person" afforded due process Affd. by Ida. Sup. Ct. at
Petition for writ of mandamus - filing fees. protection under Idaho Constitution; Loss of a water right for 122 Idaho 116, 832 P.2d
failure to pay a filing fee is not an impermissible taking of 289 (1992); reversed by
property for public use without compensation; U.S. fails to U.S. Supreme Court at
establish that filing fee is discriminatory or burdens interstate 113 S.Ct. 1893 (1993).
commerce or purposes of commerce clause analysis; Filing
fee statute is not an unconstitutional attempt to appropriate
funds, nor a violation of anti-deficiency acts; U.S. must
pay filing fees.
12/27/90 Doc. # 90-12-028 Order Granting State's Motion for Summary judgment granted on issue nos. 7, 8, 9, 10, 11, 12, Hurlbutt; Decision Affd.
Partial Summary Judgment on ten issues 13, 14, 17, & 18. 122 Idaho 116, 832 P.2d
presented by U.S. in Petition for writ 289 (1992); Reversed
of mandanus - filing fees. 113 S.Ct. 1893 (1993)
01/24/91 Memorandum Decision (filing fees) Summary judgment granted on issue nos. 1 & 2; Payment is Hurlbutt; Decision Affd.
not barred by the supremacy or property clauses of the U.S. 122 Idaho 116, 832 P.2d
Constitution; McCarran Amendment waived U.S. sovereign 289 (1992); Reversed
immunity such that it cannot argue that Idaho laws are not 113 S.Ct. 1893 (1993).
applicable.
06/14/91 Order Establishing Procedures to be Outlines procedure for mailing notice of claim to be included Hurlbutt.
Followed to Correct Errors Prior to in Director's Report to the claimant with an explanatory
Filing of Director's Report brochure in order to correct errors prior to the filing of the
Director's Report with the Court.
07/30/91 Doc. # 91-07-009 Memorandum Decision Re: Petition for IDWR is entitled to an injunction under IRCP 65(e)(1) because Hurlbutt
Preliminary Injunction it is entitled to relief demanded, such relief is required to prevent
respondents from continuing to divert water in excess of licensed
Prohibiting diversion of water in excess rights, and continued diversion in excess of licensed right
of Licensed rights constitutes irreparable injury to the State as an act in contravention
of State law and the license terms and conditions.
09/24/91 Doc. # 91-09-014 Order Re: Filing of Pleadings "[A]ll documents of any nature filed with the court, . . . are Hurlbutt
'pleadings' as used in Idaho Rules of Civil Procedure 7(a)
and 10(a)(1)."
In, Order Accepting, In Part, and Denying, In Part, Special
Master's Report and Recommendation (36-15452) (10/17/97),
Judge Hurlbutt declared in footnote 1, "To clarify the record,
a summary judgment motion is not a pleading. Motions are
not pleadings. O'Neil v. Schuckardt, 116 Idaho 507, 777
P.2d 729 (1989).
10/07/91 Doc. # 91-10-001 Order Re; Filing of Director's Reports Director's report is a "pleading." Director's report to contain Hurlbutt
three parts required by statute. Based upon Director's stated
intention to file a separate report for each of the 43 sub-basins
with partial reports in some sub-basins, and due to concerns
raised about this proposed procedure, the Director is to file a
report describing how he intends to file Director's reports.
05/19/92 Order Establishing Adjudication Stipulation establishing 24 hydrological basins; Reporting Hurlbutt
Reporting Areas, General Sequence and Areas 34, 57 & 36 to be test basins; Two-part report
Test Reporting Areas. approved for Basin 34; All Federal Claims to be filed
before March 25, 1993.
09/22/92 Doc. # 92-09-015 Memorandum Decision A claim of unlawful agency action coupled with irreparable Hurlbutt
harm, establishes the court's subject matter jurisdiction;
Subject Matter Jurisdiction -- NSCC & IDWR's Motion to Dismiss is denied.
TFCC request for injunction preventing
consideration by IDWR of issuance of
ground water licenses upstream in the
non-trust area upstream from Milner Dam.
12/4/92 36-04020-0001 Order Granting Preliminary Injunction IDF& has irrigation & stock water right; No wildlife or fish Hurlbutt
92-12-019 in Part, Granting Mandamus, and Setting propagation right was commenced in 1960 or '61, but even so,
Hearing on Permanent Injunction would have been abandoned; Extent of wildlife or fish propagation
Rim View v. IDWR & IDF&G right which is recognized is junior to Rim View; Use of water
Niagara Springs Creek by IDF&G for wildlife & fish propagation causes injury to Rim View.
12/18/92 Doc # 92-12-015 Memorandum Decision and Order Granting Court finds that an emergency exists, Orders Interim Admin. Hurlbutt
Idaho Department of Water Resources' for Basin 34 for the period expiring 12/31/93; Order only
Motion for Interim Administration with includes specifically listed general provisions; Interim
limitations (Basin 34) Administration is to be conducted under rules adopted by
IDWR
04/22/93 SRBA Administrative Order 6 - No party may destroy any document or evidence relating to a Hurlbutt
Preliminary Order on Document claim in the SRBA except upon order of the Court.
Destruction
04/23/93 Order Modifying Interim Administration Hurlbutt
05/24/93 Order Modifying Order Granting IDWR's Motion denied; ground & surface water are to be administered Hurlbutt
Motion for Interim Administration with conjunctively; No need for including general provisions or
Limitations. restatement of existing law; Cannot include administrative
provisions not supported by existing law; APA should be
used for adoption of administrative regulations.
07/28/93 93-07-0042 Order Denying Motion for Leave to "Public Trust Doctrine" is not an element of a water right; Hurlbutt, Decision Affd.
Intervene and Motion for Leave to File Adjudication cannot be used to collaterally attack prior 128 Idaho 155, 911 P.2d
Nonconforming Objections (Conservation decrees. 748 (1995).
Groups)
08/05/93 Order and Memorandum Decision Granting Clear legal duty to deliver water established by statute & Hurlbutt, Decision Affd.
Petition for Writ of Mandate (Musser) admission of the Director; Duty is ministerial; No Rules 125 Idaho 392,
promulgated for distribution of waters upon "call;" No 809 (1994).
adequate remedy at law. 871 P.2d
10/01/93 Order Designating Basin-Wide The Role of the IDWR Director in the SRBA Hurlbutt.
Issue No. 2
11/01/93 Memorandum Decision and Order Granting Petitioners entitled to attorney fees under 12-117; IDWR Hurlbutt; Decision Affd.
Attorney Fees and Costs and Denying defense was frivolous; Petitioners are entitled to attorney 125 Idaho 392, 871 P.2d
Motion to Disallow Costs (Musser) fees under private attorney general doctrine. 809 (1994); Private A.G.
130 Idaho 718,947 P.2d
391 (1997).
01/28/94 SRBA Administrative Order No. 7 Establishing Caption to be used on all pleadings filed in Hurlbutt
Caption for Pleadings SRBA
02/14/94 91-00001 Memorandum Decision and Order on Basin I.C. 42-1416 & 42-1416A are unconstitutional as written Hurlbutt
Wide Issue No. 1, Constitutionality of These statutes lack sufficient standards or guidance allowing 42-1416 & 1416A were
I.C. 42-1416 and I.C. 42-1416A, as a person of reasonable intelligence to find a core meaning and repealed effective April
written. therefore are unconstitutional on void for vagueness 12, 1994.
04/15/94 Order Denying Motions for Partial Decree Because "general provisions" apply to all water rights, any Hurlbutt; Idaho S.Ct.
of Uncontested Matters in Reporting objection to a general provision amounts to an objection to addressed issue in, 131
Areas 1, 2, and 3. all water rights. Idaho 12, 951 P.2d 943
(1998) and 131 Idaho 329,
955 P.2d 1108 (1998).
04/15/94 34-00012 et al. Order: Granting Motion for Preliminary Preliminary injunction granted; writ of mandamus denied; Hurlbutt
Injunction; Denying Motion for Writ of Interim administration order is amended to allow distribution
Mandate; Denying Motion to Take Judicial of water through the Arco Canal to Walker's "Butte City"
Notice of Facts; Denying Motion to ranch outside of the district's boundaries.
Participate; Amending Order on Interim
Administration in Reporting Area 1
(basin 34) Delivery of water by BLRID to
lands of Yound Harvey Walker outside
district's boundaries.
04/27/94 Order Staying Proceedings Proceedings Stayed pending determination of constitutionality Hurlbutt; Idaho Sup. Ct.
of 1994 amendments to adjudication statutes. Decision, 128 Idaho 246,
912 P.2d 614 (1995).
05/02/94 Order Establishing Court Steering Establishing committee & members to consider issues raised Hurlbutt.
Committee by 1994 amendments to adjudication statutes.
05/05/94 Interim Order Prohibiting Communication Order prohibits communication, settlement, & discovery Hurlbutt.
between IDWR & SRBA Claimants. between IDWR & SRBA claimants. Allows mechanical
exchange of information.
05/27/94 Order Clarifying Interim Order Order addressing specific activities that IDWR may continue Hurlbutt.
Prohibiting Communication between IDWR to perform.
& SRBA Claimants
07/15/94 Order Designating Basin-Wide Issue No. 3 Issues related to 1994 amendments of the adjudication statutes Hurlbutt; Idaho Sup. Ct.
and the role of the Director in the SRBA Decision, 128 Idaho 246,
912 P.2d 614 (1995).
09/22/94 91-0003 Order Prohibiting Use of Submission by All parties participating in BWI # 3 are prohibited from Hurlbutt
IDWR reports Regarding Basin-Wide Issue submission, reference to, or use of, any portion of
Issue No. 3. Professor Colson's report on BWI # 3.
12/07/94 91-0003 Memorandum Decision and Order Neither Idaho Constitution and the McCarran Amendment Hurlbutt
94-12-0009 on Basin-Wide Issue No. 3 allow the legislature to expand or reduce the court's jurisdiction Reversed by Idaho Sup. Ct.
over parties & subject matter in SRBA are jurisdiction attaches; at 128 Idaho 246, 912 P.2d
Legislature is constitutionally precluded from modifying Idaho 614 (1995).
Supreme Court rules and State's consent to be subject to
judgment for costs and fees.
12/07/94 91-0002 Order Denying Motion to Designate Issues The Memorandum Decision on BWI # 3 disposed of all Hurlbutt
94-12-0008 or to Merge Issues into Basin-Wide Issue issues raised by this Motion to Merge.
No. 2.
12/07/94 94-12-0002 Order Lifting Stay in Reporting Areas Order lifting Stay in Proceedings as a result of Court's issuance Hurlbutt.
1, 2, & 3. of its Decision in Basin-Wide Issue No. 3.
12/07/94 94-12-0010 Order Designating Basin-Wide Issue No. 4 Constitutionality of I.C. 42-1425, 1426, & 1427, as written. Hurlbutt. Decision Aff.
Constitutionality, 129 Idaho
454, 926 P.2d 1301 (1996).
12/07/94 91-00002 Memorandum Decision on Basin-Wide Issue The IDWR is a traditional party opponent appearing for the Hurlbutt, Decision Aff.
94-12-0007 No. 2. The role of the IDWR Director. State of Idaho which is the real, interested & necessary party. Constitutionality of statutes,
Incorporating Decision in BWI # No. 3. 129 Idaho 454, 926 P.2d
1301 (1996).
12/09/94 91-0002 Memorandum Decision on "It is law of the case, as established in the decision on BWI-3, Hurlbutt
Basin-Wide Issue No. 2 that the State of Idaho is a real and necessary party in interest
in the SRBA." The state may appear only once with a single
position on any issue or contested matter in the SRBA.
Agencies asserting proprietary rights may seek leave to appear,
the position asserted by that agency must be consistent with
that already taken by the State.
12/13/94 94-12-0011 Order Re: Communications Between Parties Lifting Order Prohibiting Communications between parties & Hurlbutt
in SRBA. IDWR.
10/03/95 Order Denying, in Part, and Granting, Single objection for multiple claims - federal/tribal instream Hurlbutt
in Part, Motion to Modify Objection and flow claims; Objections to each claim must be filed with the
Response Procedures court; single copy may be served on individual claimants.
12/21/95 91-00005 Order Designating Basin-Wide Issue No. 5 Whether General Provisions are necessary for the definition of Hurlbutt; Issue addressed
95-12-00049 water rights and the efficient administration of water rights. in 131 Idaho 12, 951 P.2d
943 (1998) and 131 Idaho
329, 955 P.2d 1108 (1998).
12/22/95 91-00005 Order on Continued Hearing on Motion Briefing on amendments to Director's Reports concerning Hurlbutt
95-12-0048 to Designate Basin-Wide Issue No. 5 for General Provisions.
Reporting Area 1 (Basin 34) and
Reporting Area 3 (Basin 36)
01/18/96 91-00005B Order Designating Basin-Wide Issue 5B Whether general provisions are necessary for the definition Hurlbutt; Issue addressed
96-01-0062 or efficient administration of water rights (Reporting Area 1) in 131 Idaho 12, 951 P.2d
943 (1998) and 131 Idaho
329, 955 P.2d 1108 (1998).
01/18/96 91-00005 Amended Order Designating Basin-Wide Whether general provisions are necessary for the definition Hurlbutt; Issue addressed
Issue 5. or efficient administration of water rights (provisions included in 131 Idaho 12, 951 P.2d
as Attachments A, B, & C.) 943 (1998) and 131 Idaho
329, 955 P.2d 1108 (1998).
01/18/96 91-00005A Amended Order Designating Basin-Wide Whether general provisions are necessary for the definition or Hurlbutt; Issue addressed
Issue 5A. efficient administration of water rights in Basin 57 (provisions in 131 Idaho 12, 951 P.2d
attached). 943 (1998) and 131 Idaho
329, 955 P.2d 1108 (1998).
01/26/96 96-01-0106 Order Designating Basin-Wide Issue Are water rights in Idaho subject to partial forfeiture for non-use? Hurlbutt; Partial
No. 10 forfeiture
upheld in 130 Idaho 727,
947 P.2d 400 (1997).
04/05/96 96-04-011 Order Designating Basin-Wide Issue What should be the form and content of decrees for state-law Hurlbutt;
No. 12, Referring Matter to Special based claims to de minimis amounts of stockwater?
Master Haemmerle and Setting Hearing
04/26/96 91-00010 Memorandum Decision on Basin-Wide Partial forfeiture not recognized in Idaho; The plain & ordinary Hurlbutt; Partial Forfeiture
Issue No. 10, Partial Forfeiture words of I.C. 42-222(2) do not provide for partial forfeiture. upheld, 130 Idaho 727, 947
P.2d 400 (1997).
10/17/96 36-00003A Order Recommending Permissive Appeal of District Judge argues that IDWR's reasonable beneficial use Hurlbutt
et al. Determination that a Water Right evaluation constitutes a collateral attack on a prior decree &
is a Constitutional Property Right and places the water right holder in constant jeopardy of a decrease
I.A.R. 12 Certification in the property right, based upon IDWR's ongoing and
developing theories of beneficial use, such that a water right
ceases to be a property right and becomes a mere license.
12/09/96 91-00009 Memorandum Decision and Order Re: PWR 107; PWR 107 was not an express reservation of water Hurlbutt, Express reserve
Basin-Wide Issue 9 for use by the U.S. Government; Implied reservations of water of water for PWR 107 held
were never necessary to serve PWR 107 withdrawals; No in 131 Idaho 468, 959 P.2d
federal purpose would be served by recognizing implied 449 (1998).
reservation of water.
04/25/97 91-00012 Memorandum Decision and Order Re: Use by wildlife is not incidental to stock water use under I.C. Hurlbutt
97-04-0013 Basin-Wide Issue 12 42-1401A(12); Use of the disjunctive "or" means a diversion
"solely" for stock water or "solely" for wildlife.
08/28/97 94-00012 Memorandum Decision Although contingency contained in deed was void under I.C. Hurlbutt
55-111, Rowan and How owned fully vested indefeasible
future interest at time application for water permit was made;
Declaratory Judgment - Dispute over Rowan & Howe, as co-tenants, owed fiduciary duties to each
ownership to a water right other; Howe obtained water permit as co-owner, not lessor,
of land, subject to fiduciary duty to his sister; Upon Mother's
death, Rowan & Howe became co-owners of water permit;
IDWR's 12 year 10 month delay in issuing license breached
its statutory duty, leaving the permitted water right as personal
property rather than the real property status to which it was
entitled; In the absence of IDWR's breach of duty, this dispute
never would have arose because there would have been no
private property interest to bequeath to the Rileys.
10/10/97 36-00084 Order on Motion to Dismiss Challenge; Settlement as to all rights on the Brailsford Ditch in which the Hurlbutt
and Order on Rule 11 Sanctions Ida. Dept. of Fish & Game, and the Natural Resources Division
of the Attorney General's office concurred. Subsequently another
Natural Resources Division attorney filed a challenge to the
settlement. "The filing of a challenge on behalf of the State of
Idaho by a Deputy Attorney General" is not reasonable, and
dismissal of the challenge is an appropriate Rule 11 sanction.
10/10/97 36-15452 Order Accepting, in Part, and Denying, Summary Judgment is not appropriate in on e-party subcases, Hurlbutt
in Part, Special Master's Report and instead such cases are decided after an evidentiary hearing at
Recommendation. which the party submits sworn affidavits on the elements at
Appeal from Special Master's Decision at issue; Diversion is not required to make a constitutional
finding that an instream appropriation appropriation because for many in situ uses, diversion would
for wildlife from Smith Spring in the be inconsistent with the beneficial use of the water right; So
Minidoka Wildlife Refuge had been long as an appropriator intends, and in fact, makes sue of
perfected (Feb. 20, 1996). in situ beneficial uses, then a beneficial use water right may
be claimed; The record in this case is insufficient to support
U.S.'s in situ beneficial use claim for wildlife purposes; An
appropriation without diversion cannot be for the entire flow of
a stream as in a riparian state, but must be for a specific amount.
12/11/97 36-07092A Order Adopting Special Master's Report Adames' objection is a collateral challenge to Director's decision Hurlbutt
and Recommendation to issue license; SRBA is not forum in which to revive lost
challenges to licensing decisions; Factual challenge to finding
Objection - Norwood Subdivision - excluding their two lots from subdivision fails; Adames are not
Ruby Springs claimants in SRBA and have failed to previously pursue claims
against subdivision or to submit proof supporting their claims.
09/16/98 65-20766 Memorandum Decision Granting, in Part, Hurlbutt
and Denying in Part, The United States'
Motion for Summary Judgment on Reserved
Water Right Claims.
11/23/98 72-11767 Order Adopting Special Master's Report The Special Master correctly excluded certain sections of the Hurlbutt
and Recommendation and Consolidating Report of James Muhn; Legal Analysis of September 30, 1998. See, Order Denying
Subcases. Order is incorporated by reference. Challenges and Adopting
Stock water rights on public lands. Special Master's Reports
and Recommendations
(09/30/1998).
02/16/99 36-02708 Order on Motion for Stay of Rule 11 Special Master only makes recommendation to trial judge; Wood, Court cites to
36-07201 Hearing. judicial economy is not advanced by stay of Rule 11 hearing Fajardo v. Sun Alliance,
36-07218 before special master; Rule 11 hearing will create a more 999 F.Supp. 213 (1998)
complete, less fractured record for the district court to review. on role & power of Special
Masters; See 08/28/98
Special Master's Report &
Findings of Fact &
Conclusions of Law.
02/16/99 36-02708 Order on Motion for Stay of Rule 11 SRBA special masters have authority to hear Rule 11 motions Wood
36-07201 Hearing. & to issue recommendations to district court, but special See 08-28-98, Special
36-07218 masters lack authority to impose Rule 11 sanctions; In the Master's Report &
interests of judicial economy Rule 11 hearing can go forward Recommendation;
in order to create a more complete less fractured recorded Findings of Fact &
even though related legal issues remain unresolved. Conclusions of Law
03/09/99 Amended Order Appointing Interim Judge Barry Wood appointed effected January 1, 1999 to Trout
Presiding Judge June 30, 2000.
05/20/99 36-00006 Order Staying Order for the Director In light of jurisdictional questions raised by IDWR's Motion Wood
et al. of the Department of Water Resources to Dismiss Order to Show Cause and shortness of time,
to show cause in Subcase Nos. 36-00006 hearing on Order to Show Cause is stayed.
et al.
08/31/99 91-00005 Order of Consolidation/Separation of Court discussed procedural history of Basin-Wide Issue No. 5 Wood
91-00005A Issues (Realignment and Redesignation Supreme Court rulings on appeal of those issues, and remaining
91-00005B of Issues) of Basin-Wide Issues 5, 5A, issues to be decided on remand from Supreme Court concerning
5B; AO1 sec. 11. general provisions in SRBA decree.
09/30/99 36-00003A Order for Additional Information Court raises six questions in respect to the evidence, Special Wood
et al. and/or Clarification on Challenge Master Recommendation, and interpretation of the New
International Decree concerning "other purposes," identification
of the rights claimed, split rights, and combined rights.
10/05/99 03-10022 Order on Motion to Strike Exhibits 1-3 Various motions to strike evidence & testimony; Court strikes Wood
Nez Perce to the Affidavit of Jean E. Baldridge, exhibits to Baldridge affidavit as no longer relevant because
Instream Flow signed 6/26/95; Order Staying/Deferring claim was withdrawn; Court reserves ruling on remaining
Claims Decision on Motion to Strike Testimony Motions until after oral argument on summary judgment.
of Dennis C. Colson, et.c
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