Date Number Title - Description Issues and Decision Comments
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08/30/93 Order Denying Paul Nettleton's Request to An non-attorney individual may not represent a limited
Represent Limited Partnership partnership.
02/02/94 34-00057 Order Denying Gordon Fulton's Request to A subchapter S Corporation is not entitled to pro se Bilyeu
34-00058 Represent Subchapter "S" Corporation representation by a non-lawyer in the SRBA
06/08/95 34-10030 Order Granting Motion to Participate Motion to participate/intervene; Analysis of the elements of Bilyeu
permissive intervention raised on the question of common law
concerning the character of municipal water rights.
10/03/95 34-00322A Special Master's Report & Recommendation Objection to water right neither claimed nor reported by IDWR Bilyeu
Findings of Fact & Conclusions of Law is dismissed with prejudice under I.R.C.P. 41
10/06/95 34-00322A Special Master's Report & Recommendation No notice of claim was filed & Director's report did not Bilyeu
Findings of Fact & Conclusions of Law recommend right; San Felipe ranch objected erroneously
identifying BLM as claimant; U.S. Motion to Dismiss on
Objection to water right not claimed basis that U.S. never claimed this water right; Objection
by San Felipe Ranch was apparently erroneously numbered.
02/20/96 36-15452 Order Granting Motion for Summary Judgment The special master finds that based upon the creation of the Dolan; Right not upheld,
Minidoka Wildlife Refuge and the announced purpose of that 00.06 ISCR 183 (03-09-00).
Fish & Wildlife Service claim to 4 cfs of refuge is sufficient proof of intent by the United States that
water for year around wildlife use from Smith a constitutional appropriation of water was intended; There is
Springs on Minidoka Wildlife Refuge; no requirement in that Idaho Constitution that a constitutional
Necessity of diversion for constitutional Water right can only be perfected by diversion.
right claim.
03/1196 36-15452 Special Master's Report and Recommendation Wildlife is a beneficial use; water can be lawfully appropriated Dolan; Right not upheld
and I.R.C.P. 54(b) Certification under the constitutional method without diversion; Establishment 00.06 ISCR 183
of the refuge; acquisition of land, expenditures & improvements (03/09/00).
Recommendation of Smith's Springs water right All are evidence of intent to appropriate water; U.S. is entitled
for the United States for Wildlife uses. to 1.16 cfs from Smith Springs for year around wildlife use.
04/11/96 91-00005A Special Master's Recommendation on Because general provision No. 2 does not apply to "all" water Haemmerle
Basin-Wide Issue 5A rights, it does not meet the statutory requirement for a general Affirmed by District Court
provision set out in I.C. 42-1411(3); Because the Director's
Necessity of general provision in decree Report fails to address all the required elements of a water right
addressing the administration of water for "excess water," such that right to excess water will not be
between Upper and Lower Reynolds Creek. included in general provision; Since no rights to "excess water" Reversed by Idaho S.Ct.
will be decreed it is not necessary to include provisions as to 131 Idaho 329, 955 P.2d
the administration of "excess water" rights; No res judicta 1108 (1998).
effect arises from prior Reynolds Creek decrees.
04/30/96 34-02395 Order Granting Summary Judgment Single party subcase; forfeiture and abandonme nt must be Bilyeu; S.J. inappropriate
proven by clear & convincing evidence, therefore prima facie in one-party subcases, 130
weight given Director's Report is insufficient to establish either Idaho 736, 947 P.2d 409
forfeiture or abandonment. (1997).
05/02/96 34-00074 Order Denying Motion in Limine Informal rotation recognized by IDWR as a legitimate irrigation Bilyeu
34-02464 practice; Issue is non-justiciable because there is no concrete
dispute.
06/13/96 36-00134B Order Denying Motion for Summary Judgment "and other purposes" was not used to define the High & Dolan
36-00135A Fritchman" right to which Rangen is a successor, therefore
Whether "fish propagation" is an included Rangen's water rights are limited to irrigation, domestic, &
beneficialuse under the "other purposes" stockwater uses; There is no common law right to make a
language of the New International Decree? change of use, therefore Rangen is limited to a constitutional
right claim with a 1950 priority date.
06/14/96 91-00012 Special Master's Amended Recommendation In-stream stock watering as defined by I.C. 42-113 is not Haemmerle
96-06-0013 Re: Basin-Wide Issue 12 included with in the definition of stock watering defined in Compare determination in
I.C. 42-1401A(12); By 1996 statutory amendment annual this subcase that a water
Form & content of de minimis stockwater volume of consumptive use need not be decreed for de minimis right for wildlife requires a
claims. claims; a remark reiterating law of beneficial use is superflous diversion with the opposite
& therefore unnecessary; inclusion of combined usage remarks conclusion of Dolan in
as to particular allotments would lead to a vague & uncertain 36-15452 (2/20/96).
decree; within a de minimis use of 13,000 gallons per day, it is
not necessary to include the number of stock; Water right for
wildlife can be perfected only where there is a diversion and
an intent to use water for wildlife purposes; A single water
right cannot be decreed with both a federal & state basis.
07/01/96 91-00005B Special Master's Report and Recommendation The proposed general provisions fail to apply to "all" water Bilyeu
on Basin-Wide Issue 5B rights and therefore cannot be included in the decree; Res Remanded after appeal
judicata cannot be used to apply provisions decreed in 1923 to Idaho Supreme Court,
Whether general provisions in a prior decree and 1925 to water rights acquired after the dates of those 131 Idaho 12, 951 P.2d
are necessary for administration of water decrees; Proposed general provisions are not "necessary" 943 (1998).
rights in SRBA decree. for the definition or administration of water rights.
07/08/96 36-00048A Order on Reconsideration of Motions to Strike Motions to File Late Responses denied on the basis that good Haemmerle
et al. Affidavits and Motions to File Late cause not established that respondents relied upon Director's Motion to file a late
Responses. recommendations during the original objection and response response treated as Motion
period prior to the Director being removed as a party. to Set Aside a Default
Judgment under IRCP 55(c)
08/12/96 91-00012 Special Master's Second Amended Original opinion is republished with the addition of new Haemmerle
Recommendation Re: Basin-Wide Issue 12 language on the second half of page 8 stating the agreement of Original decision issued on
Simplot and the U.S. to limit instream flow stockwater claims 06/14/96.
Motion for Reconsideration by U.S. as to to 13,000 gallons per day measured over a 24 hour period;
whether instream livestock watering should be Investigation of actual use of de minimis claims would be
limited to 13,000 gallons per day, and unduly burdensome such that the 13,000 gallon upper limit
whether de minimus claims should state that may not reflect actual or historical use.
diversion rate does not reflect actual and
historical use.
08/14/96 34-00148 Special Master's Report & Recommendation The original claimed water rights 34-00148 and 34-00148A Bilyeu
Findings of Fact & Conclusions of Law will not be decreed and pursuant to an SF5, the split water See, IDWR Report,
right will be decreed as 34-00148B, 34-00148C, and Re: Water Right Splits
Split of a water right during pendency 34-00148D; This renumbering of split water rights does not
of SRBA constitute a change in point of diversion, period of use, or
nature of use.
09/13/96 36-00003A Order Recommending Permissive Appeal of Absent a claim of forfeiture, abandonment, adverse possession, Haemmerle
et al. Determination that a Water Right is a or estoppel, a reduction in beneficial use after awater right vests 04/26/96 District Court
Constitutional Property Right; I.A.R. 12 is not a basis upon which that right may be lost or reduced; New decision on partial
Certificate. International Mortgage decree is conclusive proof of water right. forfeiture.
Whether elements of a water right may be elements actually decreed; A claim can only be amended by (BWI # 10); Ida. Sup. Ct.
reducedon basis of non-beneficial use in filing an amended notice of claim. reversed Dist. Ct.'s partial
the absence of forfeiture, abandonment, forfeiture decision, 130
adverse possession, or estoppel; Use of Idaho 727, 947 P.2d 400
summary judgment for elements not previously (1997).
decreed; Amendment of claims other than by motion.
09/23/96 57-11124 Order on Partial Summary Judgment Finding no significant difference between stock water permittees Haemmerle
et al. operating on national forest land as opposed to those operating See, Order on Motion to
Private stock growers right to perfect water BLM ground, the court finds that the U.S. Supreme Court's Alter or Amend (3/23/97);
rights on federal grazing lands. decision in U.S. v. New Mexico should be followed such that Special Master's Report
BLM permittees may perfect water rights on federal lands; & Rec (7/9/97).
Idaho statute also recognizes right of permittees to appropriate
water on federal lands; appropriator need not demonstrate
exclusive dominion over water source.
10/11/96 36-00003A Recommendation for Permissive Review Re-evaluation of a water right based upon current reasonable Haemmerle
beneficial use constitutes a collateral attack on a prior decreed See, Second Amended
Reasonable beneficial use as a basis for determination of beneficial use and would insert instability Order on Summary
reduction of a water right; whether into water rights administration due to repetitive challenges Judgment (09/13/96).
supplemental reports & affidavits filed as to reasonable beneficial use arising from changes in
by IDWR are evidence. technology; Director's report is prima facie evidence.
Permissive review recommended as to beneficial use issue.
10/1696 34-11447 Order Granting Summary Judgment, In Part Res judicata does not bar use priority date claims when U.S. Bilyeu
was not a party, was not served, did not appear, and entered
Whether res judicata or collateral estoppel into no stipulations concerning the prior adjudication; Issue
bar the U.S., which was not a party to the to be decided was not actually decided in prior litigation, such
Utah Construction Decree, from claiming that U.S. claims are not barred by collateral estoppel.
priority dates earlier than that decree
(March 15, 1923)?
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 is a evaluation constitutes a collateral attack on a prior decree &
Constitutional Property Right and I.A.R. places the water right holder in constant jeopardy of a decrease
12 Certification in the property right based on IDWR's on going and developing
theories of beneficial use such that a water right ceases to be
a property right and becomes a mere license.
10/17/96 34-11581 Order Granting Summary Judgment, in Part Because U.S. was not a party to the U.C. Decree and did not Bilyeu
et al. actually litigate a claim in that adjudication it is not barred by See Order Granting
res judicata from asserting its pre-1923 priority dates in the Summary Judgment in
SRBA; U.S. claims were not actually litigated in prior Part, 34-11447 et al.;
adjudication therefore they are not barred by collateral (1996).
estoppel.
12/11/96 36-00080B Order Granting Motion for Summary Judgment Evidence submitted by claimants overcomes presumption that Dolan
and et.al. Preliminary Special Master's attaches to Director's Report and have established right to
Report and Recommendation 4.88 cfs from Billingsley Creek;
Contest over quantities arising from IDWR
determination of "no beneficial use."
12/13/96 36-00033F Special Master's Report Gooding County memorandum decision was not raised by a Dolan
party to the subcase and was not before the court such that it
was not relevant to determination of the nature & extent of
the water right; Period of Use is "irrigation season" under
BWI # 5.
12/13/96 36-00041A Special Master's Report 2.5 acre feet per year recommended for claim Dolan
See, Report Regarding
Claimants asserted .04 cfs for .7 acre; Consumptive Use in
IDWR recommended 0.2 cfs. Hagerman Area (7/1/96).
12/26/96 57-07148 Special Master's Report Based on Memorandum Decision and Order Re: Basin-Wide Haemmerle
Issue No. 5 (4/26/96) general provisions were struck from the
Idaho Power objected on the basis that a Director's Report and a settlement was reached and an SF5
general provision violates the Swan Falls issued.
Agreement.
12/31/96 36-00046 Order Granting Summary Judgment in Part; Both parties agree, therefore no "non-moving party," only Bilyeu, Subsequent
36-11060 Request for Additional Briefing disagreement is with Director's Report; No genuine issue of decision on res judicata
36-15462 material fact as to quantity or priority date; Court requests effect of "other purposes"
additional briefing on res judicata effect of "other purposes" issue on 04/11/97.
contained in New International Decree.
01/06/97 34-12541 Special Master's Report and Recommendation Because the doctrines of res judicata and collateral estoppel do Bilyeu
34-12541A Findings of Fact and Conclusions of Law not preclude U.S. from claiming a priority date earlier than See, Supplement to IDWR
March 15, 1923 (date of prior decree); priority date of 1/1/1884 Proposal for Decreeing
is confirmed; additional language for exercise of right during Dual-Based Claims.
scarcity is "necessary."
01/10/97 34-12540 Special Master's Report & Recommendation Because the doctrines of res judicata and collateral estoppel do Bilyeu
34-12540A Findings of Fact & Conclusions of Law not preclude U.S. from claiming a priority date earlier than See, Order Granting
March 15, 1923 (date of prior decree); priority date of 1/1/1884 Summary Judgment, In Part
Dual-based claim - priority date question is confirmed; additional language for exercise of right during 34-11576 et al.
scarcity is "necessary."
01/10/97 34-13084A Special Master's Report & Recommendation If a dual-based claim is supported by a state claim with an earlier Bilyeu
et al. Findings of Fact & Conclusions of Law priority, the U.S. is generally not entitled to have the right See, Special Master's
decreed under the later federal basis as a matter of law. Second Amended
"dual-based" claims Recommendation Re:
Basin-Wide Issue 12
(08/12/1996).
01/10/97 34-07232 Special Master's Report & Recommendation The recommendation of the Special Master in Basin-Wide Bilyeu
Findings of Fact & Conclusions of Law Issue 12 stated that a diversion was required for rights which
include wildlife as a purpose of use; U.S. has represented that
Wildlife use there is a physical diversion and an intent to use water for
wildlife purposes, to which IDWR concurred.
01/22/97 36-00003A Order on Summary Judgment (Consumptive Use) Consumptive use will not define any right nor will it be used to Haemmerle
et al. administer any right but only establishes a presumption to be
Whether the court has jurisdiction to decree a used in a subsequent transfer proceeding for purposes of the
rebuttable presumption? injury analysis; Rendering an opinion on consumptive use in
the SRBA would amount to a court rendering an advisory
opinion in excess of its jurisdiction under Art. 3, 1 of the Idaho
Constitution, since the purpose of that determination is contingent
upon the happening of a future event (a transfer); Furthermore,
a rebuttable presumption is by definition not binding.
02/12/97 36-04074 Special Master's Report & Recommendation Second Amended Order on Summary Judgment settles the Haemmerle
36-04148A Findings of Fact & Conclusions of Law question of reduction of a water right based upon actual See Second Amended Order
36-04148B beneficial law; mere nonuse of water, outside a claim of on Summary Judgment
forfeiture or abandonment, is not a basis to reduce a vested (09/13/96).
Actual beneficial use of water subsequent to the water right; The Director's duty to determine "extent of
time the rights were originally perfected beneficial use under 42-1401B is beneficial use at the time
& vested. the water right was perfected, not at the time of adjudication;
Clear Lakes Country Club absent forfeiture or abandonment, reduction of a water right
based upon current beneficial use would be an unconstitutional
taking; No accomplished transfer takes place so long as water
is applied within the originally described place of use.
02/18/97 34-13268A Special Master's Report & Recommendation Water right neither claimed, nor reported by Director was put Bilyeu
Findings of Fact & Conclusions of Law at issue by objection made by San Felipe Ranch and response
by U.S. Parties stipulated to withdraw motions and special
No notice of claim filed for water right master recommended that right not be decreed.
02/21/97 36-07092A Special Master's Report & Recommendation Evidence, when considered in its entirety, indicates that the Dolan
landowners intended that the water rights be held by a municipal
Rights of Norwood Subdivision in Ruby Springs, provider; Idaho law recognizes that a municipal provider may
a tributary of Billingsley Creek. both anticipate and subsequently serve an expanded service area;
Remand to the Director based on an objection asserting an
accomplished transfer is not necessary when the issue has been
extensively reviewed by the parties and IDWR; There is no
reasonable basis for reopen case.
03/12/97 34-02589 Order Granting Motions to Dismiss Objections Single water right arising from a diversion will be adjudicated Bilyeu
and et al. Granting Motion for Summary with both wildlife & stock watering purpose; Water rights arising
Judgment, In Part without diversion cannot be adjudicated with a wildlife purpose;
Wildlife water rights -- Priorities U.S. dismisses its priority date objections.
03/18/97 34-10563 Special Master's Report & Recommendation Claimant, by evidence in support of objections, met his burden Bilyeu
Findings of Fact & Conclusions of Law of proof to overcome prima facie weight given Director's Report;
Evidence supported claim that four rights adjudicated in U.C.
Single-party subcase adjudication had been consolidated into single claimed right;
U.C. Decree supported argument that prior decreed rights included
irrigation in addition to stockwater.
03/18/97 34-13342 Special Master's Report & Recommendation Phrase, "1810 range cattle" deleted in accord with decision in Bilyeu
Findings of Fact & Conclusions of Law BWI # 12; Because claim is for instream stockwatering, the term
"stock water" does not refer to statutory definition in 42-1401A(12)
Stockwater & consumptive use which requires diversion; Annual consumptive use is not included
in accord with legislative amendment removing that requirement.
03/20/97 34-11568 Special Master's Report & Recommendation In compliance with decision in BWI # 12, quantity for instream Bilyeu
Findings of Fact & Conclusions of Law use claim is changed from 0.03 to 0.02 to accord with 24 hour
diversion rate recognized in BWI # 12; U.S. may claim priority
Stockwater elements - BWI # 12 date earlier than 3/15/1923 date of U.C. Decree in accord with
rder Granting Summary Judgment, In Part (10/17/96); reference
to number of cattle and consumptive use are appropriately deleted.
03/23/97 57-11124 Order on Motion to Alter or Amend; Order on Federal law does not prevent the appropriation of stock water Haemmerle
et al. Summary Judgment; and Order on Motion rights on the public domain; Water rights may be perfected on See, Order on Partial
to Withdraw Admissions on public land by individuals other than the land owner, there Summary Judgment
is no distinction between a lessee or licensee as to the right to (9/23/96); Special Master's
Joyce Livestock case; Ability of private appropriate water on public land; exclusive access to a water Report & Recommendation
party to appropriate water on public domain, source on public land is not a prerequisite to appropriate water; (7/9/97).
and U.S. ownership of stock water rights Legal theories as to why U.S. does not own water rights in
without stock ownership. question do not constitute evidence sufficient to rebut the
presumption which attaches to the Director's report which
finds that U.S. owns water rights; water rights appurtenant to
federal land do not pass with private deed conveyances.
03/24/97 36-02338 Order Granting Motion to File Late Customary practice in the SRBA has been to apply the same Dolan
et al. Objections "good cause" standard of IRCP 55(c) to both late claims and Special Master notes that
late objections; Additional standards for set aside of default District Court had ruled that
Evidence of forfeiture - Late Objection judgment under IRCP 60(b) also addressed; Fort Hall decision there is no partial forfeiture
Buckeye Farms only requires that one be a "claimant" to have standing to raise of water rights; Ida. Sup Ct.
an objection; Buckeye showed "good cause" sufficient to have reversed, 130 Idaho 727,
its motion granted; motion is not a trial on evidence. 947 P.2d 400 (1997).
04/08/97 34-10030 Special Master's Report & Recommendation Municipal use encompasses a broad range of uses to which Bilyeu
Findings of Fact & Conclusions of Law such water rights are used for the benefit of the municipalities Cites to "Growing
inhabitants; Annual volume of consumptive use should not Communities Doctrine,"
City of Arco Municipal Claim appear as a part of the quantity element; Court declines to rule as stated by Chris Meyer
Extent of municipal use. right to quantity in anticipation of future growth; Description in cited article, as not yet
of place of use as "within city limits" is sufficient & allows having been adopted in
future changes in city limits subject to compliance with Idaho.
expansion statutes as to rate of diversion;
04/11/97 36-11060 Second Order on Summary Judgment Regarding Res judicata does not apply because there is no assertion that a Bilyeu, earlier decision
36-15462 Priority Date "claim" should have been brought in New International decree issued on 12/31/96.
that was not brought in that proceeding; Collateral estoppel does
preclude consideration of change in purpose of use; "Other
purposes" in prior decree did not include "use" which did not
exist at time of decree (fish propagation); Recommends that
Idaho law recognize common law right to change in purpose
04/18/97 34-13555 Special Master's Report & Recommendation After the Director's Report for 34-07245B was filed, IDWR Bilyeu
Findings of Fact & Conclusions of Law discovered it included 12 acres which were not part of the
original right and required a different priority date. To resolve
Creation of "new" water right in adjudication the objection, the parties agreed to include the 12 acres in a
new water right (34-13555).
04/30/97 36-000027 Special Master's Report IDWR recommended that right be disallowed because, "The Dolan
quantity of water recommended for lands on which water right
Necessity of abandonment, forfeiture, 36-00027 is claimed is accounted for under water right no.
adverse possession, or estoppel for 36-00026." Because of failure to allege a legal basis for loss
loss of a water right of 36-00027 claimant is entitled to partial decree adjudicating
this right.
05/06/97 34-12487 Special Master's Report & Recommendation Number of stock and amount of consumptive use deleted in Bilyeu
34-12487A Findings of Fact & Conclusions of Law accord with Special Master's Recommendation on BWI # 12 See, Order Granting
(08/12/96) and legislative change; Water right should be Summary Judgment, In
Dual-based claim - res judicata effect of decreed upon earlier state-based priority date. Part (10/16/1996).
U.C. decree on priority date.
05/20/97 57-11128 Special Master's Report Order on Motion to Alter or Amend; Order on Summary Haemmerle
Judgment; and Order on Motion to Withdraw Admissions
Motion to Withdraw Admissions. (Decision) (03/25/1997) incorporated by reference.
05/22/97 36-14900 Special Master's Report Partial decree entered subject to the following stipulation: Dolan
Ida.Sup.Ct. issued its
Objection to General Provisions. "[S]ubject to the condition that should the Supreme Court reverse decision in BWI #5 at
the SRBA Court's Memorandum Decision and Order Re: Basin- 131 Idaho 329, 955 P.2d
Wide Issue No. 5 with regard to the General Provisions that are 1108 (1998).
the Subject of claimant's objection, the SRBA Court will
reinstate the objection and allow it to be litigated."
06/26/97 57-04028 Order on Motions to Alter or Amend; Order on Because U.S. failed to establish that issue of whether stock Haemmerle
Motion for Permissive Appeal permittees may perfect water rights on public domain involves
a substantial ground for difference of opinion its motion for
Joyce Livestock - private water rights on permissive appeal is denied; U.S.'s exclusivity argument also
public domain rejected because if accepted no party, including U.S., could
ever perfect an appropriation on public domain; U.S. argument
that a single place of use cannot support more than one water
right is also rejected; Court's decision that Joyce existed as a
single corporate entity since 1893 was erroneous; Motion to
withdraw admissions denied; Joyce may use water under its
own water right even if the United States has appropriated the
entire water source, if there exists unused water.
07/02/97 34-12639 Order Granting Summary Judgment, In Part Director's Report recommended rights prior to 1923, but Bilyeu
IDWR refused to sign stipulation; Although IDWR is not
Res judicata & collateral estoppel under the a party and no other party objected, case proceeds under
U.C. Decree as bar to U.S. priority date summary judgment; U.C. decree does not bar U.S. early
claims prior to March 15, 1923. priority date claims, U.S. was not a party, was not served,
did not answer, and was not a party to motion including
forest service rights in U.C. adjudication; nor was priority
as to U.S. priority date claims actually litigated in U.C. decree
07/09/97 36-04074 Special Master's Report Findings of Fact and Conclusions of Law issued on February Haemmerle
36-04148A 12, 1997 incorporated by reference.
36-04148B Actual beneficial use of water subsequent
to the time the rights were originally
perfected & vested.
Clear Lakes Country Club
07/09/97 57-11124 Special Master's Report Order on Motion to Alter or Amend; Order on Summary Haemmerle
Judgment; and Order on Motion to Withdraw Admissions See, Order on Partial Sum.
Joyce Livestock Claims (Decision) issued on March 23, 1997 incorporated by Judgment (9/23/96); Order
reference. on Motion to Alter or
Amend (3/23/97)
07/24/97 57-04028 Findings of Fact & Conclusions of Law Because alleged water rights claimed on the public domain Haemmerle; See, Order
were never legally conveyed, Joyce Livestock cannot lay claim on Motion to Alter/Amend
Joyce Livestock Claims to any water right located on the public domain prior to August (03/25/97) & Motion to
24, 1985. Alter/Amend (06/25/97).
07/30/97 34-02591 Order Granting Motion to Alter or Amend Preliminary Special Master's Report erroneously based Bilyeu
reduction in quantity on stipulation entered into in decision See, Special Master's
Reduction of stock watering claim from 0.03 of BWI # 12 that instream flow claims would be limited Report and Recommend.
cfs to 0.02 cfs to 13,000 gallons per day based on a 24-hour period. This Subcase 34-11568 3/20/97
claim was a developed spring, is not a non-diverted right or
an instream right. Therefore the quantity should be decreed
as .03 cfs not to exceed 13,000 gallons per day.
08/18/97 34-10873 Order on Summary Judgment Although Judge Hurlbutt declined to take judicial notice of Bilyeu
the Butte County District Court transcript underlying the SRBA court's exclusive
Delivery of water outside the boundaries Supreme Court appeal, that transcript now property before jurisdiction on this question
of the Big Lost River Irrigation District. this court by Affidavit of Randall C. Budge; Previous trial previously decided by Ida.
testimony is as reliable as deposition testimony; Walker & Sup. Ct., 124 Idaho 78,
Sunset Trust failed to establish exclusivity element of 856 P.2d 868 (1993).
adverse possession claims; District may voluntarily rotate its
water, but may not be compelled to do so; Although Walker
has established elements of quasi-estoppel, material issues of
fact remain; Walker cannot prevail on contract theory because
contract to deliver water outside district boundaries is ultra
vires act; The doctrine of ultra vires should not operate to
shield BLRID as a matter of law from estoppel theories;
Genuine issues of material fact remain as to waiver & laches;
Elements not established supporting implied contract theories;
An inference of injury by reduction in the amount of storage
water such that summary judgment on accomplished transfer
must be denied.
08/28/97 34-00012 Memorandum Decision Although contingency contained in deed was void under I.C. Hurlbutt
55-111, Rowan & Howe owned fully vested indefeasible See, Ida. Sup. Ct. decision
Declaratory judgment - Dispute over future interest at time application for water permit was made; in Riley v. Rowan, 131
ownership to a water right. Rowan & Howe, as co-tenants, owed fiduciary duties to each Idaho 831, 965 P.2d 191
other; Howe obtained water permit as co-owner, not lessor, (1998).
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 34-00470A Order Granting Motion to Alter or Amend Reno establishes good cause and a meritorious position Bilyeu
in support of his Motion to Amend based upon family
Change in point of diversion; late objection medical problems and the easily overlooked nature of the
asserting forfeiture; error (diversion was in Section 34, rather than Section 36);
The manner in which a water right is administered during
the interim of the SRBA does not determine the eleents
of the right; Neither the order on interim administration,
nor the Director's report determined that the point of
diversion was section 36, therefore no injury analysis is
required in determination that actual point of diversion was
section 34.
11/03/97 57-10922 Findings of Fact and Conclusions of Law Because the contract only addresses water rights conveyed Haemmerle
57-10486 through the canal, only water right 57-10487 was conveyed
57-10487 Question of ownership to water rights in to Hulet by the contract; Because Joyce continued to use water
Sinker Creek conveyed by contract from out of the canal after the conveyance a new water right with a
Nettleton to Hulet; Question of priority date one day after the date of the contract arose in favor
non-beneficial use of water. of Joyce; Objector failed to overcome prima facie effect of
Director's report with evidence that establishes that water right
dedicated solely or mostly for conveyance loss is not a beneficial
use.
11/06/97 34-02562 Order Granting Motion for Summary Judgment Summary Judgment granted; water right will be granted with Bilyeu
only with reference to stock water purpose; will be recommended
Stockwater rights; U.S. claims that purpose without reference to number of stock and without reference to
of use, number of cattle, and references of grazing allotments.
of allotments sgould be determined as a
matter of law in reference to decision on
BWI # 12.
11/06/97 34-10943 Special Master's Report & Recommendation Walker provided insufficient facts in support of Bilyeu
et al. Findings of Fact & Conclusions of Law abandonment, forfeiture, or adverse possession; See Order on Motion for
Walker failed to allege facts to create a genuine Summary Judgment
Denial of Walker's claims to water rights issue of fact on any legal theory supporting his claim (08/18/1997).
also claimed by the United States. of ownership; Water rights claimed by Walker should
not be confirmed; water rights claimed by BLRID are
scheduled for trial.
11/10/97 34-04179 Order Denying Motion for Summary Judgment Since summary judgment is inappropriate in one-party Bilyeu
subcases, summary judgment is denied; Because water
U.S. Motion for Summary Judgment seeking right elements contained in Director's Report do not
a ruling on purpose of use, exclusion of differ from elements sought by U.S., other than issues of
reference to number of cattle; and exclusion law determined in BWI # 12, the Court shall proceed on
of reference to BLM allotments. Special Master's Recommendation without need for an
evidentiary hearing.
11/10/97 57-10922 Amended Findings of Fact and Conclusions Amendments do not appear to be substantive. Haemmerle
et al. of Law See Findings of Fact &
Conclusions of Law
(11/03/97)
11/20/97 34-07061A Special Master's Report & Recommendation The prima facie weight accorded a Director's Report ceases to Bilyeu
34-07061B Findings of Fact & Conclusions of Law exist once an amended Director's Report is filed which is
inconsistent with the original report and IDWR testifies that
Apportionment of quantity in split water it has no preference between the two reports; Because
right. no prima facie evidence of contested elements, they were
Director's Report on split rights reached determined solely upon evidence at trial.
different conclusions.
11/23/97 57-10587 Special Master's Report Prior orders incorporated by reference, including Order on Haemmerle
57-10587A Motion to Alter or Amend; Order on Summary Judgment;
57-10587B and Order on Motion to Withdraw Admissions (3/25/1997),
Order on Motion to Alter or Amend; Order on Motion for
Permissive Appeal (June 25, 1997); and Findings of Fact
and Conclusions of Law (July 24, 1997).
11/23/97 34-00060 Special Master's Report & Recommendation Question of whether water rights should be subject to a combined Bilyeu
et al. Findings of Fact & Conclusions of Law diversion rate limitation of 4.13 cfs; Reducti on is not based upon See, State v. Hagerman
failure to use water rights, but on basis that claimant, Anderson, Water Right Owners, Inc.
Objection as to diversion rate limitation. should farm more efficiently; Anderson uses "border" system 130 Idaho 727, 947 P.2d
Reasonable beneficial use question. to irrigate; "Optimum efficiency" standard has not been adopted 400 (1997).
by legislature or supreme court; Anderson's experience over 60
years was persuasive such that combined use limitation should
not be decreed.
01/26/98 36-02659 Preliminary Report & Recommendation and Issue of whether "facility volume" should be decreed for fish Dolan
et al. Order. propagation water rights; Record in Blue Lakes subcases & Opinion reaches same
Clear Lakes Trout - Facility Volume Case Clear Lakes licenses are sufficient to rebut prima facie weight result as the Blue Lakes
given to Director's Report; Facility volume is not necessary subcases 36-02356 et al.
for definition or clarification of Clear Lakes' fish propagation (11/25/97).
water rights or for efficient administration of water rights;
Facility volume serves water quality concerns which is the
responsibility of DEQ, not IDWR.
02/06/98 72-15929C Order on Motion and Cross-Motion for Judicial admissions by U.S. & State on agency question lead Haemmerle
Summary Judgment to the conclusion that priority date is date of Taylor Grazing Related Decision is,
Act (June 28, 1934); State, as a claimant, has standing in Order on Motion to Alter or
Objection by state based upon assertion SRBA & may file objection without showing injury to a water Amend; Order on Summary
that BLM can only assert priority date for right; Judicial estoppel does not prevent the State from contesting Judgement; and
stockwater rights based upon an agency priority date claims of U.S.; Laches, based on State's failure to Order on Motion to Withdraw
relationship arising after Passage of the object to U.S. claims in the test basins, is not a defense. Admissions (3/23/97)
Taylor Grazing Act (1934). (Joyce Livestock)
02/12/98 34-00600 Special Master's Report & Recommendation If substantial evidence is submitted to rebut Director's Report, Bilyeu
34-00606 Findings of Fact & Conclusions of Law forfeiture or abandonment must still be shown by clear &
convincing evidence; Surface water rights were abandoned and
Issues of forfeiture & abandonment in partially forfeited on eastern portion of property.
claims of Matea McCray Partners.
02/12/98 34-00182 Special Master's Report & Recommendation Clear & convincing evidence support forfeiture; Injury to juniors Bileu
34-00381A Findings of Fact & Conclusions of Law and an intervening license is required to defeat resumption; Court took judicial notice
34-02379F Extensive analysis of Jenkins decision; Because water rights of Memorandum Decision
Forfeiture of water rights claimed by may be partially forfeited, partial resumption mayalso occur. in BWI # 5 as law of the
Lee Watson. Issue of First Impression: case.
Patial Resumption
02/24/98 36-00097 Special Master's Report Water rights recommended as reported upon failure of Haemmerle
et al. withdrawal of Counsel (Brown) & subsequent parties to appear after withdrawal of counsel.
failure of parties to appear.
02/24/98 36-07201 Findings of Fact and Conclusions of Law There is no showing that facility volume is rationally related to Haemmerle
et al. (Facility Volume) water quality; IDWR does not have jurisdiction to regulate water
quality; there is no consumptive use in the fish propagation
Discussion of water quality, consumptive facilities at issue; consumptive use was removed as an element
use, local public interest, & beneficial of a water right in 1997; vested water rights cannot be conditioned
use justifications for including facility in the SRBA upon local public interest; IDWR has no authority
volume in water right. to force mitigation & therefore facility volume cannot be required
for that purpose; water rights adjudicated upon licenses which
contain facility volume will declare that it does not define beneficial
use.
03/03/98 36-02659 Special Master's Report Blue Lakes Record & Clear Lakes licenses present sufficient Dolan
et al. evidence to overcome prima facie weight given to Director's Case decided in part upon
Report; Facility volume is not necessary for the definition or record in Blue Lakes cases
fish propagation facility clarification of Clear Lakes' fish propagation water rights or Special Master's Report
volume at issue for the efficient administration of water rights by the Director. & Recommendation
(11/25/97) Subcases
36-02356 et al.
03/03/98 36-02048 Stipulation Facility Volume Stipulation relates to combined use remarks. Haemmerle
et al.
03/17/98 34-12561 Order Granting Summary Judgment; Denying Sorensen's objections failed to present evidence by way Bilyeu
et al. Motion to Remand; Denying Motion to of affidavits, pleadings, depositions, or admissions establishing
Reconsider Dual Based Claims, the inadequacy of the Director's investigation of the state-based
under both federal & claims, or rebutting the Director's Report; Summary judgment
State Law asserted by the United States & is proper for the United States.
objected to by Mitchell Sorensen.
03/17/98 36-00029B Order on Motions to Alter or Amend Any party in the SRBA may file a motion to alter to amend Haemmerle
36-00077D which is treated like a motion to set aside a default judgment
36-00086C Class One subcases resolved by execution of and requires showing a meritorious claim that exceeds mere
SF5s; Motion to Alter or Amend by NSGWD allegations; NSGWD presented no independent evidence of
alleging recommendations do not reflect partial forfeiture; Director's report recommending more than
actual and reasonable beneficial use of one inch per acre is prima facie evidence that 42-220 was
water; based upon change from gravity to satisfied.
sprinkler irrigation.
03/25/98 34-00012 Special Master's Report & Recommendation Can't tell from the text of the recommendation whether or Bilyeu
Findings of Fact & Conclusions of Law not the disputed acreage was included. see numerous earlier
decisions.
Question of whether Big Lost River Irrigation
District has authority to delivery water outside
of its boundaries.
03/25/98 34-02493 Special Master's Report & Recommendation Special Master presumes that Idaho follows the developed Bilyeu
Findings of Fact & Conclusions of Law water doctrine; IDWR added language exempting 27.6 acre
feet diverted from an 8-acre swamp from the prior appropriation
Application of "Developed Water Doctrine" doctrine as "developed water," Parties agreed in SF5 to delete
this added language.
03/26/98 34-12709 Special Master's Report & Recommendation In a dual-based claim the right with the earlier priority date Bilyeu
34-12709A Findings of Fact & Conclusions of Law (state or federal) will be decreed, and the United States will Application of decision
not be allowed to have the right decreed under the later basis in BWI # 12 (4/25/97 and
United States' "dual-based" claims as a matter of law. 08/12/96).
03/27/98 34-12561 Special Master's Report & Recommendation For every "dual-based" claim, the United States seeks only a Bilyeu
34-12561A Findings of Fact & Conclusions of Law single water right, which is supportable under either Idaho Application of decision in
state law or federal law. BWI # 12 (4/25/97 and
United States' "dual-based"claims 08/12/96). See, Order
granting summary judgment
(03/17/98).
04/22/98 57-10487 Special Master's Report Water right purchased by Hulet on 3/6/1967 will beassigned Haemmerle
57-10487A a new number; Joyce's new appropriation on 3/7/1967 will be See Alter or Amend 3/25/97
57-10487B Sale of water right/new appropriation/ split with portion appurtenant to public domain, & improperly Alter or Amend, 6/26/97;
split of water right on public domain conveyed, having a priority date of 8/24/1985, portion on Findings of Fact, 07/24/97;
not properly conveyed. Joyce's private property has priority date of 3/17/1967. Findings of Fact, 11/10/97
04/22/98 57-10486 Special Master's Report Incorporates by reference the decisions cited at the right. Haemmerle
See Alter or Amend 3/25/97
Challenge overruled - Memorandum Decision and Alter or Amend, 6/26/97;
Order on Challenge (57-10486 et al.), 10-6-99 (Wood) Findings of Fact, 07/24/97;
Findings of Fact, 11/10/97
05/19/98 36-00110C Amended Findings of Fact and Conclusions Claimant sought 0.17 cfs; IDWR recommended 0.06 cfs; Special Haemmerle
36-00111C of Law. master ruled 0.39 cfs, of which 0.28 cfs is for total conveyance Special Master rejects
William Flint, as claimant, disputes loss (comment to that effect including), leaving a beneficial use Hubble analysis & accepts
quantity element. right of 0.11 cfs; since 0.17 claimed, right will be reported as Marginal Allowed Deficit
0.17 with 0.06 conveyance loss unless claim is amended. (MAD) method, primarily
because of more reliable
weather data.
Special Master declares that a problem with the pro rata
method of apportioning conveyance loss is that if one right New International Decree
is abandoned or forfeited, or if there is a "call, " conveyance held not probative of
loss will thereafter be insufficient to deliver all the rights quantity claimed.
n the ditch.
06/19/98 36-00064B Findings of Fact and Conclusions of Law Claimant sought 4.52 cfs for 51 acres; IDWR recomme nded 0.56 Haemmerle
cfs for 19 acres; Special Master recommended 6.93 cfs for 22 Court comments on relation
Michael & Paul Fleming, claimants, dispute acres including 6.09 cfs in total conveyance loss; unless claim is between current beneficial
quantity & number of acres irrigated. amended, right will be limited to 4.52 cfs claimed with 3.69 cfs use and historic beneficial
allotted to conveyance loss; Prior decree is only evidence; By use; Same Hubble vs. MAD
increasing a previously decreed right, court is not expanding analysis as just above &
right, but rather making a correct determination of original same calculation of
beneficial use. conveyance loss as above.
See, Special Master's Rept.
11/30/1998.
07/09/98 36-02356 Order Denying North Snake Ground Water Motions to alter or amend are not covered by the Docket Sheet Dolan
et al. District's Motions to Alter or Amend Procedure such that briefs did not have to be filed with motions; Special Master raises three
Second motion to alter or amend is not allowed & motion to procedural issues sua
Blue Lakes & Clear Lakes Fish Propagation alter or amend on facility volume issue was untimely; Without sponte; IRCP 59(e) is the
Claims, & NSGWD Motion to Alter or Amend proof of forfeiture or abandonment, there is no basis upon which standard for motions to
to include facility volume. to argue that these rights should be limited based on facility alter or amend.
volume.
07/29/98 36-00003A Findings of Fact and Conclusions of Law IDWR should have also considered 5.19 cfs decreed under Haemmerle
et al. unclaimed rights 36-00005 & 36-00019, which have the Court discusses standard
Elements of water rights contested; original same place of use and priority date as several of the split for admission of expert
adjudicated right was 20 cfs; after multiple rights under the 20 cfs 36-0003; claimants should be entitled testimony under IRE 702
divisions aggregate claim of subdivided to prove split shares of 36-0003 independent of those & U.S. S.Ct. Daubert case.
rights is 26.70 cfs. split claimants who previously settled; High evapotranspiration
rate & sandy soil is good cause to exceed 1 inch per acre;
Brockway mid-range analysis will be used to determine
reasonable beneficial use; split rights may be re-combined if
exercised by a single owner in a common irrigation system.
07/29/98 57-10487 Amended Special Master's Report Incorporates by reference Order on Motion to Alter or Amend Haemmerle
57-10487A (07/27/98). numerous prior memos &
57-10487B Hulet objections to Joyce Livestock Claim orders.
07/31/98 36-02048 Supplemental Findings of Fact and Right of have water delivered "first in time, first in right" is Haemmerle
et al. Conclusions of Law (Facility Volume) constitutionally guaranteed, IDWR has no authority to impose
mitigation in lieu of delivering water; There is no rational
Tuthill testimony was not recorded so relationship between facility volume & fish production for
2/24/98 Findings of Fact are withdraw purposes of mitigation; IDWR only has an interest in increased
production if an increased diversion is required; Consumptive use
is not an element to be decreed and fish production involves no
consumptive use; IDWR has no authority to re-evaluate a vested
water right to consider local public interest; change in facility
volume is not a change in nature of use; SRBA cannot be used to
re-condition licenses, which would amount to a collateral attack
on a license; facility volume remarks in licenses will be included
in decree with caveat that it does not define the extent of beneficial
use.
08/10/98 35-12939 Order on Motions for Summary Judgment United States management interest in federal lands as evidenced Dolan
et al. by various federal acts, enforcement actions, and preservation of
BLM beneficial use claims for public land public right to use water arising on federal land is sufficient to
stock watering; State objection to any support an appropriation arising before enactment of the Taylor
priority date before June 28, 1934 Grazing Act.
(Taylor Act).
08/26/98 35-12939 Special Master's Report In all 21 subcases U.S. is entitled to a priority date earlier Dolan
et al. than June 28, 1934. See, Order on Summary
Priority Date - BLM Stockwater rights Judgment (08/10/1998).
08/28/98 36-07218 Special Master's Report & Recommendation Findings of Fact & Conclusions of Law incorporated by Haemmerle
Findings of Fact & Conclusions of Law reference. Supplemental Findings of Fact and Conclusions
of Law (Facility Volume) (July 31, 1998); Findings of Fact
Clear Springs - Facility Volume and Conclusions of Law on Involuntary Dismissal (August
21, 1998).
08/2898 36-07201 Special Master's Report & Recommendation Findings of Fact & Conclusions of Law incorporated by Haemmerle
Findings of Fact & Conclusions of Law reference; Supplemental Findings of Fact and Conclusions
of Law (Facility Volume) (July 31, 1998); Findings of Fact
Clear Springs - Purpose of Use & Facility and Conclusions of Law on Involuntary Dismissal (August
Volume 21, 1998).
08/28/98 36-02708 Special Master's Report & Recommendation Findings of Fact & Conclusions of Law incorporated by Haemmerle
Findings of Fact & Conclusions of Law reference; Supplemental Findings of Fact and Conclusions
of Law (Facility Volume) (July 31, 1998); Findings of Fact
Clear Springs - Facility Volume & Source and Conclusions of Law on Involuntary Dismissal (August
21, 1998).
10/07/98 34-00834 Special Master's Report & Recommendation A decree cannot leave the determination of the actual dates Bilyeu
Findings of Fact & Conclusions of Law of the "irrigation season" to the discretionary authority of an See, Memorandum
administrative agency; Special Master recommends that the Decision BWI 5 04/26/1996
Irrigation Season portion of the decree giving the watermaster discretion as to Ida.Sup.Ct. Decision, 131
whether the period for irrigation may be extended should be Idaho 411, 958 P.2d 568
stricken. (1998).
10/07/98 34-00835 Special Master's Report & Recommendation A decree cannot leave the determination of the actual dates Bilyeu
Findings of Fact & Conclusions of Law of the "irrigation season" to the discretionary authority of an See, Memorandum
administrative agency; Special Master recommends that the Decision BWI 5 04/26/1996
Irrigation Season portion of the decree giving the watermaster discretion as to Ida.Sup.Ct. Decision 131
whether the period for irrigation may be extended should be Idaho 411, 958 P.2d 568
stricken. (1998)
10/07/98 34-00836 Special Master's Report & Recommendation A decree cannot leave the determination of the actual dates Bilyeu
Findings of Fact & Conclusions of Law of the "irrigation season" to the discretionary authority of an See, Memorandum
administrative agency; Special Master recommends that the Decision BWI 5 04/26/1996
Irrigation Season portion of the decree giving the watermaster discretion as to Ida.Sup.Ct. Decisiom 131
whether the period for irrigation may be extended should be Idaho 411, 958 P.2d 568
stricken. (1998).
10/07/98 34-00839 Special Master's Report & Recommendation A decree cannot leave the determination of the actual dates Bilyeu
Findings of Fact & Conclusions of Law of the "irrigation season" to the discretionary authority of an See, Memorandum
administrative agency; Special Master recommends that the Decision BWI 5 04/26/1996
Irrigation Season portion of the decree giving the watermaster discretion as to Ida.Sup.Ct. Decisiom 131
whether the period for irrigation may be extended should be Idaho 411, 958 P.2d 568
stricken. (1998).
10/07/98 34-02303 Special Master's Report & Recommendation In compliance with Supreme Court holding that determination Bilyeu
Findings of Fact & Conclusions of Law of "irrigation season" should include specific dates, Judge See, Memorandum
Hurlbutt determined that decision required a season which Decision BWI 5 0426/1996
Irrigation Season can be fairly & consistently administered and that when older Ida.Sup.Ct. Decision,
rights recommend a significantly shorter season than newer Idaho 411, 958 P.2d 568
rights, that might not comply with the Supreme Ct. Decision. (1998)
This right recommended before IDWR finalized its
recommendation for the irrigation season in Basin 34.
10/07/98 34-04039 Special Master's Report & Recommendation In compliance with Supreme Court holding that determination Bilyeu
Findings of Fact & Conclusions of Law of "irrigation season" should include specific dates, Judge See, Memorandum
Hurlbutt determined that decision required a season which Decision BWI 5 0426/1996
Irrigation Season can be fairly & consistently administered and that when older Ida.Sup.Ct. Decision,
rights recommend a significantly shorter season than newer Idaho 411, 958 P.2d 568
rights, that might not comply with the Supreme Ct. Decision. (1998)
This right recommended before IDWR finalized its
recommendation for the irrigation season in Basin 34.
10/07/98 34-10585 Special Master's Report & Recommendation In compliance with Supreme Court holding that determination Bilyeu
Findings of Fact & Conclusions of Law of "irrigation season" should include specific dates, Judge See, Memorandum
Hurlbutt determined that decision required a season which Decision BWI 5 0426/1996
Irrigation Season can be fairly & consistently administered and that when older Ida.Sup.Ct. Decision,
rights recommend a significantly shorter season than newer Idaho 411, 958 P.2d 568
rights, that might not comply with the Supreme Ct. Decision. (1998)
This right recommended before IDWR finalized its
recommendation for the irrigation season in Basin 34.
10/07/98 36-02048 Order Denying Motion to Alter or Amend Purpose of Motion to Alter or Amend is to correct errors of law Haemmerle
et al. (Facility Volume) or fact that occurred in the proceedings based upon the status of See, Supplemental Findings
the case at the time judgment was entered; Parties cannot inject of Fact and Conclusions of
Motion to Alter or Amend by NSGWD new evidence into the case & affidavits which introduce new Law (Facility Volume)
actual beneficial use issues evidence will be stricken; Because quantity was never at dispute (July 31, 1998).
in the subcases, forfeiture, abandonment, estoppel, or adverse
possession will not be considered; An evidentiary hearing is not
required when the parties enter into a settlement; "It is entirely
unfair for a party to make an election not to become involved
during the trial phase of a case, sit back and see how a case
develops, and then intervene in a motion to alter or amend only
if the outcome of the trial or settlement process does not suit that
party."
10/07/98 36-02048 Amended Supplemental Findings of Fact and Facility volume is not included primarily because IDWR is not Haemmerle
et al. Conclusions of Law (Facility Volume) in the business of regulating water quality; Because IDWR has Findings related to Tuthill
no authority to force mitigation in the event of a call, facility testimony in 02/24/1998
volume cannot be included for that purpose; Even if fish Findings of Fact are
production is increased, if no more water is diverted and the use withdrawn.
of the facility remains fish production, IDWR may not, as a
matter of law require a new water right; Consumptive use is
not an element to be decreed, even so, fish propagation has no
consumptive use; IDWR cannot reevaluate a vested water right
under the local public interest in the absence of transfer proceeding;
Change in facility volume is not a change in the nature of use for
which a transfer is required under 42-222; the SRBA does not
present a second opportunity for IDWR to recondition a license,
it had full opportunity to condition, when it was originally issued.
11/30/98 36-00064B Special Master's Report and Recommendation June 19, 1998 Findings of Fact and Conclusions of Law Haemmerle
incorporated by reference.
12/01/98 35-12939 Amended Special Master's Report United States cannot own a water right simply because it Dolan
et al. owns land. The United States is not entitled to stock water
De Minimis Stockwater claims on federal rights prior to June 28, 1934, the date the Taylor Grazing Act See Order on Motions for
lands. was enacted. Summary Judgment
(Aug. 10, 1998).
Order Denying Challenges
(Sept. 30, 1998).
12/01/98 35-12939 Order Granting, in Part, State's Motion Issue is whether the January 1, 1880 priority dates for these 21 Dolan
et al. to Alter or Amend. claims must be changed in light of the Presiding Judge's ruling
on April 15, 1998 to June 28, 1934? SRBA Special Masters
Law of the Case issues only report and recommend final action to the Presiding Judge;
The Presiding Judge has decided the issue. Special Master
Haemmerle held, and the Presiding Judge agreed, that the U.S.
cannot own a water right simply because it managed the public
domain. Therefore the recommended priority date for each of
the 21 subcases will be June 28, 1934.
01/08/99 55-10288 Order Granting United States' Motion for I.C. 42-113(2) has no retroactive effect prior to its enactment Haemmerle
Summary Judgment on March 25, 1998; Retroactive application would violate Ida.
Const. Art. 11, 12; Further development of public rangeland
water rights law started in Joyce Livestock Cases (57-04028 et al.)
01/08/99 36-00004 Order Denying Motion for Reconsideration SRBA Administrative Order No. 1 is constitutional; Docket Bilyeu. Analysis relies
sheet notice is constitutional; direct notice is only required for upon Court's 2/13/98
claimant's own water right, objection or response. Memorandum Decision.
01/29/99 36-02708 Order Denying Motion to Alter or Amend; Facility volume not necessary to administer water right for Haemmerle
36-07218 Order Denying Motion to File Late fish farming facility; Issues of beneficial use raised after date
36-07201 Objections of Director's Report are not at issue in SRBA; No res judicata
bar; Objections and motion to amend made after trial are not
timely.
02/12/99 34-02315 Special Master's Report & Recommendation No injury occurs until junior actually deprives senior of allotted Bilyeu
et al. Findings of Fact & Conclusions of Law amount; Failure to enforce priority does not result in injury by
junior; enlargement occurs upon change of supplemental right
to primary right; Advancement of priorities under 42-1426.
02/12/99 36-02048 Order Denying Motion to File Late Party denied motion to file a late objection based upon claim Haemmerle
et al. Objections of forfeiture arising after date of Director's Report is not
prejudiced, such claim can proceed in independent proceeding
without being barred by res judicata.
02/19/99 34-00170 Special Master's Report & Recommendation Based upon Nebraska precedent, holds that use of water by a Bilyeu
et al. Findings of Fact & Conclusions of Law junior appropriator does not become adverse to or injure a Special Master uses same
senior appropriator until it results in deprivation of senior's basic analysis in Subcase
Objection by Big Lost River Water Users Assn. allotted amount; alleges injuries raised by Assn. should not 34-07077 below.
to water right recommendations to PU Ranch defeat changes because injury can be prevented by asserting
under the amnesty statutes, 42-1425, -26, & senior rights; Evidence insufficient to show injury by change
-27. Objections to changes to Era Flats. from supplemental to primary right when the priority date is
advanced to the date of change; No injury in combined use
that retains original acreage limitations.
02/19/99 34-07077 Special Master's Report & Recommendation Injuries complained of did not arise from changes, but from Bilyeu
34-07120 Findings of Fact & Conclusions of Law failure to follow prior appropriation doctrine; No injury Special Master uses same
arises in change from supplementary to primary right basic analysis in Subcase
Objection by Big Lost River Water Users when priority date is advance to date of change; No injury No. 34-00170 above.
Assn. to Kurt Acor water right claims arises from combined use of water rights when original
including changes in place of use, acreage limits are retained.
supplemental to primary, combined use rights,
and expansions; under 42-1425,-26,-27.
Objections to changes to Era Flats.
02/19/99 34-07122A Special Master's Report & Recommendation Injuries complained of did not arise from changes, but from Bilyeu
34-07035 Findings of Fact & Conclusions of Law failure to follow prior appropriation doctrine; Since priority
date was advanced upon change from supplementary to
Objection by Big Lost River Water Users primary right there was no injury; Because acreage limitation
Assn. to M. Todd Perkes water right claims did not change, there was no expansion in allowing combined
including changes in place of use, use.
supplemental to primary,
combined use rights, and expansions; under
42-1425, -26, -27; Objections to changes to
Era Flats; A-Line interconnection
02/19/99 34-00635 Special Master's Report & Recommendation Injuries complained of did not arise from changes, but from Bilyeu
et al. Findings of Fact & Conclusions of Law failure to follow prior appropriation doctrine; Since priority
date was advanced upon change from supplementary to
Objection by Big Lost River Water Users primary right, there was no injury; Because acreage limitation
Assn. to Parkinson Farms water right claims did not change, there was no expansion in allowing combined
including change in place of use, use.
supplementary to primary,
combined use rights, expansions; under 42-1425,
-26, -27; Objections to changes to Era Flats.
A-Line interconnection.
02/19/99 34-00315 Special Master's Report & Recommendation Injuries complained of did not arise from changes, but from Bilyeu
et al. Findings of Fact & Conclusions of Law failure to follow the prior appropriation doctrine; Since
priority date was advanced upon change from supplementary
Objection by Big Lost River Water Users to primary right, there was no injury; Because acreage
Assn. to Marc T. Hansen; including change limitation did not change, there was no expansion in allowing
in place of use, supplementary to primary, combined use.
combined use rights, expansions; under 42-1425,
-26, -27; Objections to changes in place of
use to Era Flats. A-Line interconnection.
02/19/99 34-00256 Special Master's Report & Recommendation Injuries complained of did not arise from changes, but from Bilyeu
et al. Findings of Fact & Conclusions of Law failure to follow the prior appropriation doctrine; Since
priority date was advanced upon change from supplementary
Objection by Bib Lost River Water Users to primary right, there was no injury; Because acreage
Assn. to Everett T. Acor; including limitation did not change, there was no expansion in allowing
change in place of use, supplementary combined use.
to primary, comined use rights, expansions;
under 42-1425, -26, -27; Objections to changes
in place of use to Era Flats. A-Line interconnection.
02/23/99 36-00090F Findings of Fact and Conclusions of Law Rights established at 0.02 cfs/acre for 3.5 acres under a Haemmerle
36-00094A combined use with priority date of June 26, 1881, season
Objection by Claimants, John Ward & Ruth of use (not final) Feb. 15-Nov. 30; Right had previously
Rush to water rights disallowed in been decreed in New International Mortgage Decree.
Director's Report; Rights amended from
domestic to irrigation.
02/24/99 94-00012 Order on Jurisdiction and Standard of SRBA court has jurisdiction because a claim has been filed Bilyeu
Review and Setting Additional Deadlines in the SRBA; Court does not reach issue of whether SRBA See 9/30/97 Order by
court's jurisdiction is concurrent; Standard of review is the Dist. Ct.; Sup.Ct. Decision
Parties are Catherine Rowan and, Norman & same as in any other subcase, recites prima facie evidence Riley v. Rowan, 131 Idaho
Robin Riley. standard applied to Director's report; Court orders Director's 831, 965 P.2d 191 (8/19/98)
reports to be date stamp date of issuance; Amended Director's
report to be issued to conform with 1998 licenses.
02/25/99 34-00496A Special Master's Report & Recommendation Since senior users could enforce their priority rights, the alleged Bilyeu
et al. Findings of Fact & Conclusions of Law injuries at issue should not defeat the changes in use which
ccurred; no injury to senior rights by change from supplemental
Claims by Mitchell Sorensen objected to by to primary right due to advancement of priority date; Because
Big Lost River Water Users Assn., Jensens, acreage limitation did not change, there was no expansion in
& claimant. allowing combined use; Since additional capacity of well in
section 5 was not developed under issued permits, it is not
authorized under the water rights issued under those permits;
Court disallows request for bifurcated priority date disallowing
Sorensen's request to use the original priority date when
original primary rights are unavailable.
03/03/99 34-00017D Special Master's Report and Recommendation Injury to which the Association complains is the result of Bilyeu
et al. Findings of Fact and Conclusions of Law failure to enforce priority rights, not the changes at issue;
Since the priority was advanced, there was insufficient
Big Lost River Water Users Assn. objects to evidence to show that change from supplementary to primary
claims of Herman Aikele injured senior rights; Because acreage limitation did not
change, there was no expansion in allowing combined use;
03/03/99 36-02708 Order Denying Rule 11 Motion for Sanctions A reasonable attorney could have concluded that the IRCP Haemmerle
allowed affidavits to be filed with a Motion to Alter or Amend;
Clear Springs (Facility Volume) Parties cannot offer new evidence in support of a Motion to
Alter or Amend; Rule 11 sanctions denied; Court states that
it will impose sanctions, sua sponte, for further attempts to
present new evidence in a motion to alter or amend.
03/05/99 23-10872 Order Granting State's Motion for Summary Whether PWR 107 includes springs or water holes that are Haemmerle
Judgment tributary to rivers or streams? The Court finds that PWR See, Ida. Sup.Ct. Opinion,
107 does not apply to springs or water holes which are 131 Idaho 468, 959 P.2d
PWR 107 reserved stock water rights tributary to perennial rivers to streams. If a PWR 107 449 (1998).
water reserve produces more than 13,000 gallons per day
or 0.02 cfs, then water in excess of that amount is subject
to appropriation under state law.
04/12/99 57-11195 Special Master's Report For rights having a federal basis, the IDWR Director abstracts Haemmerle
the claim, but the abstract does not have prima facie weight; See, Order Denying Motion
PWR 107 Claim Claim originally denied because U.S. failed to establish for Default Judgment
quantity; U.S. then argued that quantity should be same as (PWR 107) (11/16/1998).
other de minimis stock water claims, 13,000 gallons per day.
04/21/99 36-00110A Special Master's Report and Recommendation At trial actual quantity found by court exceeded the amount Haemmerle
36-00110C Findings of Fact and Conclusions of Law claimed; Claimant amended claim, Director investigated and See, Amended Findings of
36-00110D found different amount than Court; Court is not bound by the Fact and Conclusions of
Director's findings and the court may evaluate the accuracy Law (May 19, 1998).
of the Director's findings; Quantity found as 0.39 cfs with
0.28 cfs in conveyance loss; Period of use reported as Feb. 15
to Nov. 30 subject to objection that may be made to that
recommendation as contained in forthcoming Director's
Report addressing season of use in Hagerman Valley.
04/23/99 55-10295 Special Master's Report As a result of Summary Judgment order, priority date for Haemmerle
LU Ranch claims on public lands is September 23, 1976. See, Order Granting U.S.
Objection to priority date for LU Ranch Motion for Summary
claims on public lands. Judgment (55-10295)
(January 8, 1999)
04/23/99 55-10288 Special Master's Report Priority date for places of use located on public land shall be Haemmerle
55-10288A September 23, 1976; Because there were no objections to See, Order Granting U.S.'
55-10288B LU Priority Date Claims for water rights priority date for place of use on private and state of Idaho Motion for Summary
located on public lands claims water right will be split between federal place of use Judgment (01/08/1999).
and state and private land places of use.
05/03/99 36-00006 Order Denying State's Motion for Summary "Other purposes" in New International Decree is vague; Haemmerle
et al. See Order on
Judgment State's motion for summary judgment that "other purposes" Motions for Summary
only included irrigation and domestic use is denied for failure Judgment and Motion in
to address use of right in 1987 under I.C. 42-1427(1)(b); Limine (03/31/99)
State failed to address change in use after New International
decree.
05/17/99 36-00006 Order Denying IDWR's Motion to Dismiss Motion to Dismiss Order to Show cause is dismissed; Court Haemmerle; Order on
et al. can require IDWR to investigate rights in conformance with Motions for Summary
its mandatory duties; Court always retains jurisdiction to Judgment and Motion in
ensure that proceedings are fair and comply with requirements Limine (03/31/99)
of law. incorporated by reference.
06/07/99 36-00003K Order Denying Anderson's Motion on Court will not address substance of allegations in Motion to Haemmerle
Motion to Alter or Amend Alter or Amend which arose after the trial on the water right
occurred; Relief may be obtained in separate quiet title action.
06/11/99 36-07083 Order Denying Motion to File Because use of water right after the date of a Director's Report Haemmerle
Late Objections is not included in that report, a claim of forfeiture arising after
the date of a Director's Report can be pursued in an independent
action.
06/25/99 65-20033 Order on Joint Submission Examination of PWR 107 springs tributary to streams; Court Haemmerle, See Order
et al. asks for further briefing; holds that spring that connects to Granting State's Motion for
"perennial" stream is not covered by PWR 107; Any spring Summary Judgment-3/5/99.
that is "headwaters" of perennial stream is not covered by
PWR 107.
06/30/99 36-00006 Recommendation Denying Permissive Review; Permissive review denied as ruling from Supreme Court will Haemmerle, See prior
et al. Order Denying Motion for Reconsideration not settle cases; Respondents failed to raise error in Court's Orders (03/31/99) and
conclusion that "undefined" and "vague" have exact same (05/03/99).
meaning; Issue of fact remains whether claimed uses came
into existence after entry of New International Decree.
07/16/99 36-00003A Order Denying Motions to Alter or Amend Court did not error in considering a range of quantities in Haemmerle
et al. at a single quantity; Sensitivity analysis did consider "actual"
use; Challenge failed to establish that split right was over
allocated; No error in combining rights that had not been
used separately; 42-1427(1)(b) properly applied to "vague"
terms of prior decree.
08/20/99 36-8099 Order Granting Motion to Alter or Amend; Hydropower Subordination; condition contained in a license Haemmerle
Amended Findings of Fact and Conclusions subordinating water right to all other water rights, if not
of Law and Recommendation appealed as a part of licensing process, cannot be challenge in
subsequent adjudication.
08/27/99 29-12487 Order Granting State's Motion for Stockwater rights under Forest Service Organic Act; Haemmerle
29-12489 Summary Judgment A federal stockwater right does not serve in primary purpose
of the Forest Service Organic Act and therefore there is no
reserved water right for stockwater purposes.
09/14/99 29-12487 Special Master's Report Stockwater rights under Forest Service Organic Act; Cushman
29-12489 Findings of Fact and Conclusions of Law Incorporates Order Granting State's Motion for Summary
Judgment (08/31/99); Purposes of Organic Act do not
include Stockwater.
09/23/99 35-12939 Order Granting, in Part, United States Objection to federal PWR 107 claims; State allowed to amend Dolan
et al. Motion to Alter or Amend and State of to complaint to raise objection to PWR 107 claims; at time the
Idaho Motions to Amend Objections State only objected to U.S. State law claims, the law of the case
was that there was no reserved water right for PWR 107 claims;
reversal on that issue by Idaho Supreme Court allows State to
now object to PWR 107 claims.
10/04/99 36-00006 Order Concerning Objections to the Memorandum is reasonable and the amount claimed Cushman
et al. Memorandum of Costs on the Order on the appropriate under factors set forth in I.R.C.P. 54(e)(3).
2nd Motion to Compel Discovery
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