Preview:

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35543-2008
DAVID NELSON and LOY PEHRSON,                                                          )
et al.,                                                                                )   Boise, August 2009 Term
)
Plaintiffs-Appellants,                                                                 )   2009 Opinion No.   116
)
v.                                                                                     )   Filed: September 30, 2009
)
BIG LOST RIVER IRRIGATION                                                              )   Stephen W. Kenyon, Clerk
DISTRICT; Board of Directors, RICHARD                                                  )
REYNOLDS, CHARLIE HUGGINS, KENT                                                        )
HARWOOD, JOEL ANDERSON, M.                                                             )
MARX HINTZE; IDAHO DEPARTMENT                                                          )
OF WATER RESOURCES; and DAVID                                                          )
R. TUTHILL, JR., Director,                                                             )
)
Defendants-Respondents.                                                                )
)
and                                                                                    )
)
ROBERT WADDOUPS, et al., and JAY F.                                                    )
PEARSON, et al.,                                                                       )
)
Intervenors-Respondents.                                                               )
Appeal from the District Court of the Seventh Judicial District of the State of
Idaho, in and for Custer County.  The Hon. Jon J. Shindurling, District Judge.
The judgment of the district court is affirmed.
Hutchinson & Brown, LLP, Twin Falls, for appellants.  Patrick D. Brown argued.
W. Kent Fletcher, Burley, for respondents the irrigation district and its directors.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Department
of Water Resources and its Director.  Harriet A. Hensley argued.
Holden, Kidwell, Hahn & Crapo, Idaho Falls, for intervenors.   Robert L. Harris
argued.
EISMANN, Chief Justice.




This is an appeal by water users within an irrigation district from a judgment of the
district court determining that water lost when the district uses a section of river to convey its
water to downstream diversion points for distribution to water users in the district must be
allocated pro rata among those water users.  We affirm the judgment of the district court.
I.  FACTS AND PROCEDURAL HISTORY
The Big Lost River Irrigation District was formed in 1920 to deliver irrigation water to its
members who had decreed water rights.   In 1936, it purchased the Mackay Dam and Reservoir
and storage water rights in the reservoir in order to supplement the decreed water rights owned
by various water users in the District.   The Mackay Reservoir is on the Big Lost River, and the
District uses the river to convey the storage water from the reservoir to various diversion points,
through which the storage water is diverted from the river for delivery to landowners within the
District.   Because of the gravel deposits and porous soils through which the river flows, a
significant amount of the storage water is lost by seepage while it flows down the river from the
reservoir to the diversion points.  This loss of water is called “conveyance loss” or “shrink.”  The
lower reaches of the river experience significantly greater shrink than do the upper reaches.
Over the years, the Irrigation District has dealt in various ways with allocating the
conveyance loss among its water users.   Prior to 1994, the District used the “universal shrink”
method under which the conveyance loss was allocated on a pro rata basis to all landowners in
the District, regardless of the locations of their respective points of diversion from the river.
Beginning in 1994, it generally used a formula that apportioned the conveyance loss to various
sections or reaches of the river, resulting in a larger percentage of the loss being apportioned to
its water users who were farther downstream.   On May 5, 2005, the Directors voted to resume
using the universal shrink method.
The Plaintiffs are sixty-four landowners who receive storage water that is diverted from
the upper reaches of the river.   On July 28, 2005, they filed this action against the Irrigation
District and its Directors seeking to prevent implementation of the universal shrink method of
allocating the conveyance losses.   Plaintiffs alleged that the storage water they received from the
2




river should be administered as if they were the appropriators of the natural flow from the river
rather than landowners within an irrigation district.1
On August 12, 2005, the Plaintiffs filed an amended complaint adding a claim for a
declaratory judgment that IDAPA Rule 37.03.12.040.03.b (Rule 40.03.b) adopted by the Idaho
Department of Water Resources required apportionment of the conveyance loss by reach.   The
Irrigation District responded by filing a counterclaim also asking the court for a declaratory
judgment regarding the meaning of the Rule.   Because both the Plaintiffs and the District were
seeking a declaratory judgment as to the meaning of the Rule, the district court required that the
Plaintiffs join the Department as a defendant in this action.  On June 19, 2006, the Plaintiffs filed
a second amended complaint, adding the Department and its Director2 as defendants.
A group of approximately  448 water users  (Intervenors) were granted permission to
intervene in this action as defendants.    Approximately  188 of them are landowners in the
Irrigation District whose lands are located downstream from the Plaintiffs‟ properties and who
are entitled to the use of the storage water.  The others are landowners within or near the District
who are not entitled to the use of the storage water but who contend they would be harmed if the
District reverted back to apportioning losses by reach.   The Intervenors filed a counterclaim and
cross-claim in which they sought a declaratory judgment that the District was required to allocate
the conveyance loss on a universal or proportionately equal basis.
The Plaintiffs and the Irrigation District filed cross motions for summary judgment
seeking a ruling as to the interpretation of Rule 40.03.b.  That Rule provides:
Conveyance losses in the natural channel shall be proportioned by the
watermaster between natural flow and impounded water.   The proportioning shall
be done on a river reach basis.   Impounded water flowing through a river reach
that does not have a conveyance loss will not be assessed a loss for that reach.
1 If the Plaintiffs were appropriators of the river‟s natural flow, their water would be measured at the point of
diversion from the river with no conveyance loss assessment.   However, the Irrigation District, not the Plaintiffs, is
the appropriator of the storage water.   See Bradshaw v. Milner Low Lift Irr. Dist., 85 Idaho 528, 545, 381 P.2d 440,
449 (1963).   The Irrigation District holds title to the storage water rights in trust for the benefit of landowners within
the district, including the Plaintiffs.   Id.   Because the District uses the river to convey the storage water downstream
to diversion points for distribution to its landowners, the conveyance loss that occurs as the storage water flows
down  the  river  reduces  the  amount  of  water  that  the  District  can  distribute.    It  must  therefore  allocate  that
conveyance loss in some manner.
2 At the time the second amended complaint was filed, Karl J. Dreher was the director of the Department and named
as a defendant.   Effective April 17, 2007, David R. Tuthill, Jr., became the director.   On June 6, 2008, Mr. Tuthill
was substituted for Mr. Dreher as a defendant.
3




Impounded water flowing through any river reach that does have a conveyance
loss will be assessed the proportionate share of the loss for each losing reach
through which the impounded water flows.   To avoid an iterative accounting
procedure, impounded water conveyance loss from the previous day shall be
assessed on the current day.
The Irrigation District is located in Water District 34.  Because the Irrigation District uses
the river to convey its storage water to its water users, it must permit the watermaster of the
Water District to distribute the water from the river into the Irrigation District‟s waterworks, and
it must compensate the watermaster for those services.   I.C. § 42-801.   When the Irrigation
District‟s storage water is in the river, it may be comingled with natural flow water.   When the
storage water is reclaimed from the river, there must be due allowance made for conveyance loss
in order not to diminish the amount of natural flow water to which downstream users may be
entitled.   I.C. § 42-105(1).   Therefore, the Department adopted Rule 40.03.b to specify how the
Department‟s  watermaster  is  to  allocate  such  conveyance  loss  between  natural  flow  and
impounded water as it flows down the river.
The  district  court  held  that  Rule                                                                    40.03.b  did  not  apply to  the  Irrigation  District‟s
allocation of conveyance loss among its water users.   The Department‟s director has “direction
and control of the distribution of water from all natural water sources within a water district to
the canals, ditches, pumps and other facilities diverting therefrom,” I.C. § 42-602, including
“water . . . turned into the channel of a natural waterway and mingled with its water, and then
reclaimed,” I.C. § 42-105.   In order to perform that function, the director must divide the state
into water districts.   I.C. § 42-604.   The director is also authorized to adopt rules and regulations
“for the distribution of water from the streams, lakes, ground water and other natural water
sources as shall be necessary to carry out the laws in accordance with the priorities of the rights
of the users thereof.”   I.C. § 42-603.   Water districts are created pursuant to Idaho Code § 42-
604, while irrigation districts are created pursuant to Idaho Code § 43-101 et seq.   The board of
directors  of  an  irrigation  district  is  authorized                                                   “to  establish  equitable  by-laws,  rules  and
regulations for the distribution and use of water among the owners of such land [within the
district], as may be necessary and just to secure the just and proper distribution of the same.”
I.C. § 43-304.
On December  29,  2006, the district court entered a partial judgment dismissing the
Plaintiffs‟ second amended complaint.    After unsuccessfully seeking reconsideration of that
4




partial judgment, the Plaintiffs appealed to this Court.   Because there had been no determination
of the Intervenors‟ counterclaim and cross-claim, that partial judgment was not final.  This Court
therefore dismissed the appeal.
After the case was remanded back to the district court, the Irrigation District and the
Intervenors stipulated to resolve the Intervenors‟ cross-claim against the District by agreeing that
the District was required to use universal shrink as the method for allocating conveyance losses.
Based upon that stipulation, the district court entered judgment on February 20, 2008, requiring
the District to allocate conveyance losses exclusively by use of the universal shrink method.
After unsuccessfully seeking reconsideration of that judgment, the Plaintiffs timely appealed.
II.  ISSUES ON APPEAL
1.  Did the district court err in ruling that a 1936 decree does not limit the Irrigation District‟s
discretion to adopt the universal shrink method of apportioning conveyance losses?
2.  Did  the  district  court  err  in  ruling  that  the  universal  shrink  method  of  apportioning
conveyance losses is lawful?
3.  Are either the Plaintiffs, the Intervenors, or the Irrigation District and its Directors entitled to
an award of attorney fees on appeal?
III.  ANALYSIS
A.  Did the District Court Err in Ruling that the 1936 Decree Does Not Limit the Irrigation
District’s Discretion to Adopt the Universal Shrink Method of Apportioning Conveyance
Losses?
In 1935, the Irrigation District filed a lawsuit seeking court confirmation of a plan to
issue and sell bonds in order to acquire supplemental water rights and irrigation works.   The
irrigation works included the Mackay Dam and Reservoir where the storage water at issue in this
case is impounded prior to being released down the river for distribution to water users in the
District.   The decree in that lawsuit was entered in 1936.   The Plaintiffs contend that the 1936
decree prevents the District from using the universal shrink method of apportioning conveyance
loss.   The Intervenors respond that this issue was not raised by the Plaintiffs in their second
amended complaint, and therefore it cannot be considered on this appeal.
5




This  case  was  decided  on  summary  judgment.                                                          “[T]he  only  issues  considered  on
summary judgment are those raised by the pleadings.”   Vanvooren v. Astin, 141 Idaho 440, 444,
111 P.3d 125, 129 (2005).   A cause of action not raised in the pleadings may not be raised on
appeal, even if the trial court considered the issue.   O’Guin v. Bingham County, 139 Idaho 9, 15,
72 P.3d 849, 855 (2003).   In this case, the Plaintiffs‟ second amended complaint only sought a
declaratory judgment interpreting Rule 40.03.b.   However, the Intervenors‟ counterclaim and
cross claim sought  “a Declaratory Judgment ruling that in the distribution of  [the Irrigation
District‟s]  storage  water,  just  and  proper  distribution  of  that  storage  water  requires  that
conveyance loss, or shrink, must be assessed on a universal or proportionately equal basis.”
Based upon the stipulation between the District and the Intervenors, the district court entered
judgment requiring the District to use the universal shrink method in allocating conveyance loss.
The Plaintiffs‟ raised their argument regarding the 1936 decree in asking the district court to
reconsider that judgment.   Therefore, that argument was within the scope of the issues raised by
the pleadings.
The lawsuit resulting in the 1936 decree was brought to obtain judicial confirmation for
the issuance and sale of bonds.   As part of the confirmation process, the Irrigation District‟s
Directors were required to “examine each tract or legal subdivision of land in said district, and
[to] determine the benefits which will accrue to each of such tracts or subdivisions from the
construction or purchase of such irrigation works.”   I.C. § 43-404.   The benefits determined by
the Directors and found by the district court included supplemental storage water for some of the
water users in the District.   To determine the benefits accruing to the various properties, the
Directors apportioned the benefits of the supplemental storage water to lands within the District
based upon the decreed priority dates of other water rights appurtenant to such lands.   In the
1936 decree, the court ruled that the Directors‟ determination of the apportionment of benefits,
the amounts of apportionment, the factors considered in making the apportionment, and the basic
rules and regulations governing the use and distribution of water upon the lands in the District
“were just and equitable, and were regularly and legally done, had, made, determined and
entered at the proper time and in the proper manner and order, and in full and strict compliance
with the statutes and laws of the State of Idaho applicable thereto.”
The 1936 decree does not mention the apportionment of conveyance loss.   The Plaintiffs
contend that it can be inferred from the findings of fact upon which the decree was based that the
6




court required apportionment of the conveyance loss by river reach.    When reviewing the
Directors‟ determination of the apportionment of benefits accruing from the purchase of the dam,
reservoir, and storage water rights, the court made the following findings:
That from such examination it appeared to the said Board of Directors of
said Big Lost River Irrigation District and it was found and determined by said
Board and this Court does find and determine that certain (but not all) of said
lands within the district require also a supplemental storage water right from the
reservoir  and irrigation  works  proposed to  be  acquired by the district,  such
supplemental water rights so required being in varying amounts, depending on the
priority of the decreed water right in Big Lost River and its tributaries belonging
to the owner thereof substantially as shown in the following table:
The table following the above-quoted findings was a list allotting the supplemental
storage water right in acre feet “Measured in [the] Reservoir” to the owners of decreed water
rights, based upon the priority dates of their decreed rights.   The owners were not listed; they
were categorized according to priority date of the decreed water rights appurtenant to their lands.
The allotment of the supplemental storage water ranged from none for the owners of properties
with a pre-1884 decreed priority date to 1.79 acre feet for the owners of properties with a post-
1899 decreed priority date.
The Plaintiffs contend that the court‟s approval of that apportionment of benefits implies
that the court was ordering allocation of any conveyance loss by river reach because the
allotment of supplemental storage water was measured in the reservoir.   The Plaintiffs‟ argument
is unpersuasive.
As a practical matter, the storage water allotted to the various water users in the Irrigation
District had to be measured at the reservoir.   The amount of storage water varies from year to
year, depending upon the amount of precipitation.   The district court recognized this in its 1936
findings of fact.   It found that the “reservoir storage water proposed to be acquired by the district
will in the average year yield not less than  24,500 acre feet measured in said reservoir.”
(Emphasis added.)    It further found that the landowners would be entitled to their allotted
amounts of storage water “in any year when the available storage water owned by the District
equals 24,500 acre feet measured in the reservoir,” but the allotments would have to be adjusted
proportionally “in any year when the water supply belonging to the district and available for
storage shall be more or less than 24,500 acre feet.”   Because the amount of storage water
available for distribution varied from year to year, the most practical way to determine the water
7




allotted to the various water users was to measure it at the reservoir.  The conveyance loss occurs
after the water leaves the reservoir.   Whether that loss is allocated by river reach or by the
universal shrink method, it will be deducted from an amount of storage water initially measured
at the reservoir.   It is necessary to know the amount of water one starts with as measured at the
reservoir in order to calculate the amount remaining after taking conveyance loss into account.   It
was also necessary to allot the storage water to individual users as measured in the reservoir.  All
of the users would not use their storage water allotments at the same time and in the same
amounts.   Specifying the varying allotments was necessary in order to determine throughout the
irrigation season how much any individual water user was entitled to use.
If any method of allocating conveyance losses can be inferred in the 1936 findings of fact
and decree, it would be the universal shrink method.   In its findings of fact, the court found “that
those lands within said district to which have been apportioned certain benefits designated
„Amount Storage Water Assessment‟ are benefited by the allotment to such lands of storage
water in the amount of approximately $6.00 per acre foot for the storage water so allotted.”   The
benefit found was “$6.00 per acre foot for the storage water so allotted” for each tract or legal
subdivision of land, regardless of the land‟s distance from the reservoir.    If the court had
assumed conveyance losses would be apportioned by river reach, lands farther from the reservoir
would receive a substantially smaller percentage of their storage water allotments than would
lands closer to the reservoir.   Therefore, the value to the land of a quantity of water measured at
the reservoir would vary depending upon the land‟s distance from the reservoir.   Valuing the
benefits at the same dollar amount per acre foot of storage water allotted as measured at the
reservoir would be consistent with allocating conveyance loss by the universal shrink method
because each water user would receive the same percentage of his allotment.
The court did mention deducting water loss in its 1936 findings of fact.   In a paragraph
dealing with the storage and distribution of a landowner‟s decreed water, it stated:
Provided, however, that nothing herein contained shall be construed to
prevent the storage in said reservoir, whenever the same may be lawfully done, of
decreed  water  belonging  to  any  individual  landowner  of  the  district  and
subsequent distribution to such landowner for his use, with such reasonable
deduction for losses as may hereafter be fixed by the rules and regulations of the
district.                                                                                               (Emphasis added.)
8




Since it mentioned losses of decreed water stored in the reservoir, it is reasonable to assume that
had the court intended to make any findings regarding the required method for allocating
conveyance loss of the District‟s storage water, it would have done so.
The Plaintiffs also argue at length that the 1936 findings of fact should be interpreted as
holding that, in effect, the allotments of supplemental storage water as measured at the reservoir
should be treated as if the landowners entitled to receive that water were appropriators of the
water at the reservoir.   If they were, then any subsequent conveyance loss would be apportioned
on a river reach basis.   In 1908 this Court held, “The appropriation of waters carried in the ditch
operated for sale, rental, and distribution of waters does not belong to the water users, but rather
to the ditch company.”   Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 14 Idaho 450,
458-59, 94 P. 761, 763 (1908).  In 1923 this Court wrote, “Under the provisions of C. S. § 4350,3
the legal title to all property acquired by the  [irrigation] district by operation of law vests
immediately in the district and is held in trust for, dedicated to, and set apart to the use and
purposes provided by law.”  Yaden v. Gem Irr. Dist., 37 Idaho 300, 308, 216 P. 250, 252 (1923).
In its 1936 findings of fact, the court stated that it was the Irrigation District that was going to
purchase the dam, reservoir, and supplemental storage water rights.   There is nothing in the
findings of fact or decree indicating that the court disregarded the prior decisions of this Court
and the applicable statutes and decreed that the water users, rather than the Irrigation District,
would own the storage water rights in the reservoir.
Treating the Plaintiffs as if they were appropriators of the storage water  would be
contrary to the law.   As this Court stated in Nampa & Meridian Irr. Dist. v. Barclay, 56 Idaho
13, 18, 47 P.2d 916, 918 (1935):
The issue with which we are here confronted is founded on an erroneous
theory which has been advanced from time to time by counsel for some of the
ditch and irrigation companies and water users, to the effect that a water user who
has acquired his right through “sale, rental or distribution” from a ditch or canal
company or an irrigation or drainage district acquires the rights of an appropriator
of the water and is entitled to the same consideration in all litigation involving the
original  appropriation  to  which  the  canal  or  ditch  company or  irrigation  or
drainage district is entitled.   Such is not the law and it has never been so held or
recognized in this state.
3 The statute is now codified as Idaho Code § 43-316.
9




Neither the court‟s findings of fact nor its decree mention the allocation of conveyance
loss with respect to the distribution of the supplemental storage water to the water users in the
Irrigation District.    The district court did not err in holding that the                              1936 decree did not
determine that conveyance loss must be apportioned by river reach.
B.  Did the District Court Err in Ruling that the Universal Shrink Method of Apportioning
Conveyance Losses is Lawful?
The Plaintiffs alleged that Rule  40.03.b required the Irrigation District to apportion
conveyance loss by river reach.   The district court held that the Rule did not apply to the District
in the distribution of its water.   The Rule required the Department‟s watermaster to proportion
conveyance losses in the natural channel between natural flow and impounded water and to do so
on a river reach basis.   When there is both natural flow and storage water in the river, the
watermaster must determine the relative amounts of natural flow and storage water at the various
diversion points on the river.   If that determination is not made, an appropriator of the natural
flow may receive some of the Irrigation District‟s storage water, and conversely the District may
receive natural flow water to which a downstream appropriator is entitled.
The Irrigation District is not required to allocate conveyance loss among its water users in
the same manner in which the Department must account for conveyance losses in order to
administer water in the river.   The various water users in the District are not appropriators of the
storage water.   Nampa & Meridian Irr. Dist. v. Barclay, 56 Idaho 13, 18, 47 P.2d 916, 918
(1935).    The District is the appropriator of that water.    Id.    The Directors have the power
“to establish equitable by-laws, rules and regulations for the distribution and use of water among
the owners of such land [within the District], as may be necessary and just to secure the just and
proper distribution of the same.”  I.C. § 43-304.  We have not previously addressed the allocation
of conveyance loss among water users in an irrigation district.   The universal shrink method is
consistent with our prior opinions regarding the operation of an irrigation district.
In Colburn v. Wilson, 24 Idaho 94, 132 P. 579 (1913), the irrigation district‟s main canal
branched into two canals:   the “north canal” on the north side of a river and the “south canal” on
the south side.   The north canal irrigated about 18,000 acres, the south canal irrigated about
4,800 acres, and neither canal irrigated lands on the opposite side of the river.   In 1912, the
expense of maintaining the north canal was $3,068.50, and the expense of maintaining the south
10




canal was $1,937.50.   An owner of land irrigated from the south canal brought an action seeking
to require the board of directors of the irrigation district to assess the expense of maintaining the
north canal solely to the lands irrigated from that canal and to assess the expense of maintaining
the south canal solely to lands irrigated from it.   The board refused to do so, and the landowner
appealed.
The  statute  governing  assessments  for  maintenance  and  operation  of  an  irrigation
district‟s waterworks required  “that such assessments shall be proportionate to the benefits
received by such lands growing out of the maintenance and operations of said works.”                     24 Idaho
at 102, 132 P. at 581.   The plaintiff contended that he did not receive any benefit from the
maintenance and operation of the north canal, and therefore his assessment should not include
any portion of that expense.  In rejecting that argument, this Court reasoned as follows:
[I]t was the intention of the Legislature that all lands within an irrigation district
available for and subject to irrigation, under the system constructed, must be
considered as a whole, and that the assessment shall be spread upon all the lands
of the district which are or may be supplied with water by such district, under said
system.
It is apparent from the creation of the district and the construction of the
system and the maintenance of such system, that there can be no benefit to the
land from the maintaining and operating of such irrigation system, other than the
benefit arising from the supplying of the needed water.   The supplying of the
water is the benefit sought by the provision of the act and the whole benefit is the
water supplied, and the incident of such supply of water is the expenditure.
The benefit of the water supplied to the owners of land within the district,
as provided by sec.  2407, means such benefits as contribute to promote the
prosperity of the district, and add value to the property of the respective owners of
the entire district, and such improvement of land in any portion of the district
adds to and increases the value of the lands of the entire district as the water is
applied and devoted to a beneficial use by the owners through said system.
24 Idaho at 103, 132 P. at 581-82 (emphases added).
In Gedney v. Snake River Irrigation District, 61 Idaho 605, 104 P.2d 909 (1940), an
irrigation district pumped water out of the river into three canals for delivery to the water users in
the district.   The lower canal was 50 feet above the river, the middle canal was 100 feet above
the river, and the upper canal was 150 feet above the river.  The directors of the irrigation district
decided to assess its water users for the varying cost of pumping.   The pumping charges were
fixed at $1.70 per acre for those receiving water from the lower canal, $4.20 per acre for those
11




receiving water from the middle canal, and $8.03 per acre for those receiving water from the
upper canal.   A landowner receiving water from the upper canal sued and prevailed in the trial
court, and the district directors appealed.   On appeal, this Court stated that there was nothing in
the law giving the directors of an irrigation district the power “to make an additional charge
against lands embraced therein, because the cost of conducting water to them is greater than it is
to conduct water to other lands within the district.”                                                  61 Idaho at 610, 104 P.2d at 911.   To
illustrate that point, this Court gave the following example:
The cost of delivering water to land situated near the lower end of a canal, fifty
miles long, is, of course, greater than is the cost of delivering a like quantity of
water to land near the upper end thereof, while the benefits to each tract, per acre,
is the same.   To permit a board of directors to charge tolls to each tract of land,
sufficient to pay the cost of delivery of water from the source of supply to it,
individually,  violates  the  principles  of  cooperation  on  which  our  irrigation
district  laws  are  based  and  would  render  valueless  all  land  intended  to  be
benefited, except that situated near the head of the canal.
61 Idaho at 610-11, 104 P.2d at 911 (emphasis added).  This Court concluded by stating that “the
lands irrigable under the system within the district should be considered as a whole, and such
lands must be assessed, for the maintenance and operation of the water system, at the same rate,
where the benefits, that is, the water needed and received, are the same.”                             61 Idaho at 611, 104
P.2d at 911.
In Niday v. Barker, 16 Idaho 73, 101 P. 254 (1909), a water user in an irrigation district
sued to require the district to deliver water to him.   The district contended that there was an
enormous amount of seepage and evaporation in the five miles of lateral that delivered water to
the water user‟s farm and that keeping the lateral in sufficient repair to deliver the water would
be an enormous cost, greatly exceeding the rental charges paid by the water user.   In rejecting
that argument, this Court stated:
This is not a sufficient reason for refusing to deliver the water.    We do not
apprehend that rental charges for the use of water from irrigating canals are
based upon the actual expenses of carriage and delivery to each individual
consumer.  If that were true, the rate charged to the land owner at the upper end of
the main canal would be comparatively insignificant, while the rate charged to the
man who lives at the extreme end of the canal, fifty or sixty miles from its intake,
would be so enormous and exorbitant as to prohibit its use and make agricultural
pursuits an impossibility with him.
16 Idaho at 80, 101 P. at 256 (emphasis added).
12




The above cases show that an irrigation district cannot vary the assessments to the
landowners within the district based upon the cost of delivering them water.4  Conveyance loss is
simply a cost of delivering water to the water users in the Irrigation District.   Apportioning
conveyance loss by river reach would result in some water users paying a higher proportion of
that cost than others.   The district court did not err in ordering that the conveyance loss be
apportioned under the universal shrink method so that all water users receiving the storage water
bear their proportionate share of the conveyance loss.
The Plaintiffs contend that the district court erred because “the statutes specify there can
be no „conflict‟ between [the Department‟s] jurisdiction to administer by rule and the District‟s
jurisdiction to allocate water amongst its users under Title 43.”   In support of that argument, the
Plaintiffs rely upon Idaho Code § 43-1503, which states:
None of the provisions of this title [governing irrigation districts] shall be
construed as repealing or in anywise modifying the provisions of any other act
relating  to  the  subject  of  irrigation  or  water  distribution.    Nothing  herein
contained shall be deemed to authorize any person or persons to divert the waters
of any river, creek, stream, canal or ditch from its channel, to the detriment of any
person or persons having any interest in such river, creek, stream, canal or ditch,
or  the  water  therein,  unless  previous  compensation  be  ascertained  and  paid
therefor, under the laws of this state authorizing the taking of private property for
public uses.
This statute has nothing to do with the interpretation of Rule 40.03.b.   Idaho Code § 43-304
grants the directors of an irrigation district the power “to establish equitable by-laws, rules and
regulations for the distribution and use of water among the owners of such land, as may be
necessary and just to secure the just and proper distribution of the same.”  The Plaintiffs have not
pointed to any other statute that they contend conflicts with this statute.  The district court did not
hold that the power granted to the Directors by Idaho Code § 43-304 “repeal[ed] or in anywise
modif[ied]  the  provisions  of  any  other  act  relating  to  the  subject  of  irrigation  or  water
distribution.”
In their opening brief, the Plaintiffs also “contend the District acted beyond the bounds of
that discretion . . . by failing to exercise a reasonable and equitable distribution plan.”   The
4 In this case, there is no contention that there was an enlargement or extension of the Irrigation District so that there
would be more than one class of lands entitled to receive the storage water.   See Bradshaw v. Milner Low Lift Irr.
Dist., 85 Idaho 528, 381 P.2d 440 (1963).
13




Plaintiffs do not support this contention with any argument or authority.                              “We will not consider
issues cited on appeal that are not supported by propositions of law, authority, or argument.”
Callaghan v. Callaghan, 142 Idaho 185, 190, 125 P.3d 1061, 1066 (2005).
C.   Are either the Plaintiffs, the Intervenors, or the Irrigation District and its Directors
Entitled to an Award of Attorney Fees on Appeal?
The Plaintiffs seek an award of attorney fees under Idaho Code § 12-117.   Because they
have not prevailed on the appeal, they are not entitled to an award of attorney fees under that
statute.  Fenwick v. Idaho Dept. of Lands, 144 Idaho 318, 324, 160 P.3d 757, 763 (2007).
The Intervenors seek an award of attorney fees under Idaho Code § 12-121.   Under that
statute, attorney fees will be awarded to a prevailing respondent when this Court is left with the
abiding belief that the appeal was brought or pursued frivolously, unreasonably or without
foundation.   Downey v. Vavold, 144 Idaho 592, 596, 166 P.3d 382, 386 (2007).   We have not
before addressed the allocation of conveyance loss among water users in an irrigation district,
and therefore decline to award attorney fees under section 12-121.
The District and its Directors seek an award of attorney fees under both sections 12-117
and 12-121.   We will award attorney fees on appeal under section 12-117 “if we find that the
losing party acted without a reasonable basis in law or in fact.”   Marcia T. Turner, L.L.C. v. City
of Twin Falls, 144 Idaho 203, 212, 159 P.3d 840, 849 (2007).   We do not find that this appeal is
so lacking in merit that attorney fees should be awarded under this statute.   With respect to the
District‟s and its Directors‟ request for attorney fees under section 12-121, that request is denied
for the same reason it was denied to the Intervenors under that statute.
IV.  CONCLUSION
The judgment of the district court is affirmed.    We award costs on appeal, but not
attorney fees, to the respondents.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
14

Download nelson-20v-20big-20lost-20river.pdf

Idaho Law