State, Dept. of Parks v. IDAHO DEPT, WATER ADMIN.
96 Idaho 440, 5 Envtl. L. Rep. (Envtl. Law Inst.) 20508, 530 P.2d 924 (1974)
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Rule of Law:
A state agency may appropriate unappropriated natural waters for non-consumptive beneficial uses such as scenic preservation and recreation. Furthermore, a valid appropriative water right in Idaho does not always constitutionally require an actual physical diversion of water, especially when a specific legislative act directs such a non-consumptive appropriation.
Facts:
- The Malad Canyon in Gooding County, Idaho, contains unappropriated natural waters, arising in part from springs.
- In 1971, the Idaho Legislature enacted I.C. § 67-4307, which directed the Idaho Department of Parks to appropriate certain unappropriated natural waters of the Malad Canyon.
- The statute mandated that these waters be held in trust for the people of Idaho for the purposes of scenic beauty and recreation.
- I.C. § 67-4307 explicitly declared that the preservation of water for scenic beauty and recreational uses constitutes a beneficial use of such water.
- The statute further stipulated that the public use of these specific waters holds a greater priority than any other use, with the sole exception of domestic consumption.
- Additionally, the unappropriated state land between the high-water marks on either bank of these waters was designated to be preserved in its natural condition as a recreational site for Idaho citizens.
Procedural Posture:
- In 1971, the Idaho Legislature enacted I.C. § 67-4307, directing the Idaho Department of Parks to appropriate Malad Canyon waters for scenic beauty and recreation.
- The Idaho Department of Parks filed an application for a permit to appropriate the waters specified by the statute.
- The Idaho Water Users Association, Twin Falls Canal Company, and North Side Canal Company (collectively, "Water Users") protested the application under I.C. § 42-203.
- The Idaho Department of Water Administration (DWA) issued a decision on July 6, 1972, holding that a state agency can lawfully appropriate waters and that recreation and aesthetic uses are beneficial uses, but found that a valid appropriation in Idaho requires a physical diversion. DWA consequently refused to issue the permit to the Department of Parks.
- The Department of Parks appealed DWA's decision regarding the necessity of a physical diversion to the district court.
- The Water Users cross-appealed DWA's decision regarding the constitutionality of a state agency appropriating water and the beneficial nature of recreation/aesthetic uses to the district court.
- The district court granted the Department of Parks' motion for summary judgment on the physical diversion issue, holding that a valid appropriation can be effected without an actual physical diversion.
- The district court denied the Department of Water Administration's and Water Users' motions for summary judgment on the issues of a state agency's right to appropriate and whether recreation and aesthetic uses are beneficial.
- The Department of Water Administration appealed the decision of the district court, and the Water Users cross-appealed to the Idaho Supreme Court.
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Issue:
Does Idaho law, specifically Article 15, section 3 of the Idaho Constitution, permit a state agency to appropriate unappropriated natural waters for non-consumptive beneficial uses such as scenic beauty and recreation without an actual physical diversion of the water?
Opinions:
Majority - Shepard, Chief Justice
Yes, Idaho law permits a state agency to appropriate unappropriated natural waters for non-consumptive beneficial uses such as scenic beauty and recreation without an actual physical diversion, particularly when directed by a specific legislative act. The court held that a state agency can constitutionally appropriate unappropriated waters. Article 15, section 3 of the Idaho Constitution, which states the right to appropriate "shall never be denied," does not limit this right exclusively to private parties; state agencies routinely appropriate water. The court largely overruled previous dictum in State Water Conservation Board v. Enking as inapplicable to the present legislative scheme, which merely authorizes a non-consumptive appropriation in trust for the public, not a monopolization. The court affirmed that preservation of aesthetic values and recreational opportunities is a "beneficial use" cognizable under the Idaho Constitution. While Article 15, section 3 lists certain uses, it does not state these are exclusive. The legislature explicitly declared these uses beneficial in I.C. § 67-4307, a declaration consistent with evolving societal values and similar legislation in other Western states. Finally, the court held that an actual physical diversion is not constitutionally required for an appropriation. Although prior Idaho statutory schemes generally contemplated physical diversion, the specific language of I.C. § 67-4307, directing Parks "to appropriate" (rather than "divert and appropriate") and declaring preservation a beneficial use, clearly indicated legislative intent to dispense with a diversion requirement. In cases of conflict between general and specific statutes, the specific statute controls, and the latest legislative expression prevails, thus upholding the intent of I.C. § 67-4307 without nullifying its purpose.
Concurring - Bakes, Justice
Yes, Justice Bakes concurred specially in the result, agreeing that the preservation of Malad Canyon waters in a natural state is a beneficial use that may be appropriated without diversion. He argued that Article 15, section 3 of the Idaho Constitution's enumeration of beneficial uses (domestic, mining, agricultural, manufacturing) is not exclusive. He cited historical (e.g., firefighting, railroad uses) and modern (e.g., public swimming pools) examples of beneficial water uses not explicitly listed in the Constitution, contending that the concept of "beneficial use" must evolve with changing conditions and include a requirement of reasonableness. He found the legislative classification of scenic and recreational uses for Malad Canyon as beneficial to be reasonable under current circumstances, especially for a non-consumptive use where water demands are not so severe as to render it unreasonable. Justice Bakes further agreed that the Constitution does not require a physical diversion for a valid appropriation. He interpreted the word "divert" in Article 15, section 3, not as a constitutional prerequisite for all appropriations, but as a recognition of the supremacy of the prior appropriation doctrine over the riparian system, guaranteeing the right to remove and consume waters from the stream. Where a beneficial use can be achieved without diversion, and a specific statute like I.C. § 67-4307 dispenses with it, no practical reason exists to require it. He concluded that the specific statute's intent to dispense with diversion should control over general appropriation statutes.
Dissenting - McQuade, Justice
No, Justice McQuade dissented, arguing that a valid appropriative water right cannot be created in the absence of an actual physical diversion of the water. He asserted that a diversion is a general requirement for perfecting water rights by appropriation, citing recognized treatises and case law. Justice McQuade emphasized the conjunctive language in Article 15, section 3 of the Idaho Constitution, which states the right to "divert and appropriate," suggesting that both elements are necessary. He contended that the legislature, in enacting I.C. § 67-4307, did not intend to abrogate the long-standing requirement of physical diversion, noting that I.C. § 42-103, amended in the same year, made compliance with statutory permit procedures (which encompass physical diversion) mandatory. He further disagreed with the majority's interpretation of Glenn Dale Ranches, Inc. v. Shaub, arguing that the case relied on the Idaho Constitution to establish the diversion requirement, not merely statutory provisions.
Dissenting - McFadden, Justice
No, Justice McFadden dissented, contending that the so-called "appropriation" authorized by I.C. § 67-4307 constitutes an unconstitutional denial of the right to appropriate unappropriated waters. He argued that the state, acting in its sovereign capacity, already holds title to public waters "in trust for the people" for public beneficial uses like recreation and scenic beauty. Therefore, the state cannot "acquire" (appropriate) a right it already possesses. Justice McFadden viewed the statutory directive not as a true appropriation, but as an unauthorized "reservation" of water to prevent its appropriation for other purposes, citing legal scholarship. He highlighted that Idaho's Constitution (Article 15, section 3) explicitly allows for denials of appropriation only for "power purposes," unlike constitutions in some other states that permit denial based on "public interest." To allow the state to reserve water for non-proprietary, non-power purposes would deny private parties their constitutional right to appropriate. While acknowledging the importance of scenic beauty and recreation, he asserted that their impact should be considered when determining if a proposed private use is "beneficial" on a case-by-case basis, rather than as an excuse to deny all future appropriations by reserving water.
Analysis:
This landmark Idaho Supreme Court decision significantly expanded the traditional understanding of "beneficial use" in prior appropriation doctrine, moving beyond consumptive uses to include non-consumptive in-stream values. By affirming that state agencies can appropriate water for scenic preservation and recreation, and that physical diversion is not a constitutional prerequisite, the ruling established a precedent for balancing economic development interests with environmental and public recreational needs. This case provides a critical legal framework for how states with similar water rights systems can protect natural waterways and their aesthetic qualities, potentially influencing the development of in-stream flow laws in other western states. It underscores the judiciary's role in interpreting constitutional provisions to adapt to evolving societal values while adhering to foundational legal principles.
