SRBA DECISIONS
INDEX
OCTOBER 1995 - APRIL 1999


    Subject                                            Case Name                                                        Number                 Date
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 -A-

Abandonment

--- Forfeiture or abandonment, must be proved by Order Granting Summary Judgment (Bilyeu) 34-02395 04/30/96 clear and convincing evidence once prima facie weight of Director's Report rebutted --- Forfeiture or abandonment, must be proved by Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 clear and convincing evidence once prima Fact and Conclusions of Law (Bilyeu) 34-00606 facie weight of Director's Report is rebutted --- Filling of ditches, drilling well, and long time Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 nonuse is "clear and convincing" evidence of Fact and Conclusions of Law (Bilyeu) 34-00606 abandonment --- Advertisement of property as, "without water Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 rights is not unequivocal evidence of Fact and Conclusions of Law (Bilyeu) 34-00606 abandonment

Accomplished Transfer

--- Fact that the number of acres within the Findings of Fact, Conclusions of Law and Order to Submit 36-04074 02/12/97 original place of use has changed does not Special Master's Recommendations (Haemmerle) 36-04148A mean that an accomplished transfer has 36-04148B taken place

Administrative Order 1 (AO1)

(See also "SRBA Procedure Rulings") --- Section 4.e., Late objections will be addressed Order Granting Motion to File Late Objections (Dolan) 36-02338 et al. 03/24/97 in same manner as late claims under IRCP 55(c) Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 --- Section 9.f Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Section 9.f, Failure to file a Motion to Alter or Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Amend in individual subcases after consolidation Permissive Appeal (Haemmerle) is reversed is waiver of right to challenge those subcases. --- Section 11g General provisions do not apply to water right recommended 34-00322A 10/06/95 as not decreed (Bilyeu) Section 13(a) - Challenge to a special master's report & Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 recommendation is made by Motion to Alter or Amend --- Section 13(b) - Bars, as a "second" motion to alter or amend, Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 motion filed on "amended" special master's Motions to Alter or Amend (Dolan) report Section 13(e) - Motions to Alter or Amend are expressly Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 governed by IRCP 59(e), not IRCP 53(e)(2)

Adjudication

-- Nature of proceeding - The SRBA is a judicial proceeding, not Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 03/03/99 an administrative proceeding - SRBA provides a "single opportunity" for Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 03/03/99 parties to appear & present evidence. --- Private adjudications, Neither court nor IDWR Findings of Fact and Conclusions of Law (Haemmerle) 36-00064B 06/19/98 is bound by decrees entered in private adjudications if facts establish amount different than original decree.

Administrative Rules

Constitutionality addressed in SRBA Order Denying Motion to Alter or Amend; Order Denying 36-02708 et al. 01/27/99 Motion to File Late Objections (Haemmerle).

Affidavits

--- Alter or Amend, will not be considered on Order Denying Motion to Alter or Amend; Order Denying 36-02708 et al. 01/27/99 motion to, Motion to File Late Objections --- Fact statement will not be stricken for failure Order on Motions for Summary Judgment (Dolan) 35-12939 et al. 08/10/98 to comply with IRCP 56(e) rule on affidavits when facts not offered as an affidavit --- Filing, must be "filed" with the court, affidavits Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 attached to briefs, but not "filed" will not be (Haemmerle) considered. --- Former Testimony, not admissible unless Order on Reconsideration of Motions to Strike Affidavits and 36-00048A et al. 07/08/96 declarant is unavailable Motions to File Late Responses (Haemmerle) --- Legal Conclusions, Opinions that only state Order Granting Summary Judgment, In Part (Bilyeu) 34-11447 et al. 10/16/96 legal conclusions are inadmissible --- Legal Conclusions, Opinions that only state Order Granting Summary Judgment, In Part (Bilyeu) 34-12639 07/02/97 legal conclusions are inadmissible --- Personal knowledge, Affiants lacked personal Order on Reconsideration of Motions to Strike Affidavits and 36-00048A et al. 07/08/96 knowledge of the contents of Director's Motions to File Late Responses (Haemmerle) Reports --- Studies, inadmissible hearsay unless affiant Order on Reconsideration of Motions to Strike Affidavits and 36-00048A et al. 07/08/96 is qualified expert Motions to File Late Responses (Haemmerle)

Amended Claim

--- Parties may not amend claims through objection Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 & response procedure, must filed amended claim (Haemmerle)

Amicus Curiae

--- Amicus curiae serves as an impartial adviser to Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 the court and is not a party; it cannot conduct Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 discovery, engage in motion practice, or reject a settlement; takes case as it finds it.

Appellate Review

--- Decreeing water rights is not a matter of Special Master's Report and Recommendation on Basin- 91-00005B 06/28/96 appellate review Wide Issue 5B (Bilyeu)

Appropriation

--- Exclusivity, Claimant does not have to have Order on Partial Summary Judgment (Haemmerle) 57-11124 et al. 09/23/96 exclusive control over source of water in order to perfect a water right Order on Motion to Alter or Amend; Order on Summary Judgment; 57-11124 et al. 03/23/97 and Order on Motion to Withdraw Admissions (Haemmerle) --- Exempt from exercise according to priority date Special Master's Report and Recommendation; Findings of 34-02493 03/25/98 Fact and Conclusions of Law (Bilyeu) --- Full appropriation of a water source does not Order on Motions to Alter or Amend; Order on Motion for 57-04028 06/26/97 preclude subsequent appropriations of Permissive Appeal (Haemmerle). appropriated water during times it is unused by original appropriator. --- Intent to appropriate water, Acquisition of Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 land for wildlife refuge by United States Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- "Intent to appropriate water," for wildlife Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 use is not satisfied by U.S.'s bare claim Wide Issue 12 (Haemmerle) of casual use by wildlife on grazing lands. --- "Intent to appropriate water," for wildlife use Special Master's Second Amended Recommendation 91-00012 08/12/96 is not satisfied by U.S.'s bare claim of RE: Basin-Wide Issue 12 (Haemmerle) casual use by wildlife on grazing lands. --- Possessory interest, an appropriator does not Order on Motion to Alter or Amend; Order on Summary Judgment; 57-11124 et al. 03/23/97 need to have a possessory interest in the and Order on Motion to Withdraw Admissions (Haemmerle) land where the water right is used in order to make a valid appropriation of that water. --- Private right, there is not federal prohibition Order on Motion to Alter or Amend; Order on Summary 57-11124 et al. 03/23/97 against private parties appropriating water Judgment; and Order on Motion to Withdraw Admissions on the public domain. (Haemmerle)

Appropriated Water

--- Further appropriation when not in use Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle).

Appurtenance

Public Lands .................................. Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Public Lands, in the absence of a conveyance, Order on Motion to Alter or Amend; Order on Summary 57-11124 et al. 03/23/97 private water perfected on federal lands cannot Judgment; and Order on Motion to Withdraw Admissions be transferred to subsequent owner under (Haemmerle) theory of appurtenance.

-B-

Basin-Wide Issues

--- 5A - General Provisions Special Master's Recommendation on Basin-Wide Issue 91-00005A 04/11/96 5A (Dolan) --- 5B - General Provisions Special Master's Report and Recommendation on Basin- 91-00005B 06/28/96 Wide Issue 5B (Bilyeu) --- 12 - Stockwater Claims Special Master's Amended Recommendation RE: 91-00012 06/14/96 Basin-Wide Issue 12 (Haemmerle)

Beneficial Use

--- Actual Beneficial Use, reduction of a water Second Amended Order on Summary Judgment (Haemmerle) 36-00003A et al. 09/13/96 right based upon, not allowed --- Actual Beneficial Use, is only relevant at the Order on Motions to Alter or Amend (Haemmerle) 36-00029B et al. 03/17/98 time water right is perfected, and if forfeiture, adverse possession, abandonment, or estoppel is is alleged --- Conveyance loss, water right used solely for Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/03/97 conveyance loss in delivery of other rights upheld Amended Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/10/97 --- Current use, relevant as to quantity only if Findings of Fact and Conclusions of Law (Haemmerle) 36-00064B 06/19/98 indicative or historic use, or as evidence of forfeiture, abandonment, or adverse use. --- Diversion, The Idaho Constitution does not Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 require actual diversion to perfect a water Master's Report and Recommendation (Hurlbutt) right --- Duty of water, party contesting water rights Order on Motions to Alter or Amend (Haemmerle) 36-00029B 03/17/98 reported in excess of 42-220 standard has burden of proof that use in excess of that standard is not beneficial. --- Extent of beneficial use determination is Findings of Fact, Conclusions of Law and Order to 36-04074 02/12/97 based upon use at the time the water right Submit Special Master's Recommendations 36-04148A was perfected, not the time of adjudication. (Haemmerle) 36-04148B --- Fish Propagation is a beneficial use of water Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A --- in situ beneficial use, So long as an Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 appropriator intends, and in fact makes use, Master's Report and Recommendation (Hurlbutt) of an in situ beneficial use, a constitutional water right can be claimed. --- "Other purposes," did not modify claimant's Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 right and therefore did not including fish 36-00135A propagation --- Ownership, U.S. need only own the land used Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 by wildlife, not the wildlife, for beneficial Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 use --- Reasonable beneficial use, determination as a Order Recommending Permissive Appeal of Determination 36-00003A et al. 10/15/96 basis for reducing quantity element in an That a Water Right is a Constitutional Property Right and adjudication. I.A.R. 12 Certification (Hurlbutt) --- Reasonable beneficial use, quantity of water Special Master's Report and Recommendation; Findings of 34-00060 et al. 11/28/97 right may not be reduced upon a reasonable Fact and Conclusions of Law (Bilyeu) beneficial use determination. --- Permittee, stockwater, (57-11124) --- Wildlife use is a beneficial use Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96

Burden of Proof

--- Alter or Amend, Once a subcase is settled, Order on Motions to Alter or Amend (Haemmerle) 36-00029B 03/17/98 burden shifts to the party filing a motion to alter or amend to submit evidence of any element different than that found in the SF5. --- Duty of water, party contesting water rights Order on Motions to Alter or Amend (Haemmerle) 36-00029B 03/17/98 reported in excess of 42-220 standard has burden of proof that use in excess of that standard is not beneficial. --- Forfeiture or abandonment, must be proved by Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 clear and convincing evidence once prima Fact and Conclusions of Law (Bilyeu) 34-00606 facie weight of Director's Report rebutted --- Resumption established by preponderance Special Master's Report and Recommendation 34-00182 02/12/98 of evidence Findings of Fact and Conclusions of Law (Bilyeu) 34-00381A 34-02379F

-C-

Call

--- IDWR has no authority to force mitigation in Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 02/24/98 lieu of delivery under a call (Haemmerle) --- IDWR has no authority to force mitigation in Supplemental Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 lieu of delivery under a call (Facility Volume) (Haemmerle)

Change in Use

--- No common law right to change in use Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A --- Director's Report recommendation does not Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 change the elements of a water right

Claim

--- Amendment, parties may not amend claims Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 through objection & response procedure, must (Haemmerle) file amended claim. Amendment not required before claimant Order Denying Motion to Alter or Amend; Order Denying 36-02708, et al. 01/27/99 can object. Motion to File Late Objections (Haemmerle) --- No claim, Special Master required to make Special Master's Report and Recommendation; Findings 34-13268A 02/18/97 recommendation even when objection is made of Fact and Conclusions of Law (Bilyeu) to water right for which no claim was filed

Collateral Estoppel

--- Decree cannot bind water rights acquired after Special Master's Report and Recommendation on 91-00005B 06/28/96 the date it is entered. Basin-Wide Issue 5B (Bilyeu) --- Opportunity to litigation, cannot apply to Special Master's Report and Recommendation on 91-00005B 06/28/96 claimants whose rights were perfected after Basin-Wide Issue 5B (Bilyeu) date of decree --- Party, Because IDWR is not a party in SRBA Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 collateral estoppel cannot be raised in one-party (Haemmerle) subcases, even if IDWR was party in prior decree --- Parties, Because U.S. was not a party to U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-11447 10/16/96 Decree, it rights were not determined in decree, and did not have full & fair opportunity to litigate priority issues in that Decree, it is not barred by collateral estoppel --- Parties, Because U.S. was not a party to U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-11581 et al. 10/17/96 Decree, it rights were not determined in decree, and did not have full & fair opportunity to litigate priority issues in that Decree, it is not barred by collateral estoppel --- Parties, Because U.S. was not a party to U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-12639 07/02/97 Decree, it rights were not determined in decree, and did not have full & fair opportunity to litigate priority issues in that Decree, it is not barred by collateral estoppel --- Privity, IDWR is not in privity with other Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 state agencies for purposes of collateral (Haemmerle) estoppel in the SRBA

Common law

--- Change in use, not common law right Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A

Conjunctive Management

Interconnection between surface and ground Special Master's Report and Recommendation 34-02315, et al. 02/12/99 water is law of the case in the SRBA Findings of Fact and Conclusions of Law (Bilyeu)

Constitutional Law

Administrative rules; SRBA has no Order Denying Motion to Alter or Amend; Order Denying 36-02708, et al. 01/27/99 jurisdiction to consider constitutionality Motion to File Late Objections (Haemmerle). Due Process, Due process in the SRBA is Order Denying Motion to Alter or Amend; Order Denying 36-02708, et al. 01/27/99 satisfied by the Docket Sheet procedure Motion to File Late Objections (Haemmerle).

Consumptive Use

--- De minimis claims, annual volume of Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 consumptive use need not be decreed Wide Issue 12 (Haemmerle) --- De minimis claims, annual volume of Special Master's Second Amended Recommendation 91-00012 08/12/96 consumptive use need not be decreed RE: Basin-Wide Issue 12 (Haemmerle) --- fish propagation is not a consumptive use Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 --- fish propagation is not a consumptive use Supplemental Findings of Fact and Conclusions of Law 36-02048 07/31/98 (Facility Volume) (Haemmerle) --- Expansion of fish propagation facility without Supplemental Findings of Fact and Conclusions of Law 36-02048 07/31/98 increase in rate of diversion does not, as a (Facility Volume) (Haemmerle) matter of law, require a new water right --- Jurisdiction to decree as a rebuttable Order on Summary Judgment (Haemmerle) 36-00003A 01/22/97 presumption in subsequent transfer proceedings

Conveyance loss

--- Full conveyance loss, Although shared with Amended Findings of Fact and Conclusions of Law (Haemmerle) 36-00110C 05/19/98 other rights on ditch, decreed conveyance loss 36-00111C is that amount necessary to deliver single right, independent of all other rights on ditch 36-00135A --- Water right claimed solely as conveyance loss Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/03/97 in the delivery of other water rights is upheld Amended Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/10/97

Conveyance of water right

--- Public domain, failure to properly convey water Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 right on public domain results in loss of Permissive Appeal (Haemmerle). priority date. --- Public domain, failure to properly convey water Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 right on public domain results in loss of (Haemmerle). priority date. --- sale; water right sold, then same water right Special Master's Report (Haemmerle) 57-10487 et al. 04/22/98 number claimed with new priority date one day after date of sale. --- Public domain, failure to properly convey water Findings of Fact & Conclusions of Law (Haemmerle) 57-04028 et al. 07/24/97 right on public domain results in loss of priority date --- Public domain, failure to properly convey water Special Master's Report (Haemmerle) 57-10487 et al. 04/22/98 right on public domain results in loss of priority date --- Unadjudicated rights to "excess," "high," or Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/03/97 "surplus" flows not conveyed by contract that only addresses adjudicated flows Amended Findings of Fact and Conclusions of Law 57-10922 et al. 11/10/97 (Haemmerle)

Corporation

-D-

Decrees

--- Collateral Attack, attempt based upon "better" Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 evidence" to reevaluate rights, or elements of (Haemmerle) rights, determined in prior decree is a collateral attack on prior decree --- Prior Decrees, IDWR is bound to accept as Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 conclusive proof of nature of water right (Haemmerle) --- Prior Decrees, increasing amount of water Findings of Fact and Conclusions of Law (Haemmerle) 36-00064B 06/19/98 decreed over that granted in a prior private adjudication --- Remarks, Silkey v. Tiegs standard adopted for Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 remarks necessary for "definition" and Wide Issue 12 (Haemmerle) "administration" of water rights --- Remarks, Silkey v. Tiegs standard adopted for Special Master's Second Amended Recommendation 91-00012 08/12/96 remarks necessary for "definition" and RE: Basin-wide Issue 12 (Haemmerle) "administration" of water rights --- Remarks, combined usage remark is not necessary Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 when statute limits de minimis right to amount Wide Issue 12 (Haemmerle) beneficially used. --- Remarks, combined usage remark is not necessary Special Master's Second Amended Recommendation 91-00012 06/13/96 when statute limits de minimis right to amount RE: Basin-Wide Issue 12 (Haemmerle) beneficially used. --- Remarks, cannot be used to redefine a licensed Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 02/24/98 right, but may be inserted to administer or clarify a right --- Remarks, place of use, it is common to have a Order on Motions to Alter or Amend; Order 57-04028 et al 06/26/97 remark outlining use of a water right in for Permissive Appeal (Haemmerle) conjunction with other water rights at the same place of use. --- Remarks, total conveyance loss included in Amended Findings of Fact and Conclusions of Law (Haemmerle) 36-00110C 05/19/98 amount of each right with remark that such 36-00111C loss is to be shared among all rights on ditch --- Rules of Interpretation Special Master's Recommendation on Basin-Wide Issue 91-00005A 04/11/96 5A (Haemmerle)

Definitions

--- "De minimis" Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Wide Issue 12 (Haemmerle) --- "De minimis" Special Master's Second Amended Recommendation 91-00012 08/12/96 RE: Basin-Wide Issue 12 (Haemmerle) --- "Livestock" Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Wide Issue 12 (Haemmerle) --- "Livestock" Special Master's Second Amended Recommendation 91-00012 08/12/96 RE: Basin-Wide Issue 12 (Haemmerle) --- "Municipal use" involves a water right used by Special Master's Report - Findings of Fact; Conclusions 34-10030 04/08/97 a municipality for the benefit of its of Law (Bilyeu) inhabitants. -- "Stock," all animals kept on a farm Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Wide Issue 12 (Haemmerle) -- "Stock," all animals kept on a farm Special Master's Second Amended Recommendation 91-00012 08/12/96 RE: Basin-Wide Issue 12 (Haemmerle)

Developed Water

--- Use outside of prior appropriation doctrine Special Master's Report and Recommendation; Findings of 34-02493 03/25/98 Fact and Conclusions of Law (Bilyeu)

Director's Report

--- Amended Director's Report, supersedes Special Master's Report and Recommendation, Findings of 34-07061A 11/20/97 original report Fact and Conclusions of Law (Bilyeu) 34-07061B --- Amended Director's Report, SF5 signed by Special Master's Report and Recommendation; Findings of 34-07232 01/10/97 IDWR is treated as an amended director's Fact and Conclusions of Law (Bilyeu) report and given prima facie weight --- Amended Director's Report does not carry Special Master's Report and Recommendation, Findings of 34-07061A 11/20/97 prima facie weight when IDWR declares it Fact and Conclusions of Law (Bilyeu) 34-07061B has no preference between original & amended report --- Analysis in Director's Report covers period Order Denying Motion to File Late Objections (Haemmerle) 36-02048, et al. 02/12/99 between establishment of right and date of Report. --- Change in use, The recommendation in a Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 Director's Report does not change the elements of a water right. --- Objections to use arising after the date of the Order Denying Motion to Alter or Amend; Order Denying 36-02708, et al. 01/27/99 Director's report should be raised in an Motion to File Late Objections (Haemmerle) independent action --- Presumption not rebutted if Objector fails to Order Granting Summary Judgment; Denying Motion to 34-12561 et al. 03/17/99 submit any evidence in support of objection by Remand; Denying Motion to Reconsider (Bilyeu) way of affidavits, depositions, or admissions. --- Presumption rebutted, record in Blue Lakes case Special Master's Report (Dolan) 36-02659 et al. 03/03/98 and testimony sufficient to overcome prima facie weight given Director's Report --- Presumptive effect, Cannot include time after Order Denying Motion to File Late Objections (Haemmerle) 36-07083 06/11/99 after date of Director's Report.

Diversion

--- Constitutional method, appropriation Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 without diversion Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Constitutional method, Idaho Constitution does Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 not require actual diversion to perfect water Master's Report and Recommendation (Hurlbutt) right. --- Creation of wildlife refuge as a diversion Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Dam as a diversion Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Operation of dam & lake level as a diversion Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 (issue withdrawn) Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Stock watering use under 42-1401A(12) is Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 limited to diversion rights Wide Issue 12 (Haemmerle) --- Stock watering use under 42-1401A(12) is Special Master's Second Amended Recommendation 91-00012 08/12/96 limited to diversion rights RE: Basin-Wide Issue 12 (Haemmerle) --- Division of a water right Special Master's Report, Findings of Fact and Conclusions 34-00148 et al. 08/14/96 of Law (Bilyeu)

Dual-based claims (see stockwater rights)

-E-

Elements of a water right

--- Either Director or Claimant must address and Special Master's Recommendation on Basin-Wide 91-00005A 04/11/96 establish each element of a water right Issue 5A( Haemmerle) --- Facility volume, is not necessary for the Preliminary Report & Recommendation and Order 36-02659 et al. 01/26/98 definition of fish propagation water rights (Dolan) --- Interim Administration, an order on interim Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 administration does not change the elements of a water right. --- Rotation, Informal rotation recognized as a Order Denying Motion in Limine (Bilyeu) 34-00074 05/02/96 legitimate irrigation practice 34-02464

Enlargement

--- Change in source from secondary to primary Special Master's Report and Recommendation 34-02315 et al. 02/12/99 is an enlargement. Findings of Fact and Conclusions of Law (Bilyeu). --- Change in source from secondary to primary Special Master's Report and Recommendation 34-00170 et al. 02/19/99 is an enlargement. Findings of Fact and Conclusions of Law (Bilyeu).

Estoppel

--- Director's Report, the fact that U.S. does not Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 own stock that grazes on public domain does Permissive Appeal (Haemmerle). not estop it from claiming water rights for public land grazing so long as presumption which attaches to Director's Report remains unrebutted. --- Judicial estoppel --- State did not obtain any judgment or Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 advantage as a result of U.S. obtaining (Haemmerle) partial decrees in test basins for stock water roghts with priority dates before 1934. --- Quasi-estoppel, may be asserted against an Order on Summary Judgment (Bilyeu) 34-10873 08/18/97 irrigation district as a governmental entity

Evidence

--- Abandonment, advertisement of property as, Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 "without water rights," is not unequivocal Fact and Conclusions of Law (Bilyeu) 34-00606 evidence of abandonment --- Abandonment, filling of ditches, drilling well, Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 and long time nonuse is "clear and convincing" Fact and Conclusions of Law (Bilyeu) 34-00606 evidence of abandonment --- Amended Director's report is not prima facie Special Master's Report and Recommendation, Findings of 34-07061A 11/20/97 evidence when IDWR states it has no preference Fact and Conclusions of Law (Bilyeu) 34-07061B between original & amended report --- Expert, reliability. Expert must be able to Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 testify that quantity is sufficient to grow a crop --- Expert witness reports, must pass Daubert Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 admissibility test. (Haemmerle) --- Expert, reliability determined under Daubert Order Granting Summary Judgment (Bilyeu) 34-02395 04/30/96 --- Expert - IDWR's expert testimony held to same Findings of Fact and Conclusions of Law 36-07201 et al. 09/24/98 standards as any other party (Facility Volume) (Haemmerle) --- Expert - Status as "water master" is Order Granting Summary Judgment (Bilyeu) 34-02395 04/30/96 insufficient to establish expertise in hydrology. --- Forfeiture or abandonment, must be proved by Order Granting Summary Judgment (Bilyeu) 34-02395 04/30/96 clear and convincing evidence once prima facie weight of Director's Report rebutted --- Forfeiture or abandonment, must be proved by Order Granting Summary Judgment (Bilyeu) 34-02395 04/30/96 clear and convincing evidence once prima facie weight of Director's Report rebutted --- Forfeiture or abandonment, must be proved by Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 clear and convincing evidence once prima Fact and Conclusions of Law (Bilyeu) 34-00606 facie weight of Director's Report rebutted --- Foundation, without knowledge of actual Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 irrigation practices or field testing, scientific and technical reliability of Hubble Method could not be determined --- Historical use, evidence based upon experience Special Master's Report and Recommendation; Findings 34-00060 et al. 11/28/97 and observation is persuasive even when of Fact and Conclusions of Law (Bilyeu) submitted in opposition to computer model. --- "Other use," under prior decree requires Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 foundation identifying use with particularity; (Haemmerle) summary judgment will not be granted for conclusory claims of "aesthetics" or "wildlife" --- Plan of operation for Big Lost River Irrigation Special Master's Report and Recommendation on 91-00005B 06/28/96 District was not admitted into evidence, in the Basin-Wide Issue 5B (Bilyeu) absence of evidentiary record that plan cannot be the basis for a general provision --- Prima Facie evidence, SF5 signed by every party Special Master's Report, Findings of Fact and Conclusions to the subcase of Law (Bilyeu) --- Prima Facie weight accorded to Director's Special Master's Report (Dolan) 36-02659 et al. 03/03/98 Report is overcome by record in Blue Lakes cases & testimony -- Special Master proceedings governed by Idaho Order on Reconsideration of Motions to Strike Affidavits 36-00048A et al. 07/08/96 Rules of Evidence and Motions to File Late Responses

Excess Water

--- Elements not defined Special Master's Recommendation on Basin-Wide Issue 91-00005A 04/11/96 5A (Haemmerle)

-F-

Facility Volume

--- Facility volume is not necessary for the Preliminary Report & Recommendation and Order 36-02659 et al. 01/26/98 definition of fish propagation water rights. (Dolan)

Failure to Appear

--- Water rights adjudicated as reported upon failure Special Master's Report (Haemmerle) 36-00097 et al. 02/24/98 of Claimants to appear at scheduled hearings.

Fish

--- Fish are not included in definitions of "livestock" Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 or "wildlife" 36-00135A

Fish propagation

--- Consumptive Use, is not a consumptive use Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A --- IDWR has not authority to regulate fish Supplemental Findings of Fact and Conclusions of Law 36-02048 07/31/98 production under fish propagation water rights (Facility Volume) (Haemmerle)

Forfeiture

--- Availability of water, Party challenging water Order Denying Motion to Alter or Amend (Facility Volume) 36-02048 et al. 10/7/98 right on the basis of forfeiture must establish (Haemmerle) availability of water sufficient to satisfy the extent of water right. --- Conservation easements, must be in effect at Special Master's Report and Recommendation; Findings of 34-00182 02/12/98 least five years before it will support a Fact and Conclusions of Law (Bilyeu) 34-00381A reduction in acreage 34-02379F --- Forfeiture or abandonment, must be proved by Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 clear and convincing evidence once prima Fact and Conclusions of Law (Bilyeu) 34-00606 facie weight of Director's Report rebutted --- Partial forfeiture not recognized under Idaho law Memorandum Decision on Basin-Wide Issue 10 91-00010 04/26/96 (Reversed at 130 Idaho 747, 947 P.2d 420 (1997) --- Partial resumption, since water rights may be Special Master's Report and Recommendation; Findings of 34-00182 02/12/98 partially forfeited, partial resumption may also Fact and Conclusions of Law (Bilyeu) 34-00381A occur (issue of first impression) 34-02379F --- Resumption, is an affirmative defense to Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 forfeiture Fact and Conclusions of Law (Bilyeu) 34-00606 Special Master's Report and Recommendation; Findings of 34-00182 02/12/98 Fact and Conclusions of Law (Bilyeu) 34-00381A 34-02379F --- Resumption, Intervening license alone, is Special Master's Report and Recommendation; Findings of 34-00182 02/12/98 insufficient to defeat resumption, must be Fact and Conclusions of Law (Bilyeu) 34-00381A proof of injury to another water right 34-02379F --- Resumption, proof of resumption must be of Special Master's Report and Recommendation; Findings of 34-00600 02/12/98 use occurring after the end of the statutory Fact and Conclusions of Law (Bilyeu) 34-00606 five year period of non-use for forfeiture

-G-

General Provisions

--- administrative rules addresses, thus no general Special Master's Report and Recommendation on Basin-Wide 91-00005B 06/28/96 provision required. Issue 5B (Bilyeu) --- must apply to "all" water rights in a basin Special Master's Recommendation on Basin-Wide Issue 5A 91-00005A 04/11/96 (Haemmerle) Special Master's Report and Recommendation on Basin-Wide 91-00005B 06/28/96 Issue 5B (Bilyeu) --- law of the case addresses, thus no general Special Master's Report and Recommendation on Basin-Wide 91-00005B 06/28/96 provision required. Issue 5B (Bilyeu) --- necessity, governed by test of Silkey v. Tiegs Special Master's Report and Recommendation on Basin-Wide 91-00005B 06/28/96 Issue 5B (Bilyeu) --- res judicata does not compel inclusion Special Master's Recommendation on Basin-Wide Issue 5A 91-00005A 04/11/96 (Haemmerle)

Good Cause

--- In filing a late response as "reliance" upon IDWR Order on Reconsideration of Motions to Strike Affidavits and 36-00048A et al. 07/08/96 to defend during original objection & response Motions to File Late Responses (Haemmerle) period

-H-

-I-

Idaho Code Sections

--- 42-113(2) Orders Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 (Haemmerle).

Idaho Constitution

--- Art. 11, Sec. 12 Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 (Haemmerle)

Idaho Rules of Civil Procedure (IRCP)

-- Rule 6(d) - Affidavits may not be submitted in support of Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 a motion to alter or amend under AO1 13(a) --- Rule 7(b)(3) -- Governs the filing of supporting memoranda Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 for Motions to Alter or Amend Motions to Alter or Amend (Dolan) --- Rule 11 -- Court will impose Rule 11 sanctions sua sponte Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 if new evidence is submitted by affidavit in support of motion to alter or amend --- Rule 15(a) -- Amendment allowed when Supreme Court Order Granting, in Part, U.S. Motion to Alter or Amend and 35-12939 09/23/99 reverses "law of the case" determination State of Idaho Motions to Amend Objections (Dolan) -- Rule 24 --- Permissive intervention - municipal rights Order Granting Motion to Participate (Bilyeu) 34-10030 06/08/95 --- Party who does not object or respond may Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 still be heard by Motion to Participate --- After expiration of the objection & response time, Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 the only way to enter a subcase is by a Motion Master's Report and Recommendation (Hurlbutt) to Participate under IRCP 24 --- Parties must show a specific interest in order to Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 intervene as a matter of right under IRCP 24(a) Master's Report and Recommendation (Hurlbutt) -- Rule 41 - Water right claim may be dismissed with Special Master's Report and Recommendation 34-00322A 10/06/95 prejudice by stipulation or court order Findings of Fact and Conclusions of Law -- Rule 53(e)(2) - Rule 6(d) allowing motion to be supported by an Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 affidavit, as incorporated into IRCP 53(e)(2) may not be used to support motion to alter or amend -- Rule 55(c) - Motion to file a late response is examined under Order on Reconsideration of Motions to Strike Affidavits 36-00048A et al. 07/08/96 the criteria of Rule 55(c) and Motions to File Late Responses (Haemmerle) -- Rule 59(e) - Motion to Alter or Amend under AO1 13(a) Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-03708 et al. 03/03/99 is expressly governed by IRCP 59(e) - Motion to Alter or Amend must be based upon Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 error of law or fact, it does not present an Motions to Alter or Amend (Dolan) opportunity to merely reargue decided issues

Idaho Rules of Evidence

--- Rule 106 - Former testimony otherwise inadmissible may Order on Reconsideration of Motions to Strike Affidavits 36-00048A et al. 07/08/96 be admitted to complete the record and Motions to File Late Responses (Haemmerle) --- Rule 702 - Methodology to establish "duty" of water for Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 irrigation must be scientifically and technically reliable to be admissible

Idaho Department of Water Resources (IDWR)

--- IDWR is part of the "state" as the word is used Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 in I.C. 42-220 (Facility Volume) (Haemmerle)

Injury

--- Changes, no injury to senior arises from changes Special Master's Report and Recommendation 34-00170 et al. 02/19/99 if senior right is protected by priority Findings of Fact and Conclusions of Law (Bilyeu) --- Deprivation, no injury to senior arises until there Special Master's Report and Recommendation 34-02315 et al. 02/12/99 is deprivation of his allotted amount. Findings of Fact and Conclusions of Law (Bilyeu) --- Deprivation, no injury to senior arises until there Special Master's Report and Recommendation 34-00170 et al. 02/19/99 is deprivation of his allotted amount. Findings of Fact and Conclusions of Law (Bilyeu) --- Director's Report, a Director's Report does not Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 change the elements of a water right for the purposes of triggering an "injury" analysis --- Drought, no injury to senior arises due to Special Master's Report and Recommendation 34-02315 et al. 02/12/99 failure to curtail junior rights during drought Findings of Fact and Conclusions of Law (Bilyeu) --- Interim Administration, A change from the Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 manner in which a water right is delivered under an order of interim administration does not trigger an "injury" analysis

Interim Administration

--- An order on interim administration does not Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 change the elements of a water right.

-J-

Judgment

-- Final. No matter before a special master Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 ever constitutes a final judgment -- Void Judgment, Provision allowing use of "excess" Special Master's Recommendation on Basin-Wide Issue 5A 91-00005A 04/11/96 water without a water right was void (Haemmerle)

Judicial Estoppel

--- State did not obtain any judgment or advantage Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 as a result of U.S. obtaining partial decrees in (Haemmerle) test basins for stock water rights with priority dates before 1934.

Judicial Notice

--- Basin Wide Issue No. 5, is law of the case as to Special Master's Report and Recommendation; Findings of 34-00182 02/12/98 general interconnectedness of water rights, but Fact and Conclusions of Law (Bilyeu) 34-00381A does not decide interconnectedness for calls, 34-02379F futile call doctrine, or injury on basis of judicial notice. -- Court cannot take judicial notice of claims that Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 have not yet been reported by the Director Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Prior decree, Court may not take judicial Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/03/97 notice of prior decrees Amended Findings of Fact and Conclusions of Law (Haemmerle) 57-10922 et al. 11/10/97 --- Subcase record, judicial notice of Order on Motions to Alter or Amend; Order on Motion for 55-04028 et al. 06/26/97 Permissive Appeal (Haemmerle).

Jurisdiction

--- Advisory opinions, court does not have Order on Summary Judgment (Haemmerle) 36-00003A 01/22/97 jurisdiction to adjudicate rebuttable presumption --- Primary jurisdiction, decreeing a rebuttable Order on Summary Judgment (Haemmerle) 36-00003A 01/22/97 presumption decides an administrative issue before the agency rules on the question --- SRBA has no jurisdiction to address Order Denying Motion to Alter or Amend; Order Denying 36-02708 et al. 01/27/99 constitutionality of administrative rules Motion to File Late Objections (Haemmerle). --- Rebuttable presumption, jurisdiction to decree Order on Summary Judgment (Haemmerle) 36-00003A 01/22/97

Justiciability

--- Rotation, Informal rotation recognized as a Order Denying Motion in Limine (Bilyeu) 34-00074 05/02/96 legitimate irrigation practice, question is non- 34-02464 justiciable.

-K-

-L-

Late Response, Motion

--- Considered under the same standard as that Order on Reconsideration of Motions to Strike Affidavits 36-00048A et al. 07/08/96 for Motion to Set Aside a Default under and Motions to File Late Responses (Haemmerle) IRCP 55(c).

Law of the Case

--- Interconnection between ground & surface Special Master's Report and Recommendation 34-02315 et al. 02/12/99 water is law of the case in the SRBA Findings of Fact and Conclusions of Law (Bilyeu) --- Memorandum Decision Re: Basin-Wide Special Master's Report and Recommendation; 34-00182 02/12/98 Issue 5 (April 26, 1996) has been followed Findings of Fact and Conclusions of Law (Bilyeu) 34-00381A as law of the case 34-02379F --- Reversal, When Supreme Court decision Order Granting, in Part, U.S. Motion to Alter or 35-12939 et al. 09/23/99 reverses "law of the case," PWR 107 Amend and State of Idaho Motions to Amend Objections (Dolan)

Licenses

--- Collateral attack, SRBA does not provide a Order Adopting Special Master's Report and 36-07092A 12/11/97 forum to revive lost challenges to licensing Recommendation (Hurlbutt) decisions. --- Collateral attack, any attempt to appeal a license Supplemental Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 in a subsequent judicial proceeding is a collateral (Facility Volume) (Haemmerle) attack on the license --- Collateral attack, any attempt to appeal a license Order Granting Motion to Alter or Amend; Amended Findings 36-08099 08/20/99 in a subsequent judicial proceeding is a collateral of Fact & Conclusions of Law and Recommendation (Haemmerle) attack on the license --- Duty to issue, IDWR's failure to issue a license In Re SRBA: Riley v. Rowan - Memorandum Decision 94-00012 08/28/97 for 12 year 10 months left a permitted water right (Hurlbutt) as personal property, rather than granting it the real property status to which it was entitled. --- Duty to issue, When IDWR breaches its duty to In Re SRBA: Riley v. Rowan - Memorandum Decision 94-00012 08/28/97 timely issue a water right and licensed issued (Hurlbutt) is consistent with permit, license is effective as of the date proof of beneficial use was submitted. --- Issue of whether injection of "reasonable Order Recommending Permissive Appeal of Determination 36-00003A et al. 10/16/99 beneficial use" into adjudication would render That a Water Right is a Constitutional Property Right and water rights mere licenses. I.A.R. 12 Certification (Hurlbutt) --- Mandatory licensing, break in title prior to Order on Motions to Alter or Amend; Order on Motion 57-04028 et al. 06/26/97 date mandatory licenses required only affects for Permissive Appeal (Haemmerle) priority date, while break in title after date of mandatory licensing results in loss of entire water right. --- Recondition or reallocate, SRBA is proceeding Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 et al. 02/24/98 to inventory, not recondition or reallocate (Haemmerle) licenses Findings of Fact, Conclusions of Law and Order to Submit 36-04074 02/12/97 Special Master's Recommendations (Haemmerle) 36-04148A 36-04148B --- Recondition or reallocate, SRBA is proceeding Supplemental Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 to inventory, not recondition or reallocate (Facility Volume) (Haemmerle) licenses

Livestock

(see also "stock," and "stockwater") --- Fish are not included in definition of "livestock" Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A

Loss of Water Right

--- In the absence of abandonment, forfeiture, Special Master's Report (Dolan) 36-000027 04/30/97 adverse possession, or estoppel, IDWR cannot deny claim by combining with another right

-M-

Mitigation

--- IDWR has no authority to force mitigation in Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 02/24/98 lieu of delivery under a call (Haemmerle)

Motion, Alter or Amend

--- Affidavits, will not be considered Order Denying Motion to Alter to Amend; Order Denying 36-02708 et al. 01/27/99 Motion to File Late Objections (Haemmerle). --- Briefs and supporting documents need not be Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 filed with motion to alter or amend Motions to Alter or Amend (Dolan) --- Docket Sheet procedure does not apply to Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 motions to alter or amend Motions to Alter or Amend (Dolan) --- Issues raised in brief, but not Order Denying Motion To Alter or Amend; Order Denying 36-02708 et al. 01/27/99 included in motion will not be considered Motion to File Late Objections (Haemmerle). --- Addressed to status of the case as it existed Order Denying Rule 11 Motion for Sanctions (Haemmerle). 36-02708 et al. 03/03/99 when court rendered decision upon which judgment is based. --- Purpose, to correct errors of both fact and Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 law that occurred in proceedings --- Reconsideration, Motion to Alter or Amend is Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 treated as a Motion for Reconsideration under Permissive Appeal (Haemmerle) IRCP 11(a)(2) --- Second motion, motion to alter or amend an Order Denying North Snake Ground Water District's 36-02356 et al. 07/09/98 "amended" special master's report is barred by Motions to Alter or Amend (Dolan) AO1 13(b), when attempting to resurrect issue decided in original report

Motion, to Consolidate

--- Denied in order to provide complete record for Order on Motions for Summary Judgment 35-12939 et al. 08/10/98 each subcase, eliminating potential for extra (Dolan) labor and time by SRBA court staff in the event single subcase is settled or appealed --- Reversal of Consolidation, Motion to Alter or Order on Motions to Alter or Amend; Order on 57-04028 et al. 06/26/97 Amend must be filed in each individual subcase Motion for Permissive Appeal (Haemmerle) after a reversal of consolidation.

Motion, Late Response

Motion to Participate

--- After expiration of the objection & response time, Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 the only way to enter a subcase is by a Motion Master's Report and Recommendation (Hurlbutt) to Participate --- Parties must show a specific interest in order to Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 intervene as a matter of right under IRCP 24(a) Master's Report and Recommendation (Hurlbutt) --- Permissive Intervention - Municipal water rights Order Granting Motion to Participate (Bilyeu) 34-10030 06/08/95

Motion, Summary Judgment

--- Amicus curiae motion for summary judgment is Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 not treated as motion, but as "advice to the court" Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96

Municipal water rights

--- Definition, municipal use involves a right used Special Master's Report - Findings of Fact; Conclusions 34-10030 04/08/97 by a municipality for the benefit of its of Law (Bilyeu) inhabitants. --- Motion to Participate - Municipal water rights Order Granting Motion to Participate (Bilyeu) 34-10030 06/08/95 --- Reasonably anticipated future needs, to be Special Master's Report and Recommendation (Dolan) 36-07092A 02/21/97 included area must be "stubbed in," or included in municipal service area --- Service area, defined by the articles Special Master's Report and Recommendation (Dolan) 36-07092A 02/21/97 of incorporation

-N-

Nature of Use

--- Change in fish propagation facility volume is Supplemental Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 not a change in nature of use (Facility Volume) (Haemmerle)

New Water Right

--- Land included in Director's Report not a part of Special Master's Report and Recommendation - Findings 34-13555 04/18/97 the claimed right will be adjudicated with new of Fact and Conclusions of Law (Bilyeu) water right number and new priority date.

-O-

Objection

--- Amendment, parties may not amend claims Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 through objection & response procedure, must (Haemmerle) file amended claim. --- Dual-based claims, later claim should be Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 dismissed when there is no objection to Wide Issue 12 (Haemmerle) earlier claim. --- Dual-based claims, later claim should be Special Master's Second Amended Recommendation- 91-00012 08/12/96 dismissed when there is no objection to RE: Basin-wide Issue 12 (Haemmerle) earlier claim. --- Dual-based claims, when objection is filed to Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 earlier-date state claim, that claim should be Wide Issue 12 (Haemmerle) determined before federal claim. --- Dual-based claims, when objection is filed to Special Master's Second Amended Recommendation 91-00012 08/12/96 earlier-date state claim, that claim should be RE: Basin-Wide Issue 12 (Haemmerle) determined before federal claim. --- Late, Procedure for addressing "late objections" Order Granting Motion to File Late Objections 36-02338 et al. 03/24/97 in SRBA is the same as that for late claims, (Dolan) and the standard of IRCP 55(c) applies. Order Granting Motion to Alter or Amend (Bilyeu) 34-00470A 10/10/97 --- Late objections, IRCP 55(c) and 60(b) do not Order Accepting, in Part, and Denying, in Part, 36-15452 10/10/97 govern later objections or responses filed after Special Master's Report and Recommendation August 18, 1995. (Hurlbutt) --- Res judicata, Upon failure to file a timely Order Denying Motion to File Late Objections (Haemmerle) 36-02048, et al. 02/12/99 objection, res judicata bars relitigation of use of water prior to date of Director's Report

One-party subcase

--- refers to a situation where only one party appears Order Accepting, in Part, and Denying, in Part, 36-15452 10/10/97 in the subcase, the claimant of the right at issue Special Master's Report and Recommendation --- Affidavits, In one-party subcases the claimant Order Accepting, in Part, and Denying, in Part, 36-15452 10/10/97 may introduce sworn affidavits on elements Special Master's Report and Recommendation in dispute. (Hurlbutt)

Optimum Efficiency

--- Policy requiring "optimum efficiency, by water Special Master's Report and Recommendation; Findings of 34-00060 et al. 11/28/97 users has not be recognized by the legislature or Fact and Conclusions of Law (Bilyeu) the Idaho Supreme Court -- U.S. need only own land used by wildlife, not Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 the wildlife, in order to put water to beneficial Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 use. --- U.S. does not own water right merely because Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 it manages public land (Haemmerle)

-P-

Parties

--- Amicus curiae is not a party Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- One Party Subcases -- Collateral estoppel, because IDWR is not a Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 party in SRBA, collateral estoppel cannot be (Haemmerle) raised in one-party subcases, even if IDWR was a party in prior decree -- Summary Judgment, standard applied in Second Amended Order on Summary Judgment (Haemmerle) 36-00003A et al. 09/13/96 one-party subcases

Partnership

--- A partnership is not entitled to pro se Order Denying Paul Nettleton's Request to Represent 08/30/93 representation by a non-lawyer in SRBA a Limited Partnership

Period of Use

--- "Irrigation season" for irrigation claims Second Amended Order on Summary Judgment 36-00003A 09/13/96 (Haemmerle) Order Granting Motion for Summary Judgment and 36-00080B et al. 12/11/96 Preliminary special Master's Report and Recommendation --- "Irrigation season," a court cannot decree a Special Master's Report and Recommendation - Findings of 34-00834 10/07/98 season which leaves the dates to the discretionary Fact and Conclusions of Law (Bilyeu) authority of an administrative agency.

Place of use

--- Combined place of use does not injury senior Special Master's Report and Recommendation 34-00170 et al. 02/19/99 water rights if acreage limitation does not change Findings of Fact and Conclusions of Law (Bilyeu). --- District Boundaries, delivery of water outside of, Special Master's Report and Recommendation; Findings of 34-00012 03/25/95 Fact and Conclusions of Law (Bilyeu) --- Multiple water rights, It is common for a place of Order on Motions to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 of use to support multiple water rights Permissive Appeal (Haemmerle). --- Municipal rights, "lands within the city" is Special Master's Report - Findings of Fact; Conclusions of 34-10030 04/08/97 sufficient description of place of use Law (Bilyeu)

Presumptions

--- Rebuttable, jurisdiction to decree Order on Summary Judgment (Haemmerle) 36-00003A 02/22/97 Special Master's Report and Recommendation 34-10563 03/12/97 Findings of Fact & Conclusions of Law (Bilyeu) --- Rebutted by uncontested evidence from Special Master's Report and Recommendation 34-10563 03/18/97 prior decree Findings of Fact and Conclusions of Law (Bilyeu) --- Wildlife use, to rebut presumption opposing Order Granting Motions to Dismiss Objections and 34-02589 et al. 03/12/97 party must submit an affidavit regarding Granting Motion for Summary Judgment, in Part "intent" to use water for wildlife purposes (Bilyeu)

Prior Decrees

--- Collateral attack, attempt based upon "better" Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 evidence" to reevaluate rights, or elements of (Haemmerle) rights, determined in prior decree is a collateral attack on prior decree. --- Evidence of, used to rebut prima facie weight Special Master's Report and Recommendation 34-10563 03/18/97 given to Director's Report. Findings of Fact and Conclusions of Law (Bilyeu) --- "Other purposes," in prior decree did not modify Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 claimant's right, and therefore did not include 36-00135A otherwise unidentified fish propagation use. --- "Other purposes," included fish propagation as Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 determined under I.C. 42-1427(1)(a). --- "Other purposes," included fish propagation Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 when evidence indicates that place of use was historically used for fish propagation --- "Other purposes," in prior decree can only refer Second Amended Order on Summary Judgment 36-00003A 09/13/96 to uses then recognized, it cannot include (Haemmerle) prospective uses, but is limited to then actual use. --- "Other use," under prior decree requires Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 foundation identifying use with particularity; (Haemmerle) summary judgment will not be granted for conclusory claims of "aesthetics" or "wildlife" --- Proof, IDWR must accept as conclusive proof Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 of nature of water right previously decreed (Haemmerle) --- Quantity, claimants are not precluded from Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 claims in excess of original decreed amount when quantity claimed is combined with unclaimed previously adjudicated rights --- Split rights, Every claimant is entitled to prove Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 share of previously decreed right independent of prior settlements --- Summary Judgment, Claimant is entitled to, as a Second Amended order on Summary Judgment 36-00003A, et al. 09/13/96 matter of law, when claimed element matches (Haemmerle) previously adjudicated element.

Priority Date

--- Conveyance, In the absence of a valid transfer Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 of a public domain water right, historic priority Permissive Appeal (Haemmerle). date may be lost by forfeiture. --- Conveyance, In the absence of a valid transfer of Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 a public domain water right, historic priority (Haemmerle). date may be lost by forfeiture. --- Original priority date can be preserved so long Order on Motions to Alter or Amend; Order on Motion 57-04028 et al. 06/26/97 as break in title is cured. for Permissive Appeal (Haemmerle) --- Exempt from exercise according to priority date Special Master's Report and Recommendation; Findings of 34-02493 03/25/98 Fact and Conclusions of Law (Bilyeu) --- Public lands, U.S. management interest in grazing Order on Motions for Summary Judgment (Dolan) 35-12939 et al. 08/10/98 lands is sufficient to support priority date claims arising prior to passage of 1934 Taylor Act --- Subordinated to enumerated rights for the limited Special Master's Report and Recommendation; Findings of 34-12540 01/10/97 purpose of making a call in times of scarcity Fact and Conclusions of Law (Bilyeu) 34-12540A

Pro Se

--- A corporation is not entitled to pro se Order Denying Gordon Fulton's Request to Represent 34-00057 02/02/94 representation by a non-lawyer in the SRBA Subchapter "S" Corporation (Bilyeu) 34-00058 --- A partnership is not entitled to pro se Order Denying Paul Nettleton's Request to Represent 08/30/93 representation by a non-lawyer in SRBA a Limited Partnership

Public Lands

--- Grazing water rights Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Grazing water rights Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 (Haemmerle). --- Ownership, U.S. does not own water right merely Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 because it manages public land (Haemmerle) --- Private water rights Order on Motion to Alter or Amend; Order on Motion for 57-04028 06-26-97 Permissive Appeal (Haemmerle). --- Public domain, failure to properly convey water Findings of Fact & Conclusions of Law (Haemmerle) 57-04028 et al. 07/24/97 right on public domain results in loss of priority date

Public Trust

--- Vested water rights cannot have additional Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 02/24/98 conditions imposed under the public trust (Haemmerle) --- Vested water rights cannot have additional Supplemental Findings of Fact and Conclusions of Law 36-02048 et al. 07/31/98 conditions imposed under the public trust (Facility Volume) (Haemmerle)

Purpose of Use

--- "Other purposes," in prior decree did not modify Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 claimant's right, and therefore did not include 36-00135A otherwise unidentified fish propagation use. --- "Other purposes," in prior decree can only refer Second Amended Order on Summary Judgment 36-00003A 09/13/96 to uses then recognized, it cannot include (Haemmerle) prospective uses, but is limited to then actual use. --- "other purposes" Recommends that Idaho Second Order on Summary Judgment Regarding 36-11060 04/11/97 recognize "common law" right to change Priority Date (Bilyeu) 36-15462 in purpose of use. --- "Other use," under prior decree requires Second Amended Order on Summary Judgment 36-00003A et al. 09/13/96 foundation identifying use with particularity; (Haemmerle) summary judgment will not be granted for conclusory claims of "aesthetics" or "wildlife" --- Stockwater use does not include incidental use Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 for wildlife in the absence of intent to appropriate Wide Issue 12 (Haemmerle) for that purpose. --- Stockwater use does not include incidental use Special Master's Second Amended Recommendation 91-00012 08/12/96 for wildlife in the absence of intent to appropriate RE: Basin-Wide Issue 12 (Haemmerle) for that purpose. --- Stockwater use does not include incidental use Memorandum Decision and Order Re: Basin-Wide Issue 12 91-00012 04/25/97 for wildlife; statute uses disjunctive "or" meaning (Hurlbutt). appropriation solely for wildlife or stock water.

-Q-

Quantity

--- in situ beneficial use claims must be for a Order Accepting, in Part, and Denying, in Part, Special 36-15452 10/10/97 specific quantity, not entire stream flow Master's Report and Recommendation (Hurlbutt)

-R-

Real Property Right

--- Water right on public domain must be conveyed Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 or is subject to loss by forfeiture or abandonment. Permissive Appeal (Haemmerle). --- Water right on public domain must be conveyed Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 or is subject to loss by forfeiture or abandonment. (Haemmerle).

Rebuttable Presumptions

(See, Presumptions)

Reliance

--- In context of late response, requires (1) knowledge Order on Reconsideration of Motions to Strike Affidavits 36-00048A et al. 07-08-96 of Director's recommendations, (2) reliance upon and Motions to File Late Responses (Haemmerle) Director to defend recommendation and (3) reliance before 09/01/98.

Remarks

(see "Decree")

Reserved Water Rights

--- PWR 107 - Springs which flow into perennial Order on Joint Submission (Haemmerle) 65-20033 et al. 06/25/99 streams or form headwaters of perennial streams are not covered by PWR 107 --- Stockwater rights, Forest Service Organic Order Granting State's Motion for Summary Judgment 29-12487 08/27/99 Act - Not a primary purpose. (Haemmerle) 29-12489 --- Unappropriated water, both implied & express reserved water right claims are limited to

Res Judicata

--- Decree cannot bind water rights acquired after Special Master's Report and Recommendation on 91-00005B 06/28/96 the date it is entered. Basin-Wide Issue 5B (Bilyeu) --- Director's Report, Use after date of Director's Order Denying Motion to Alter or Amend; Order Denying 36-02708, et al. 01/27/99 Report not before SRBA court and not barred Motion to File Late Objections (Haemmerle). by res judicata. --- Director's Report, Use after date of Director's Order Denying Motion to File Late Objections (Haemmerle) 36-07083 06/11/99 Report not before SRBA court and not barred by res judicata. --- General Provisions contained in prior decrees, Special Master's Recommendation on Basin-Wide Issue 5A 91-00005A 04/11/96 res judicata does not dictate inclusion in SRBA (Haemmerle) decree --- Objection, Failure to file objection raises res Order Denying Motion to File Late Objections (Haemmerle) 36-02048, et al. 02/12/99 judicata bar to challenge based upon use arising before date of Director's Report --- Parties or privies; res judicata cannot bind Special Master's Report and Recommendation on Basin- 91-00005B 06/28/96 claimants whose rights were perfected after Wide Issue 5B (Bilyeu) the date of the prior decree --- Parties, United States was not a party to the U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-11447 10/16/96 Decree and therefore is not barred by res judicata from claiming priority dates preceding the date of that decree --- Parties, United States was not a party to the U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-11581 et al. 10/17/96 Decree and therefore is not barred by res judicata from claiming priority dates preceding the date of that decree --- Parties, United States was not a party to the U.C. Order Granting Summary Judgment, In Part (Bilyeu) 34-12639 07/02/97 Decree and therefore is not barred by res judicata from claiming priority dates preceding the date of that decree

Retroactive Legislation

--- I.C. 42-113(2) as applied retroactively violates Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 Art. 11, 12 of the Idaho Constitution. (Haemmerle).

Riparian Rights

--- No landowner in Idaho, including the U.S., Order on Motions to Alter or Amend; Order on Motion 57-04028 et al. 06/26/97 owns water rights by virtue of land ownership. for Permissive Appeal (Haemmerle)

Rotation

--- a history of voluntary rotation of water among Order on Summary Judgment (Bilyeu) 34-10873 08/18/97 users cannot ripen into a right of future involuntary rotation --- Rotation, Informal rotation recognized as a Order Denying Motion in Limine (Bilyeu) 34-00074 05/02/96 legitimate irrigation practice 34-02464

Rule 11

--- Rule 11 sanctions, cannot impose Order on Motion for Stay of Rule 11 Hearing (Wood) 36-02708, et al. 02/16/99

-S-

Salvaged Water

--- Distinction between "salvaged" and "developed" Special Master's Report and Recommendation; Findings of 34-02493 03/25/98 water. Fact and Conclusions of Law (Bilyeu)

Special Masters

--- Powers, are not judges Order on Motion for Stay of Rule 11 Hearing (Wood) 36-02708, et al. 02/16/99 --- Report & Recommendation, challenged Order Denying Rule 11 Motion for Sanctions (Haemmerle) 36-02708 et al. 03/03/99 by Motion to Alter or Amend --- Rule 11 sanctions, cannot impose Order on Motion for Stay of Rule 11 Hearing (Wood) 36-02708, et al. 02/16/99

Split Water Right

--- Dividing appurtenant water right upon division Special Master's Reporter, Findings of Fact and Conclusions 34-00148 et al. 08/14/96 of property upon sale is lawful. of Law (Bilyeu)

SRBA Procedure Rulings

(See also "Administrative Order No. 1) --- Admissions, Withdrawal Order on Motions to Alter or Amend; Order on Motion for 55-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Admissions, relevance, prima facie effect of Order on Motions to Alter or Amend; Order on Motion for 55-04028 et al. 06/26/97 Director's Report Permissive Appeal (Haemmerle). --- Case, the SRBA is technically one case, and all Order Accepting, in Part, and Denying, in Part, 36-15452 10/10/97 claimants are parties to that case. Special Master's Report and Recommendation (Hurlbutt) --- Judicial Notice of subcase record Order on Motions to Alter or Amend; Order on Motion for 55-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Motion to Amend, Issues to be considered Order Denying Motion to Alter or Amend; Order Denying 36-02708 et al. 01/27/99 Motion to File late Objections (Haemmerle)

Standing

--- Claimant, must be a claimant to have standing to Order Granting Motion to File Late Objections (Dolan) 36-02338 et al. 03/24/97 file objection in the SRBA --- Water right, Fort Hall decision does not stand for Order Granting Motion to File Late Objections (Dolan) 36-02338 et al. 03/24/97 proposition that proof must be tendered that water right is affected in order to have standing to object.

Statute of Frauds

--- Transfer of water right must be writing Order on Motions to Alter or Amend; Order on 57-04028 et al. 06/26/97 Motion for Permissive Appeal (Haemmerle)

Statutory Interpretation

--- Retroactive legislation violates Idaho Const. Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 (Haemmerle). --- Definition of "stock watering use" in ch. 14, Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Tit. 42, only applies within that chapter. Wide Issue 12 (Haemmerle) --- Definition of "stock watering use" in ch. 14, Special Master's Second Amended Recommendation 91-00012 08/12/96 Tit. 42, only applies within that chapter. RE: Basin-Wide Issue 12 (Haemmerle) --- Rim View Trout decision provides standard of Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 statutory interpretation followed by the court. Wide Issue 12 (Haemmerle) --- Rim View Trout decision provides standard of Special Master's Second Amended Recommendation 91-00012 08/12/96 statutory interpretation followed by the court. RE: Basin-Wide Issue 12 (Haemmerle) --- More specific statute (42-220) controls over Findings of Fact and Conclusions of Law (Facility Volume) 36-07201 02/24/98 general statute (42-1411(2)(k)) (Haemmerle) --- Reconciling Statutes, When read together I.C. Order on Motion to Alter or Amend; Order on Summary 57-11124 et al. 03/23/97 42-114 and 42-501 allow either private parties or Judgment; and Order on Motion to Withdraw Admissions U.S. to appropriate water in the public domain (Haemmerle)

Stipulated Settlement

--- res judicata and collateral estoppel apply Findings of Fact and Conclusions of Law (Haemmerle) 36-00064B 06/19/98

Stock

--- Fish are not included in definition of "livestock" Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A

Stockwater Rights

--- Priority dates for water rights on public domain Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Priority dates for water rights on public domain Order Granting United States' Motion for Summary Judgment 55-10288 et al. 01/08/99 (Haemmerle) --- Agency, if the U.S. does not own stock grazed on Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 the public domain, then it can only claim stock Permissive Appeal (Haemmerle). water rights through actions of an agent. --- Allotments, combined usage remarks for de Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 minimis rights is not useful because of the Wide Issue 12 (Haemmerle) periodic changes in allotments; and due to other variables in grazing --- Allotments, combined usage remarks for de Special Master's Second Amended Recommendation 91-00012 06/13/96 minimis rights is not useful because of the RE: Basin-Wide Issue 12 (Haemmerle) periodic changes in allotments; and due to other variables in grazing --- Agent Perfecting on Behalf of United States Order on Motion to Alter or Amend; Order on Motion for 57-04028 et al. 06/26/97 Permissive Appeal (Haemmerle). --- Cattle, including number of cattle would Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 perpetuate inaccurate decrees and is not required. Wide Issue 12 (Haemmerle) --- Cattle, including number of cattle would Special Master's Second Amended Recommendation 91-00012 08/12/96 perpetuate inaccurate decrees and is not required. RE: Basin-Wide Issue 12 (Haemmerle) --- Definition, term "stock water" when applied to Special Master's Report and Recommendation; 34-13342 03/18/97 instream use does not refer to statutory definition Findings of Fact and Conclusions of Law (Bilyeu) of "stock watering" in I.C. 42-1401A(12) which requires a diversion. --- Diversion rate not to exceed 13,000 gal./day Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Wide Issue 12 (Haemmerle) --- Diversion rate not to exceed 13,000 gal./day Special Master's Second Amended Recommendation 91-00012 08/12/96 RE: Basin-Wide Issue 12 (Haemmerle) --- Diversion rate not to exceed 13,000 gal./day, but Order Granting Motion to Alter or Amend (Bilyeu 34-02591 07/30/97 not required to measure over 24 hour period as required in BWI # 12 --- Dual-based claims, earlier state claim precludes Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 later federal reserved right claim, and earlier Wide Issue 12 (Haemmerle) federal claim precludes later state claim -- for the same water --- In-stream livestock use, 42-113, not included in Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 definition of "stock watering use," 42-1401A Wide Issue 12 (Haemmerle) --- In-stream livestock use, 42-113, not included in Special Master's Second Amended Recommendation 91-00012 08/12/96 definition of "stock watering use," 42-1401A RE: Basin-Wide Issue 12 (Haemmerle) --- Permittees on BLM land may own water rights Order on Partial Summary Judgment (Haemmerle) 57-11124 et al. 09/23/96 on BLM land --- Public domain, failure to properly convey water Findings of Fact & Conclusions of Law (Haemmerle) 57-04028 et al. 07/24/97 right on public domain results in loss of priority date --- Reserved Water Rights, Forest Service Organic Order Granting State's Motion for Summary Judgment 29-12487 08/27/99 Act - Not a primary purpose, no reserved water. (Haemmerle) 29-12489 right. --- Statutory interpretation, when read together I.C. Order on Motion to Alter or Amend; Order on Summary 57-11124 et al. 03/23/97 42114 and 42-501 allow either private parties or Judgment; and Order on Motion to Withdraw Admissions the U.S. to appropriate water on the public domain (Haemmerle) --- Stock watering use Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 Wide Issue 12 (Haemmerle) --- Stock watering use Special Master's Second Amended Recommendation 91-00012 08/12/96 RE: Basin-Wide Issue 12 (Haemmerle)

Subcase

--- Any water right which is the subject of a post- Order Granting Motion to File Late Objections (Dolan) 36-02338 et al. 03/24/97 Director's Report pleading, like an objection, becomes a subcase. --- Consolidation, once reversal of consolidation Order on Motions to Alter or Amend; Order on Motion 57-04028 et al. 06/26/97 is entered, Motion to Alter or Amend must for Permissive Appeal (Haemmerle) be filed in individual subcases.

Subordination

--- Hydropower, license remark subordinating water Order Granting Motion to Alter or Amend; Amended 36-08099 07/20/99 right cannot be challenged in subsequent Findings of Fact & Conclusions of Law & Recommendation adjudication. (Haemmerle) --- Priority date subordinated to enumerated rights Special Master's Report and Recommendation; Findings of 34-12540 01/10/97 for the limited purpose of making a call in times Fact and Conclusions of Law (Bilyeu) 34-12540A of scarcity

Summary Judgment

--- No objection, Even though IDWR is not a Order Granting Summary Judgement, In Part (Bilyeu) 34-11447 et al. 10/16/96 party court must determine summary judgment where only disagreement is with IDWR --- No objection, Even though IDWR is not a Order Granting Summary Judgement, In Part (Bilyeu) 34-11581 et al. 10/17/96 party court must determine summary judgment where only disagreement is with IDWR --- No objection, Even though IDWR is not a Order Granting Summary Judgement, In Part (Bilyeu) 34-12639 07/02/97 party court must determine summary judgment where only disagreement is with IDWR --- Prior decree, where claimed element matches Second Amended Order on Summary Judgment 36-00003A, et al. 09/13/96 element previously decreed claimant is entitled (Haemmerle). to summary judgment as a matter of law --- Standard applied in one-party subcases Second Amended Order on Summary Judgment (Haemmerle) 36-00003A et al. 09/13/96 --- Trial testimony may be considered on motion Order on Summary Judgment (Bilyeu) 34-10873 08/18/97 for summary judgment in the same fashion as other deposition testimony.

Swan Falls Agreement

--- Objection based upon general provision in Special Master's Report (Haemmerle) 57-07148 12/26/96 violation of agreement

-T-

Title

--- Break in title, original priority date can be Order on Motions to Alter or Amend; Order on Motion 57-04028 et al. 06/26/97 preserved so long as break in title is cured. for Permissive Appeal (Haemmerle)

-U-

Ultra Vires

--- Contract, The ultra vires doctrine prohibits Order on Summary Judgment (Bilyeu) 34-10873 08/18/97 reliance upon contract theories to compel delivery of water outside boundaries of an irrigation district. --- Estoppel, The doctrine of ultra vires should not Order on Summary Judgment (Bilyeu) 34-10873 08/18/97 operate, as a matter of law, to preclude assertion of an estoppel theory

Unappropriated Water

--- Appropriated but unused water may be Order on Motions to Alter or Amend; Order on Motion for 57-04028 06/26/97 appropriated for use by another while it remains Permissive Appeal (Haemmerle). unused by original appropriator. --- Reserved water rights, both implied & expressed Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 reserved rights are limited to unappropriated Wide Issue 12 (Haemmerle) water

-V-

Void Judgment

--- Provision in prior decree allowing use of Special Master's Recommendation on Basin-Wide Issue 91-00005A 04/11/96 "excess" water without a water right was void 5A (Haemmerle)

-W-

Waste

--- Claimant did not waste water by using full Special Master's Report and Recommendation; Findings 34-00060 et al. 11/28/97 quantity of right in "border" irrigation system of Fact and Conclusions of Law (Bilyeu) --- Conveyance loss, when shared between a Findings of Fact and Conclusions of Law (Haemmerle) 36-00064B 06/19/98 number of users may be reasonable, but when exercised by a single right may be unreasonable if in excess of 50%

Water Right

--- Combined rights, split rights can be recombined Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 if separate parcels come into common ownership using common irrigation system and points of diversion, place of use, and nature of use have always remained the same --- Elements -- Either Director or Claimant must address Special Master's Recommendation on Basin-Wide Issue 91-00005A 04/11/96 each element of a water right 5A (Haemmerle) --- Division of water right Special Master's Report, Findings of Fact and 34-00148 08/14/96 Conclusions of Law (Bilyeu) --- Loss of, in the absence of abandonment, Special Master's Report (Dolan) 36-000027 04/30/97 forfeiture, adverse possession or estoppel, IDWR cannot disallow a water right by combining it with another right. --- Owner, U.S. does not own water right merely Order on Motion and Cross-Motion for Summary Judgment 72-15929C 02/06/98 because it manages public land (Haemmerle) --- Split rights, Every claimant is entitled to prove Findings of Fact and Conclusions of Law (Haemmerle) 36-00003A et al. 07/29/98 share of previously decreed right independent of prior settlements --- Subordinated to enumerated rights for the limited Special Master's Report and Recommendation; Findings of 34-12540 01/10/97 purpose of making a call in times of scarcity Fact and Conclusions of Law (Bilyeu) 34-12540A

Wildlife

--- Fish are not included in definition of "wildlife" Order Denying Motion for Summary Judgment (Dolan) 36-00134B 06/13/96 36-00135A --- Constitutional water right, may be created by Order Granting Motion for Summary Judgment (Dolan) 36-15452 02/20/96 U.S. acquisition of land for wildlife refuge Special Master's Report and Recommendation (Dolan) 36-15452 03/11/96 --- Constitutional water right, cannot be created by Special Master's Amended Recommendation RE: Basin- 91-00012 06/13/96 U.S. claim of casual use by wildlife on grazing Wide Issue 12 (Haemmerle) lands. --- Constitutional water right, cannot be created by Special Master's Second Amended Recommendation 91-00012 08/12/96 U.S. claim of casual use by wildlife on grazing RE: Basin-Wide Issue 12 (Haemmerle) lands. --- Diversion and intent required for "wildlife" Special Master's Report and Recommendation; and 34-07232 01/10/97 purpose of use under Special Master's Second Findings of Fact and Conclusions of Law (Bilyeu) Amended Recommendation: BWI # 12 (8/12/96) --- Presumption of "intent" to appropriate water for Order Granting Motions to Dismiss Objections and 34-02589 et al. 03/12/97 wildlife use can be rebutted by opposing party's Granting Motion for Summary Judgment, in Part affidavit (Bilyeu) --- Stockwater use does not include incidental use Memorandum Decision and Order Re: Basin-Wide Issue 12 91-00012 04/25/97 for wildlife; statute uses disjunctive "or" (Hurlbutt). meaning appropriation solely for wildlife or stock water.

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-Y-

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SRBA DECISIONS INDEX OCTOBER 1995 - APRIL 1999

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