Watered-down justice prevails in high court

By Times-News editorial board
Tuesday, March 13, 2007 3:30 PM CDT

Say this for the Idaho Supreme Court’s ruling on conjunctively managed water rights: At least the water lawyers will stay in business.

In a decision released Monday, Idaho’s Supreme Court justices determined unanimously that the state’s conjunctive-management rules for allocating water between surface-water and ground-water rights holders are constitutional and should remain intact. The decision is a deflating loss for Idaho’s century-old senior priority water doctrine, or the constitutional measure that dictates first-in-time is first-in-right.

And while ground-water users with junior rights are granted relief from threats of curtailment, the question of how rights are to be administered in times of water scarcity still has no resolution. In fact, the process of identifying prior appropriation may become even more time-consuming.

The court overturned 5th District Judge Barry Wood’s 2006 decision, which determined conjunctive-management rules were too arbitrary against the priority doctrine. The decision reaffirms the broad authority given to the director of Idaho Department of Water Resources for water right administration. That authority, the court said, requires the director to appropriate water according to the most beneficial use, not just the seniority of water rights.

Writing for the majority, Justice Linda Copple Trout spotted legal technicalities in Wood’s ruling that limit how the courts can invalidate conjunctive-management rules. Only when the entire administrative process is exhausted should the courts determine constitutionality of rules.

But the court hid behind those technicalities to avoid addressing the crux of Wood’s ruling that the director’s ability to appropriate water is founded on a feeble basis of "reasonableness" and arbitrary judg-ment.

All of the lethargic delays that come from the conjunctive-management process were validated by the justices. Two of the biggest: The burden of proof that saddles senior users far beyond that of junior users; and the lack of any time frame to settle water calls in a water season.

The justices didn’t seem to disagree that those procedures have weighed down Idaho’s water-delivery system. But the problems, they said, lie in how those rules are carried out by the water resources director not with the rules themselves. In essence, don’t throw the baby out with the irrigation water.

Perhaps an optimist might say this ruling creates an onus on the agency that decides water policy. IDWR is now led by interim director David Tuthill, who answers to a new governor. But if the Supreme Court won’t address the political morass engulfing water issues, don’t expect the agency to go out on a limb either.

In spite of the ruling, water users still want resolution on whether the state shortchanged surface users’ water call in early 2005. That will feed attention to Gov. Butch Otter’s water summit, where opposing parties may work out a new deal that pleases users on both sides. Kind of like the deals made between users back in 1994, and 2001, and 2004 -- but you get the picture.

All of those agreements led to one repeated outcome: more litigation in the courts for Idaho water. If the justices think the interpretation of rules has become less of a judicial matter, they’re mistaken. Even now, a collection of water attorneys are awaiting yet another day in court.

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