Idaho Dep't of Parks v. Idaho Dep't of Water Admin.
Citation: 5 ELR 20508
No. No. 11455, 530 P.2d 924/96 Idaho 440, (Idaho, 12/31/1974)
The Supreme Court of Idaho affirms a lower court judgment allowing the state Department of Parks, pursuant to the specific mandate of a state statute, to "appropriate" for recreational and scenic purposes, without actual diversion, waters of Malad Canyon Springs that have not yet been appropriated by private users. Language in the state constitution assuring that the "right to divert and appropriate . . . [water] for beneficial uses shall never be denied" does not exclude a state agency from so appropriating in the absence of a statutory proscription. Where, on the contrary, a statute specifically authorizes state appropriation, case law to the contrary is overruled. Since "beneficial use" had never been judicially or statutorily defined, notwithstanding a provision of the state constitution which enumerates the priority given to five uses, the legislature has authority to declare aesthetic or recreational uses "beneficial," as have other western states. The Idaho constitution does not, it is held, bear on the question whether water rights may be appropriated in the absence of actual physical diversion. Where the most recent specific statute is in conflict with an older, more general statutory scheme for water appropriation, the more specific statute rules, and makes it clear that the legislature did not mean to require diversion of the water in the Malad Canyon legislation. A dissent argues that since it is already sovereign over the waters, the state cannot further appropriate them in the face of constitutional language forbidding denial of the right of private appropriation without explicit constitutional exception. Rather, where the economic and social benefits of a proposed water use are outweighed by the attendant detriment to scenic beauty and recreation, the use should not be considered a constitutionally allowed "beneficial use" and the permit for appropriation should be denied.
Counsel for Appellant-Cross Respondent Idaho Department of Water Administration
Nathan W. Higer Deputy Attorney General
Boise, Idaho 83701
Counsel for Respondent-Cross Appellants Idaho Water Users Assn., Twin Falls Canal Co., and North Side Canal Co.
John A. Rosholt
Parry, Robertson, Daly & Larson
Idaho First National Bank Building
Twin Falls, Idaho 83301
Counsel for Respondent Idaho Department of Parks
W. Anthony Park Attorney General
Matthew J. Mullaney Deputy Attorney General
Boise, Idaho 83701
DONALDSON, J., concurs.
BAKES, J., concurs specially in an opinion to follow.