Court Upholds Water Law ‘Amnesty’ Statutes Designed To Protect Water Users Who Don’t Comply With Permit Requirements

The Idaho Legislature’s 1994 “amnesty” provisions in state water law are constitutional, the Idaho Supreme Court ruled on Wednesday.

The amnesty statutes were designed to protect water users whose water rights did not comply with technical permit requirements or other provisions of state law. A state attorney said that generally would have been failure to apply for a permit on time or other paperwork requirement.

The decision, written by Justice Gerald Schroeder, was unanimous.

The decision is part of the far-reaching Snake River Basin Adjudication case. That’s an effort, now under way nine years, to get judicial determination of the more than 175,000 water rights in the basin.

Attorney General Alan Lance said about 15 percent of the 175,000 water right claims are directly affected by the decision and it will have some impact on almost half the claims.

District Judge Daniel Hurlbutt, who is handling the adjudication case, ruled in 1995 that the “amnesty” provisions were proper. Appealing that decision were the Fremont-Madison Irrigation District and Mitigation Group, Pioneer Irrigation District and Sinclair Oil Co., doing business as Sun Valley Co.

One of the 1994 laws noted that under longstanding practice, some water right holders changed the place, purpose or period of use of their water rights, without complying with all state procedural laws.

The Legislature said many of the changes occurred with the knowledge of other water users, and did not change distribution of water under historic water rights.

The Legislature also found that “continuation of the historic water use patterns resulting from these changes is in the local public interest provided no other existing water right was injured at the time of the change.”

Denial of water claims on purely technical grounds, where no injury or expanded use of water occurs, “would cause significant undue financial impact to a claimant and the local economy.”

Although Hurlbutt ruled the 1994 laws were constitutional, attorneys for the state and other parties did not agree with the judge’s interpretation of the “core meaning” of the laws.

“The district court should not have utilized the ‘core meaning’ analysis in determining the constitutionality of the amnesty statutes,” Schroeder said in a footnote to the decision. “The issue is whether the statutes are constitutional based on the plain meaning of the statutes as written.”

Lance said the ruling “preserves the Legislature’s goal of ensuring that water right claims will not be jeopardized merely because a claimant failed to comply with procedural requirements.”

He said water laws have evolved since territorial days and some longtime water users are not able to meet all the technical and procedural requirements in current law.

“The Legislature did not want those people to be denied water rights in the adjudication process. Today’s Supreme Court decision properly validates the process the Legislature intended to provide,” Lance said.

Idaho laws hold that senior water rights take precedence over newer rights.

The Supreme Court said if there is an “enlarged” use of water under the law, to avoid injuring or impacting existing water rights, the enlarged right must be exercised in such a way to mitigate injury to a junior water user.