Reduction in Beneficial Use Doesn't Reduce Rights

Abstract

This case involved 24 subcases that were a subset of a larger number of water claims in Basin 36 referred to as the Hagerman subcases. The Hagerman subcases involved water right claims based on a decree entered upon stipulation of the parties to a private adjudication. In spite of this decree, the director of the Idaho Department of Water Resources recommended a lesser quantity of water in most of the subcases involved than the amount set forth by the decree and the amount claimed by the water rights owners. A special master determined that in the absence of a claim of forfeiture, abandonment, adverse possession or estoppel, a reduction in beneficial use after a water right vests is not a basis on which a water right may be reduced. The trial court adopted the master's recommendation. On appeal, the contestants argued that the trial court's decision allows retention of a water right if an owner is not using all or a portion of the water decreed at the time of the adjudication. They maintained that such a result is contrary to the constitutional recognition of the beneficial‐use doctrine. The court said that references to the constitutional principle of “beneficial use” contained in the statutory water scheme are general in nature. State law specifically addresses statutory loss of water rights in Idaho, the court said, and provides that water is lost “by a failure for the term of five years to apply it to the beneficial use for which it was appropriated.” The trial court decision was affirmed on this issue.