                  IN THE SUPREME COURT OF THE STATE OF IDAHO

                                            Docket No. 44635

 In Re: SRBA CASE NO. 39576                               )
 SUBCASE NOS. 65-23531 and 65-23532.                      )
 -------------------------------------------------------- )
 UNITED STATES OF AMERICA,
                                                          )
                                                               Boise, November 2017 Term
         Appellant,                                       )
                                                          )
                                                               2017 Opinion No. 131
 v.                                                       )
                                                          )
 BLACK CANYON IRRIGATION                                       Filed: December 21, 2017
                                                          )
 DISTRICT, STATE OF IDAHO and                             )
 SUEZ WATER IDAHO, INC.,                                       Karel A. Lehrman, Clerk
                                                          )
         Respondents.                                     )
                                                          )


       Appeal from the Snake River Basin Adjudication, State of Idaho. Hon. Eric J.
       Wildman, District Judge.

       District court judgment on preclusion, affirmed.

       United States Department of Justice, Boise, for appellant. John L. Smeltzer
       argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State
       of Idaho. Michael C. Orr, Deputy Attorney General argued.

       Sawtooth Law Offices, PLLC. and McDevitt & Miller, Boise, for respondent
       Black Canyon Irrigation District. Andrew J. Waldera appeared.

       Givens Pursley, LLP, Boise, for respondent for Suez Water Idaho, Inc. Michael
       P. Lawrence argued.

                             _________________________________

BURDICK, Chief Justice.
       This water rights appeal flows from two consolidated subcases, numbers 65-23531 and
65-23532, litigated in the Snake River Basin Adjudication (SRBA). The subcases concern the
United States’ late claims (Late Claims) filed in January 2013, which assert “supplemental


                                                       1
beneficial use storage water rights” claims under the constitutional method of appropriation to
store water in priority after flood-control releases. The special master recommended that the
State’s motion for summary judgment be granted, concluding the Late Claims should be
disallowed because, as the Director of the Idaho Department of Water Resources (Director)
recommended, the Late Claims assert rights that had not been claimed when the underlying
water rights were adjudicated and decreed. Alternatively, the special master concluded the Late
Claims should be disallowed because, as intervenor Black Canyon Irrigation District (BCID)
asserted, the decreed water rights already authorize the rights the Late Claims now assert, and
hence, the Late Claims are unnecessary. The district court agreed with the special master insofar
as the Late Claims were precluded. However, the district court rejected the special master’s
alternative recommendation that the Late Claims were duplicative of the rights already decreed
and unnecessary. The district court entered judgment reflecting these conclusions. The United
States timely appeals the district court’s ruling on preclusion, and we affirm for the reasons
below.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
         The United States has been decreed rights to 700,000 AFY in Cascade Reservoir, and
163,000 AFY in Deadwood Reservoir. These water rights were decreed in the Payette
Adjudication, and when that adjudication was consolidated with the SRBA, they were decreed
again in the SRBA. The Payette Adjudication and the SRBA were both general adjudications. 1
No objection was made to the water rights as they were decreed in the Payette Adjudication and
the SRBA.
         The specific decrees provide in relevant part as follows 2:

1
  “ ‘General adjudication’ means an action both for the judicial determination of the extent and priority of the rights
of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all
rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and
for the administration of those rights.” I.C. § 42-1401A(5).
2
  As relevant to understanding the tables that follow in the text above, we have previously explained:
         The purpose of use element of a storage water right generally contains at least two authorized
         purposes of use. The first authorizes the storage of water for a particular purpose (i.e., “irrigation
         storage,” or “power storage”). The second authorizes the subsequent use of that stored water for an
         associated purpose, which is often referred to as the “end use” (i.e., “irrigation from storage,” or
         “power from storage”). Each purpose of use is assigned its own quantity and period of use, which
         may or may not differ from one another. With respect to storage rights for irrigation, for example,
         it is typical for the “irrigation storage” purpose of use to be a year-round use (January 1 to
         December 31), and the “irrigation from storage” purpose of use to be limited to the irrigation
         season (e.g., March 15 to November 15).



                                                           2
 Right           Reservoir     Purpose                      Period of Use     Quantity       Priority
 65-2927A        Cascade       Irrigation Storage           01-01 to 12-31    697,500 AFY 12/24/1937
                               Irrigation from Storage      01-01 to 12-31    697,500 AFY 12/24/1937
                               Power Storage                01-01 to 12-31    697,500 AFY 12/24/1937
                               Power from Storage           01-01 to 12-31    697,500 AFY 12/24/1937
 65-2927B        Cascade       Municipal Storage            01-01 to 12-31    2,500 AFY      12/24/1937
                               Municipal from Storage       01-01 to 12-31    2,500 AFY      12/24/1937
 65-9483         Deadwood Irrigation Storage                01-01 to 12-31    163,000 AFY 12/31/1926
                               Irrigation from Storage      04-01 to 11-01    163,000 AFY 12/31/1926
 65-2917         Deadwood Power Storage                     01-01 to 12-31    163,000 AFY 12/31/1926
                               Power from Storage           01-01 to 12-31    163,000 AFY 12/31/1926

The decrees grant the United States rights to water in specific quantities, which are “essentially
equal to the active capacit[ies] of Cascade and Deadwood Reservoirs.”
         Cascade and Deadwood Reservoirs are on-stream reservoirs created by dams. Annual
stream flows frequently exceed the Reservoirs’ capacities, and accordingly, the United States,
through the Bureau of Reclamation (BOR), manages flood-control releases. Flood-control
releases generated disputes in the SRBA and led to Basin-Wide Issue 17, where water rights
holders sought resolution of what “effect flood control releases have on storage water rights”
where the decrees lack “refill” remarks. See In re SRBA, 157 Idaho 385, 390, 336 P.3d 792, 797
(2014). While Basin-Wide Issue 17 was being litigated in the district court, on January 31, 2013,
the United States filed the Late Claims at issue here. The Late Claims assert “supplemental
beneficial use storage water rights” claims under the constitutional method of appropriation as
follows:
 Subcase      Reservoir      Purpose                       Period of Use     Quantity        Priority
 65-23531     Cascade        Irrigation Storage            10-01 to 09-30    1,066,653 AFA   09/30/1965
                             Irrigation from Storage       01-01 to 12-31    697,500 AFA     09/30/1965
                             Power Storage                 10-01 to 09-30    1,066,653 AFA   09/30/1965
                             Power from Storage            01-01 to 12-31    697,500 AFA     09/30/1965
                             Municipal Storage             10-01 to 09-30    1,066,653 AFA   09/30/1965
                             Municipal from Storage        01-01 to 12-31    2,500 AFA       09/30/1965
 65-23532     Deadwood Irrigation Storage                  10-01 to 09-30    268,113 AFA     09/30/1965


In re SRBA, 157 Idaho at 389, 336 P.3d at 796.


                                                       3
                            Irrigation from Storage         04-01 to 11-01     163,000 AFA          09/30/1965
                             Power Storage                  10-01 to 09-30     268,113 AFA          09/30/1965
                             Power from Storage             01-01 to 12-31     163,000 AFA          09/30/1965

        The Late Claims surfaced after the Idaho Department of Water Resources (IDWR)
shifted to a computerized water accounting system in 1993. That shift brought about the change
from a “physical fill” system of accounting to a computerized “paper fill” system of accounting.
The physical fill system is summarized as follows:
        Upon completion of the flood control releases, the reservoirs refill with spring
        runoff to the point of maximum physical fill. When the dam has refilled, typically
        in early June to mid-July, the stored water, including the “refill” water, is
        allocated to those holding storage rights in the reservoirs and is available for
        irrigation purposes.
In a paper fill system, by contrast,
                 All water entering the . . . Reservoirs is counted toward the initial paper
        fill of the reservoirs. When flood control water is passed through the reservoirs
        the water passed for flood control is not deducted from the storage accounting of
        the reservoir, even though it is no longer physically stored in the reservoir.
        The United States filed the Late Claims to assert “supplemental beneficial use storage
water rights – separate water rights with a junior priority – which, in conjunction with existing
storage water rights, would allow Reclamation to complete one physical fill of its reservoirs in
years when it must release water for flood control.” The district court granted the filing of the
Late Claims on May 22, 2013. On December 30, 2013, the Director issued its reports
recommending disallowance of the Late Claims for the sole reason that they were “not claimed
in prior adjudication.” On March 20, 2014, the United States timely objected, and on August 26,
2014, the district court entered an order retaining jurisdiction over the subcases pertaining to the
Late Claims. On November 14, 2014, the district court granted Suez Water Idaho, Inc.’s (Suez) 3
motion to participate “on a limited basis for purposes of participating in proceedings related to
the application of law” because that limited participation resulted in no “undue delay or prejudice
to the existing parties.” Thereafter, on January 9, 2015, the district court referred the subcases to
the special master and assigned the power “to conduct all proceedings necessary to issue a
recommendation . . . .”


3
 Suez’ former name was United Water Idaho, Inc. However, on November 9, 2015, it formally changed its name to
Suez Water Idaho Inc. For consistency, the entity is referred to as Suez, even though it was actually named United
Water when it moved to participate.


                                                        4
         On May 11, 2015, BCID moved to participate. BCID, an irrigation district, is the
principal spaceholder in Cascade Reservoir and has beneficial interests in the United States’
decreed water rights. See United States v. Pioneer Irrigation Dist., 144 Idaho 106, 115, 157 P.3d
600, 609 (2007). The special master permitted BCID’s participation. Unlike Suez, BCID was
granted party status.
         On August 25, 2015, the State moved for summary judgment, contending, in part, that the
Late Claims were precluded. BCID responded by contending summary judgment should be
granted in its favor as the non-movant, asserting the decreed water rights already authorize the
rights the Late Claims now assert, and hence, the Late Claims are unnecessary. On November
19, 2015, the special master entered an order recommending the State’s motion for summary
judgment be granted, concluding the Late Claims were precluded. The special master did not
reach BCID’s contention that summary judgment should be granted in its favor as the non-
movant. The parties then filed motions to alter or amend the special master’s order. As relevant
here, BCID contended the Late Claims were unnecessary because, as BCID asserted, the existing
rights already authorize the water rights asserted in the Late Claims. On April 22, 2016, the
special master affirmed his recommendation that the Late Claims were precluded; however, the
special master agreed with BCID that the existing rights already authorize the water rights
asserted in the Late Claims. Accordingly, the special master ultimately recommended
disallowance of the Late Claims because (1) they were precluded, and (2) as “an additional basis
for disallowance,” they were unnecessary because the existing rights already authorize the water
rights asserted in the Late Claims.
         When the parties challenged different recommendations of the special master, the district
court adopted the special master’s recommendation that the Late Claims were precluded.
However, the district court rejected the special master’s “alternative basis for disallowance”
recommendation, reasoning that the special master lacked the power to address BCID’s
arguments implicating the scope of the existing decrees. The United States timely appeals the
district court’s ruling that the Late Claims are precluded. 4


4
 Although the United States makes additional, alternative arguments on appeal that the Late Claims are unnecessary
as duplicative of the existing rights, it waived this argument by failing to raise this argument below. Kirk v. Wescott,
160 Idaho 893, 899, 382 P.3d 342, 348 (2016) (“Hence, issues not raised below but raised for the first time on
appeal will not be considered or reviewed.” (quoting Whitted v. Canyon Cnty. Bd. Of Comm’rs, 137 Idaho 118, 122,
44 P.3d 1173, 1177 (2002))). Accordingly, we do not address this argument.


                                                           5
                                        II. ISSUES ON APPEAL
1.      Are the Late Claims precluded?
2.      Are the State and Suez entitled to attorney fees on appeal?
                                    III. STANDARD OF REVIEW
                The district court may appoint a special master in any general adjudication
        and shall specify the special master’s powers and duties in the order of reference.
        Subcases referred to a special master are governed by the I.R.C.P. and the Idaho
        Rules of Evidence (I.R.E.).
                The special master’s findings which the court adopts are considered to be
        the findings of the court. The special master’s conclusions of law are not binding
        upon the district court, although they are expected to be persuasive. To the degree
        that the district court adopts the special master’s conclusions of law, they are also
        the conclusions of the court.
                The question of compliance with the rules of procedure and evidence is
        one of law. This Court freely reviews conclusions of law.
State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 740, 947 P.2d 409, 413 (1997)
(citations omitted).
        This Court has explained that, when it reviews a summary judgment on appeal,
        it does so under the same standards employed by the district court. “The fact that
        the parties have filed cross-motions for summary judgment does not change the
        applicable standard of review, and this Court must evaluate each party’s motion
        on its own merits.” Summary judgment is proper “if the pleadings, depositions,
        and admissions on file, together with the affidavits, if any, show that there is no
        genuine issue as to any material fact and that the moving party is entitled to a
        judgment as a matter of law.” Idaho R. Civ. P. 56(c).[5] Where the case will be
        tried without a jury, “the trial court as the trier of fact is entitled to arrive at the
        most probable inferences based upon the undisputed evidence properly before it
        and grant the summary judgment despite the possibility of conflicting inferences.”
        This Court freely reviews the entire record that was before the district court to
        determine whether either side was entitled to judgment as a matter of law and
        whether inferences drawn by the district court are reasonably supported by the
        record.
Borley v. Smith, 149 Idaho 171, 176–77, 233 P.3d 102, 107–08 (2010) (citations omitted).
                                             IV. ANALYSIS
A.      The Late Claims are precluded.
        We first address whether res judicata bars the Late Claims. Whether res judicata applies
is a question of law over which this Court exercises free review. Ticor Title Co. v. Stanion, 144

5
  Effective July 1, 2016, Idaho Rule of Civil Procedure 56 was amended. The relevant portion of the rule now
provides: “The court must grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a).


                                                      6
Idaho 119, 122, 157 P.3d 613, 616 (2007). Res judicata consists of claim and issue preclusion.
Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803, 805 (2002).
         Claim preclusion “bars a subsequent action between the same parties upon the
         same claim or upon claims ‘relating to the same cause of action.’ ” Under this
         doctrine, a claim is also precluded if it could have been brought in the previous
         action, regardless of whether it was actually brought, where: (1) the original
         action ended in final judgment on the merits, (2) the present claim involves the
         same parties as the original action, and (3) the present claim arises out of the same
         transaction or series of transactions as the original action.
Berkshire Invs., LLC v. Taylor, 153 Idaho 73, 81, 278 P.3d 943, 951 (2012) (citations omitted).
         We agree with the district court that the undisputed facts show that claim preclusion bars
the Late Claims, making summary judgment proper on this issue. The first requirement—a final
judgment on the merits—is satisfied. The Payette Adjudication resulted in a partial decree in
January 1986, which was certified as a final judgment under Idaho Rule of Civil Procedure
54(b). That final judgment incorporated the relevant parts of the Director’s Proposed Findings of
Water Rights in the Payette River Drainage Basin, and those findings encompassed the water
rights decreed in this case. As the Proposed Findings, which the Payette Decree incorporated,
state:
                 This recommended decree includes all of the rights established before
         October 19, 1977 to the waters of the Payette River and its tributaries including
         groundwater, and upon its adoption supercedes all prior judgments of the Court.
         Any water user who heretofore diverted surface water or groundwater from within
         the boundaries as described in Exhibit 1, or who owns lands to which previously
         established rights were appurtenant and who, upon being joined to this action,
         failed to claim such water rights has forfeited such rights as provided in Section
         42-1411, Idaho Code.
Additionally, when the Payette Adjudication was consolidated with the SRBA, the SRBA court
decreed the water rights in 2003 and certified the partial decrees as final judgments under Idaho
Rule of Civil Procedure 54(b). The partial decrees were incorporated into the SRBA’s final
unified decree, which “is binding against all persons . . . .” No objection was made to the water
rights as they were decreed in the Payette Adjudication and the SRBA. Instead, the Late Claims
were not asserted until January 31, 2013.
         Claim preclusion’s second requirement looks to the identity of the parties. We note at the
outset that we have never analyzed the identity of parties requirement as it arises in a general
adjudication. Generally, claim preclusion reaches to “the same parties or their privies[.]” Ticor
Title, 144 Idaho at 124, 157 P.3d at 618. We have acknowledged this principle as it applies to a


                                                  7
private adjudication, Hagerman Water Right Owners, 130 Idaho at 742, 947 P.2d at 415 (“A
Prior Decree Entered in a Private Adjudication is Binding Only Upon Parties and Privies to that
Decree.”), which finds support in the statutory definition of “private adjudication.” I.C. § 42-
1401A(8) (explaining that a private adjudication “binds only those persons joined in the action”).
         A general adjudication, by contrast, is “conclusive as to the nature of all rights to the use
of water in the adjudicated water system, except as provided in section 42-1420,[6] Idaho Code,
and for the administration of those rights.” I.C. § 42-1401A(5) (emphases added). The
Legislature’s definition of general adjudication thus appears to give the identity of parties
requirement little relevance, if any, in this context. The Legislature’s distinction between a
general adjudication and a private adjudication finds support in the various doctrines governing
jurisdiction. Like a general adjudication under section 42-1401A(5), a final judgment in a
proceeding where the court has in rem jurisdiction bars subsequent proceedings arising from the
same transaction or occurrence already litigated, absent an identity of parties requirement,
because in rem proceedings are brought against property, not parties. 50 C.J.S. Judgments § 1387
(2017); Restatement (Second) of Judgments § 30 (1982); Restatement (First) of Judgments § 79
cmt. d (1942) (stating that “[i]n proceedings in rem, however, persons who have not been named
or specifically described in the proceedings, are nevertheless bound as to the subject matter by a
valid judgment, although they are not parties”). A general adjudication, like an in rem
proceeding, is brought against property, not parties. See Nevada v. United States, 463 U.S. 110,
144 (1983) (“[W]ater adjudications are more in the nature of in rem proceedings”); Mont. Trout
Unlimited v. Beaverhead Water Co., 255 P.3d 179, 194 (Mont. 2011) (concluding certain
interpretation of statute “comport[ed] with the nature of water right adjudication as in rem
proceedings”). Conversely, like a private adjudication under section 42-1401A(8), a final
judgment in a proceeding where the court has either in personam or quasi in rem jurisdiction


6
  Idaho Code section 42-1420 enumerates certain exceptions from the conclusive effect of a decree entered in a
general adjudication. Although the exceptions are irrelevant to this case, the exceptions include: (1) “a water right
for domestic use or stock watering use, specifically excluded from the general adjudication by court order;” (2) “a
water right application for permit filed under chapters 2 or 15, title 42, Idaho Code;” (3) “a water right permit issued
under chapters 2 or 15, title 42, Idaho Code, unless the director required the permit holder to file a notice of claim in
accordance with subsection (7) of section 42-1409, Idaho Code;” (4) “a water right license issued under chapter 2 or
15, title 42, Idaho Code, if proof of beneficial use had not been filed on the date of commencement of the general
adjudication, unless the director required the license holder to file a notice of claim in accordance with subsection
(7) of section 42-1409, Idaho Code;” and (5) “a claim to a water right established under federal law, if the priority of
the right claimed is later than and junior to the date of entry of the order commencing the general adjudication.” I.C.
§ 42-1420(1). None of these apply here.


                                                           8
precludes only the “same parties or their privies” from bringing subsequent proceedings arising
from the same transaction or occurrence already litigated. See Ticor Title, 144 Idaho at 124, 157
P.3d at 618; Restatement (First) of Judgments § 79 cmt. d (1942). A private adjudication, like in
personam or quasi in rem proceedings, is brought to define the rights of specific parties. I.C. §
42-1401A(8) (stating that a private adjudication “binds only those persons joined”); Restatement
(First) of Judgments § 79 cmt. d (1942) (“In proceedings quasi in rem, as in proceedings in
personam, only those persons who are parties as that term is herein used are thereby bound.”).
        However, we need not conclusively decide the applicability of the identity of parties
inquiry in this context because it is so clearly satisfied in this case. The United States was a party
to the Payette Adjudication and the SRBA, and in those adjudications, it was decreed the
underlying water rights. Thus, assuming the identity of parties requirement applies here, it is
satisfied.
        We turn finally to claim preclusion’s third requirement. This inquiry asks whether “the
present claim arises out of the same transaction or series of transactions as the original action.”
Berkshire Invs., 153 Idaho at 81, 278 P.3d at 951. “A critical component in deciding whether
claims are the same for purposes of res judicata is that the subsequent or present claim must be
one that arose out of the same cause of action and should have been litigated in the first suit.”
Maravilla v. J.R. Simplot Co., 161 Idaho 455, 459, 387 P.3d 123, 127 (2016); accord Joyce v.
Murphy Land & Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242–43 (1922) (explaining that
claim preclusion bars “every matter which might and should have been litigated in the first
suit”). The Late Claims arise from the same transaction already litigated, as they assert
“supplemental beneficial use storage water rights” that would work “in conjunction with existing
storage rights[.]” And since the Late Claims assert a priority date of September 30, 1965, the
Late Claims indisputably predate both the Payette Adjudication and the SRBA and should have
then been asserted. City of Pocatello v. Idaho, 152 Idaho 830, 841, 275 P.3d 845, 856 (2012)
(explaining that a beneficial use water “right dates from the application of the water to a
beneficial use” (quoting Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24
Idaho 63, 82, 133 P. 655, 661 (1913))). We conclude the district court was correct to observe, “If
the late claims now asserted were ever valid, the plain language of the final judgment
extinguished those claims and expressly barred any future assertion of those same claims.”
        The United States attempts to overcome claim preclusion’s fatal resolution of the Late



                                                  9
Claims by contending the Late Claims are excepted from claim preclusion. As it elaborates,
“where a change in fact or law gives rise to a new claim that could not have been brought at the
time of the initial action, claim preclusion does not apply.” The United States is correct that, for
claim preclusion to apply, the claim must be one that “might and should have been litigated in
the first suit.” Joyce, 35 Idaho at 553, 208 P. at 242–43. More specifically, this Court has
explained:
               Ordinarily, efficiency requires that all claims to relief based upon the same
       underlying transaction be pursued in a single action. This is because matters
       common to the several components of the action need be addressed only once,
       rather than several times in greater or lesser detail. However, sometimes a single
       trial covering all aspects of the case will be neither desirable nor feasible.
       Evidence bearing upon one aspect of a case may be unduly prejudicial with
       respect to another. Or certain matters may be ripe for trial while consideration of
       others would be premature.
Duthie v. Lewiston Gun Club, 104 Idaho 751, 758, 663 P.2d 287, 294 (1983) (quoting Heaney v.
Bd. of Trs. of Garden Valley Sch. Dist. No. 71, 98 Idaho 900, 902–03, 575 P.2d 498, 500–01
(1978)).
       According to the United States, the Late Claims “are dependent on material operative
facts that post-date the Payette Adjudication, namely: IDWR’s accounting procedures for Basin
65, which were not developed until 1993 . . . .” In support, the United States cites to U.S.
National Bank Association v. Kuenzli, 134 Idaho 222, 999 P.2d 877 (2000), to contend the Late
Claims are not barred by claim preclusion. In Kuenzli, the Kuenzlis and Dennett entered into an
agreement under which the Kuenzlis were to purchase Dennett’s farm for $300,000. Id. at 224,
999 P.2d at 879. As part of that agreement, Dennett reserved an option allowing him to
repurchase the farm at any time during escrow. Id. During escrow, the Kuenzlis learned that the
farm had significantly appreciated in value and, accordingly, began moving to sell the property
to a third party for $975,000. Id. Dennett swiftly responded by exercising his repurchase option.
Id. The Kuenzlis disputed Dennett’s right to do so, but Dennett obtained a judgment for specific
performance in his favor. Id. The judgment was affirmed on appeal, id. (citing Dennett v.
Kuenzli, 130 Idaho 21, 24, 936 P.2d 219, 222 (Ct. App. 1997)), and Dennett then “took
possession of the property on May 15, 1997, and an escrow contract was signed by the Kuenzlis
on June 10, 1997.” Id.
       Thirteen days later—on June 23, 1997—the Kuenzlis prepared a notice of default,
alleging that Dennett was in default for failing to making three installment payments of $30,000


                                                10
in 1994, 1995, and 1996, the three years after he exercised his repurchase option. Id. at 225, 999
P.2d at 880. Dennett then paid the installment payments, plus interest, “under protest” to the
escrow agent, U.S. Bank. Id. U.S. Bank responded by lodging an interpleader action to determine
who was entitled to the funds. Id. In the interpleader action, Dennett cross-claimed for a
declaratory judgment that he was not in default, and sought “other relief.” Id. The district court
ruled in Dennett’s favor, concluding the only enforceable contract for installment payments was
entered into on June 10, 1997, and nothing required Dennett to make installment payments for
1994, 1995, and 1996. Id.
        When the Kuenzlis appealed, this Court addressed their argument that claim preclusion
barred Dennett’s cross-claim since it was not asserted in the initial proceeding. Id. at 226, 999
P.2d at 881. This Court explained that “[i]t would have been impossible” for Dennett to assert
rights to the funds in the initial proceeding because the Kuenzlis did not assert he was in default
“until after the earlier litigation had run its course.” Id. Thus, Dennett’s cross-claim was not then
ripe, as his “right to the money deposited with U.S. Bank could not have been asserted during the
earlier litigation.” Id. And, while the Kuenzlis pointed to the Restatement’s “transactional
approach,” this Court clarified that the Kuenzlis’ reliance on the Restatement did not assist them.
Id. The Restatement explains that:
        Material operative facts occurring after the decision of an action with respect to
        the same subject matter may in themselves, or in conjunction with the antecedent
        facts, comprise a transaction which may be made the basis of a second action not
        precluded by the first.
Id. (quoting Restatement (Second) of Judgments § 24, cmt. f (1982)). As this Court reasoned,
“The Kuenzlis’ notice of default and the resultant interpleader action are ‘material operative
facts’ comprising a second ‘transaction’ and allowing a ‘second action not precluded by the
first.’ ” Id. Accordingly, claim preclusion did not bar Dennett’s cross-claim. Id.
        Kuenzli does not lend support to the United States in this case. In Kuenzli, the dispute
over the funds did not arise until the first action resolved. In fact, the resolution of the first action
held an integral role in creating the dispute over the funds because, had Dennett not prevailed in
the first action, he would not have been able to exercise the repurchase option, and the Kuenzlis
would have sold the property to the third party for a big profit. Here, by contrast, the Late Claims
arose before both the Payette Adjudication and the SRBA. The Late Claims assert “supplemental
beneficial use storage water rights” under the constitutional method of appropriation, with a



                                                   11
priority date of September 30, 1965. 7 The Late Claims thus required proof “with definite
evidence” that the claimed water was actually diverted and beneficially used at that time. City of
Pocatello, 152 Idaho at 841–42, 275 P.3d at 856–57; accord Joyce Livestock Co. v. United
States, 144 Idaho 1, 8, 156 P.3d 502, 509 (2007) (“The two essentials for obtaining a water right
under the constitutional method were typically diversion and application to a beneficial use.”).
This analysis is “focused purely on the actions of the appropriator[.]” Idaho Power Co. v. Idaho
Dep’t of Water Res., 151 Idaho 266, 275, 255 P.3d 1152, 1161 (2011). Therefore, it “would [not]
have been impossible . . . to have claimed the disputed [water rights]” in the earlier adjudications
because the Late Claims are clear that the two key elements—diversion and beneficial use—both
predate the earlier adjudications. But cf. Kuenzli, 134 Idaho at 226, 999 P.2d at 881. Accordingly,
the district court was correct to recognize that, “If the Late Claims have any merit now . . . , that
same merit must have existed during the Payette Adjudication” and the SRBA.
         Nor are we persuaded by the United States’ argument that only with the advent of
computerized accounting did it have reason to believe proceedings to address flood-control
administration were necessary. Three threshold considerations invalidate this argument. First,
this argument erroneously attempts to trade Kuenzli’s clear “impossible to bring” standard for an
anomalous “did not foresee the need to bring” standard. Second, this Court has been very clear
that “[r]es judicata precludes the relitigation of the same claim even if there is new evidence to
support it.” Taylor v. Riley, 162 Idaho 692, 703, 403 P.3d 636, 647 (2017) (citing Wolfe v. Farm
Bureau Ins. Co., 128 Idaho 398, 403, 913 P.2d 1168, 1173 (1996)). Third, the United States’
effort to ascribe operative significance to IDWR’s accounting system ignores the bedrock
principle that the constitutional method of appropriation is “focused purely on the actions of the
appropriator[.]” Idaho Power Co., 151 Idaho at 275, 255 P.3d at 1161. IDWR’s accounting
system is therefore irrelevant in this proceeding. 8




7
  We note that in 1971, the Legislature “amended Idaho Code §§ 42-103 and 42-201 to require compliance with the
statutory application, permit, and license procedure in order to acquire new water rights.” Joyce Livestock Co. v.
United States, 144 Idaho 1, 7, 156 P.3d 502, 508 (2007); accord United States v. Pioneer Irrigation Dist., 144 Idaho
106, 110, 157 P.3d 600, 604 (2007).
8
  Additionally, the United States’ attempt to inject issues of accounting in this case contravenes our precedent. This
Court did not equivocate when, in 2014, it explained: “Which accounting method to employ is within the Director’s
discretion and the Idaho Administrative Procedure Act provides the procedures for challenging the chosen
accounting method.” In re SRBA, 157 Idaho 385, 394, 336 P.3d 792, 801 (2014). The United States has not availed
itself to the proper administrative procedure to challenge the Director’s method of accounting.


                                                         12
       Moreover, the propriety of the United States’ reliance on IDWR’s accounting system is
belied by the record. Displayed in the record are certain water claims filed in June 1983, seeking
a “[s]econd refill right” in American Falls Reservoir, a right permitting “actual multiple fill or
refill of [Palisades] Reservoir[,]” a right to provide “optimum Project benefits including flood
control” in Island Park Reservoir, and a right permitting “refill or second fill of [Arrowrock]
reservoir capacity[.]” The record thus shows that issues of refill rights and flood-control
administration were previously relevant and should have been raised during the Payette
Adjudication or the SRBA, both of which post-dated the claims just referenced. Cf. Rangen, Inc.
v. Idaho Dep’t of Water Res., 159 Idaho 798, 806, 367 P.3d 193, 201 (2016) (“If Rangen wanted
its water rights to be interpreted differently, it should have timely asserted that in the SRBA.”).
These issues were nonetheless not raised until this proceeding. As such, the decrees authorize
specific, measurable quantities of water, not a certain number of reservoir “fills.” The quantities
set forth in the decrees are binding and must control. It cannot now reasonably be contended that
the specific, measurable quantities of water decreed are anything less than determinative, as the
record demonstrates that as far back as 1934, it was recognized that decreed water rights would
“no doubt be governed by the amount set out in the . . . decree[.]”
       In sum, we conclude the undisputed facts show that claim preclusion bars the Late
Claims, making summary judgment proper on this issue. We thus hold that claim preclusion bars
the United States in this proceeding from seeking to litigate issues of refill and flood-control
administration, and from attempting to supplement the water rights already decreed with
quantities of water in excess of the quantities already decreed. See supra Part I. Absent the
United States undertaking appropriate proceedings to set aside a final judgment under Idaho Rule
of Civil Procedure 60(b), we emphasize that the decrees are conclusive and final, which
comports our general reluctance to allow already-decreed water rights to be relitigated. See, e.g.,
City of Blackfoot v. Spackman, 162 Idaho 302, ___, 396 P.3d 1184, 1190 (2017) (“Furthermore,
it is equally clear from the plain language of the decree that recharge is not listed as an
authorized use under the purpose of use element of 181C. Claiming, at this stage, that recharge is
an authorized use of 181C, is nothing more than an impermissible collateral attack . . . .”); Idaho
Ground Water Assoc. v. Idaho Dep’t of Water Res., 160 Idaho 119, 128, 369 P.3d 897, 906
(2016) (“Allowing IGWA to collaterally attack this determination would severely undermine the
purpose of the SRBA and create uncertainty in water rights adjudicated in that process.”);



                                                13
Rangen, 159 Idaho at 806, 367 P.3d at 201 (“Any interpretation of Rangen’s partial decrees that
is inconsistent with their plain language would necessarily impact the certainty and finality of
SRBA judgments and, therefore, requests for such interpretations needed to be made in the
SRBA itself.”); State v. Nelson, 131 Idaho 12, 16, 951 P.2d 943, 947 (1998) (“Finality in water
rights is essential.”). Finality is for good reason, especially in water law; otherwise, the
approximate $94 million the State expended in judicial and administrative costs during the
SRBA would be jeopardized as mere wasteful expenditures. See Ann Y. Vonde et al.,
Understanding the Snake River Basin Adjudication, 52 Idaho L. Rev. 53, 56 (2016).
          Because we affirm the district court’s ruling on summary judgment that claim preclusion
bars the Late Claims as a matter of law, we need not reach whether the Late Claims are
additionally precluded by issue preclusion, the Payette Decree, and Idaho Code section 42-1411
(1969).
B.        We decline to award attorney fees on appeal.
          The United States did not request attorney fees on appeal. The State and Suez request
attorney fees on appeal under section 12-117, which provides in relevant part:
                 Unless otherwise provided by statute, in any proceeding involving as
          adverse parties a state agency or a political subdivision and a person, the state
          agency, political subdivision or the court hearing the proceeding, including on
          appeal, shall award the prevailing party reasonable attorney’s fees, witness fees
          and other reasonable expenses, if it finds that the nonprevailing party acted
          without a reasonable basis in fact or law.
I.C. § 12-117(1).
          Based on the above, the State and Suez are the prevailing parties on appeal. However, the
United States did not act without a reasonable basis in fact or law. Instead, the United States
advanced complex arguments in good faith. We therefore decline to award attorney fees on
appeal.
                                         V. CONCLUSION
          For the reasons above, we affirm the district court’s ruling that claim preclusion bars the
Late Claims. We award costs on appeal, but not attorney fees, to the State and Suez.
          Justices HORTON, BRODY, BEVAN and WALTERS, J. Pro Tem, CONCUR.




                                                  14
