                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 44249

SCHWEITZER BASIN WATER                               )
COMPANY,                                             )        Boise, September 2017 Term
                                                     )
       Plaintiff-Respondent,                         )        2017 Opinion No. 116
                                                     )
v.                                                   )        Filed: November 28, 2017
                                                     )
SCHWEITZER FIRE DISTRICT,                            )        Karel A. Lehrman, Clerk
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Bonner County. Hon. Barbara A. Buchanan, District Judge.

       The judgment of the district court is affirmed.

       Marshall Law Office, Sandpoint, for appellant. Angela R. Marshall argued.

       Stephen F. Smith, Attorney at Law, Chartered, Sandpoint, for respondent.
       Stephen F. Smith argued.
            _______________________________________________

HORTON, Justice.
       Schweitzer Fire District (the District) appeals the decision of the district court granting a
writ of prohibition on behalf of Schweitzer Basin Water Company (the Company) that prevents
the District from taking proposed enforcement action against the Company related to perceived
flow-rate deficiencies of fire hydrants owned by third-party homeowners and installed on the
Company’s private water system. The district court granted the writ of prohibition after
concluding that the District did not have jurisdiction over the Company under Idaho Code
section 41-259. The district court awarded attorney fees and costs to the Company after
determining that the District’s position was without a reasonable basis in fact or law. The District
timely appealed. The State Fire Marshal submitted briefing as amicus curiae because the writ of
prohibition at issue involves interpretation of the scope of its duties under Idaho Code.




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                      I. FACTUAL AND PROCEDURAL BACKGROUND
       The Company has operated a private water system for delivery of domestic water to
residents in the Schweitzer Mountain area since 1989. Beginning in 1992, the Company has
allowed homeowners to add fire hydrants to its water system under a standard contract requiring
the homeowners to be responsible for maintenance of their hydrants. The District was formed in
1994. The Company and the District have had repeated disputes about the flow-rate requirements
of hydrants since that time.
       The present dispute began when the District sent an Order to Repair and Remedy to the
Company (the Order) on May 3, 2014. Initially, the Company filed a request for a contested
hearing on the issues raised in the Order. However, instead of proceeding with the contested
hearing, the Company turned to the district court, seeking relief by way of a writ of prohibition.
The district court issued an alternative writ of prohibition on March 20, 2015, and scheduled a
show cause hearing for March 25, 2015. Following the hearing, the district court left the
alternative writ of prohibition in effect and the parties attempted mediation. Mediation was
unsuccessful.
       Following a hearing on January 20, 2016, the district court granted the Company’s
request for a writ of prohibition. In its Memorandum Decision granting the relief, the district
court explained that the District had no statutory authority under Idaho Code section 41-259 to
compel the Company to repair the water system because the water system could not be
considered a “building or structure.” The district court heard the Company’s motion for attorney
fees on March 23, 2016, and entered an order awarding attorney fees shortly after. The district
court entered the peremptory writ of prohibition and judgment on April 21, 2016. After several
other post-trial motions not at issue in this appeal, the District timely appealed.
                                  II. STANDARD OF REVIEW
       Appeals concerning jurisdiction are questions of law over which this Court exercises free
review. State v. Dist. Court of Fourth Judicial Dist., 143 Idaho 695, 699, 152 P.3d 566, 570
(2007). A writ of prohibition is only proper when the petitioner can show “that the tribunal,
corporation, board[,] or person is proceeding without or in excess of the jurisdiction of such
tribunal[,] corporation, board, or person.” Id. at 698, 152 P.3d at 569 (quoting Clearwater
Timber Protective Ass’n v. Dist. Court of Second Judicial Dist. In and For Clearwater Cnty., 84
Idaho 129, 135, 369 P.2d 571, 574 (1962)). A party seeking a writ of prohibition must show that

                                                  2
“there is not a plain, speedy, and adequate remedy in the ordinary course of law.” Id. The
petitioner bears the burden of proof as to these two requirements. Id. at 699, 152 P.3d at 570
(citing Clark v. Ada Cnty. Bd. of Comm’rs, 98 Idaho 749, 752, 572 P.2d 501, 504 (1977)).
       In the context of a writ of prohibition, the term “jurisdiction” has a specific meaning. As
we explained in Henry v. Ysursa:
       The word “jurisdiction” when used in reference to a writ of prohibition includes
       the power or authority conferred by law. Crooks v. Maynard, 112 Idaho 312, 319,
       732 P.2d 281, 288 (1987) (where administrative orders were within the “power
       and authority” of the administrative district judge, a writ of prohibition would not
       issue); Stein v. Morrison, 9 Idaho 426, 455, 75 P. 246, 256 (1904) (quoting from
       Maurer v. Mitchell, 53 Cal. 289, 292 (1878)) (“The word ‘jurisdiction,’ when
       used in connection with ‘prohibition,’ would be at once understood as being
       employed in the sense of the legal power or review.” State v. District Court, 143
       Idaho 695, 699, 152 P.3d 566, 570 (2007)).
148 Idaho 913, 915, 231 P.3d 1010, 1012 (2008). The District’s claim of authority over the
Company is grounded in statute. “Statutory interpretation is a question of law over which this
Court exercises free review.” Estate of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562,
401 P.3d 136, 140 (2017) (quoting Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d
1256, 1263 (2012)).
       Attorney fees awarded by a district court under Idaho Code section 12-117 are reviewed
for abuse of discretion. City of Osburn v. Randel, 152 Idaho 906, 908, 277 P.3d 353, 355 (2012).
In determining whether a district court has abused its discretion, this Court examines whether the
district court: “(1) correctly perceive[d] the issue as discretionary, (2) act[ed] within the bounds
of discretion and applie[d] the correct legal standards, and (3) reache[d] the decision through an
exercise of reason.” American Semiconductor, Inc. v. Sage Silicon Solutions, LLC, 162 Idaho
119, 132, 395 P.3d 338, 351 (2017) (quoting O’Connor v. Harger Constr., Inc., 145 Idaho 904,
909, 188 P.3d 846, 851 (2008)). The appellant bears the burden of showing that the trial court
abused its discretion. Id. (citing Merrill v. Gibson, 139 Idaho 840, 843, 87 P.3d 949, 952 (2004)).
                                      III. ANALYSIS
   A. The district court correctly concluded that the District did not have jurisdiction
      over the Company’s water system under Idaho Code section 41-259.
       In its Memorandum Decision and Order Granting Writ of Prohibition, the district court
considered the District’s claim of authority over the Company under Idaho Code section 41-259.
The district court concluded that “the Company’s water system can in no way be construed as a


                                                 3
‘building or other structure which, for want of repairs, . . . or by reason of age or dilapidated
condition, or due to violation of the International Fire Code or from any other cause, is especially
liable to fire . . . .’ ” The district court also decided that the administrative hearings proposed by
the District did not present an adequate remedy at law for the Company. Having concluded that
the two requirements for issuance of a writ of prohibition had been satisfied, the district court
granted the petition. Based upon the legal arguments presented to it, the district court did not err.
       As a preliminary matter, we must consider the extent to which arguments advanced by
the State Fire Marshal, appearing as amicus curiae, may be properly considered when deciding
this appeal. Stated summarily, the State Fire Marshal advances the thesis that the district court
did not properly interpret Idaho Code section 41-259 within the context of the entire statutory
fire-safety scheme. The extent to which amicus briefing may inject new legal issues into an
appeal has not been previously analyzed by this Court. We find precedent from the Supreme
Court of the United States to be instructive.
       In F.T.C. v. Phoebe Putney Health Sys., Inc., 568 U.S. 216 (2013), the Court was asked
by an amicus curiae to consider an argument not raised directly by the parties. The Court rejected
the request, stating: “Because this argument was not raised by the parties or passed on by the
lower courts, we do not consider it.” Id. at 226 n.4. 1 This holding is consistent with previous
decisions from the Supreme Court. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2
(1981); Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979); Knetsch v. United States, 364 U.S. 361,
370 (1960). We adopt the approach of the United States Supreme Court and will not consider
arguments advanced by amicus curiae which have not been raised by the parties.
       1. This Court must decide the question of the District’s jurisdiction only by
       consideration of Idaho Code section 41-259.



1
  Viewed charitably, the District may have attempted to raise the arguments advanced by the Fire
Marshal in the present appeal. In a footnote in its opening brief, the District states: “The Amicus
Brief filed by the Attorney General contains a thorough analysis of the issue of jurisdiction.”
 We do not view this footnote as sufficient to inject the issues raised by amicus curiae into this
appeal. First, the District does not explicitly adopt or incorporate those arguments. Of far greater
importance, the arguments advanced by amicus curiae were not presented to the district court.
“This Court will not consider issues raised for the first time on appeal.” Watkins Co., LLC v.
Estate of Storms, 161 Idaho 683, 685, 390 P.3d 409, 411 (2017) (quoting Clear Springs Foods,
Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93 (2011)).


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        Prior to the first hearing in this litigation, the District submitted a brief in support of its
objection to the Company’s petition. The following is the entirety of its argument in support of
its claim of authority over the Company:
                On the first issue of jurisdiction, the express authority was given to the
        District by IDAPA, the Statutes of Idaho, and the International Fire Code adopted
        by the State of Idaho. This is conceded by the Company’s affiant Mark Larsen
        [sic] with regards to I.C. 41-253 through 41-269 and also administrative hearings.
        (SeeP.5, P6, ML Affidavit).
        We first note that Mr. Larson’s affidavit did not make the concession which the District
asserts. Rather, his affidavit recites his credentials, including prior service as the State Fire
Marshal and his duty to enforce the International Fire Code. Mr. Larson’s affidavit concludes:
“Based upon my findings concerning the [Company’s water] system, and my knowledge of the
applicability of the International Fire Code, the International Fire Code would not apply to the
system.”
        We next observe that the District’s argument regarding its statutory authority is simply
conclusory. This is undoubtedly the reason that the district court opened its first hearing with a
request that the District identify the statutory basis of its authority to compel the Company to
make changes to its water system:
                Just let me say, though, the Court’s concern is I’m looking at Idaho Code
        41-259 because I think that’s the authority that the Fire District is attempting to
        use to say that they have the ability to order the water company to do certain
        things. And the Court’s concern is that that section does not seem to apply to what
        I see that the Fire District is trying to accomplish in this case. It speaks to the state
        fire marshal or the fire marshal’s deputies having the authority to order remedies
        when they find that buildings or structures are dangerous and constitute a fire
        hazard and that it says when they so endanger life, other buildings or structures,
        they can order a remedy. And there’s all sorts of penalties. There’s daily penalties.
        But I’m having a hard time seeing how that would apply to an issue over whether
        fire hydrants within a water district have enough water flow.
                So -- and I think that’s the reason the Court granted the Writ of Prohibition
        because I’m not knowing -- I’m concerned that the Fire District may be acting
        outside its jurisdiction.
        Despite the district court’s request, the District never identified any other statute that
would give it authority over the Company. As the district court noted in its Memorandum
Decision, “As early as the show cause hearing, nearly one year ago, this Court signaled to the
District that it might lack jurisdiction in this case; and yet, to this day, the District has failed to
present any factual or legal basis supporting its claim of jurisdiction . . . .”

                                                    5
        The District’s failure to identify pertinent statutory authority has not been rectified on
appeal. Its opening brief contains an argument that was evidently cut and pasted from its original
brief before the district court:
                On the first issue of jurisdiction, the express authority was given to the
        District by IDAPA, the Statutes of Idaho, and the International Fire Code adopted
        by the State of Idaho. This is conceded by the [Company’s] affiant Mark Larsen
        [sic] with regards to I.C. 41-253 through 41-269 and also administrative hearings.
        The District’s opening brief did not expand on this claim. Despite a one-sentence
assertion that “[t]he language contained in Idaho Code and IDAPA grants express authority to
[the District] to enforce all aspects of the International Fire Code, including the enforcement of
fire flows,” the District did not identify a statute or rule that conferred this “express authority.”
        Thus, apart from Idaho Code section 41-259—identified by the district court as the only
statute that appeared to address the scope of the District’s authority to compel changes to the
Company’s system—the District has waived its claim that the district court erred with regard to
jurisdiction by failing to properly provide this Court with argument and authority. See Murray v.
State, 156 Idaho 159, 168, 321 P.3d 709, 718 (2014) (“A party waives an issue cited on appeal if
either authority or argument is lacking, not just if both are lacking.”) (quoting State v. Wood, 132
Idaho 88, 94, 967 P.2d 702, 708 (1998)). Thus, despite the District’s failure to even cite to Idaho
Code section 41-259 in its briefing before this Court, we will consider only whether that statute
provides the District with the authority it claims to have.
        2. Idaho Code section 41-259 does not give the District jurisdiction over the fire
        hydrants on the Company’s water system.
        The district court considered Idaho Code section 41-259 in detail and concluded that the
Company’s water system was not governed by the statute. This Court has consistently held that:
“Statutory interpretation begins with the literal words of the statute, and this language should be
given its plain, obvious, and rational meaning.” Chandler’s-Boise LLC v. Idaho State Tax
Comm’n, 162 Idaho 447, 452, 398 P.3d 180, 185, (2017) (quoting Jayo Dev., Inc. v. Ada Cnty.
Bd. of Equalization, 158 Idaho 148, 152, 345 P.3d 207, 211 (2015)). Idaho Code section 41-259
provides:
               The state fire marshal, his deputies or assistants, upon the written and
        signed complaint of any person or whenever he or they shall deem it necessary,
        may at reasonable hours inspect buildings and premises within their
        jurisdiction, upon the presentation of proper credentials, except the interior of


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       private dwellings, private garages appertaining to such residences, or buildings on
       farms of more than five (5) acres.
               Whenever any of said officers shall find that any building or other
       structure which, for want of repairs, or lack of or insufficient fire escapes,
       automatic or other fire alarm apparatus or fire extinguishing equipment, or by
       reason of age or dilapidated condition, or due to violation of the International Fire
       Code or from any other cause, is especially liable to fire, and is so situated as to
       endanger life, other buildings or structures or said building or structure, he or
       they shall order the same to be remedied or removed, and such order shall
       forthwith be complied with by the owner or occupant of such premises or
       buildings, unless said owner or occupant avail himself of the appeals procedure
       set forth in this act.
               The service of any such order shall be made upon the owner or occupant
       either by delivering to and leaving with the said person a true copy of the said
       order, or, by mailing such copy to the owner or occupant’s last known address.
       All mailings shall be registered or certified, with return receipt.
I.C. § 41-259 (emphasis added).
       The district court correctly held that “the Company’s water system can in no way be
construed as a ‘building or other structure’ ” that would fall under the jurisdiction conveyed by
Idaho Code section 41-259. While the plain language of section 41-259 provides the District
authority to inspect “buildings and premises,” the statute only grants authority to the District to
order remedy and repair of “buildings or other structures.” I.C. § 41-259.
       The District’s authority to enter repair or removal orders does not extend to all buildings
or structures. Instead, such orders may be entered only if some deficiency (“want of repairs, or
lack of or insufficient fire escapes, automatic or other fire alarm apparatus or fire extinguishing
equipment, or by reason of age or dilapidated condition, or due to violation of the International
Fire Code”) renders the building or structure “especially liable to fire.” There is simply no
factual basis in the record before this Court that the Company’s system presents such a risk. 2
Thus, even with an expansive interpretation of the “other structure” language of the statute, the



2
  We acknowledge that there is some ambiguity in the statute. It is unclear whether repair and
removal orders may be entered with regard to all buildings or structures which represent a high
risk for fire. The statute qualifies the circumstances in which such orders may be entered. Such
orders may be entered only if the high-risk building or structure “is so situated as to endanger
life, other buildings or structures or said building or structure.” The last five words of this clause
present the ambiguity. It is difficult to conceive how a building or structure might be situated in
such a fashion as to represent a danger to itself.


                                                  7
plain language of Idaho Code section 41-259 did not give the District authority to enter the repair
or removal order.
       3. The administrative hearing process proposed by the District does not represent
       an adequate remedy at law when jurisdiction over the Company does not exist.
       As this Court observed in Wasden v. State Board of Land Commissioners: “writs of
prohibition are extraordinary and are issued with caution.” 150 Idaho 547, 552, 249 P.3d 346,
351 (2010) (quoting Gibbons v. Cenarrusa, 140 Idaho 316, 318, 92 P.3d 1063, 1065 (2002)). As
such, a writ of prohibition is not appropriate when there is “ ‘a plain, speedy, and adequate
remedy in the ordinary course of law.’ ” Id. In Wasden, we explained that “[t]he remedy must be
evident, obvious, simple or not complicated.” Id. Further, we added that “a request for injunctive
relief is the obvious course of action” that could be joined with an action for declaratory
judgment when a party seeks to prevent another party from acting in a certain manner. Id.
       While this case law is clear, the only alternative remedy that the District identified before
the trial court and in this appeal is the administrative hearing process outlined in Idaho Code
section 41-260. Thus, we will only consider whether such an administrative hearing constitutes a
plain, speedy, and adequate remedy in the ordinary course of law. Murray, 156 Idaho at 168, 321
P.3d at 718.
       The District directs us to the administrative hearing process in Idaho Code section 41-
260:
               If an order to remedy or remove, or a local appeal decision regarding the
       interpretation of the International Fire Code or rules of the state fire marshal, is
       made by the deputies or assistants of the state fire marshal, such owner or
       occupant who receives the order, or a party aggrieved by a local appeal
       decision, may, within twenty (20) days after receipt of service of such order
       or local appeal decision, appeal to the state fire marshal, who shall within ten
       (10) days, review such order or local appeal decision and if affirmed, file his
       decision thereon, and unless by his authority the order or local appeal decision is
       revoked or modified it shall remain in full force and be complied with within the
       time fixed in said order, local appeal decision, or decision of the state fire
       marshal.
               Provided, however, that any such owner, occupant or party who feels
       himself aggrieved by any such order or local appeal decision, or affirming of such
       order or local appeal decision, may within thirty (30) days after the making or
       affirming of any such order or local appeal decision by the state fire marshal,
       appeal such order or local appeal decision to the district court having
       jurisdiction of the property.



                                                8
I.C. § 41-260 (emphasis added). The district court explained the District’s interpretation of this
process in this way: “the Company should be required to first exhaust the administrative process
of ‘hearing board → appeal to State Fire Marshal → judicial review . . . .’ ”
       Although the District has not argued that the Company’s action should have been
dismissed for failure to exhaust this administrative process, 3 cases discussing the exhaustion
requirement are instructive in determining whether the administrative process represents an
adequate alternative remedy. We first acknowledge that available administrative remedies
generally must be exhausted before the district courts can hear a case; however this rule does not
invariably apply. Park v. Banbury, 143 Idaho 576, 580, 149 P.3d 851, 855 (2006) (citing
Fairway Dev. Co. v. Bannock Cnty., 119 Idaho 121, 125, 804 P.2d 294, 298 (1990)). One
instance where the exhaustion requirement does not apply is when the administrative agency has
acted outside of its authority. Id. at 580–81, 149 P.3d at 855–56 (“[C]ourts will not require
exhaustion ‘when the agency is palpably without jurisdiction.’ ”) (quoting Sierra Life Ins. Co. v.
Granata, 99 Idaho 624, 627, 586 P.2d 1068, 1071 (1978)).
       The District argues that the Company should have appeared before a hearing board that
the Company contends has no authority over it in order to dispute the District’s claim of
jurisdiction. The District also argues that the proposed administrative hearing would result in a
speedier resolution than the writ of prohibition sought by the Company. What the District fails to
appreciate, however, is that the District simply has no jurisdiction under Idaho Code section 41-
259 to require the Company to participate in the administrative process in the first instance.
Therefore, we hold that the district court correctly determined that the administrative remedy
proposed by the District was not an alternative plain, speedy, and adequate remedy.
    B. The district court did not abuse its discretion in awarding attorney fees to the
       Company.
       Attorney fees awarded by a district court under Idaho Code section 12-117 are reviewed
by this Court for an abuse of discretion. City of Osburn v. Randel, 152 Idaho 906, 908, 277 P.3d
353, 355 (2012). In determining whether a district court abused its discretion, this Court
examines whether the district court: “(1) correctly perceive[d] the issue as discretionary, (2)
act[ed] within the bounds of discretion and applie[d] the correct legal standards, and (3)

3
  Instead, the District argues that the availability of the administrative remedy presents an
alternative, adequate remedy that makes a writ of prohibition improper under the two-pronged
approach in Wasden.
                                                 9
reache[d] the decision through an exercise of reason.” American Semiconductor, Inc. v. Sage
Silicon Solutions, LLC, 162 Idaho 119, 132, 395 P.3d 338, 351 (2017) (quoting O’Connor v.
Harger Constr., Inc., 145 Idaho 904, 909, 188 P.3d 846, 851 (2008)). Under this standard, the
appellant bears the burden of demonstrating that the trial court’s decision failed to satisfy some
aspect of the governing three-part test. Id. (citing Merrill v. Gibson, 139 Idaho 840, 843, 87 P.3d
949, 952 (2004)).
       The District’s opening brief does not mention the applicable three-part test. Instead, the
District contends that its actions were reasonable because “there is no controlling ordinance or
statute preventing the actions of the [District.]” We are unable to accept the premise that an
explicit statutory prohibition is a prerequisite to an award of attorney fees.
       The district court clearly recognized the issue of attorney fees as a matter committed to
its discretion. The district court identified the governing legal standards and made a decision
within the bounds of its discretion. The district court cogently explained the reasons for its
decision to award the Company attorney fees, observing that “this Court signaled to the District
that it might lack jurisdiction in this case; and yet, to this day, the District has failed to present
any factual or legal basis supporting its claim of jurisdiction, causing the Company to continue
accruing attorney’s fees litigating this matter.” The District has not shown that the district court
abused its discretion in awarding attorney fees to the Company. 4 Therefore, the district court’s
award of attorney fees is affirmed.
    C. We award the Company attorney fees and costs on appeal.
       Both the District and the Company request attorney fees on appeal under Idaho Code
section 12-117. This section provides, in pertinent part, as follows:
              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
4
  Even if the District had demonstrated that the district court abused its discretion by awarding
attorney fees under Idaho Code section 12-117, we would still be bound to affirm the award of
attorney fees. This is because the district court identified an alternative basis for its award of
attorney fees to the Company when it determined that they were properly awarded as damages
under Idaho Code section 7-312. The District has not challenged this alternative basis for the
district court’s fee award. “Where a lower court makes a ruling based on two alternative grounds
and only one of those grounds is challenged on appeal, the appellate court must affirm on the
uncontested basis.” Ballard v. Kerr, 160 Idaho 674, 699, 378 P.3d 464, 489 (2016) (quoting Rich
v. State, 159 Idaho 553, 555, 364 P.3d 254, 256 (2015)).
                                                 10
       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). The District has not prevailed in this appeal, therefore, it is not entitled to an
award of fees or costs.
       “Where an agency has no authority to take a particular action, it acts without a reasonable
basis in fact or law.” Syringa Networks, LLC v. Idaho Dept. of Admin., 159 Idaho 813, 831, 367
P.3d 208, 226 (2016) (quoting Fischer v. City of Ketchum, 141 Idaho 349, 356, 109 P.3d 1091,
1098 (2005) overruled on other grounds by City of Osburn v. Randel, 152 Idaho 906, 277 P.3d
353 (2012)). We award the Company attorney fees on appeal.
                                       IV. CONCLUSION
       We affirm the judgment of the district court granting the Company’s petition for writ of
prohibition and awarding attorney fees to the Company. We award attorney fees and costs on
appeal to the Company.


    Chief Justice BURDICK, and Justices JONES, BRODY and Justice Pro Tem
WALTERS CONCUR.




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