                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 37242

PIONEER IRRIGATION DISTRICT,               )
                                           )                 Boise, December 2011 Term
   Plaintifff-Counterdefendant-Respondent, )
                                           )                 2012 Opinion No. 74
v.                                         )
                                           )                 Filed: April 27, 2012
CITY OF CALDWELL,                          )
                                           )                 Stephen Kenyon, Clerk
   Defendant-Counterclaimant-Appellant.    )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       Canyon County. Hon. Gregory M. Culet, District Judge.

       The district court’s grant of partial summary judgment is affirmed in
       part, reversed in part and the matter is remanded for proceedings consistent with
       this opinion.

       Hamilton, Michaelson & Hilty, LLP, Nampa, and Holland & Hart, LLP, Boise,
       for appellant. Eric Stidham argued.

       Moffatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Brad Williams
       argued.
             _______________________________________________

HORTON, Justice.

       In 2008, Pioneer Irrigation District (Pioneer) filed suit against the City of Caldwell (the
City), seeking declaratory and injunctive relief, as well as the removal of urban stormwater
discharge conduits constructed by the City without Pioneer’s authorization. The district court
granted summary judgment in favor of Pioneer. The court held that Pioneer held exclusive
interests in its irrigation easements and rights-of-way such that Pioneer could maintain trespass
claims against the City. The court also held that I.C. § 42-1209 granted Pioneer the power to
remove encroachments constructed without its permission that it deemed to unreasonably or
materially interfere with its easements and rights-of-way. The district court held that review of
certain decisions by the irrigation district would be limited to whether they were arbitrary and
capricious or reached in an unreasonable manner. The City moved for permissive appeal, which



                                                1
motion the district court granted. We affirm the decision of the district court, except for its
holding that irrigation easements and rights-of-way are exclusive interests.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
        Pioneer instituted this action in early 2008, seeking declaratory and injunctive relief
against the City. Pioneer alleged that by adopting a new municipal storm water management
manual, the City had caused or permitted developers to install storm water discharge pipes such
that municipal storm water was being discharged into Pioneer’s irrigation delivery and drainage
facilities without Pioneer’s permission. Pioneer alleged that these discharge pipes unreasonably
and materially interfered with its irrigation easements and rights-of-ways. Pioneer sought several
judicial declarations, including that Pioneer was authorized to both remove and prohibit the
future construction of unauthorized, unreasonable encroachments pursuant to I.C. § 42-1209.
Pioneer also sought injunctive relief, alleging that it enjoyed an exclusive right to possession of
its irrigation facilities and that municipal storm water runoff events were a trespass upon those
facilities.
        Relevant to this appeal, the parties filed cross-motions for summary judgment. The
district court granted portions of Pioneer’s motion, holding that where Pioneer exercised its
discretion under I.C. § 42-1209 to deny a proposed encroachment as an unreasonable or material
interference, a court’s review of that exercise of discretion is limited to whether the decision was
reached in an unreasonable manner, arbitrary and capricious, or based upon findings that were
clearly erroneous. The court also held that I.C. § 42-1209 permits the owner of an irrigation
easement or right-of-way to engage in self-help to remove an encroachment that was constructed
without permission and unreasonably or materially interfered with the easement or right-of-way.
The district court held that the owner of an irrigation easement or right-of-way enjoys an
exclusive interest therein, and on those grounds denied the City’s motion for summary judgment
seeking dismissal of Pioneer’s trespass claims.
        Following the district court’s grant of the City’s I.A.R. 12 motion for permissive appeal,
this Court granted the City leave to appeal.
                                 II. STANDARD OF REVIEW
        We review a trial court’s grant of summary judgment under the same standard applied by
the trial court. Read v. Harvey, 141 Idaho 497, 499, 112 P.3d 785, 787 (2005). A reviewing court
will construe all disputed facts and make all reasonable inferences in favor of the nonmoving

                                                  2
party. Sprinkler Irr. Co. v. John Deere Ins. Co., 139 Idaho 691, 695-96, 85 P.3d 667, 671-72
(2004). Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c).
                                         III. ANALYSIS
   A. This Court’s holding is limited to those issues raised in the City’s motion for
      permissive appeal.
       The City attacks the district court’s holdings on a variety of grounds, including errors in
statutory interpretation, the constitutionality of the district court’s statutory interpretation, and
lack of specificity regarding the easements’ scope. Pioneer similarly defends on a variety of
grounds, including statutory interpretation, the application of res judicata to preclude collateral
challenges to Pioneer’s ownership interests, and judicial estoppel of claims that the judgment is
invalid because it does not include all affected servient landowners.
       However, review of a permissive appeal must “address only the precise question that was
framed by the motion and answered by the trial court.” Winn v. Frasher, 116 Idaho 500, 501, 777
P.2d 722, 723 (1989). In the present case, the City moved for permissive appeal of the court’s
grant of partial summary judgment. The district court granted that motion. The City’s and the
district court’s express statements of the issues to be addressed by the permissive appeal were
nearly verbatim. The district court phrased those issues as follows:
       1. Idaho Code section 42-1209 vests Pioneer with the initial discretion to
          determine whether an encroachment is likely to unreasonably or materially
          interfere with the use and enjoyment of its irrigation or drainage easements or
          rights-of-way, and to deny permission for the encroachment on those grounds.
          Judicial review of Pioneer’s determination and decision is limited to (a)
          whether Pioneer’s denial of permission to encroach was arbitrary and
          capricious or based on clearly erroneous findings, and (b) whether Pioneer’s
          decision-making process was reasonable.
       2. Idaho Code section 42-1209 authorizes Pioneer to enforce the removal of any
          encroachments installed after the effective date of section 42-1209 that
          Pioneer determines materially and unreasonably interfere with the use and
          enjoyment of its irrigation and drainage easements or rights-of-way, at the
          expense of the encroaching party, subject to certain limitations:
               A. Pioneer must initially request removal of the encroachment by the
                  encroaching party;
               B. Pioneer’s right of self-help (i.e., in lieu of pursuing a judicial remedy)
                  to remov[al] of the encroachment must be accomplished within the

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                    borders of its easement or right-of-way and without a breach of the
                    peace; and
                C. Judicial review of Pioneer’s determination and decision is limited to
                   (a) whether Pioneer’s decision to request removal of an existing
                   encroachment was arbitrary and capricious or based on clearly
                   erroneous findings, and (b) whether Pioneer’s decision-making process
                   was reasonable.
        3. That Pioneer Irrigation District enjoys exclusive rights in its primary
           easements and rights-of way under Idaho Code sections 42-1102 and 1209.
We are bound to address only these issues. Since several of the parties’ claims and defenses on
appeal are irrelevant to these precise questions, we do not address them here.
    B. Under I.C. § 42-1209, an irrigation delivery entity’s denial of permission to
       construct an encroachment is an exercise of discretion subject to limited review by a
       court.
        The City asserts that the question whether a proposed encroachment constitutes an
unreasonable or material interference is a question that should be resolved by a trier of fact. The
district court disagreed, reasoning that irrigation districts are quasi-municipal corporations
engaged in the proprietary role of providing irrigation for landowners’ benefit, and that thus the
scope of a civil challenge to an irrigation entity’s denial of permission to encroach must be
limited to whether (a) the denial was arbitrary and capricious or based on clearly erroneous
findings, or (b) the entity’s decision-making process was unreasonable.
        To resolve this issue, we must derive legislative intent, looking first to the language of
I.C. § 42-1209. Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 307, 312, 109 P.3d 161, 166
(2005). Where a statute is unambiguous, its plain language controls. Id. If a statute is ambiguous
because more than one reasonable interpretation exists, we look to rules of statutory construction
for guidance. Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho
551, 557, 976 P.2d 477, 483 (1999). In the event that this Court is required to engage in statutory
construction, we may ascertain legislative intent from the statute’s context, the public policy in
support of the statute, and the statute’s legislative history. State v. Rhode, 133 Idaho 459, 462,
988 P.2d 685, 688 (1999).
        Idaho Code § 42-1209 was enacted in 2004. 2004 Idaho Sess. Laws, ch. 179, § 3, at 563.
The statute expressly recognizes irrigation easements and rights-of-way as “essential” to the
operation of irrigation districts and other irrigation entities, providing:



                                                   4
         Accordingly, no person or entity shall cause or permit any encroachments onto
         the easements or rights-of-way . . . without the written permission of the irrigation
         district . . . owning the easement or right-of-way, in order to ensure that any such
         encroachments will not unreasonably or materially interfere with the use and
         enjoyment of the easement or right-of-way. Encroachments of any kind placed in
         such easement or right-of-way, without such express written permission shall be
         removed at the expense of the person or entity causing or permitting such
         encroachments, upon the request of the owner of the easement or right-of-way, in
         the event that any such encroachments unreasonably or materially interfere with
         the use and enjoyment of the easement or right-of-way. . . .

I.C. § 42-1209.
         It is evident from the plain language of the statute that merely providing notice to an
irrigation entity of an encroachment does not permit a party to construct an encroachment.
Rather, I.C. § 42-1209 requires “written permission” from the irrigation district in order to
“ensure that any such encroachments will not unreasonably or materially interfere with the use
and enjoyment of the easement or right-of-way.” The plain language of the statute grants
irrigation entities the authority to evaluate the impact of proposed encroachments and grant or
withhold permission based on that evaluation. To hold otherwise would effectively eviscerate
irrigation entities’ express power to grant or deny permission to construct an encroachment.
Accordingly, we hold that the owner of an irrigation easement or right-of-way is vested with the
discretion to determine whether an encroachment constitutes an unreasonable or material
interference, and based on that exercise of discretion, is vested with the authority to grant or deny
a requested encroachment. 1
         We next examine the scope of legal challenges to an irrigation entity’s exercise of
discretion regarding encroachments. The City asserts that under I.R.C.P. 84(a)(1), 2 the irrigation
entities’ decisions are not entitled to limited judicial review because there is no statute providing
a right of judicial review. However, I.R.C.P. 84(a)(1) is inapplicable here. Review of such
decisions is not judicial review of an agency’s action. Rather, courts will be called upon to


1
  The determination of “unreasonable or material interference” is not restricted to the physical impediment that may
be created at the point of encroachment. Rather, the ditch owner may take into account the impact of the
encroachment or encroachments upon the entire water delivery system. It is not difficult to envision encroachments
that do not present a physical impediment to the operation or maintenance of a ditch, such as drainage diversions,
which in times of heavy precipitation would permit introduction of a quantity of water exceeding the carrying
capacity of the system. Likewise, one encroachment, by itself, may not cause unreasonable or material inference
while multiple similar encroachments may.
2
  In part, I.R.C.P. 84(a)(1) states that “[a]ctions of state agencies or officers or actions of a local government, its
officers or its units are not subject to judicial review unless expressly authorized by statute.”

                                                          5
evaluate an irrigation district’s exercise of discretion in some form of civil action. Without
attempting to identify all possible actions where these decisions may be reviewed, it is evident
that such actions may well include those seeking injunctive relief or recovery of the costs of
removal of an offending encroachment.
       This Court has previously recognized that some discretionary determinations of irrigation
districts are subject to limited review. See Viking Const., Inc. v. Hayden Lake Irr. Dist., 149
Idaho 187, 194, 233 P.3d 118, 125 (2010) (irrigation district’s established method for valuing
connection fees subject to limited review). Further, the ability to exercise the discretion that I.C.
§ 42-1209 vests in irrigation entities is one means by which the entities are able to meet the
various obligations imposed upon them by statute. See I.C. § 42-1201 (to the extent capable,
keep irrigation ditches sufficiently full to meet the requirements of those entitled to water); I.C. §
42-1202 (maintain the good order and repair of irrigation ditches, canals, and conduits); I.C. §
42-1203 (maintain embankments in order to prevent waste of irrigation water); I.C. § 42-1204
(duty to maintain waterworks in good repair in order to avoid damage to others). Ditch owners
face prospective liability for failure to meet these statutory obligations. Stephenson v. Pioneer
Irr. Dist., 49 Idaho 189, 194, 288 P. 421, 422 (1930) (owner of an irrigation ditch faces liability
for negligent construction, maintenance, and operation thereof).
        We hold that an irrigation entity’s determination whether to grant permission to
construct an encroachment may be reviewed only to determine whether the decision-making
process was reasonable, the determination was arbitrary and capricious, or the findings upon
which the determination was reached were clearly erroneous. This conclusion rests upon two
considerations. First, judicial deference to these decisions is consistent with the Legislature’s
determination that irrigation entities should possess the authority to make such decisions.
Second, a deferential approach recognizes that irrigation entities are required to satisfy
significant statutory obligations and face exposure to liability if they fail to fulfill those
obligations. Thus, we affirm the district court’s decision on this issue.
   C. Under some circumstances, an irrigation delivery entity may remove encroachments
      at the encroaching party’s expense and without prior judicial intervention, and
      review of the decision that an unpermitted encroachment must be removed is
      limited to whether the decision-making process was reasonable and whether the
      decision was arbitrary and capricious or based upon clearly erroneous findings.
       1.      The right to self-help


                                                  6
        The City contends that an irrigation entity must initiate judicial proceedings in order to
effect an encroachment’s removal. The district court held that irrigation entities may exercise
self-help to remove encroachments constructed after the effective date of I.C. § 42-1209 for
which written permission was not obtained and that unreasonably or materially interfere with the
use and enjoyment of an irrigation right-of-way. We affirm the district court and hold that, under
certain circumstances, I.C. § 42-1209 authorizes the owner of an irrigation right-of-way to
remove an encroachment without prior judicial approval.
        We first look to the plain language of the statute to derive legislative intent. Four
conditions must be satisfied before an encroachment “shall” be removed. First, the encroachment
must have been constructed after the effective date of I.C. § 42-1209, as the statute’s provision
for “such express written permission,” which clearly references preceding language in the
statute, was not a requirement prior to that date. Second, the encroachment must have been
constructed without permission. Id. Third, the encroachment must unreasonably or materially
interfere with the use and enjoyment of the easement or right-of-way. Id. Fourth, the owner must
request that the party responsible for the encroachment remove it. Id.
        Upon satisfaction of these requirements, the statute provides that the encroachment “shall
be removed at the expense of” the encroaching party. Id. In the event that the party responsible
for the encroachment accedes to the demand for its removal, the statute clearly places the
financial burden for the cost of the removal upon the encroaching party.
        The statute is silent, however, as to what happens when the party responsible for the
encroachment fails to act upon the demand within a reasonable time. 3 The question then is
whether the irrigation entity must go to court in order to vindicate its right to cause the removal
of the encroachment, or whether it may act first and seek compensation later. When confronted
with statutory silence as to an appropriate remedy, this Court is “free to apply general rules of
statutory construction to ascertain” legislative intent. Bilow v. Preco, Inc., 132 Idaho 23, 32, 966
P.2d 23, 32 (1998). When engaging in statutory construction, “the Court should consider not
only the literal words of the statute, but also the reasonableness of proposed constructions, the
public policy behind the statute, and its legislative history in order to discern and implement the

3
  If the party responsible for the encroachment is not afforded reasonable time to respond to the request, then the
statutory requirement of a “request” for removal would be nullified. What constitutes a “reasonable time” to respond
to the request is clearly dependent upon circumstances. A request for removal made during spring or summer
months when the ditch is full may well require an immediate response. Conversely, during winter months, when
water is not flowing, there may not be a need for immediate action.

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intent of the legislature.” Gonzalez v. Thacker, 148 Idaho 879, 881, 231 P.3d 524, 526 (2009)
(citing Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 398–99, 111 P.3d 73, 83–84
(2005) and Kelso & Irwin, P.A. v. State Ins. Fund, 134 Idaho 130, 134, 997 P.2d 591, 595
(2000)).
        The policy advanced by I.C. § 42-1209 is clear: given the essential role that irrigation
facilities play in this state, people must not construct encroachments that unreasonably or
materially interfere with their operation. If irrigation entities are forced into litigation in order to
secure the removal of encroachments constructed without permission and which unreasonably or
materially interfere with the use and enjoyment of their easements or rights-of-way, they will be
forced to wait weeks, if not months, to cause the removal of encroachments that ought not have
been constructed in the first instance. We conclude that the policy underlying I.C. § 42-1209
supports the right of irrigation entities to remove such encroachments without first resorting to
the courts.
        Interpreting I.C. § 42-1209 as authorizing irrigation entities to remove encroachments
that have been constructed without permission and which unreasonably or materially interfere
with the use and enjoyment of the easement or right-of-way is consistent with the common law
rule that predated the enactment of the statute. An “easement owner has a right to remove
obstructions unreasonably interfering with use of the easement, so long as there is no breach of
the peace.” Carson v. Elliott, 111 Idaho 889, 891, 728 P.2d 778, 780 (Ct. App. 1986). “Statutes
are construed under the assumption that the legislature was aware of all other statutes and legal
precedence at the time the statute was passed.” Druffel v. State, Dep’t of Transp., 136 Idaho 853,
856, 41 P.3d 739, 742 (2002). Accordingly, we presume that the Legislature knew that the self-
help remedy was available to irrigation easement owners when it enacted I.C. § 42-1209. The
language of the statute does not demand a construction in abrogation of the common law.
        Further, we note that this Court must read I.C. § 42-1209 in the context of the statutory
scheme that prescribes the rights and obligations of irrigation easement and right-of-way owners.
See I.C. §§ 42-1201 – 1204. In light of the duties that the Legislature has imposed upon irrigation
entities, in some circumstances it will be imperative that those entities have the authority to act
expeditiously, and without prior court intervention, to address exigencies (and potential liability
to third parties) created by encroachments. An interpretation of I.C. § 42-1209 that authorizes
irrigation entities to remove unreasonable encroachments that have been constructed without

                                                   8
permission advances the legislative objective of allowing these entities to meet the needs of
water users and protect the persons and property of third parties.
        We hold that I.C. § 42-1209 does not modify the easement or right-of-way owner’s
common law right to self-help. Rather, the statute codifies the owner’s right to recover the cost
of removing unpermitted encroachments that unreasonably or materially interfere with the use
and enjoyment or the easement or right-of-way. We therefore affirm the district court’s decision
on this issue.
        2.       The standard of review of challenges to an irrigation entity’s decision to demand
                 removal of an encroachment or remove an encroachment without prior judicial
                 approval
        As with the standard of review of an irrigation entity’s decision to deny permission to
encroach upon its easement or right-of-way, the parties disagree as to the standard to be applied
when an irrigation entity demands removal of an encroachment or exercises its right to remove
an encroachment that has been constructed without permission. The district court concluded that
review of such decisions is limited to determining whether the decision-making process was
reasonable and whether the decision was arbitrary and capricious or based upon clearly
erroneous findings.
        The considerations that led us to conclude that there is limited review of an irrigation
entity’s decision to grant or withhold permission to construct an encroachment are applicable
here. The Legislature has vested irrigation entities with discretion to grant or deny permission to
construct an encroachment, and the exercise of that discretion is reviewed only to determine
whether the decision-making process was reasonable, and whether the decision was arbitrary and
capricious or based upon clearly erroneous findings. Considering the statutory obligations
imposed upon irrigation entities and the potential liability that may result from failure to fulfill
those obligations, it would be unreasonable to hold that a party who has constructed an
encroachment in violation of its statutory obligation to obtain permission may thereby nullify the
discretionary authority that the Legislature has conferred upon irrigation authorities. See Turner
v. Washtenaw Cnty. Rd. Comm’n, 467 N.W.2d 4, 4-5 (Mich. 1991) (review of road commission’s
statutorily-authorized removal of encroachment limited to whether it reasonably exercised its
discretion); Devine v. City of Seward, 258 P.2d 302, 304-05 (Kan. 1953) (challenge to city’s self-
help removal of encroachment limited to whether the decision to remove was arbitrary,
capricious, or not made in good faith). We hold that irrigation entities’ decisions to request

                                                 9
removal of encroachments constructed without permission or to thereafter remove offending
encroachments shall be subject to limited review to determine whether a reasonable decision-
making process was employed, and whether the decision was arbitrary and capricious or based
upon clearly erroneous findings. We therefore affirm the decision of the district court as to this
issue.
    D. An irrigation delivery entity does not enjoy exclusive rights in its primary easements
       and rights-of-way.
         The district court held that, pursuant to I.C. §§ 42-1102 and 1209, the owners of
irrigation easements or rights-of-way have a primary and exclusive right to possession of
irrigation conduits. We disagree.
         Before turning to these particular statutes, it is appropriate to look at this Court’s earlier
statements explaining the scope of rights of a ditch owner. 4 In Idaho, the common law has long
recognized that irrigation easements and rights-of-way are not exclusive. E.g., City of Bellevue v.
Daly, 14 Idaho 545, 550-51, 94 P. 1036, 1038-39 (1908) (owner of servient estate not liable for
pollution caused to irrigation waters by his cattle in the ordinary course of husbandry and
likewise not responsible for constructing a fence to protect the irrigation easement or right-of-
way); Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 630-31, 277 P. 542, 546 (1929)
(irrigation easement owner not entitled to exclusive possession of property upon which easement
is located and cannot assert trespass where servient estate owner’s cattle enter easement; rather
where easement owner fails to adequately maintain irrigation conduit and injury to servient
estate owner’s cattle results, easement owner is liable); Pioneer Irr. Dist. v. Smith, 48 Idaho 734,
739, 285 P. 474, 476 (1930) (irrigation district’s right-of-way is not exclusive and servient
landowner’s reasonable, ordinary, and usual farming of hogs near and on easement is
permissible; irrigation easement owner is responsible for damages to irrigation conduit resulting
therefrom); Nampa & Meridian Irr. Dist. v. Mussell, 139 Idaho 28, 33, 72 P.3d 868, 873 (2003)
(owners of servient estate “entitled to make any uses of their property that d[o] not unreasonably
interfere with the District’s enjoyment of its [irrigation] easement.”). In fact, this Court has
expressly recognized railroad easements as distinguishable from irrigation and other types of
easements and rights-of-way, and held that only railroad easements are exclusive. Lake CDA
4
 “Although the person who has an easement for a ditch across the land of another does not thereby gain legal title to
any portion of that land, Reynolds Irrig. Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1948), the owner of such an
easement is often called the ‘owner’ of the ditch.” Camp v. E. Fork Ditch Co., Ltd., 137 Idaho 850, 857, 55 P.3d
304, 311 (2002).

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Invest., LLC v. Idaho Dep’t of Lands, 149 Idaho 274, 281-82, 233 P.3d 721, 728-29 (2010) 5
(citing Coulsen, 47 Idaho at 627-28, 277 P. at 544-45).
        As previously noted, the Legislature is presumed to be aware of this Court’s earlier
decisions. Druffel, 136 Idaho at 856, 41 P.3d at 742. Certainly, our Legislature knows how to
abrogate decisions from this Court. See, e.g., Act of March 4, 2010, ch. 29, 2010 Idaho Sess.
Laws 49, 49–50 (abrogating holding of Rammell v. Idaho State Dep’t of Agric., 147 Idaho 415,
422–23, 210 P.3d 523, 530–31 (2009)). This Court will not interpret a statute as abrogating the
common law unless it is evident that was the Legislature’s intent. Statewide Const., Inc. v. Pietri,
150 Idaho 423, 429, 247 P.3d 650, 656 (2011), abrogated on other grounds by Verska v. Saint
Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). See also Baker v. Ore–Ida
Foods, Inc., 95 Idaho 575, 583, 513 P.2d 627, 635 (1973) (“Where the clear implication of a
legislative act is to change the common law rule we recognize the modification because the
legislature has the power to abrogate the common law.”). Nothing in the language of I.C. § 42-
1209 indicates legislative intent to overturn our longstanding precedent that ditch owners’ rights
are non-exclusive.
        Further, this Court has previously addressed whether I.C. § 42-1102 expands the rights of
irrigation easement holders. In Nampa & Meridian Irrigation District v. Washington Federal
Savings, 135 Idaho 518, 20 P.3d 702 (2001), this Court rejected the irrigation district’s claim that
the statute expanded the rights of ditch owners. Id. at 522, 20 P.3d 706 (“We conclude that
neither the provisions expressed in [a channel change easement] nor the quoted language of the
statute . . . operate to create a greater right”). Instead, we stated: “I.C. § 42-1102 only
contemplates a right-of-way for cleaning, maintaining, and repairing canals. The statute provides
notice to owners of land that the owner of the ditch or canal has the right-of-way, and serves to
clarify what the right-of-way includes.” Id. at 524, 20 P.3d at 708. Although the issue presented
in Nampa & Meridian Irrigation District related to a dispute between the ditch owner and the
owner of the servient estate, this Court rejected the suggestion that I.C. § 42-1102 expanded the
rights of ditch owners: “Missing from the statute is any suggestion that owners of the right-of-
way may, in cleaning, maintaining, or repairing the canal or ditch, restrict the servient
landowner’s use of the right-of-way because of safety concerns.” Id.


5
 Although Pioneer challenges the application of this Court’s precedent to the matter at hand on the ground that the
precedent predates the 2004 enactment of I.C. § 42-1209, we decided Lake CDA Investments in 2010.

                                                        11
       As the statutes lack a clear expression of legislative intent to abrogate the common law
and grant easement owners an exclusive right to possession, we conclude that the district court
erred in holding that owners of irrigation easements and rights-of-way have an exclusive
possessory interest in those easements.
E. Neither party is entitled to attorney fees on appeal.
       The City requests attorney fees on appeal pursuant to both I.C. §§ 12-117(1) and 12-121.
Pioneer requests attorney fees pursuant to I.C. § 12-121. Under I.C. § 12-117(1), the prevailing
party in an administrative or civil judicial proceeding between a state agency or political
subdivision and a person is entitled to attorney fees if “the nonprevailing party acted without a
reasonable basis in fact or law.” Under I.C. § 12-121 and I.R.C.P. 54(e)(1), a court may award a
prevailing party attorney fees if “the case was brought, pursued or defended frivolously,
unreasonably, or without foundation . . . .” Since each party has only prevailed in part on this
appeal, we decline to award attorney fees to either party.
                                       IV. CONCLUSION
       We affirm a portion of the district court’s grant of partial summary judgment on the
grounds that, pursuant to I.C. § 42-1209, an irrigation right-of-way owner’s determination that an
encroachment unreasonably or materially interferes with the right-of-way shall only be
overturned if it is arbitrary and capricious, was based upon clearly erroneous findings, or was not
the product of a reasonable decision-making process. We likewise affirm the district court’s
grant of partial summary judgment on the grounds that, pursuant to I.C. § 42-1209, the owner of
an irrigation easement or right-of-way may engage in self-help to remove an encroachment that it
has determined unreasonably or materially interferes with its right-of-way, and hold that such
action is reviewed under the same standard applicable to the denial of permission to construct an
encroachment. However, we reverse the district court’s grant of partial summary judgment
holding that owners of irrigation easements and rights-of-way enjoy exclusive rights of
possession. As each party has prevailed in part, we decline to award attorney fees and costs. This
matter is remanded to the district court for proceedings consistent with this opinion.

       Justices EISMANN and W. JONES CONCUR.


       J. JONES, Justice, concurring in part and dissenting in part.


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       I concur in Parts III.A, III.D, and III.E of the Court’s opinion, but dissent with regard to
Parts III.B and III.C. I am unable to read I.C. § 42-1209 as requiring deferential review of the
decisions of irrigation entities or authorizing irrigation entities to resort to self-help in removing
encroachments.
       There is no language in I.C. § 42-1209 that in any way addresses the decision-making
procedure to be employed by irrigation entities or how their decisions are to be considered by the
courts. Had the Legislature intended special procedures to be employed under this statute, it
undoubtedly would have provided for such procedures. The Legislature is certainly capable of
providing for limited review of certain types of decisions and has specifically done so when it
deems appropriate. For decisions of State agencies, the Legislature has provided a deferential
standard of review in the Idaho Administrative Procedure Act (IAPA). See Chapter 52, Title 67,
Idaho Code. However, such review does not apply to local governments, absent legislative
direction. As we noted in Gibson v. Ada County Sheriff’s Dept., 139 Idaho 5, 7−8, 72 P.3d 845,
847−48 (2003):
       Though the IAPA and its judicial review provisions are generally inapplicable to
       local government actions, a statute may provide for judicial review of local
       government actions pursuant to the IAPA. Absent a statute invoking the IAPA’s
       judicial provisions, local government actions may not be reviewed under the
       IAPA.

The Legislature has taken specific action to bring decisions of local planning and zoning
agencies within the review provisions of IAPA. I.C. §§ 67-6519 to 67-6521. The limited review
provided for in the Court’s opinion is, in effect, comparable to the arbitrariness standard
specified by the Legislature in I.C. § 67-5279 for State agency decisions.
       This Court has recognized the discretion of irrigation districts to regulate their internal
affairs. In Viking Const., Inc. v. Hayden Lake Irr. Dist., 149 Idaho 187, 194, 233 P.3d 118, 125
(2010), we indicated that an irrigation district’s established method of valuing connection fees is
subject to limited review. However, even then the Court in Viking vacated a grant of summary
judgment in favor of the irrigation district where the record disclosed a genuine issue of material
fact as to whether a connection fee was reasonably determined. Id. at 195, 233 P.3d at 126. And,
it is important to note that the limited review was confined to an issue dealing with the internal
governance of the irrigation district, rather than a matter that implicated the rights or interests of
outside parties.

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       While irrigation districts have been characterized as quasi-municipal or public
corporations, they are not to be confused with true municipal corporations, nor assumed to have
the powers of such corporations. The nature of irrigation districts was thoroughly analyzed in
Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377, 23 P.2d 720 (1933), wherein this Court
held such districts not to be exempt from property tax like municipal corporations under Article
VII, Section 4 of the Idaho Constitution. Id. at 383, 23 P.2d at 722. The Court summarized:
       It follows that the primary purpose of an irrigation district is limited to the
       conducting of its business for the private benefit of the land owners within the
       district by the acquisition of water rights and the irrigation of lands within its
       boundaries; and that the land owners within the district are the members of the
       corporation, control its affairs, and are primarily benefited by its operations. It is
       likewise true that irrigation districts have been endowed with certain incidental
       municipal powers necessary to its proper functioning, such as the election of its
       officers and directors, the levy of assessments for bond, interest, maintenance and
       operation and other like authorized purposes, and the equalization and collection
       of such assessments, which incidental municipal powers have resulted in its
       classification as a quasi-municipal or municipal corporation in connection with
       the construction of statutes and constitutional provisions involving the exercise of
       such municipal powers.

       We have carefully analyzed and compared the foregoing authorities and others to
       similar effect and have reached therefrom the conclusion that an irrigation district
       is a public corporation having such incidental municipal powers as are necessary
       to its internal management and the proper conduct of its business. Its primary
       purpose is the acquisition and operation of an irrigation system as a business
       enterprise for the benefit of land owners within the district, such property being
       held in trust for them in a proprietary capacity, while secondarily and
       incidentally, certain municipal powers have been conferred for its government
       and regulation, and when this is borne in mind, any seeming confusion in or
       conflict with the authorities holding that an irrigation district is a municipal or
       quasi-municipal corporation within the meaning of certain statutes and
       constitutional provisions disappear.

Id. at 381−82, 23 P.2d at 722 (emphasis added).
       Further, in Brizendine v. Nampa Meridian Irr. Dist., we determined that irrigation
districts are not municipal or public corporations for purposes of the Idaho Tort Claims Act,
explaining:
       An essential element of a municipal or public corporation is a corporate purpose
       deemed to be for the welfare of the general public—“a public corporation is one
       that is created for political purposes with political powers to be exercised for
       purposes connected with the public good in the administration of civil

                                                14
        government.”       However, an irrigation district’s primary purpose is the
        acquisition and operation of an irrigation system as a business enterprise for the
        benefit of its shareholders.

97 Idaho 580, 587, 548 P.2d 80, 87 (1976) (internal citations omitted) (emphasis added).
        It is certainly reasonable for an irrigation district to have discretion to regulate its own
affairs. Providing limited review of such governance decisions is akin to the manner in which the
Court considers governance decisions of private businesses. Both the Court and the Legislature
have adopted versions of the business judgment rule, which allows business corporations to
make decisions within the powers of the corporation and the directors’ honest business judgment,
without court interference. McCann v. McCann, No. 37547, 2012 W.L. 798581, at *4 (Idaho
March 13, 2012); I.C. § 30-1-831. However, decisions of a business corporation that affect the
rights or interests of outside parties would not be treated by the courts with the same deference.
        I am aware of no case decided by this Court that grants a deferential standard of review
for decisions of an irrigation district that affect the rights or interests of outside parties, let alone
any cases in which a deferential standard of review is granted for such decisions of private
parties, such as Carey Act operating companies, non-profit irrigation entities, and lateral ditch
associations, none of which are even quasi-governmental in nature. The Court’s opinion cites
Viking Construction for the proposition that limited review may apply to some discretionary
determinations of irrigation districts and then concludes from that that an “irrigation entity’s”
determination to grant or deny permission for an encroachment or to demand removal of an
encroachment is subject only to limited review. This appears to grant solely private companies
and associations the same rights as an irrigation district. Such limited review is premised on the
critical nature of the irrigation entity’s duties and the potential for liability for failure to carry out
such duties. What other quasi-governmental entities will be entitled to a deferential standard of
review under this decision? Does this principle, for instance, pertain to decisions made by fire
districts? They carry out critical duties and face potential liability for failing to do so.
        And, if a non-governmental irrigation entity is entitled to deferential review for decisions
made pursuant to I.C. § 42-1209, does that same deference apply to decisions made by all other
landowners holding a right of way for an irrigation ditch under I.C. § 42-1102? Section 42-1102
was amended by the same legislation that enacted the new I.C. § 42-1209 to include essentially
the same language as that new section. 2004 Idaho Sess. Laws, ch. 179, p. 561. Furthermore,


                                                   15
what other statutes pertaining to irrigation districts entail a limited right of judicial review? Are
the decisions of an irrigation entity relating to the maintenance and operations of canals and
ditches across the land of another pursuant to I.C. § 42-1204 subject to limited review? If limited
review applies to decisions made under I.C. § 42-1209, we can certainly anticipate that irrigation
entities will assert that they are entitled to deferential review of decisions they make pursuant to
other statutes.
        There is some rationale for providing limited review of some decisions made by true
government bodies. First, those entities must observe a number of procedural safeguards in their
decision-making process. Persons who may be aggrieved by governmental decisions have
statutory rights to notice, a meaningful opportunity to be heard, a record of the proceedings,
findings of fact and a reasoned decision by the decision-making body, and the like. See, e.g., I.C.
§ 67-5242. There are no such statutory procedures governing the decision-making process of
irrigation districts or private irrigation entities such as Carey Act operating companies. Second,
the decisions of true government agencies are subject to review by voters at the ballot box. If
county commissioners or city councilmen make what the voters perceive as a bum decision, the
voters can throw the bums out. However, irrigation districts are not necessarily subject to the
same political scrutiny as municipal corporations. That is, leaders of cities and counties are
beholden to their entire voting population—landowners and non-landowners alike. But irrigation
district elections may be closed to non-landowners. I.C. § 43-111. Accordingly, irrigation district
board members may be beyond the reach of non-landowners within the district.
        The potential for an irrigation district’s board to lack political accountability necessitates
a more thorough judicial review of its decisions. In the context of cities or counties, it makes
sense that we give elected leaders leeway in their decision-making. But with an irrigation
district, it is quite possible that the district’s board could make decisions that affect the interests
of people with no political recourse. The same is true for the other types of water-delivery
entities covered by I.C. § 42-1209, like a Carey Act company, which have no political oversight.
We defer to decision-makers with some skin in the political game because our constitutional
separation of powers assumes the democratic process will temper unwise choices. See Miles v.
Idaho Power Co., 116 Idaho 635, 640, 778 P.2d 757, 762 (1989) (recognizing that certain
questions are reserved to the political branches of government). When, however, decision-
makers lack political accountability, we should not grant undue deference to their decisions.

                                                  16
        It seems to me that the Court should either require any right of limited review to be
specifically spelled out in a statute, such as the Legislature has done in instances where it desires
limited review, or this Court should exercise its inherent “power to fashion the procedures
necessary to perform [its] duties.” City of Boise v. Ada County, 147 Idaho 794, 802, 215 P.3d
514, 522 (2009). In doing so, we should specify the decision-making procedure that must be
employed by the irrigation entity in order to qualify for limited review. That is, we should
require procedural mechanisms, perhaps comparable to those specified in I.C. § 67-5242, in
order to ensure the due process rights of the adverse party and a reviewable record on appeal.
Leaving it to an irrigation entity to determine what type of procedure to employ seems to be
risky, at best. 6
        I read I.C. § 42-1209 to merely define the rights of water-delivery entities with respect to
their irrigation easements. The entities covered by I.C. § 42-1209 have the right to permit or
deny encroachments on their rights of way in the first instance, and the courts are tasked with
evaluating the entity’s decision by determining whether an encroachment is, or would be,
unreasonable or would materially interfere with the entity’s use of the easement. Under this
reading, an entity seeking the removal of an encroachment would file a civil action, and if the
court determined the encroachment unreasonable or a material interference, the encroaching
party would bear the responsibility and costs of removal. If urgent action is necessary, the
irrigation entity may seek immediate injunctive relief.
        It does not appear that either irrigation districts or other irrigation entities need to have
the additional benefit of limited review of their decisions in order to carry out their important
responsibilities. After all, I.C. § 42-1209 clearly gives them the upper hand in dealing with
unwarranted encroachments. The very existence of the statute would give the potential
encroacher pause in placing an encroachment on a right of way. The statute gives the irrigation
entity a leg up in enforcement proceedings in court. Adding the element of deferential review,
which the Legislature did not see fit to do, would overly gild the lily.
        My primary concern about giving this extra benefit to irrigation entities is that it may
distort the litigation process where outside parties have legitimate rights to encroach upon, or
have the right to cause runoff into, canals or ditches. Pioneer recognizes that some of the runoff

6
  The record does not indicate whether Pioneer employed any particular decision-making process in determining the
encroachments that constituted transgressions of its rights under I.C. § 42-1209 in this case, or what procedure it
intends to pursue in the future to make such a determination.

                                                        17
water it wishes to preclude from draining into its ditches and canals has historically drained in
such a manner. Some of the runoff it wishes to prevent is from those who hold water rights in the
district. In a position statement contained in the record, Pioneer states:
         [Caldwell’s storm water runoff] should not be drained through existing irrigation
         drainage facilities even if the post development land proposed for such drainage is
         land that used to be historically drained in such a manner. Existing irrigation
         drainage facilities were designed to drain excess water from undeveloped
         agricultural lands and were not designed, constructed and/or not maintained to
         accept storm water runoff from developed lands.

Thus, Pioneer seeks to obtain limited review of its decisions that may well impact established
runoff or flowage rights. This is not a matter where Pioneer should go into court with the deck
stacked in its favor. If deference has to be accorded to decisions it makes vis-à-vis existing rights
of others, it will likely prevail in instances where it should not.
         Nor does I.C. § 42-1209, in and of itself, authorize any right of self-help. As the Court
points out, I.C. § 42-1209 is silent with respect to abatement. Courts, not water-delivery entities,
should have the responsibility of determining the reasonableness, or lack thereof, of an
encroachment. If a court finds that a party has unreasonably encroached on an easement, then
the court can craft an appropriate remedy, consistent with I.C. § 42-1209. Furthermore, when the
Legislature wishes to give parties a self-help or abatement remedy, it says so. See, e.g., I.C. §§
52-202 and 52-301 (providing an express abatement remedy for private and public nuisances, in
addition to civil and, in the case of public nuisances, criminal remedies).
         The Court cites the Court of Appeals’ decision in Carson v. Elliott, 111 Idaho 889, 728
P.2d 778 (Ct. App. 1986), for the proposition that an easement owner is entitled to resort to self-
help to remove obstacles that unreasonably restrict the enjoyment of easement rights. The Court
of Appeals notes that easement owners have certain common law rights to resort to self-help,
where it can be accomplished without a breach of the peace. Nothing in I.C. § 42-1209 restricts
or enhances any such common law right. The point is that the statute does not address the issue
of self-help in any way and certainly does not grant a self-help remedy.
         For the foregoing reasons, I would vacate the district court’s entire summary judgment
order.

         Chief Justice BURDICK CONCURS.



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