                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44446


DANIEL PASLAY, an individual; GARY      )
OTTMAN, an individual; and TATEOKA      )
BROTHERS, LLC, an Idaho limited liability
                                        )
company,                                )
                                                             Pocatello, September 2017 Term
                                        )
       Plaintiffs-Appellants,           )
                                                             2017 Opinion No. 120
                                        )
v.                                      )
                                                             Filed: November 29, 2017
                                        )
A&B IRRIGATION DISTRICT, an Idaho       )
                                                             Karel A. Lehrman, Clerk
irrigation district,                    )
                                        )
       Defendant-Respondent.            )
_______________________________________ )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       The district court’s order is affirmed in part, vacated in part, and remanded with
       instructions.

       Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, for appellants. Robert L.
       Harris argued.

       Barker, Rosholt & Simpson, LLP, Twin Falls, for respondent. Travis L.
       Thompson argued.
                                       _____________________

BRODY, Justice
       This case is about landowners’ recourse against an irrigation district for diverting a
portion of their water source to other landowners within the district. The landowners brought an
action for a declaratory judgment regarding their constitutional water and property rights. They
also sought injunctive relief against the irrigation district for a breach of fiduciary duty. The
district court granted the irrigation district’s motion to dismiss on all three of the landowners’
claims. The landowners appeal.
                     I. FACTUAL AND PROCEDURAL BACKGROUND




                                                1
       Appellants own farms in Jerome County, Idaho. A&B Irrigation District (the “District”)
distributes water to these farms and others throughout its service area in Jerome and Minidoka
Counties. The District serves two distinct sub-areas in its district: Unit A and Unit B. The water
the District distributes comes from two sources: (1) surface water from the Snake River and
associated reservoirs, and (2) groundwater from the Eastern Snake Plain Aquifer. These two
water sources were historically what separated Units A and B, and many owners based their land
choices in the 1950s on the water source. Unit A farms have received surface water exclusively
since the District’s inception. For decades Unit B farms received only groundwater, but the
District converted approximately 1400 Unit B acres to surface water in the 1990s in response to
decreasing groundwater supply. This conversion did not abate the declining groundwater supply,
and the District subsequently proposed the “Unit A Pumping Plan #2 Project” (“Project”).
       The District’s manager claims the Project’s benefits are twofold: (1) it will allow the
District to deliver surface water to Unit A farms at an increased rate during the peak irrigation
season, and (2) it will convert approximately 1500 Unit B acres facing declining groundwater
over to surface water—similar to the District’s prior conversion in the 1990s. In November 2013,
the District held a special election in which its residents approved bonds of up to $7 million to
pay for the Project. In 2014, the District’s Board of Directors held a hearing at which they
assessed Project costs proportionally based on acreage to both Unit A and Unit B landowners.
Appellants did not appear at this hearing. The District then sought judicial confirmation (the
“Confirmation Proceeding”) of the Board’s cost assessment in the Minidoka County District
Court, which Appellants Paslay and Ottman contested. In the Confirmation Proceeding, the court
approved the assessment but withheld consideration of Appellants’ constitutional arguments as
beyond that forum’s scope.
       Appellants claim the Project primarily benefits Unit B landowners at the expense of Unit
A by diverting a portion of Unit A’s sole water source (surface water) onto Unit B land and
“diluting” their annual water supply. Additionally, the District divided Project costs equally
among all landowners despite what Appellants claim is the Project’s primary purpose: to help
sustain Unit B farms as their groundwater supply continues to decline. Appellants claim the
Project is part of a decades-long trend whereby the District subjugates Unit A’s interests due to
Unit B’s size—roughly 80% of the District’s service area—and comparably large representation
and voting strength. Appellants sought relief on three claims in the Jerome County District Court



                                                2
after the Confirmation Proceeding approved the Project’s cost apportionment. In Count I of their
amended complaint, Appellants sought a declaratory judgment enforcing their water rights under
Article XV, sections 1, 3, 4, and 5 of the Idaho Constitution. Count II requested identical relief,
challenging the assessment as a violation of their property rights under Article I, sections 13 and
14. In Count III—absent in the original complaint and added in the amended complaint—
Appellants sought injunctive relief for breach of fiduciary duty.
       Respondents filed a Rule 12(b)(6) motion to dismiss the claims, and submitted additional
materials—including affidavits and the Confirmation Proceeding order. Appellants responded
and requested the court deny the motion and strike matters outside the pleadings as immaterial
and improper under the Rule 12(b)(6) standard. Alternatively, Appellants requested the court
continue the proceedings—and allow discovery—if the court was to consider matters outside the
pleadings. They argued that considering the additional information would effectively convert the
decision from a Rule 12 to a Rule 56 analysis, and thus required discoverable facts to defend
against a summary judgment grant. In its first of two decisions below, the district court denied
Appellants’ motion to strike and motion to continue, and dismissed Counts I and II. The court
dismissed Count I as non-justiciable, finding the claim unripe and that the Appellants lacked
standing. The court dismissed Count II as barred by res judicata based on the Confirmation
Proceeding decision. Pending the court’s decision on Count III, Appellants filed a motion for
reconsideration of the district court’s first decision. In its second decision, the district court
dismissed Count III as non-justiciable on standing and ripeness grounds, just as with Count I.
The court also denied Appellants’ motion to reconsider its previous dismissal of Counts I and II.
Appellants timely appealed.
                              II. ISSUES PRESENTED ON APPEAL
1. Whether the district court erred in dismissing Counts I and III of Appellants’ amended
   complaint as non-justiciable.
2. Whether the district court erred in dismissing Count II of Appellants’ amended complaint as
   barred by res judicata.
3. Whether the district court erred in denying Appellants’ motions to strike, continue, and
   reconsider.
4. Whether the District is entitled to attorney fees.
                                   III. STANDARD OF REVIEW




                                                 3
          This Court exercises free review over jurisdictional issues, including “whether dismissal
for lack of jurisdiction was properly granted.” Tucker v. State, 162 Idaho 11, 17, 394 P.3d 54, 60
(2017) (citing Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998)).
          This Court reviews de novo both Rule 12(b)(6) dismissal orders and Rule 56 summary
judgment grants. Syringa Networks, LLC v. Idaho Dep’t of Admin., 159 Idaho 813, 823, 367 P.3d
208, 218 (2016). Under Rule 12(b)(6), “[a]fter viewing all facts and inferences from the record in
favor of the non-moving party, the Court will ask whether a claim for relief has been stated.”
Losser v. Bradstreet, 145 Idaho 670, 673, 183 P.3d 758, 761 (2008) (quoting Gallagher v. State,
141 Idaho 665, 667, 115 P.3d 756, 758 (2005)). Dismissal “for failure to state a claim should not
be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief.’” Taylor v. Maile, 142 Idaho 253, 257, 127 P.3d 156,
160 (2005) (quoting Gardner v. Hollifield, 96 Idaho 609, 611, 533 P.2d 730, 732 (1975)). A Rule
12(b)(6) motion to dismiss in which “matters outside the pleadings are presented to and not
excluded by the court . . . must be treated as one for summary judgment under Rule 56. All
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” I.R.C.P. 12(d). “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 as to
any material fact and that the moving party is entitled to a judgment as a matter of law.”
Lockheed Martin Corp. v. Idaho State Tax Comm’n, 142 Idaho 790, 793, 134 P.3d 641, 644
(2006).
                                            IV. ANALYSIS
          The landowners’ appeal centers on two issues with respect to their three claims against
the District: the legal standard under which the district court dismissed Appellants’ claims, and
the court’s substantive determinations under that standard. Appellants contend the district court
erred both procedurally and substantively in dismissing all three counts in its amended
complaint. Procedurally, they claim the district court improperly considered matters outside the
pleadings in dismissing all three claims under Rule 12(b)(6)—rather than converting to the Rule
56 summary judgment standard. Substantively, Appellants contend that Counts I and III are
justiciable as presented on the face of their amended complaint, and that res judicata does not bar
relief under Count II.




                                                  4
          For the reasons that follow, this Court determines that Counts I and III—the alleged
violation of Appellants’ water rights and breach of fiduciary duty—do not present justiciable
controversies. The district court procedurally erred, however, in dismissing Count II as barred by
res judicata.
A.        Appellants have failed to demonstrate that Counts I and III present justiciable
          claims.
          Appellants contend that Counts I and III are currently justiciable controversies since the
Project will result in an annual diminution of their available, dedicated water source. The District
noted that the surface water supplies are variable from one season to the next, and have the
potential to completely refill annually. This, they claim, necessarily reduces Appellants’ claims
to speculation since they allege no current deprivation, nor can they point to a future deprivation.
          Appellants seek both injunctive relief and a declaratory judgment regarding their water
rights. Under Idaho law, courts “shall have power to declare rights, status, and other legal
relations, whether or not further relief is or could be claimed.” I.C. § 10-1201. This Court has
long held that “the question[ed] ‘right’ or ‘status’ may invoke either remedial or preventive
relief; it may relate to a right that has either been breached or is only yet in dispute or a status
undisturbed but threatened or endangered . . . .” State ex rel. Miller v. State Bd. of Educ., 56
Idaho 210, 217, 52 P.2d 141, 144 (1935). A declaratory judgment action must involve a
justiciable controversy, however. Davidson v. Wright, 143 Idaho 616, 620, 151 P.3d 812, 816
(2006).
          “Idaho has adopted the constitutionally based federal justiciability standard.” Id. Standing
is an essential element of a justiciable claim. Van Valkenburgh v. Citizens for Term Limits, 135
Idaho 121, 125, 15 P.3d 1129, 1132 (2000). Standing requires (1) a distinct injury in fact, (2)
fairly traceable to the conduct from which a plaintiff seeks relief, and (3) a substantial likelihood
that the requested relief will remedy or prevent the injury. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992); Coal. for Agric.’s Future v. Canyon Cnty., 160 Idaho 142, 146, 369 P.3d
920, 924 (2016); Schneider v. Howe, 142 Idaho 767, 772, 133 P.3d 1232, 1237 (2006). “Standing
may be predicated upon a threatened harm as well as a past injury.” Id. (citing Harris v. Cassia
Cnty., 106 Idaho 513, 516, 681 P.2d 988, 991 (1984)). However, the injury must be “actual or
imminent, not conjectural or hypothetical.” Tucker, 162 Idaho at 19, 394 P.3d at 62 (quoting
State v. Philip Morris, Inc., 158 Idaho 874, 881, 354 P.3d 187, 194 (2015)). Since standing is



                                                   5
jurisdictional, it can be raised at any time, and the Court has a duty to raise it sua sponte.
Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012) (citations omitted).
       Appellants have failed to allege a distinct injury in their amended complaint for Counts I
and III, either current or threatened. They claim that the Project will cause a “dilution” of their
available water supply, which could result in a deprivation of their allotted water—particularly in
years where there is a shortage of water. This allegation requires a court to hypothesize three
successive events in order to reach a distinct, palpable injury: first, that the Project’s additional
water delivery to Unit B farms will cause a decrease in the annual surface water available to Unit
A farms; second, in the case where there is less surface water available, the amount will be
substantial enough to threaten Appellants’ allotment; third, in such a case, the District will still
allocate some surface water to newly-converted Unit B farms during a season in which it
provides less than the full allotment to Unit A farms.
       While the first seems intuitive—that more farms using the same surface water will result
in less surface water—Appellants’ claimed injuries necessarily implicate the second and third
hypotheticals above as well. This Court cannot decide based on such conjecture. The Appellants
are essentially asking for a court order directing the District to follow the law in the event there is
a shortage of water. Such a pronouncement would be hollow without a particularized set of
circumstances to which we can apply the law and tailor an order that either requires the District
to do particular acts or prohibits the District from engaging in particular conduct. Appellants
simply have not alleged a current or future harm, merely the fear of one if the District abuses its
discretion and mismanages water resources outside the boundaries of the law.
       While the district court erred in dismissing Counts I and III on justiciability grounds
under Rule 12(b)(6) instead of 12(b)(1), we find that error harmless. As we stated in Tucker, “our
earlier cases left the issue unsettled.” 162 Idaho at 18, 394 P.3d at 61. Additionally, this Court or
any Idaho court must raise a lack of subject matter jurisdiction at any time, whether the parties
raise it or not. Arambarri, 152 Idaho at 738, 274 P.3d at 1253; In re Doe I, 145 Idaho 337, 340,
179 P.3d 300, 303 (2008).
       This court thus affirms the district court’s dismissal of Counts I and III for want of a
justiciable controversy.
B.     The district court erred in dismissing Appellants’ property rights claim in Count II
       by considering matters outside the pleadings under Rule 12(b)(6).



                                                  6
       In Count II of the amended complaint, Appellants sought a declaratory judgment
enforcing their property rights under Article I, sections 13 and 14 of the Idaho Constitution. They
claim the District had no authority to exact its assessment for the Project without either consent
or due process of law. Appellants contend that the district court erred procedurally by
considering matters outside the amended complaint in its dismissal of Count II, and further claim
that the court also erred in its substantive res judicata analysis. The District claims the district
court properly took judicial notice of the Confirmation Proceeding because the court
“recognized” that the Rule 56 summary judgment standard applied. Additionally, the District
agrees with the district court’s substantive res judicata analysis.
       The Idaho Rules of Civil Procedure require courts treat a Rule 12(b)(6) motion to dismiss
as a Rule 56 motion for summary judgment when it considers matters outside the pleadings.
I.R.C.P. 12(d); McCann v. McCann, 152 Idaho 809, 814, 275 P.3d 824, 829 (2011). The extrinsic
information need not raise disputed facts to mandate this shift. Syringa, 159 Idaho at 823, 367
P.3d at 218. However, a court can dismiss an action under Rule 12(b)(6) if it considers only the
complaint, despite whether a party has submitted additional materials to the record. Stewart v.
Arrington Constr. Co., 92 Idaho 526, 531, 446 P.2d 895, 900 (1968).
       The district court in this case was free to either consider information outside of the
amended complaint and treat the Rule 12(b)(6) motions as Rule 56 proceedings, or decide the
Rule 12(b)(6) motion “on the allegations contained in the complaint alone.” Taylor v. McNichols,
149 Idaho 826, 833, 243 P.3d 642, 649 (2010) (citing Hellickson v. Jenkins, 118 Idaho 273, 276,
796 P.2d 150, 153 (Ct. App. 1990)).
       The district court in this case acknowledged the above requirements in its orders, stating
in its first order (and incorporating by reference in its second):
       It is clear that the court may not consider evidence or facts outside the scope of
       the pleadings when determining if the petition states a claim upon which relief
       may be granted. The court, however, may consider facts that supplement those
       stated in the complaint, of which the court may properly take judicial notice.
       However, when the motion is presented under Rule 12(b)(6) and it is supported by
       evidence, such as affidavits, outside of the pleadings, the motion may properly be
       treated as one for summary judgment to which the summary judgment standard
       would apply.
The district court later stated, “[t]reating the motion as one for summary judgment is not error so
long as the hearing and notice requirements of I.R.C.P. 56(c) are complied with.” The District



                                                  7
claims that these recitations demonstrate that the court acknowledged under Idaho law the
required shift from Rule 12 to Rule 56 when considering information outside the pleadings.
However, the issue Appellants raise is not whether the court recognized the appropriate standard;
it is whether the district court applied the appropriate standard.
           The district court dismissed Count II under the Rule 12(b)(6) standard: “[T]he
defendant’s Motion to Dismiss Count 2 for failure to state a claim upon which relief may be
granted pursuant to I.R.C.P. 12(b)(6) is GRANTED . . . .” The issue for Count II then is whether
the court considered only the amended complaint or relied on matters outside the pleadings.
Here, the court considered the Confirmation Proceeding in finding that res judicata barred
Appellants’ Count II claim. The judge in the Confirmation Proceeding noted Appellants “failed
to take advantage of their opportunity to contest the assessment of benefits and apportionment of
costs related to the Projects and A&B’s issuance of bonds.” He found no reasonable excuse for
their failure to appear at that hearing, and additionally that the proceedings were not “in any
substantial matter erroneous or unjust.”
           The district court in this case granted the District’s motion to dismiss based on the
Confirmation Proceeding, stating, “Our courts have long held that with respect to confirmation
proceedings conducted pursuant to Title 43, Chapter 4, that a final judgment entered in such
proceedings is not subject to collateral attack and are otherwise barred by the doctrine of res
judicata.” The district court thus considered information outside the pleadings in deciding its
Rule 12(b)(6) motion.
           Two cases are instructive where a court takes judicial notice of an underlying case in a
Rule 12(b)(6) analysis. In Hellickson v. Jenkins, 118 Idaho 273, 276, 796 P.2d 150, 153 (Ct.
App. 1990), the trial court took judicial notice of probate files from other cases and considered
them in ruling on a Rule 12(b)(6) motion. The Idaho Court of Appeals held this was error,
stating:
           The only facts which a court may properly consider on a motion to dismiss for
           failure to state a claim are those appearing in the complaint, supplemented by
           such facts as the court may properly judicially notice. However, a trial court, in
           considering a Rule 12(b)(6) motion to dismiss, has no right to take judicial notice
           of anything, with the possible exception of facts of common knowledge which
           controvert averments of the complaint.
Id. (emphasis in original) (citations omitted). This Court has since approved of Hellickson’s bar
on taking judicial notice of other proceedings when considering a Rule 12(b)(6) motion to


                                                   8
dismiss. In Taylor v. McNichols, 149 Idaho 826, 849, 243 P.3d 642, 665 (2010), this Court
explicitly adopted Hellickson and held that the “district court could not properly take judicial
notice of the Underlying Case when ruling on 12(b)(6) motions to dismiss.”
        The District contends that Hellickson and McNichols do not apply since the district court
properly recognized the summary judgment standard. Indeed, the district court discussed
summary judgment with counsel during the May 2016 motion hearing:
                THE COURT: But isn’t the standard more as to what facts you need that
        you cannot obtain at this time to oppose a summary judgment motion? If the
        issues presented based upon the pleadings—and whether it’s characterized as a
        summary judgment motion or a 12(b)(6) motion, if the issues presented are a
        question of law, doesn’t there have to be some presentation of what facts are out
        there that we haven’t had the opportunity to obtain?
Moreover, the district court—in its first decision—addressed the required Rule 56 standard in its
analysis of Appellants’ motion to strike as well as in its standards of review. But as noted above,
it applied the Rule 12(b)(6) standard in deciding the motion. The fact that the filing dates fell
within Rule 56 requirements does not automatically convert the District’s motion or the court’s
ruling. The District filed a Rule 12(b)(6) motion to dismiss, the court held a hearing on the Rule
12(b)(6) motion to dismiss, and—most importantly—the court decided Count II under the Rule
12(b)(6) standard. The district court thus committed procedural error in granting under Rule
12(b)(6) the District’s motion to dismiss Count II and considering the Confirmation Proceeding
in its decision.
        This Court must thus determine whether that error was harmless, and in so doing “must
disregard all errors and defects that do not affect any party’s substantial rights.” I.R.C.P. 61. If—
by considering only the pleadings—this Court finds under Rule 12(b)(6) that Appellants failed to
state a claim upon which relief may be granted, then the procedural error below is harmless.
McNichols, 149 Idaho at 849, 243 P.3d at 665.
        Because we “shall look only to the pleadings without consideration to the record from the
[u]nderlying [c]ase” when reviewing under the Rule 12(b)(6) standard, this Court cannot analyze
the substantive res judicata argument as it relies entirely on the Confirmation Proceeding. Id. at
836, 243 P.3d at 652. Thus, we determine that the district court’s procedural error was not
harmless, since the Confirmation Proceeding was the sole basis for its determination that res
judicata precluded Appellants’ claim.




                                                 9
       This Court thus vacates the district court’s order granting dismissal of Count II and
remands with instructions to consider Count II under the Rule 56 summary judgment standard.
C.     Attorney’s Fees.
       The District requests attorney’s fees pursuant to Idaho Appellate Rule 41, and Idaho
Code sections 12-117 and 12-121. Neither the District nor Appellants are the prevailing party, so
neither are entitled to costs or fees on appeal.
                                          V. CONCLUSION
       For the foregoing reasons, this Court affirms the dismissal of Counts I and III for lack of
justiciability. We vacate the district court’s order dismissing Count II, and remand with
instructions to consider this claim consistent with this Court’s opinion. In light of these
decisions, we further hold that the appeals on the motions to strike, to reconsider, and to continue
are moot. We award no fees or costs on appeal.
       Justices JONES, HORTON, and Justice Pro Tem DUNN CONCUR.


BURDICK, C.J., concurring in part and dissenting in part.
       I respectfully dissent from the majority’s conclusion that the dismissal of Count II must
be reversed. I agree with the majority that the district court erred by taking judicial notice of the
preclusive effect of the Confirmation Proceeding. But I do not agree that this error requires
reversal. Because the district court considered material explicitly referenced in the amended
complaint and later attached to the motion to dismiss, I would affirm.
       As is well established, “This Court may affirm decisions of a district court based on
different theories than applied by the district court.” State v. Mann, 162 Idaho 36, ___, 394 P.3d
79, 85 (2017) (citing Johnson v. Blaine Cnty., 146 Idaho 916, 921, 204 P.3d 1127, 1132 (2009)).
In this case specifically, I would affirm the district court’s dismissal of Count II by
differentiating impermissible takings of judicial notice from permissible considerations of
outside evidence.
       The majority is correct that in Taylor v. McNichols, 149 Idaho 826, 833, 243 P.3d 642,
649 (2010), this Court adopted the judicial notice standard for Rule 12(b)(6) articulated by the
Court of Appeals in Hellickson v. Jenkins, 118 Idaho 273, 276, 796 P.2d 150, 153 (Ct. App.
1990). This standard is as follows:




                                                   10
       [A] trial court, in considering a Rule 12(b)(6) motion to dismiss, has no right to
       hear evidence; and since judicial notice is merely a substitute for the conventional
       method of taking evidence to establish facts, the court has no right to take judicial
       notice of anything, with the possible exception of facts of common knowledge
       which controvert averments of the complaint.
McNichols, 149 Idaho at 833, 243 P.3d at 649 (quoting Hellickson, 118 Idaho at 276, 796 P.2d at
153). Thus, under this standard, it is clear that the district court erred by taking judicial notice of
the preclusive effect of the Confirmation Proceeding. However, this standard is limited to
judicial notice and its intersection with Rule 12(b)(6). This standard does not address the
propriety of considering outside evidence by methods aside from taking judicial notice of it.
       In McNichols, this Court acknowledged that federal courts evaluate Rule 12(b)(6)
motions by
       consider[ing] the complaint in its entirety, as well as other sources courts
       ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
       documents incorporated into the complaint by reference, and matters of which a
       court may take judicial notice. See 5B Wright & Miller § 1357 (3d ed. 2004 and
       Supp. 2007).
Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). This Court
in McNichols then clarified that “[n]othing in [the above federal standard] is inconsistent with
what is written in Hellickson.” Id. That is because the standard articulated in Hellickson and
McNichols is limited to judicial notice and its intersection with Rule 12(b)(6), not the propriety
of considering outside evidence by methods aside from taking judicial notice of it.
       The federal standard, which this Court clarified is not inconsistent with McNichols and
Hellickson, permits consideration of outside evidence in certain circumstances, the most relevant
circumstance being where a key document is referenced in the pleadings and later attached to a
dismissal motion. E.g., Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (“[W]here a
document is referred to in the complaint and is central to plaintiff’s claim, such a document
attached to the motion papers may be considered without converting the motion to one for
summary judgment.” (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.
1999))); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47–48 (2d Cir. 1991).
       Here, Appellants’ amended complaint specifically pled as follows:
               Plaintiffs appeared in the District’s judicial confirmation case, Minidoka
       County Case No. CV-2014-189, to protest the bond. There, the court declined to
       address Plaintiffs’ constitutional concerns to be addressed in this matter, finding
       that they were outside the purview of that proceeding. See Order Regarding


                                                  11
        Responses in Opposition to the Verified Complaint and Petition CV-2014-189 at
        5-6 (filed May 13, 2014).
        And when moving to dismiss Appellants’ complaint, Respondents attached the relevant
order and the certified final judgment to their motion to dismiss. Therefore, the district court did
not err by considering the preclusive effect of the Confirmation Proceeding. Cf. Cortec, 949 F.2d
at 47–48 (explaining that F.R.C.P. 12(b)(6) permits consideration of documents outside the
pleadings if the complaint necessarily relies on the document and the defendant presents the
document in a motion to dismiss). As stated, McNichols expressly clarified that “[n]othing in [the
federal standard] is inconsistent with what is written in Hellickson[,]” 149 Idaho at 833, 243 P.3d
at 649, and the federal standard would permit consideration of the preclusive effect of the
Confirmation Proceeding in this case, as reasoned above.
        Further, Hellickson and McNichols are factually inapposite to this case. In Hellickson, the
magistrate court considered probate files in estate cases, but nowhere does Hellickson suggest the
specific files or estate cases had been referenced in the pleadings. 118 Idaho at 275–76, 796 P.2d
at 152–53. Likewise, in McNichols, the prior case considered had not been referenced in the
pleadings; rather, “the district court judge, who was also the judge in the [prior case], found that
the arguments made by [the parties] incorporated events and actions that occurred in the [prior
case] and, therefore, took judicial notice of the [prior case] in toto.” 149 Idaho at 831, 243 P.3d
at 647. Here, by contrast, the district court’s consideration was limited to material explicitly
referenced in Appellants’ amended complaint and attached to Respondents’ motion to dismiss. It
is not as if the district court sua sponte considered nuanced arguments made in the Confirmation
Proceeding or some obscure detail buried in the record thereof.
        As such, I would affirm the dismissal of Count II. 1




1
  In addition, this Court could affirm by applying the Rule 56 summary judgment standard. As this Court explained
in Peterson v. Private Wilderness, LLC, 152 Idaho 691, 697, 273 P.3d 1284, 1290 (2012):
        [T]he district court took into consideration the Easement Case when it denied the Petersons’
        motion to dismiss. Judicial notice of another case file is inappropriate procedure where a 12(b)(6)
        standard is used within a trial court’s analysis. However, . . . where a 12(b)(6) standard is
        inappropriate, as it was here, this Court can review the record presented on a summary judgment
        basis de novo. Accordingly, upon review of the record, this Court finds that the Petersons are
        entitled to summary judgment based upon judicial notice of the Easement Case.


                                                       12
