                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                              Docket No. 44636

  In Re: SRBA CASE NO. 39576                                 )
  SUBCASE NOS. 65-23531 and 65-23532.                        )
  --------------------------------------------------------   )
  BLACK CANYON IRRIGATION
                                                             )   Boise, November 2017 Term
  DISTRICT,
                                                             )
          Appellant,                                         )   2018 Opinion No. 1
                                                             )
  v.                                                         )   Filed: January 2, 2018
                                                             )
  STATE OF IDAHO and SUEZ WATER                              )   Karel A. Lehrman, Clerk
  IDAHO, INC.,
                                                             )
          Respondents.                                       )
                                                             )


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

        District court judgment, affirmed.

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

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

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

                                 _________________________________

BURDICK, Chief Justice.
        This water rights appeal flows from two consolidated subcases, numbers 65-23531 and
65-23532, litigated in the Snake River Basin Adjudication (SRBA). The subcases concern the
United States’ late claims (Late Claims) filed in January 2013, which assert “supplemental
beneficial use storage water rights” claims under the constitutional method of appropriation to
store water in priority after flood-control releases. The special master recommended that the


                                                         1
State’s motion for summary judgment be granted, concluding the Late Claims should be
disallowed because, as the Director of the Idaho Department of Water Resources (Director)
recommended, the Late Claims assert rights that had not been claimed when the underlying
water rights were adjudicated and decreed. Alternatively, the special master concluded the Late
Claims should be disallowed because, as intervenor Black Canyon Irrigation District (BCID)
asserted, the decreed water rights already authorize the rights the Late Claims now assert, and
hence, the Late Claims are unnecessary. The district court agreed with the special master insofar
as the Late Claims were precluded. However, the district court rejected the special master’s
alternative recommendation that the Late Claims were duplicative of the rights already decreed
and unnecessary. The district court entered judgment reflecting these conclusions. BCID timely
appeals and we affirm the district court for the reasons below.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
          The United States has been decreed rights to 700,000 AFY in Cascade Reservoir, and
163,000 AFY in Deadwood Reservoir. These water rights were decreed in the Payette
Adjudication, and when that adjudication was consolidated with the SRBA, they were decreed
again in the SRBA. The Payette Adjudication and the SRBA were both general adjudications. 1
No objection was made to the water rights as they were decreed in the Payette Adjudication and
the SRBA.
          The specific decrees provide in relevant part as follows 2:
  Right           Reservoir      Purpose                         Period of Use        Quantity           Priority
 65-2927A         Cascade        Irrigation Storage              01-01 to 12-31       697,500 AFY 12/24/1937
                                 Irrigation from Storage         01-01 to 12-31       697,500 AFY 12/24/1937

1
  “ ‘General adjudication’ means an action both for the judicial determination of the extent and priority of the rights
of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all
rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and
for the administration of those rights.” I.C. § 42-1401A(5).
2
  As relevant to understanding the tables that follow in the text above, we have previously explained:
          The purpose of use element of a storage water right generally contains at least two authorized
          purposes of use. The first authorizes the storage of water for a particular purpose (i.e., “irrigation
          storage,” or “power storage”). The second authorizes the subsequent use of that stored water for an
          associated purpose, which is often referred to as the “end use” (i.e., “irrigation from storage,” or
          “power from storage”). Each purpose of use is assigned its own quantity and period of use, which
          may or may not differ from one another. With respect to storage rights for irrigation, for example,
          it is typical for the “irrigation storage” purpose of use to be a year-round use (January 1 to
          December 31), and the “irrigation from storage” purpose of use to be limited to the irrigation
          season (e.g., March 15 to November 15).
In re SRBA, 157 Idaho at 389, 336 P.3d at 796.


                                                            2
                          Power Storage                01-01 to 12-31    697,500 AFY 12/24/1937
                          Power from Storage           01-01 to 12-31    697,500 AFY 12/24/1937
 65-2927B     Cascade      Municipal Storage           01-01 to 12-31    2,500 AFY      12/24/1937
                          Municipal from Storage       01-01 to 12-31    2,500 AFY      12/24/1937
 65-9483      Deadwood Irrigation Storage              01-01 to 12-31    163,000 AFY 12/31/1926
                          Irrigation from Storage      04-01 to 11-01    163,000 AFY 12/31/1926
 65-2917      Deadwood Power Storage                   01-01 to 12-31    163,000 AFY 12/31/1926
                          Power from Storage           01-01 to 12-31    163,000 AFY 12/31/1926

The decrees grant the United States rights to water in specific quantities, which are “essentially
equal to the active capacit[ies] of Cascade and Deadwood Reservoirs.”
       Cascade and Deadwood Reservoirs are on-stream reservoirs created by dams. Annual
stream flows frequently exceed the Reservoirs’ capacities, and accordingly, the United States,
through the Bureau of Reclamation (BOR), manages flood-control releases. Flood-control
releases generated disputes in the SRBA and led to Basin-Wide Issue 17, where water rights
holders sought resolution of what “effect flood control releases have on storage water rights”
where the decrees lack “refill” remarks. See In re SRBA, 157 Idaho 385, 390, 336 P.3d 792, 797
(2014). While Basin-Wide Issue 17 was being litigated in the district court, on January 31, 2013,
the United States filed the Late Claims at issue here. The Late Claims assert “supplemental
beneficial use storage water rights” claims under the constitutional method of appropriation as
follows:
 Subcase    Reservoir   Purpose                       Period of Use     Quantity        Priority
65-23531    Cascade     Irrigation Storage            10-01 to 09-30    1,066,653 AFA   09/30/1965
                        Irrigation from Storage       01-01 to 12-31    697,500 AFA     09/30/1965
                        Power Storage                 10-01 to 09-30    1,066,653 AFA   09/30/1965
                        Power from Storage            01-01 to 12-31    697,500 AFA     09/30/1965
                        Municipal Storage             10-01 to 09-30    1,066,653 AFA   09/30/1965
                        Municipal from Storage        01-01 to 12-31    2,500 AFA       09/30/1965
65-23532    Deadwood Irrigation Storage               10-01 to 09-30    268,113 AFA     09/30/1965
                        Irrigation from Storage       04-01 to 11-01    163,000 AFA     09/30/1965
                        Power Storage                 10-01 to 09-30    268,113 AFA     09/30/1965
                        Power from Storage            01-01 to 12-31    163,000 AFA     09/30/1965




                                                  3
        The Late Claims surfaced after the Idaho Department of Water Resources (IDWR)
shifted to a computerized water accounting system in 1993. That shift brought about the change
from a “physical fill” system of accounting to a computerized “paper fill” system of accounting.
The physical fill system is summarized as follows:
        Upon completion of the flood control releases, the reservoirs refill with spring
        runoff to the point of maximum physical fill. When the dam has refilled, typically
        in early June to mid-July, the stored water, including the “refill” water, is
        allocated to those holding storage rights in the reservoirs and is available for
        irrigation purposes.
In a paper fill system, by contrast,
                 All water entering the . . . Reservoirs is counted toward the initial paper
        fill of the reservoirs. When flood control water is passed through the reservoirs
        the water passed for flood control is not deducted from the storage accounting of
        the reservoir, even though it is no longer physically stored in the reservoir.
        The United States filed the Late Claims to assert “supplemental beneficial use storage
water rights – separate water rights with a junior priority – which, in conjunction with existing
storage water rights, would allow Reclamation to complete one physical fill of its reservoirs in
years when it must release water for flood control.” The district court granted the filing of the
Late Claims on May 22, 2013. On December 30, 2013, the Director issued its reports
recommending disallowance of the Late Claims for the sole reason that they were “not claimed
in prior adjudication.” On March 20, 2014, the United States timely objected, and on August 26,
2014, the district court entered an order retaining jurisdiction over the subcases pertaining to the
Late Claims. On November 14, 2014, the district court granted Suez Water Idaho, Inc.’s (Suez) 3
motion to participate “on a limited basis for purposes of participating in proceedings related to
the application of law” because that limited participation resulted in no “undue delay or prejudice
to the existing parties.” Thereafter, on January 9, 2015, the district court referred the subcases to
the special master and assigned the power “to conduct all proceedings necessary to issue a
recommendation . . . .”
        On May 11, 2015, BCID moved to participate. BCID, an irrigation district, is the
principal spaceholder in Cascade Reservoir and has beneficial interests in the United States’
decreed water rights. See United States v. Pioneer Irrigation Dist., 144 Idaho 106, 115, 157 P.3d


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


                                                        4
600, 609 (2007). The special master permitted BCID’s participation. Unlike Suez, BCID was
granted party status.
       On August 25, 2015, the State moved for summary judgment, contending, in part, that the
Late Claims were precluded. BCID responded by contending summary judgment should be
granted in its favor as the non-movant, asserting the decreed water rights already authorize the
rights the Late Claims now assert, and hence, the Late Claims are unnecessary. On November
19, 2015, the special master entered an order recommending the State’s motion for summary
judgment be granted, concluding the Late Claims were precluded. The special master did not
reach BCID’s contention that summary judgment should be granted in its favor as the non-
movant. The parties then filed motions to alter or amend the special master’s order. As relevant
here, BCID contended the Late Claims were unnecessary because, as BCID asserted, the existing
rights already authorize the water rights asserted in the Late Claims. On April 22, 2016, the
special master affirmed his recommendation that the Late Claims were precluded; however, the
special master agreed with BCID that the existing rights already authorize the water rights
asserted in the Late Claims. Accordingly, the special master ultimately recommended
disallowance of the Late Claims because (1) they were precluded, and (2) as “an additional basis
for disallowance,” they were unnecessary because the existing rights already authorize the water
rights asserted in the Late Claims.
       When the parties challenged different recommendations of the special master, the district
court adopted the special master’s recommendation that the Late Claims were precluded.
However, the district court rejected the special master’s “alternative basis for disallowance”
recommendation, reasoning that the special master lacked the power to address BCID’s
arguments implicating the scope of the existing decrees. BCID timely appeals the district court’s
ruling that the Late Claims are precluded and rejection of the special master’s “alternative basis
for disallowance.”
                                      II. ISSUES ON APPEAL
1.     Are the Late Claims precluded?
2.     Did the special master exceed the district court’s orders of reference?
3.     Are the State and Suez entitled to attorney fees on appeal?
                                 III. STANDARD OF REVIEW
              The district court may appoint a special master in any general adjudication
       and shall specify the special master’s powers and duties in the order of reference.


                                                5
        Subcases referred to a special master are governed by the I.R.C.P. and the Idaho
        Rules of Evidence (I.R.E.).
                The special master’s findings which the court adopts are considered to be
        the findings of the court. The special master’s conclusions of law are not binding
        upon the district court, although they are expected to be persuasive. To the degree
        that the district court adopts the special master’s conclusions of law, they are also
        the conclusions of the court.
                The question of compliance with the rules of procedure and evidence is
        one of law. This Court freely reviews conclusions of law.
State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 740, 947 P.2d 409, 413 (1997)
(citations omitted).
        This Court has explained that, when it reviews a summary judgment on appeal,
        it does so under the same standards employed by the district court. “The fact that
        the parties have filed cross-motions for summary judgment does not change the
        applicable standard of review, and this Court must evaluate each party’s motion
        on its own merits.” Summary judgment is proper “if the pleadings, depositions,
        and admissions on file, together with the affidavits, if any, show that there is no
        genuine issue as to any material fact and that the moving party is entitled to a
        judgment as a matter of law.” Idaho R. Civ. P. 56(c).[4] Where the case will be
        tried without a jury, “the trial court as the trier of fact is entitled to arrive at the
        most probable inferences based upon the undisputed evidence properly before it
        and grant the summary judgment despite the possibility of conflicting inferences.”
        This Court freely reviews the entire record that was before the district court to
        determine whether either side was entitled to judgment as a matter of law and
        whether inferences drawn by the district court are reasonably supported by the
        record.
Borley v. Smith, 149 Idaho 171, 176–77, 233 P.3d 102, 107–08 (2010) (citations omitted).
                                             IV. ANALYSIS
A.      The Late Claims are precluded.
        We first address whether res judicata bars the Late Claims. Whether res judicata applies
is a question of law over which this Court exercises free review. Ticor Title Co. v. Stanion, 144
Idaho 119, 122, 157 P.3d 613, 616 (2007). Res judicata consists of claim and issue preclusion.
Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803, 805 (2002).
        Claim preclusion “bars a subsequent action between the same parties upon the
        same claim or upon claims ‘relating to the same cause of action.’ ” Under this
        doctrine, a claim is also precluded if it could have been brought in the previous
        action, regardless of whether it was actually brought, where: (1) the original

4
  Effective July 1, 2016, Idaho Rule of Civil Procedure 56 was amended. The relevant portion of the rule now
provides: “The court must grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a).


                                                      6
         action ended in final judgment on the merits, (2) the present claim involves the
         same parties as the original action, and (3) the present claim arises out of the same
         transaction or series of transactions as the original action.
Berkshire Invs., LLC v. Taylor, 153 Idaho 73, 81, 278 P.3d 943, 951 (2012) (citations omitted).
         We agree with the district court that the undisputed facts show that claim preclusion bars
the Late Claims, making summary judgment proper on this issue. The first requirement—a final
judgment on the merits—is satisfied. The Payette Adjudication resulted in a partial decree in
January 1986, which was certified as a final judgment under Idaho Rule of Civil Procedure
54(b). That final judgment incorporated the relevant parts of the Director’s Proposed Findings of
Water Rights in the Payette River Drainage Basin, and those findings encompassed the water
rights decreed in this case. As the Proposed Findings, which the Payette Decree incorporated,
state:
                 This recommended decree includes all of the rights established before
         October 19, 1977 to the waters of the Payette River and its tributaries including
         groundwater, and upon its adoption supercedes all prior judgments of the Court.
         Any water user who heretofore diverted surface water or groundwater from within
         the boundaries as described in Exhibit 1, or who owns lands to which previously
         established rights were appurtenant and who, upon being joined to this action,
         failed to claim such water rights has forfeited such rights as provided in Section
         42-1411, Idaho Code.
Additionally, when the Payette Adjudication was consolidated with the SRBA, the SRBA court
decreed the water rights in 2003 and certified the partial decrees as final judgments under Idaho
Rule of Civil Procedure 54(b). The partial decrees were incorporated into the SRBA’s final
unified decree, which “is binding against all persons . . . .” No objection was made to the water
rights as they were decreed in the Payette Adjudication and the SRBA. Instead, the Late Claims
were not asserted until January 31, 2013.
         Claim preclusion’s second requirement looks to the identity of the parties. We note at the
outset that we have never analyzed the identity of parties requirement as it arises in a general
adjudication. Generally, claim preclusion reaches to “the same parties or their privies[.]” Ticor
Title, 144 Idaho at 124, 157 P.3d at 618. We have acknowledged this principle as it applies to a
private adjudication, Hagerman Water Right Owners, 130 Idaho at 742, 947 P.2d at 415 (“A
Prior Decree Entered in a Private Adjudication is Binding Only Upon Parties and Privies to that
Decree.”), which finds support in the statutory definition of “private adjudication.” I.C. § 42-
1401A(8) (explaining that a private adjudication “binds only those persons joined in the action”).



                                                  7
         A general adjudication, by contrast, is “conclusive as to the nature of all rights to the use
of water in the adjudicated water system, except as provided in section 42-1420,[5] Idaho Code,
and for the administration of those rights.” I.C. § 42-1401A(5) (emphases added). The
Legislature’s definition of general adjudication thus appears to give the identity of parties
requirement little relevance, if any, in this context. The Legislature’s distinction between a
general adjudication and a private adjudication finds support in the various doctrines governing
jurisdiction. Like a general adjudication under section 42-1401A(5), a final judgment in a
proceeding where the court has in rem jurisdiction bars subsequent proceedings arising from the
same transaction or occurrence already litigated, absent an identity of parties requirement,
because in rem proceedings are brought against property, not parties. 50 C.J.S. Judgments § 1387
(2017); Restatement (Second) of Judgments § 30 (1982); Restatement (First) of Judgments § 79
cmt. d (1942) (stating that “[i]n proceedings in rem, however, persons who have not been named
or specifically described in the proceedings, are nevertheless bound as to the subject matter by a
valid judgment, although they are not parties”). A general adjudication, like an in rem
proceeding, is brought against property, not parties. See Nevada v. United States, 463 U.S. 110,
144 (1983) (“[W]ater adjudications are more in the nature of in rem proceedings”); Mont. Trout
Unlimited v. Beaverhead Water Co., 255 P.3d 179, 194 (Mont. 2011) (concluding certain
interpretation of statute “comport[ed] with the nature of water right adjudication as in rem
proceedings”). Conversely, like a private adjudication under section 42-1401A(8), a final
judgment in a proceeding where the court has either in personam or quasi in rem jurisdiction
precludes only the “same parties or their privies” from bringing subsequent proceedings arising
from the same transaction or occurrence already litigated. See Ticor Title, 144 Idaho at 124, 157
P.3d at 618; Restatement (First) of Judgments § 79 cmt. d (1942). A private adjudication, like in
personam or quasi in rem proceedings, is brought to define the rights of specific parties. I.C. §


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


                                                           8
42-1401A(8) (stating that a private adjudication a “binds only those persons joined”);
Restatement (First) of Judgments § 79 cmt. d (1942) (“In proceedings quasi in rem, as in
proceedings in personam, only those persons who are parties as that term is herein used are
thereby bound.”).
       However, we need not conclusively decide the applicability of the identity of parties
inquiry in this context because it is so clearly satisfied in this case. The United States was a party
to the Payette Adjudication and the SRBA, and in those adjudications, it was decreed the
underlying water rights. BCID is a privy of the United States if it “derives [its] interest” from the
United States, which, put another way, is to say that BCID “is in privity with a party to [the
decrees—i.e., the United States].” Kite v. Eckley, 48 Idaho 454, 459, 282 P. 868, 869 (1929);
accord Berkshire Invs., 153 Idaho at 81, 278 P.3d at 951; Ticor Title, 144 Idaho at 124, 157 P.3d
at 618. We are satisfied that BCID derives its interest in the underlying water rights from the
United States. For one, as BCID itself explains, it has a “beneficial interest” in the United States’
water rights in Cascade Reservoir, as BCID is the principal spaceholder in Cascade Reservoir
under a contract it has with the United States. In addition, while the United States holds nominal
legal title to the underlying water rights decreed, this Court has held that irrigation entities, like
BCID here, derive cognizable interests from water rights decreed to the United States since the
irrigation entities act on behalf of the beneficial users. United States v. Pioneer Irrigation Dist.,
144 Idaho 106, 115, 157 P.3d 600, 609 (2007).
       In Pioneer Irrigation, the United States filed claims for water rights in Arrowrock, Lucky
Peak, and Anderson Ranch Reservoirs. Id. at 108, 157 P.3d at 602. Several irrigation entities,
which had contracts with the United States for the storage and delivery of the water, filed
overlapping claims for the same water rights. Id. The United States pointed out that the water
rights had been decreed in its name, and so it contended the irrigation entities’ claims were
improper. Id. We disagreed based on the “connection between beneficial use of water and
ownership rights,” id. at 113, 157 P.3d at 607, and further explained:
       [I]t is clear that the entity that applies the water to beneficial use has a right that is
       more than a contractual right. The irrigation entities in this case act on behalf of
       those who have applied the water to beneficial use and repaid the United States
       for the costs of the facilities. The irrigation districts hold an interest on behalf of
       the water users pursuant to state law, consistent with the Reclamation Act and
       U.S. Supreme Court cases that were properly recognized by the SRBA Court.
Id. at 115, 157 P.3d at 609.


                                                   9
        Under Pioneer Irrigation, BCID holds an interest on behalf of the water consumers or
users. That interest is derived from the United States, which, acting through the Bureau of
Reclamation, appears in the name and address sections of the decrees. BCID specifically acts on
behalf of the water consumers or users under Pioneer Irrigation. In this regard, BCID explains it
“acts as the distributer on behalf of the owners of the water[,]” and, further, it is “the Irrigation
District acting on behalf of property owners who also are the beneficial owners of the water
covered by the water rights existing or sought in this matter.” Thus, assuming the identity of
parties requirement applies here, it is satisfied.
        We turn finally to claim preclusion’s third requirement. This inquiry asks whether “the
present claim arises out of the same transaction or series of transactions as the original action.”
Berkshire Invs., 153 Idaho at 81, 278 P.3d at 951. “A critical component in deciding whether
claims are the same for purposes of res judicata is that the subsequent or present claim must be
one that arose out of the same cause of action and should have been litigated in the first suit.”
Maravilla v. J.R. Simplot Co., 161 Idaho 455, 459, 387 P.3d 123, 127 (2016); accord Joyce v.
Murphy Land & Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242–43 (1922) (explaining that
claim preclusion bars “every matter which might and should have been litigated in the first
suit”). The Late Claims arise from the same transaction already litigated, as they assert
“supplemental beneficial use storage water rights” that would work “in conjunction with existing
storage rights[.]” And since the Late Claims assert a priority date of September 30, 1965, the
Late Claims indisputably predate both the Payette Adjudication and the SRBA and should have
then been asserted. City of Pocatello v. Idaho, 152 Idaho 830, 841, 275 P.3d 845, 856 (2012)
(explaining that a beneficial use water “right dates from the application of the water to a
beneficial use” (quoting Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24
Idaho 63, 82, 133 P. 655, 661 (1913))). We conclude the district court was correct to observe, “If
the late claims now asserted were ever valid, the plain language of the final judgment
extinguished those claims and expressly barred any future assertion of those same claims.”
        BCID attempts to overcome claim preclusion’s fatal resolution of the Late Claims by
contending the Late Claims are excepted from claim preclusion. As it asserts, the Late Claims
were not claims that should have been litigated in the earlier proceedings because they were not
yet ripe. BCID is correct that, for claim preclusion to apply, the claim must be one that “might




                                                     10
and should have been litigated in the first suit.” Joyce, 35 Idaho at 553, 208 P. at 242–43. More
specifically, this Court has explained:
               Ordinarily, efficiency requires that all claims to relief based upon the same
       underlying transaction be pursued in a single action. This is because matters
       common to the several components of the action need be addressed only once,
       rather than several times in greater or lesser detail. However, sometimes a single
       trial covering all aspects of the case will be neither desirable nor feasible.
       Evidence bearing upon one aspect of a case may be unduly prejudicial with
       respect to another. Or certain matters may be ripe for trial while consideration of
       others would be premature.
Duthie v. Lewiston Gun Club, 104 Idaho 751, 758, 663 P.2d 287, 294 (1983) (quoting Heaney v.
Bd. of Trs. of Garden Valley Sch. Dist. No. 71, 98 Idaho 900, 902–03, 575 P.2d 498, 500–01
(1978)).
       According to BCID, “the administrative regime shift to ‘paper fill’ concepts in 1992/93
constituted new facts that were not, and could not be, ripe for adjudication during the pendency
of the Payette Adjudication.” In support, BCID cites to U.S. National Bank Association v.
Kuenzli, 134 Idaho 222, 999 P.2d 877 (2000), to contend the Late Claims are not barred by claim
preclusion. In Kuenzli, the Kuenzlis and Dennett entered into an agreement under which the
Kuenzlis were to purchase Dennett’s farm for $300,000. Id. at 224, 999 P.2d at 879. As part of
that agreement, Dennett reserved an option allowing him to repurchase the farm at any time
during escrow. Id. During escrow, the Kuenzlis learned that the farm had significantly
appreciated in value and, accordingly, began moving to sell the property to a third party for
$975,000. Id. Dennett swiftly responded by exercising his repurchase option. Id. The Kuenzlis
disputed Dennett’s right to do so, but Dennett obtained a judgment for specific performance in
his favor. Id. The judgment was affirmed on appeal, id. (citing Dennett v. Kuenzli, 130 Idaho 21,
24, 936 P.2d 219, 222 (Ct. App. 1997)), and Dennett then “took possession of the property on
May 15, 1997, and an escrow contract was signed by the Kuenzlis on June 10, 1997.” Id.
       Thirteen days later—on June 23, 1997—the Kuenzlis prepared a notice of default,
alleging that Dennett was in default for failing to making three installment payments of $30,000
in 1994, 1995, and 1996, the three years after he exercised his repurchase option. Id. at 225, 999
P.2d at 880. Dennett then paid the installment payments, plus interest, “under protest” to the
escrow agent, U.S. Bank. Id. U.S. Bank responded by lodging an interpleader action to determine
who was entitled to the funds. Id. In the interpleader action, Dennett cross-claimed for a
declaratory judgment that he was not in default, and sought “other relief.” Id. The district court


                                                11
ruled in Dennett’s favor, concluding the only enforceable contract for installment payments was
entered into on June 10, 1997, and nothing required Dennett to make installment payments for
1994, 1995, and 1996. Id.
        When the Kuenzlis appealed, this Court addressed their argument that claim preclusion
barred Dennett’s cross-claim since it was not asserted in the initial proceeding. Id. at 226, 999
P.2d at 881. This Court explained that “[i]t would have been impossible” for Dennett to assert
rights to the funds in the initial proceeding because the Kuenzlis did not assert he was in default
“until after the earlier litigation had run its course.” Id. Thus, Dennett’s cross-claim was not then
ripe, as his “right to the money deposited with U.S. Bank could not have been asserted during the
earlier litigation.” Id. And, while the Kuenzlis pointed to the Restatement’s “transactional
approach,” this Court clarified that the Kuenzlis’ reliance on the Restatement did not assist them.
Id. The Restatement explains that:
        Material operative facts occurring after the decision of an action with respect to
        the same subject matter may in themselves, or in conjunction with the antecedent
        facts, comprise a transaction which may be made the basis of a second action not
        precluded by the first.
Id. (quoting Restatement (Second) of Judgments § 24, cmt. f (1982)). As this Court reasoned,
“The Kuenzlis’ notice of default and the resultant interpleader action are ‘material operative
facts’ comprising a second ‘transaction’ and allowing a ‘second action not precluded by the
first.’ ” Id. Accordingly, claim preclusion did not bar Dennett’s cross-claim. Id.
        Kuenzli does not lend support to BCID in this case. In Kuenzli, the dispute over the funds
did not arise until the first action resolved. In fact, the resolution of the first action held an
integral role in creating the dispute over the funds because, had Dennett not prevailed in the first
action, he would not have been able to exercise the repurchase option, and the Kuenzlis would
have sold the property to the third party for a big profit. Here, by contrast, the Late Claims arose
before both the Payette Adjudication and the SRBA. The Late Claims assert “supplemental
beneficial use storage water rights” under the constitutional method of appropriation, with a
priority date of September 30, 1965. 6 The Late Claims thus required proof “with definite
evidence” that the claimed water was actually diverted and beneficially used at that time. City of


6
  We note that in 1971, the Legislature “amended Idaho Code §§ 42-103 and 42-201 to require compliance with the
statutory application, permit, and license procedure in order to acquire new water rights.” Joyce Livestock Co. v.
United States, 144 Idaho 1, 7, 156 P.3d 502, 508 (2007); accord Pioneer Irrigation, 144 Idaho at 110, 157 P.3d at
604.


                                                       12
Pocatello, 152 Idaho at 841–42, 275 P.3d at 856–57; accord Joyce Livestock Co. v. United
States, 144 Idaho 1, 8, 156 P.3d 502, 509 (2007) (“The two essentials for obtaining a water right
under the constitutional method were typically diversion and application to a beneficial use.”).
This analysis is “focused purely on the actions of the appropriator[.]” Idaho Power Co. v. Idaho
Dep’t of Water Res., 151 Idaho 266, 275, 255 P.3d 1152, 1161 (2011). Therefore, it “would [not]
have been impossible . . . to have claimed the disputed [water rights]” in the earlier adjudications
because the Late Claims are clear that the two key elements—diversion and beneficial use—both
predate the earlier adjudications. But cf. Kuenzli, 134 Idaho at 226, 999 P.2d at 881. Accordingly,
the district court was correct to recognize that, “If the Late Claims have any merit now . . . , that
same merit must have existed during the Payette Adjudication” and the SRBA.
        Nor are we persuaded by BCID’s argument that only with the advent of computerized
accounting did it have reason to believe proceedings to address flood-control administration were
necessary. Three threshold considerations invalidate this argument. First, this argument
erroneously attempts to trade Kuenzli’s clear “impossible to bring” standard for an anomalous
“did not foresee the need to bring” standard. Second, this Court has been very clear that “[r]es
judicata precludes the relitigation of the same claim even if there is new evidence to support it.”
Taylor v. Riley, 162 Idaho 692, 703, 403 P.3d 636, 647 (2017) (citing Wolfe v. Farm Bureau Ins.
Co., 128 Idaho 398, 403, 913 P.2d 1168, 1173 (1996)). Third, BCID’s effort to ascribe operative
significance to IDWR’s accounting system ignores the bedrock principle that the constitutional
method of appropriation is “focused purely on the actions of the appropriator[.]” Idaho Power
Co., 151 Idaho at 275, 255 P.3d at 1161. IDWR’s accounting system is therefore irrelevant in
this proceeding. 7
        Moreover, the propriety of BCID’s reliance on IDWR’s accounting system is belied by
the record. Displayed in the record are certain water claims filed in June 1983, seeking a
“[s]econd refill right” in American Falls Reservoir, a right permitting “actual multiple fill or
refill of [Palisades] Reservoir[,]” a right to provide “optimum Project benefits including flood
control” in Island Park Reservoir, and a right permitting “refill or second fill of [Arrowrock]
reservoir capacity[.]” The record thus shows that issues of refill rights and flood-control


7
 Additionally, BCID’s attempt to inject issues of accounting in this case contravenes our precedent. In re SRBA, 157
Idaho 385, 394, 336 P.3d 792, 801 (2014) (“Which accounting method to employ is within the Director’s discretion
and the Idaho Administrative Procedure Act provides the procedures for challenging the chosen accounting
method.”).


                                                        13
administration were previously relevant and should have been raised during the Payette
Adjudication or the SRBA, both of which post-dated the claims just referenced. Cf. Rangen, Inc.
v. Idaho Dep’t of Water Res., 159 Idaho 798, 806, 367 P.3d 193, 201 (2016) (“If Rangen wanted
its water rights to be interpreted differently, it should have timely asserted that in the SRBA.”).
These issues were nonetheless not raised until this proceeding. As such, the decrees authorize
specific, measurable quantities of water, not a certain number of reservoir “fills.” The quantities
set forth in the decrees are binding and must control. It cannot now reasonably be contended that
the specific, measurable quantities of water decreed are anything less than determinative, as the
record demonstrates that as far back as 1934, it was recognized that decreed water rights would
“no doubt be governed by the amount set out in the . . . decree[.]”
       In sum, we conclude the undisputed facts show that claim preclusion bars the Late
Claims, making summary judgment proper on this issue. We thus hold that claim preclusion bars
BCID in this proceeding from seeking to litigate issues of refill and flood-control administration,
and from attempting to supplement the water rights already decreed with quantities of water in
excess of the quantities already decreed. See supra Part I. Absent BCID undertaking appropriate
proceedings to set aside a final judgment under Idaho Rule of Civil Procedure 60(b), we
emphasize that the decrees are conclusive and final, which comports our general reluctance to
allow already-decreed water rights to be relitigated. See, e.g., City of Blackfoot v. Spackman, 162
Idaho 302, ___, 396 P.3d 1184, 1190 (2017) (“Furthermore, it is equally clear from the plain
language of the decree that recharge is not listed as an authorized use under the purpose of use
element of 181C. Claiming, at this stage, that recharge is an authorized use of 181C, is nothing
more than an impermissible collateral attack . . . .”); Idaho Ground Water Assoc. v. Idaho Dep’t
of Water Res., 160 Idaho 119, 128, 369 P.3d 897, 906 (2016) (“Allowing IGWA to collaterally
attack this determination would severely undermine the purpose of the SRBA and create
uncertainty in water rights adjudicated in that process.”); Rangen, 159 Idaho at 806, 367 P.3d at
201 (“Any interpretation of Rangen’s partial decrees that is inconsistent with their plain language
would necessarily impact the certainty and finality of SRBA judgments and, therefore, requests
for such interpretations needed to be made in the SRBA itself.”); State v. Nelson, 131 Idaho 12,
16, 951 P.2d 943, 947 (1998) (“Finality in water rights is essential.”). Finality is for good reason,
especially in water law; otherwise, the approximate $94 million the State expended in judicial
and administrative costs during the SRBA would be jeopardized as mere wasteful expenditures.



                                                 14
See Ann Y. Vonde et al., Understanding the Snake River Basin Adjudication, 52 Idaho L. Rev.
53, 56 (2016).
          Because we affirm the district court’s ruling on summary judgment that claim preclusion
bars the Late Claims as a matter of law, we need not reach whether the Late Claims are
additionally precluded by issue preclusion, the Payette Decree, and Idaho Code section 42-1411
(1969).
B.        The special master exceeded the district court’s orders of reference.
          We turn now to BCID’s challenge of the district court’s rejection of the special master’s
“alternative basis” recommendation. The district court had discretion to appoint a special master
“by an order of reference pursuant to I.R.C.P. 53.” SRBA Admin. Order 1 § 9(a); accord I.C. §
42-1422(1). In so doing, the district court was required to “specify the powers and duties of a
special master in the order of reference.” I.C. § 42-1422(2). The district court’s specification of
the special master’s powers and duties is critical, given that “the power of the master is
determined by his order of reference, and he possesses no power to hear controversies or perform
acts outside the scope of the order.” Olson v. Idaho Dep’t of Water Res., 105 Idaho 98, 100, 666
P.2d 188, 190 (1983); accord I.R.C.P. 53(c) (2015). “The order of reference can be broad, or
limited,” but the special master cannot stray from it. Olson, 105 Idaho at 100, 666 P.2d at 190.
Since “[t]he question of compliance with the rules of procedure and evidence is one of law,”
State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 740, 947 P.2d 409, 413 (1997), we
conduct free review of whether the special master exceeded the order of reference.
          In determining whether the special master exceeded the order of reference, we are
mindful that the scope of the order of reference, which varies in each case, is outcome
determinative of this inquiry. For example, we have previously recognized that an order of
reference may be broad enough to allow a special master to recommend an award of attorney
fees. In re SRBA, 149 Idaho 532, 542, 237 P.3d 1, 11 (2010). In In re SRBA, the special master
was empowered to “schedule and hear dispositive and nondispositive motions of any party.” Id.
While the appellants challenged the special master’s authority to recommend an award of
attorney fees, we rejected that argument because appellants could “point to no specification or
limitation in the presiding judge’s order of reference to the special master . . . that would
preclude him from making a recommendation on attorney fees.” Id. On the other hand, we have
recognized that an order of reference may be limited enough to preclude a special master from



                                                 15
enforcing a settlement agreement. Olson, 105 Idaho at 100, 666 P.2d at 190. In Olson, the special
master was enlisted to “hear said specific objections filed by the objectors . . . ; and [wa]s fully
empowered to make Findings of Fact and Conclusions of Law and do everything necessary to
proceed to hear such objections[.]” Id. The special master, however, ultimately resolved a
contract dispute between the parties by holding that a stipulated settlement agreement was
enforceable. Id. Based on the limited scope of the order of reference, this Court held that the
special master in Olson “was not empowered to resolve a contract dispute . . . .” Id.
        Here, the district court correctly held that the special master exceeded the district court’s
orders of reference by concluding the Late Claims were unnecessary as duplicative of the
existing decrees. The special master’s recommendation in this regard flowed from BCID’s
argument that it “believe[d] that in a ‘spill and fill’ basin such as Basin 65, the BOR’s existing
storage rights authorize the continued priority storage of the ‘second-in’ water.” The special
master resolved this argument in BCID’s favor and explained “that prior to the adoption of the
new accounting procedures in 1993, the existing storage rights for Cascade and Deadwood
Reservoirs were considered satisfied by the contents of the Reservoirs at the time of maximum
physical fill.” As the special master continued, “This same factual finding also leads to the
conclusion that at the time relevant to the alleged creation of the subject water rights (1965), the
water claimed by the Bureau to have been appropriated was not subject to appropriation because
it had already been appropriated and was being stored in the Reservoirs under the authority of the
existing storage rights.” As the special master concluded, “water released to maintain vacant
reservoir space to be used for flood control was not stored pursuant to the existing storage
rights[.]”
        The special master’s recommendation in this regard was not binding on the district court.
Hagerman Water Right Owners, 130 Idaho at 740, 947 P.2d at 413. The district court properly
rejected this recommendation because, by conducting the analysis above, the special master
exceeded the district court’s orders of reference. The orders of reference granted the limited
power for the special master to “preside over the matter and to conduct all proceedings necessary
to issue a recommendation” based on the Director’s reports, which recommended the Late
Claims be disallowed for the sole reason they “were not claimed in prior adjudication.” The
special master was not, for example, broadly empowered to “hear dispositive and nondispositive
motions of any party.” See In re SRBA, 149 Idaho at 542, 237 P.3d at 11. Instead, the special



                                                 16
master was narrowly tasked with the threshold question of whether the Late Claims were
precluded. The special master expressly recognized so much, stating that “[t]he Director’s Report
for the above-captioned subcases does not implicate the existing storage rights for Cascade and
Deadwood Reservoirs and, therefore, does not provide the means or necessity to provide a
collateral interpretation of the existing water rights within the context of these subcases.” Even
so, the special master strayed beyond this threshold question by, as the district court correctly
observed, “delving into the administration of the previously decreed water rights” to conclude
the Late Claims were unnecessary as duplicative of the existing rights. This analysis signifies
error, as the existing rights were not at issue. Rather, it was the “supplemental beneficial use
storage water rights” claimed in the Late Claims that were at issue. In addition, the
administration of the existing water rights had no basis in the Director’s reports and was raised
for the first time before the special master. The orders of reference clearly instructed the special
master to conduct the proceedings necessary to issue a recommendation, but the special master’s
“additional basis for disallowance” is neither necessary nor relevant to the Director’s reports. Cf.
Olson, 105 Idaho at 100, 666 P.2d at 190 (“[T]he special master in this case was empowered to
hear the objections to the department’s proposed findings of water rights and to make findings of
fact and conclusions of law on those objections. The master was not empowered to resolve a
contract dispute between the parties.”).
       Further, the special master’s “additional basis” recommendation improperly encroaches
on the Director’s discretionary duty of administering water. It is well settled that the
administration of water is a matter committed to the Director’s discretion. E.g., I.C. § 42-602
(“The director of the department of water resources shall have direction and control of the
distribution of water from all natural water sources within a water district to the canals, ditches,
pumps and other facilities diverting therefrom.”); accord In re SRBA, 157 Idaho 385, 393–94,
336 P.3d 792, 800–01 (2014); Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143
Idaho 862, 880, 154 P.3d 433, 451 (2007); Musser v. Higginson, 125 Idaho 392, 395, 871 P.2d
809, 812 (1994), abrogated on other grounds by Rincover v. State Dep’t of Fin., Secs. Bureau,
132 Idaho 547, 549, 976 P.2d 473, 475 (1999). The special master here, however, instructed the
Director how to count and administer water under the decrees. As the special master concluded,
“therefore water released to maintain vacant reservoir space to be used for flood control was not
stored pursuant to the existing storage rights[.]” This conclusion—in effect, telling the Director



                                                17
how to count water when determining whether the decreed quantities are satisfied—was
erroneous, as BCID has not availed itself to the proper administrative procedure to challenge the
Director’s method of accounting. See In re SRBA, 157 Idaho at 394, 336 P.3d at 801 (explaining
that “the Idaho Administrative Procedure Act provides the procedures for challenging the chosen
accounting method”). 8
          In sum, the district court correctly concluded the special master exceeded the district
court’s orders of reference by making the “alternative basis” recommendation.
C.       We decline to award attorney fees on appeal.
         BCID expressly does not request attorney fees on appeal. The State and Suez request
attorney fees on appeal under section 12-117, which provides in relevant part:
                Unless otherwise provided by statute, in any proceeding involving as
         adverse parties a state agency or a political subdivision and a person, the state
         agency, political subdivision or the court hearing the proceeding, including on
         appeal, shall award the prevailing party reasonable attorney’s fees, witness fees
         and other reasonable expenses, if it finds that the nonprevailing party acted
         without a reasonable basis in fact or law.
I.C. § 12-117(1).
         Based on the above, the State and Suez are the prevailing parties on appeal. However,
BCID did not act without a reasonable basis in fact or law. Instead, BCID advanced complex
arguments in good faith. We therefore decline to award attorney fees on appeal.
                                                V. CONCLUSION
         For the reasons above, we affirm the district court’s rulings that claim preclusion bars the
Late Claims and that the special master exceeded the district court’s orders of reference. We
award costs on appeal, but not attorney fees, to the State and Suez.
         Justices HORTON, BEVAN, and WALTERS, J., Pro Tem, CONCUR.


8
  While our colleague who concurs in part and dissents in part writes separately to express that we are piling dicta
upon dicta, we do no such thing. In In re SRBA, the parties appealed whether the district court abused its discretion
by declining to address when the quantity element of a storage water right is filled. Id. at 389, 336 P.3d at 796. We
held that there was no abuse of discretion. Id. at 393, 336 P.3d at 800. In reaching that conclusion, we applied the
plain language of Idaho Code section 42-602 and our settled precedent, explaining that “ ‘the details of the
performance of the duty are left to the director’s discretion.’ Therefore, from the statute’s plain language, as long as
the Director distributes water in accordance with prior appropriation, he meets his clear legal duty. Details are left to
the Director.” Id. (citation omitted). This basis of In re SRBA, in which we applied both statute and established case
law, was essential to resolving the case and cannot be reduced to mere dicta. But cf. State v. Hawkins, 155 Idaho 69,
74, 305 P.3d 513, 518 (2013) (“If the statement is not necessary to decide the issue presented to the appellate court,
it is considered to be dictum and not controlling.”). Today, declining to ignore the special master’s error, we apply
these settled principles to explain why it was improper for the special master to revisit the underlying decrees.


                                                          18
BRODY, Justice, concurring in part and dissenting in part.
         I agree with the result reached by the Court, but I respectfully dissent from that portion of
the opinion wherein the Court concludes that the special master’s alternative basis
recommendation improperly encroached on the Director’s discretionary duty of administering
water. The Court’s discussion of this issue is dicta and should be left for another day.
         The Court first addressed whether water released for flood control counts against the fill
of a storage right in its decision on Basin-wide Issue 17. See In re SRBA, 157 Idaho 385, 392,
336 P.3d 792, 797, 799 (2014). In that decision, the Court held that the SRBA court abused its
discretion in the way that it framed the issue. Id. The Court’s decision did not end there,
however. The Court went further, concluding that the SRBA court did not abuse its discretion in
declining to address when a storage right is “filled” or when it concluded that such a
determination was within the director’s discretion. See id. at 394, 336 P.3d at 801. This portion
of the Court’s opinion was dicta.
         Today, the Court cites the dicta from its Basin-wide Issue 17 decision to support its
assertion that the director’s accounting methodology is a discretionary call that must be
challenged in an administrative proceeding. This is a complex issue. Did the special master’s
recommendation effectively tell the Director how to count water as the Court asserts? I agree that
the “how” of counting water can require scientific expertise and is the subject of much
regulation. On the other hand, did the special master’s recommendation effectively tell the
Director what water to count based on the law and the decrees entered by the SRBA court? The
line between discretionary calls best made by agencies with expertise and legal ones best made
by the courts can be blurry. The Court should draw that line when the case squarely presents the
issue.




                                                  19
