                     IN THE SUPREME COURT OF THE STATE OF IDAHO
                                       Docket No. 38403/38421/38422
                                                         )
IN THE MATTER OF THE PETITION FOR )
DELIVERY CALL OF A&B IRRIGATION )
DISTRICT FOR THE DELIVERY OF )
GROUND WATER AND FOR THE )
CREATION OF A GROUND WATER )
MANAGEMENT AREA.                                         )
-------------------------------------------------------- )
A & B IRRIGATION DISTRICT,                               )
                                                         )
     Petitioner-Appellant,                               )
                                                         )
v.                                                       )
                                                         )
IDAHO DEPARTMENT OF WATER )                                     Boise, February 2012 Term
RESOURCES and GARY SPACKMAN, in )                               2012 Opinion No. 115
his official capacity as Interim Director of the )
IDAHO DEPARTMENT OF WATER )                                     Filed: August 2, 2012
RESOURCES,                                               )      Stephen W. Kenyon, Clerk
                                                         )
     Defendants-Respondents,                             )
                                                         )
and                                                      )
                                                         )
THE         IDAHO            GROUND             WATER )
APPROPRIATORS, INC.; THE CITY OF )
POCATELLO;               FREMONT             MADISON )
IRRIGATION DISTRICT; ROBERT & SUE )
HUSKINSON; SUN-GLO INDUSTRIES; )
VAL SCHWENDIMAN FARMS, INC.; )
DAVID SCHWENDIMAN FARMS, INC.; )
DARRELL C. NEVILLE; SCOTT C. )
NEVILLE; STAN D. NEVILLE,                                )
                                                         )
      Cross-Appellants.

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Eric J. Wildman, District Judge.

       District court decision affirmed.

       Barker, Rosholt & Simpson, LLP, Twin Falls, for appellants.            Travis L.
       Thompson argued.
        Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent Idaho
        Department of Water Resources. Christopher M. Bromley, Deputy Attorney
        General argued.

        Racine Olson Nye Budge Bailey, Pocatello, for respondent Idaho Ground Water
        Appropriators, Inc. Candice M. McHugh argued.

        White & Jankowski, LLP, Denver, CO, for respondent City of Pocatello. Sarah
        A. Klahn argued.

                               __________________________________
BURDICK, Chief Justice
        This case involves the Director (Director) of the Idaho Department of Water Resources’
(IDWR) application of the Rules for Conjunctive Management of Surface and Ground Water
Resources (CM Rules), IDAPA 37.03.11, in response to a ground water to ground water delivery
call filed by the A&B Irrigation District (A&B). The Director’s Final Order found that A&B
was not materially injured and was affirmed by the district court on nearly all points. A&B now
appeals to this Court, contending that the Director and the district court erred in their analyses.
Cross-appeals by the City of Pocatello (Pocatello) and the Idaho Ground Water Appropriators,
Inc. (IGWA) allege that the district court erred by requiring that the Director’s finding of no
material injury must be supported by clear and convincing evidence, rather than a preponderance
of the evidence. We affirm the decision of the district court.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
             1. Introduction and History
        The A&B Irrigation District is located in south-central Idaho near the town of Rupert.
Underlying the A&B project is the Eastern Snake Plain Aquifer (ESPA), which serves as the
project’s water source. 1 As described by the district court, the ESPA is predominately composed
of fractured quarternary basalt that, at some locations, may have an aggregate thickness that
exceeds several thousand feet, decreasing to shallower depths in the Thousand Springs area. The
northern two-thirds of the project are dominated by basalt while the southern third is composed
of basalt layered with sediment. “Snake River basalt is the principal water-bearing formation,

1
  “The ESPA is defined as the aquifer underlying an area of the Eastern Snake River Plain that is about 170 miles
long and 60 miles wide as delineated in the report ‘Hydrology and Digital Simulation of the Regional Aquifer
System, Eastern Snake River Plain, Idaho,’ U.S. Geological Survey Professional Paper 1408-F, 1992, excluding
areas lying both south of the Snake River and west of the line separating Sections 34 and 35, Township 10 South,
Range 20 East, Boise Meridian.”


                                                       2
and it yields water copiously to wells.” The United States Bureau of Reclamation (USBR)
describes the southern third as an area “[w]here the flow sheets are made up of dense, and
massive basalt and/or is covered, penetrated, or innerbedded with fine sediment, the water yield
is small to moderate. One such area is in the southwest part of Unit B located mostly in
T9S/R22E where several low yielding wells are found.”
         With this understanding of the hydrogeologic environment, the USBR constructed the
North Side Pumping Division of the Minidoka Project. The project was begun in the early 1950s
with the intention of developing arable land in Jerome and Minidoka Counties. At this time
aquifer levels had peaked, and by the time the project was completed in 1963 the levels began to
decline. As a result, roughly half of the project’s wells had been redrilled by 1965.
         Originally, the project had an open discharge design where water was pumped from the
ground into surface ponds and delivered through open lateral systems to the user. This system
experienced a conveyance loss estimated at eight percent. In the 1980s, A&B began converting
its gravity flow system to sprinkler irrigation, which reduced conveyance losses to five percent.
             2. A&B’s Senior Water Right 36-2080.
           A&B’s delivery call is based on its senior water right, 36-2080. This water right was
licensed by IDWR in 1965 and authorized the diversion of 1,100 cfs from 177 individual points
of diversion in order to irrigate 62,604.3 acres. A&B also irrigates roughly 4,000 additional
“enlargement acres” under this water right. Water right 36-2080 did not identify a specific place
of use with each diversion point. 2
         In 2003, the Snake River Basin Adjudication (SRBA) partially decreed the water right in
a decree that is substantially similar to the 1965 license. One difference between the partial
decree and the license is that the decree states that A&B, pursuant to transfer, is authorized to
divert water from 188 points of diversion. Of those 188 authorized points of diversion, 177 of
A&B’s wells are currently in active production. These individual wells comprise over 130
separate “well systems.”




2
  This was intentionally sought by the USBR: “We emphasize that the project is one integrated system, physically,
operationally, and financially. . . . Therefore it is impractical and undesirable to designate precise land areas within
the project served by each of the specific wells on the list.”


                                                           3
             3. A&B’s 1994 Delivery Call and Subsequent Procedure
        On July 26, 1994, A&B filed a petition for delivery call, which sought both an
administration of junior-priority ground water rights from the ESPA and a designation of the
ESPA as a ground water management area (GWMA). 3 Among other things, the petition alleged
that junior priority groundwater pumping from the ESPA had, since 1959, lowered the water
table an average of twenty feet and up to forty feet in some areas, which resulted in a 126 cfs
reduction of A&B’s diversion rate. On May 1, 1995, A&B, IDWR, and others entered into an
agreement that stayed the petition for delivery call until a Motion to Proceed was filed with the
Director. That Motion to Proceed was filed electronically by A&B on March 16, 2007, and
sought the same outcome as in the original delivery call. At a September 20, 2007 status
conference the Director notified the parties that the stay was lifted from the 1994 delivery call
and that retired Chief Justice Gerald Schroeder (Hearing Officer) was appointed to oversee a
hearing “and issue a recommendation pursuant to IDAPA Rule 37.01.01.410, .413 . . . .” Those
sections of the administrative code are IDWR’s Rules for Conjunctive Management of Surface
and Ground Water Resources (CM Rules).
        Shortly after the stay was lifted, the Director, in accordance with Rule 42, issued an
Order Requesting Information that asked A&B to provide IDWR with information that the
Director deemed relevant in making a determination of injury.                     On January 29, 2008, the
Director issued a final order (January 2008 Final Order) finding that A&B was not materially
injured and denying A&B’s request to designate the ESPA as a GWMA. A&B then filed a
petition for rehearing.
        A&B’s petition was granted, and after some preliminary matters a hearing commenced
on December 3, 2008. At the hearing, evidence and testimony was presented by IDWR, A&B,
IGWA, and Pocatello. On March 27, 2009, the Hearing Officer issued an Opinion Constituting

3
  A “‘Ground Water Management Area’ is defined as any ground water basin or designated part thereof which the
director of the department of water resources has determined may be approaching the conditions of a critical ground
water area.” I. C. § 42-233b.
          ‘Critical ground water area’ is defined as any ground water basin, or designated part thereof, not
          having sufficient ground water to provide a reasonably safe supply for irrigation of cultivated
          lands, or other uses in the basin at the then current rates of withdrawal, or rates of withdrawal
          projected by consideration of valid and outstanding applications and permits, as may be
          determined and designated, from time to time, by the director of the department of water
          resources.
I. C. § 42-233a.


                                                        4
Findings of Fact, Conclusions of Law and Recommendations (Recommendations). Among the
Hearing Officer’s pertinent findings:
        [T]he Idaho Ground Water Act is applicable to the administration of water rights
        involved in this case, including those rights that preexisted the adoption of the
        Ground Water Act in 1951, and are subject to administration consistent with the
        subsequent amendments to the Act.
                ....
                It is proper to consider the system as a whole.
                ....
        [T]here is an obligation of A&B to take reasonable steps to maximize the use of
        [interconnection] to move water within the system before it can seek curtailment
        or compensation from juniors.
                ....
                Crops may be grown to full maturity on less water than demanded by
        A&B in this delivery call.
                ....
                The conditions in the southwest area that make the recovery of water from
        the wells difficult do not justify curtailment or other mitigation.
                ....
                That A&B has not been required to exceed reasonable pumping levels. 4
        The recommendations of the Hearing Officer were accepted by the Director in a Final
Order Regarding the A&B Irrigation District Delivery Call (Final Order) issued on June 30,
2009. In response, A&B filed a Petition for Review with the district court.
        The district court issued an order and accompanying memorandum on May 4, 2010. 5
This order affirmed the Director’s Final Order on all pertinent substantive issues, but found that



4
  “Reasonable Ground Water Pumping Level” is a term defined by IDAPA 37.03.11.010.18 as:
         A level established by the Director pursuant to Sections 42-226, and 42-237a.g., Idaho Code,
         either generally for an area or aquifer or for individual water rights on a case-by-case basis, for the
         purpose of protecting the holders of senior priority ground water rights against unreasonable
         lowering of ground water levels caused by diversion and use of surface or ground water by the
         holders of junior-priority surface or ground water rights under Idaho law.
5
  The Memorandum Decision and Order on Petition for Judicial Review had several conclusions that are at issue in
this appeal.
         1. The decision of the Director that the 1951 GWA applies to the administration of pre-
              enactment water rights is affirmed.
         2. The Director erred by failing to apply the evidentiary standard of clear and convincing
              evidence in conjunction with the finding that the quantity decreed to A & B’s 36-2080
              exceeds the quantity being put to beneficial use for purposes of determining material injury.
              The case is remanded for the limited purpose of the Director to apply the appropriate
              evidentiary standard to the existing record. No further evidence is required.
         3. The decision of the Director that A & B has not been required to exceed reasonable pumping
              levels is affirmed. This is based on the finding of no material injury at existing pumping


                                                        5
the Director erred by applying an improper evidentiary standard when analyzing whether A&B
was materially injured. The district court remanded for the purpose of applying the clear and
convincing evidence standard. After receipt of petitions for rehearing, the district court issued a
memorandum decision and order affirming its prior ruling. On November 23, 2010, the district
court filed a judgment pursuant to its May 4, 2010 Memorandum Decision and Order on Petition
for Judicial Review. A&B timely filed a Notice of Appeal to this Court on December 29, 2010.
Pocatello timely filed a Notice of Appeal to this Court on December 30, 2010, and IGWA timely
filed a Notice of Appeal on January 4, 2011.
                                        II. ISSUES ON APPEAL
   1. Whether the Director erred in concluding that A&B’s 1948 water right is subject to the
      provisions of the 1951 Idaho Ground Water Act (I.C. §§ 42-226 to 42-239) and its
      subsequent amendments.
   2. Whether the Director erred in finding that A&B has not been required to pump water
      beyond a “reasonable ground water pumping level” even though the Director failed to
      identify a specific pumping level.
   3. Whether the Director erred in failing to analyze water availability at the 177 individual
      wells or points of diversion for purposes of an injury analysis to A&B’s senior water
      right; and whether the Director unconstitutionally applied the CM Rules by finding that
      A&B must interconnect individual wells or well systems across the project before a
      delivery call can be filed.
   4. Whether the district court erred in imposing the “clear and convincing” evidence standard
      on the Director’s determination of material injury in a delivery call.
                                    III. STANDARD OF REVIEW

       Judicial review of a final decision or order of the Director is governed by the Idaho
Administrative Procedure Act (IDAPA), title 67, chapter 52 of the Idaho Code. I.C. § 47-
1701A(4).
       In an appeal from the decision of a district court acting in its appellate capacity under the
IDAPA, this Court reviews the agency record independently of the district court's decision.
Barron v. Idaho Dept. of Water Res., 135 Idaho 414, 417, 18 P.3d 219, 222 (2001). This Court

            levels. On remand, following the application of the appropriate evidentiary standard a finding
            of material injury may require that the Director reevaluate this determination.
       4.   The decision of the Director to evaluate material injury to the 36-2080 water right based on
            depletion to the cumulative quantity as opposed to determining injury based on depletions to
            individual points of diversion is affirmed. The decision of the Director to require A & B to
            take reasonable steps to move water from performing to underperforming areas or
            alternatively demonstrate physical or financial impracticability is affirmed.


                                                        6
“shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.” I.C. § 67-5279(1). This Court “instead defers to the agency’s findings of fact
unless they are clearly erroneous.           In other words, the agency’s factual determinations are
binding on the reviewing court, even where there is conflicting evidence before the agency, so
long as the determinations are supported by substantial competent evidence in the record.”
Urrutia v. Blaine Cnty., 134 Idaho 353, 357, 2 P.3d 738, 742 (2000) (internal citations omitted).
                When the agency was required by the provisions of this chapter or by
        other provisions of law to issue an order, the court shall affirm the agency action
        unless the court finds that the agency's findings, inferences, conclusions, or
        decisions are:
                (a) in violation of constitutional or statutory provisions;
                (b) in excess of the statutory authority of the agency;
                (c) made upon unlawful procedure;
                (d) not supported by substantial evidence on the record as a whole; or
                (e) arbitrary, capricious, or an abuse of discretion.
        If the agency action is not affirmed, it shall be set aside, in whole or in part, and
        remanded for further proceedings as necessary.
I.C. § 67-5279(3). Even if one of these conditions is met, this Court will still affirm the agency
action “unless substantial rights of the appellant have been prejudiced.” I.C. § 67–5279(4); see
also Barron, 135 Idaho at 417, 18 P.3d at 222.
                                               IV. ANALYSIS
    A. The Director did not err in concluding that A&B’s 1948 water right is subject to the
       provisions of the 1951 Idaho Ground Water Act (I.C. §§ 42-226 to 42-239) and its
       subsequent amendments.
        A&B argues that the district court erred when it concluded that the Idaho Ground Water
Act (GWA), I.C. §§ 42-226 to 42-239, applies to A&B’s water right 36-2080. More specifically,
that a plain reading of I.C. § 42-226 precludes the Director from applying the 1951 Ground
Water Act to A&B’s 1948 water right. 6
             1. Standard of Review
        “The interpretation of a statute ‘must begin with the literal words of the statute; those
words must be given their plain, usual, and ordinary meaning; and the statute must be construed
as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows

6
  The distinction is important, as the Ground Water Act only protects a senior water right to a “reasonable pumping
level,” I.C. § 42-226. The now-superseded common law protected senior pumpers to their historic pumping levels.
See Noh v. Stoner, 53 Idaho 651, 653, 26 P.2d 1112, 1114 (1933) (suggesting that the diversion of a senior right
holder is forever protected from interference by junior right holders).


                                                        7
the law as written.’” Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 893, 265 P.3d
502, 506 (2011) (quoting State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003)). “We
have consistently held that where statutory language is unambiguous, legislative history and
other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed
intent of the legislature.” Id. (quoting City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667,
851 P.2d 961, 963 (1993)).
       [W]e have never revised or voided an unambiguous statute on the ground that it is
       patently absurd or would produce absurd results when construed as written, and
       we do not have the authority to do so. ‘The public policy of legislative enactments
       cannot be questioned by the courts and avoided simply because the courts might
       not agree with the public policy so announced.’
Id. at 896, 265 P.3d at 509 (quoting State v. Village of Garden City, 74 Idaho 513, 525, 265 P.2d
328, 334 (1953)).
           2. Analysis
       As currently written, I.C. § 42-226 states, inter alia, that “[t]his act shall not affect the
rights to the use of ground water in this state acquired before its enactment.” A&B argues that
the statute unambiguously does not apply to their water right, which has a priority date of 1948.
IDWR responds that a lone sentence does not have the ability to exempt water right 36-2080
from the provisions of the GWA.
       The district court held that A&B’s reasoning would lead to an absurd result and must be
rejected. When read in isolation, the above line from I.C. § 42-226 appears to exempt water
right 36-2080 from the provisions of the GWA. But as the district court held, “when construing
the Act in its entirety, and specifically taking into account the plain language of I.C. § 42-229, it
becomes clear that the Legislature intended a distinction between the ‘right to the use of ground
water’ and the ‘administration of all rights to the use of ground water.’” To analyze whether the
district court erred, the starting point is the original language of the Ground Water Act.
                    a. 1951 Ground Water Act
       As originally written, the Ground Water Act was divided into sections, two of which are
pertinent to this issue. Section 1 of the 1951 Ground Water Act states that:
              Ground waters are public waters––It is hereby declared that the traditional
       policy of the state of Idaho, requiring the water resources of this state to be
       devoted to beneficial use in reasonable amounts through appropriation, is
       affirmed with respect to the ground water resources of this state as said term is
       hereinafter defined. All ground waters in this state are declared to be the property

                                                 8
           of the state, whose duty it shall be to supervise their appropriation and allotment
           to those diverting the same for beneficial use. All rights to the use of ground
           water in this state however acquired before the effective date of this act are
           hereby in all respects validated and confirmed.
1951 Idaho Sess. Laws, ch. 200, § 1, pp. 423–24 (approved March 19, 1951) (emphasis added).
           In its original form, Section 4 of the 1951 Ground Water Act 7 provided that:
                   The right to the use of ground water of this state may be acquired only by
           appropriation. Such appropriation may be perfected by means of diversion and
           application to beneficial use or by means of the application permit and license
           procedure in this act provided. All proceedings commenced prior to the effective
           date of this act for the acquisition of rights to the use of ground water under the
           provisions of chapter 2 title 42, Idaho Code, may be completed under the
           provisions of said chapter 2 and rights to the use of ground water may be thereby
           acquired. But the administration of all rights to the use of ground water,
           whenever or however acquired or to be acquired, shall, unless specifically
           excepted therefrom, be governed by the provisions of this act.
1951 Idaho Sess. Laws, ch. 200, p. 424 (emphasis added).
           The emphasized language from Section 4 is still present in the statute despite numerous
opportunities for the Legislature to remove it. The Ground Water Act was first amended in
1953, with the most notable change being the addition of language to Section 1, italicized in the
following:
                    Ground waters are public waters––It is hereby declared that the traditional
           policy of the state of Idaho, requiring the water resources of this state to be
           devoted to beneficial use in reasonable amounts through appropriation, is
           affirmed with respect to the ground water resources of this state as said term is
           hereinafter defined and, while the doctrine of ‘first in time is first in right’ is
           recognized, a reasonable exercise of this right shall not block full economic
           development of underground water resources, but early appropriators of
           underground water shall be protected in the maintenance of reasonable ground
           water pumping levels as may be established by the state reclamation engineer as
           herein provided. All ground waters in this state are declared to be the property of
           the state, whose duty it shall be to supervise their appropriation and allotment to
           those diverting the same for beneficial use. All rights to the use of ground water
           in this state however acquired before the effective date of this act are hereby in all
           respects validated and confirmed.
1953 Idaho Sess. Laws, ch. 182, § 1, p. 278 (approved March 12, 1953). The issue of a
“reasonable ground water pumping level” is the focus of Part IV.B, but the issue of this
provision’s applicability to A&B’s first argument will be dealt with here.

7
    Now codified as I.C. § 42-229.


                                                     9
       A&B argues that the 1953 amendment to the GWA does not apply to any pre-1953 water
rights. Idaho Code section 73-101 states that “[n]o part of these compiled laws is retroactive,
unless expressly so declared.”       This tenet of statutory construction extends to statutory
amendments. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 614, 747 P.2d 18, 23 (1987)
(holding that it is a long standing rule of this jurisdiction that an amendment to an existing statute
will not be held to be retroactive in application absent an express legislative statement to the
contrary).
       However, the circumstances in Nebeker are distinguishable from the instant case. That
case dealt with the retroactive application of a 1984 amendment to I.C. § 5-311, Idaho’s
wrongful death statute. Id. at 612, 747 P.2d at 21. Unlike the wrongful death statute, the Ground
Water Act, when interpreted in its entirety, was made retroactive by the express language in
Section 4 of the original act. “[T]he administration of all rights to the use of ground water,
whenever or however acquired or to be acquired, shall, unless specifically excepted therefrom,
be governed by the provisions of this act.” 1951 Idaho Sess. Laws, ch. 200, p. 424. Unless a
ground water right was “specifically excepted” from the requirements of Section 4, a ground
water right would be subject to the provisions of the act. Since water right 36-2080 was not
specifically excepted, it should be administered in accordance with the Ground Water Act.
                   b. Baker v. Ore-Ida Foods, Inc.
       As noted above, A&B argues in part that the “reasonable ground water pumping level”
provision of the GWA does not apply to water rights that pre-date the enactment of the act. This
issue was discussed in Baker v. Ore-Ida Foods, Inc., where this Court interpreted for the first
time the application of the GWA as it relates to withdrawals of water from an underground
aquifer in excess of the recharge rate. 95 Idaho 575, 584, 513 P.2d 627, 636 (1973). In Baker,
senior ground water users brought an action to enjoin junior users from pumping out of a
common aquifer. Id. at 576–77, 513 P.2d at 628–29. The trial court granted the injunction,
holding that the aquifer was being “mined” by over-pumping. Id. On appeal, the junior users
argued that they were entitled to a pro rata share of the aquifer, and that I.C. § 42-226 superseded
the common law. Id. This Court affirmed the trial court, but weighed in on the bounds of senior
water users under the GWA.
              A senior appropriator is only entitled to be protected to the extent of the
       ‘reasonable ground water pumping levels' as established by the [IDWR]. A senior
       appropriator is not absolutely protected in either his historic water level or his

                                                 10
       historic means of diversion. Our Ground Water Act contemplates that in some
       situations senior appropriators may have to accept some modification of their
       rights in [o]rder to achieve the goal of full economic development.
       ...
       We conclude that our legislature attempted to protect historic water rights while at
       the same time promoting full development of ground water. Priority rights in
       ground water are and will be protected insofar as they comply with reasonable
       pumping levels. Put otherwise, although a senior may have a prior right to ground
       water, if his means of appropriation demands an unreasonable pumping level his
       historic means of appropriation will not be protected.
Id. at 584, 513 P.2d at 636 (internal citation omitted). The language from Baker lends credence
to the notion that the “reasonable ground water pumping level” provision found in the 1953
amendment applies to all water rights, since the phrase “[p]riority rights in ground water are and
will be protected insofar as they comply with reasonable pumping levels” is unequivocal.
                   c. Parker v. Wallentine
       A&B argues that this Court’s decision in Parker v. Wallentine confirms that the 1953
amendment’s reasonable ground water pumping level provision does not apply to its 36-2080
water right. 103 Idaho 506, 650 P.2d 648 (1982). In Parker, the holder of a domestic well drilled
in 1964 had his well dry up when an irrigation well drilled in 1976 was pumped. Id. at 507, 650
P.3d at 649. At issue was whether the 1978 amendment to the GWA protected the domestic user
up to the user’s historic pumping level or only up to a reasonable pumping level. Id. at 511–12,
650 P.2d at 653–54. The 1978 Amendment to the GWA is not pertinent to the instant case, but it
exempted domestic wells from the permit requirements of I.C. § 42-229. 1978 Idaho Sess. Laws,
ch. 324, § 1, p. 819 (approved March 29, 1978). A&B points to this Court’s language in Parker
that “[n]othing in the 1978 amendment or the circumstances of its enactment indicates that the
legislature intended this amendment to have retroactive effect.” 103 Idaho at 511 n.7, 650 P.2d at
653 n.7.
       However, the holding in Parker is distinguishable from the present case since Parker
deals with excepted domestic water rights while the present case deals with non-excepted water
rights. In the context of the GWA, this is a fundamental difference. The retroactive language in
the original Section 4, currently codified as I.C. § 42-229, states that the “administration of all
rights to the use of ground water, whenever or however acquired or to be acquired, shall, unless
specifically excepted therefrom, be governed by the provisions of this act.”
                   d. Musser v. Higginson

                                                11
        A&B also relies on this Court’s decision in Musser v. Higginson to bolster the argument
that the GWA does not apply to pre-1951 water rights. 125 Idaho 392, 871 P.2d 809 (1994)
(abrogated on other grounds by Rincover v. State, Dept. of Finance, 132 Idaho 547, 976 P.2d 473
(1999)). In reference to I.C. § 42-226, this Court stated that “[b]oth the original version and the
current statute make it clear that this statute does not affect rights to the use of ground water
acquired before the enactment of the statute.” Id. at 396, 871 P.2d at 813. However, this
pronouncement is dicta when viewed in context.
        In Musser, the plaintiff sought a writ of mandamus to compel the Director to respond to a
delivery call and administer a water right. Id. at 394, 871 P.2d at 811. The trial court issued the
writ and IDWR appealed to this Court arguing that while the Director had a statutory duty to
administer water within a water district, I.C. § 42-226 gave the Director discretion on whether to
respond to delivery calls. Id. at 396, 871 P.2d at 813. The Musser opinion’s treatment of I.C. §
42-226 was only in response to one of the defenses raised by the Director. The thrust of the
opinion dealt with the Director’s duties under I.C. § 42-602 and the principles of mandamus.
Additionally, an interpretation of the GWA in Musser is immaterial after this Court’s opinion in
Clear Springs Foods, Inc. v. Spackman. 150 Idaho 790, 252 P.3d 71 (2011). In Clear Springs,
this Court held that I.C. § 42-226 has no application in delivery calls between senior spring users
and junior ground users. Id. at 808, 252 P.3d at 89.
                    e. The 1987 Amendment to the GWA
        In 1987, the Legislature amended the GWA into its current form. 1987 Idaho Sess.
Laws, ch. 347, § 3, p. 744 (approved April 6, 1987). The amendments generally concerned the
use of low temperature geothermal ground water sources, which were to be governed under the
newly created I.C. § 42-233. Id. The amendment also changed the last sentence of Section 1 of
the original act to read:
        All This act shall not affect the rights to the use of ground water in this state
        however acquired before the effective date of this act are hereby in all respects
        validated and confirmed its enactment.
1987 Idaho Sess. Laws, ch. 347, § 1, at 743. This language is contained in the currently titled
I.C. § 42-226.
        A&B argues that a plain reading of this new phrase precludes the Director from applying
the GWA to water right 36-2080, since it was acquired before the act was enacted. IDWR
responds that these changes have no effect on non-excepted ground water rights.

                                                12
            In its treatment of the issue, the district court looked at the intent behind the statutes. 8
However, since the statutory language is plain, such an analysis by this Court would be
improper. The current GWA states that the “administration of all rights to the use of ground
water, whenever or however acquired or to be acquired, shall, unless specifically excepted
therefrom, be governed by the provisions of this act.” See I.C. § 42-229. Since a delivery call is
an administration of a water right, see American Falls Reservoir District No. 2 v. Idaho
Department of Water Resources, 143 Idaho 862, 876–77, 154 P.3d 433, 447–48 (2007), a plain
reading of the statute would reveal that the GWA governs delivery calls unless a water right is
specifically excepted. The 1987 amendment added that “[t]his act shall not affect the rights to
the use of ground water in this state acquired before its enactment.” I.C. § 42-226. Given the
language used in the 1987 amendment, it appears that it pertains to the use of water, not to the
administration of a water right. Generally, the more specific statute controls. See Farber v.
Idaho State Ins. Fund, 147 Idaho 307, 313, 208 P.3d 289, 295 (2009) (abrogated on other
grounds by Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho at 895, 265 P.3d at 508
(2011)). The retroactive language in I.C. § 42-229 specifically deals with the administration of
water rights, while a plain interpretation of the 1987 amendment to the GWA shows the
amendment to be an acknowledgement that some ground water rights were acquired in this state
before enactment of the amendment.
            This Court finds that a plain reading of the GWA, I.C. §§ 42-226 to 42-239, shows that
the act applies to the administration of all ground water rights in the state; therefore it applies to
A&B’s water right 36-2080.
       B. The Director did not err in finding that A&B has not been required to pump water
          beyond a “reasonable ground water pumping level” even though the Director failed
          to identify a specific pumping level.
            Idaho Code section 42-226 states, in part, that “[p]rior appropriators of underground
water shall be protected in the maintenance of reasonable ground water pumping levels as may

8
    According to the district court:

            [T]he more plausible justification behind the amendment and its choice of language was to avoid
            confusion with the forthcoming SRBA. Namely, that the validated and confirmed language could
            be construed as a legislative determination of the validity of pre-existing rights. Accordingly, the
            Court concludes that both the original language and the 1987 amendment were not intended to
            exempt pre-existing rights from the application of the GWA but rather to establish that pre-
            existing rights were acknowledged as valid and not supplanted by the operation of the GWA.



                                                            13
be established by the director of the department of water resources as herein provided.” In his
Final Order, the Director accepted the Hearing Officer’s conclusions of law, but declined to
establish a “reasonable ground water pumping level.” On judicial review, the district court held
that the GWA gives the Director discretion whether to establish ground water levels in
conjunction with a delivery call. Additionally, the district court held that ground water pumping
levels “have never been treated as an element of a water right, nor have pumping levels been
memorialized in any decree or license.” A&B argues that the failure to identify a “reasonable
ground water pumping level” violated the Director’s duty to administer water rights pursuant to
Idaho law, and that the Director’s failure to disclose the factual basis for this finding violated the
IDAPA.
           1. Whether the Director’s decision not to identify a reasonable groundwater
              pumping level violated Idaho law.
       A&B argues that the district court wrongly relied on language in I.C. § 42-237a(g) to
hold that the Director has discretion whether or not to set a reasonable pumping level. Idaho
Code section 42-237a(g) states in pertinent part that:
               In the administration and enforcement of this act and in the effectuation of
       the policy of this state to conserve its ground water resources, the director of the
       department of water resources in his sole discretion, is empowered:
       ....
                g. To supervise and control the exercise and administration of all rights to
       the use of ground waters and in the exercise of this discretionary power he may
       initiate administrative proceedings to prohibit or limit the withdrawal of water
       from any well during any period that he determines that water to fill any water
       right in said well is not there available. To assist the director of the department of
       water resources in the administration and enforcement of this act, and in making
       determinations upon which said orders shall be based, he may establish a ground
       water pumping level or levels in an area or areas having a common ground water
       supply as determined by him as hereinafter provided. Water in a well shall not be
       deemed available to fill a water right therein if withdrawal therefrom of the
       amount called for by such right would affect, contrary to the declared policy of
       this act, the present or future use of any prior surface or ground water right or
       result in the withdrawing of the ground water supply at a rate beyond the
       reasonably anticipated average rate of future natural recharge.
A&B argues that this statute does not trump the Idaho Constitution, which states that “[p]riority
of appropriation shall give the better right as between those using the water.” Idaho Const. art.
XV § 3. Nor would it trump the duties imposed on the Director by I.C. § 42-607, which requires
the Director to distribute water in a water district by priority. IDWR responds that the Director

                                                 14
must administer water rights, but that he is not mandated to curtail junior ground water users
simply because there is a delivery call.
       In this regard IDWR is correct. A plain reading of the duties of the Director reveals that
he has a duty to respond to a delivery call and determine whether the right holder is injured, but
that he is not obligated to establish a reasonable ground water pumping level.
           2. Whether the Director’s decision was supported by substantial and competent
              evidence.
       In his Final Order, the Director concluded that “[t]here is no indication that ground water
levels in the ESPA exceed reasonable pumping levels required to be protected under the
provisions of Idaho Code § 42-226.” A&B argues that the Director’s failure to identify a
“reasonable ground water pumping level” was erroneous, arbitrary, and capricious. An action is
capricious if it was done without a rational basis. Am. Lung Ass'n of Idaho/Nevada v. State, Dept.
of Agric., 142 Idaho 544, 547, 130 P.3d 1082, 1085 (2006) (citing Enterprise, Inc. v. Nampa
City, 96 Idaho 734, 536 P.2d 729 (1975)). It is arbitrary if it was done in disregard of the facts
and circumstances presented or without adequate determining principles. Id.
       As a starting point, A&B argues that the Director’s finding is not supported by the record.
Principally, that the Hearing Officer urged the Director to establish a standard to ensure
predictability regarding pumping levels:
               A process to establish reasonable pumping levels should be undertaken.
       The level of knowledge concerning the hydrology of the aquifer, the costs of
       deepening wells, the costs of pumping from deeper levels, and the likelihood of
       success in that pursuit has increased dramatically since the beginning of Unit B.
       Flow patterns and the effects of withdrawals from one area on another are
       understood at a much higher level. There should be some predictability as to how
       far down a pumper must go and when the protection of reasonable pumping levels
       has been reached.
A&B argues that the Director acted arbitrarily when he concluded that “[t]here is no indication
that ground water levels in the ESPA exceed reasonable pumping levels required to be protected
under the provisions of Idaho Code § 42-226.” However, the above excerpt from the Hearing
Officer does not state that the Director needs to set a reasonable pumping level, just that the
process of finding such a level should be started.
       The Director ultimately declined to establish a reasonable groundwater pumping level.
A&B argues that this failure to set a reasonable pumping level makes it impossible for the
Director to determine if there is material injury, or for an appellate court to review the Director’s

                                                 15
conclusions. Additionally, A&B argues that the lack of a reasonable pumping level makes it
impossible for IDWR to provide any factual argument that such a pumping level has not been
reached.
       A&B also argues that the Director’s refusal to set a reasonable pumping level unlawfully
forces A&B to self-mitigate for declining water levels, in contravention of its senior water right;
“Based upon the Director’s arbitrary finding, A&B must apparently continue to drill and pump
from an unknown depth in the aquifer before he will administer junior water rights.” An analysis
of A&B’s arguments begins with the Hearing Officer’s findings.
                   a. Hearing Officer’s Findings
       The Director’s Final Order accepted the factual findings of the Hearing Officer’s
Recommendations. Among them: that the aquifer is not being “mined,” since more water enters
the aquifer than is being removed by groundwater pumping; that A&B currently operates 177
wells but is authorized to operate 188 if needed; that initial drillings were often inadequate; and
that A&B has problems with certain well systems in the southern portion of the project where
sedimentary deposits and thick layers of basalt are present. Most significantly, the Hearing
Officer found that A&B has not been required to exceed reasonable pumping levels:
               A&B has not been required to exceed reasonable pumping levels. The
       condition of water in the aquifer is not such that A&B can say its need to pursue
       the water further is over. If deepening wells is necessary to produce the amount of
       water A&B is entitled to under the water right, that burden remains with A&B
       until it is established that it is unreasonable to drill deeper. Its efforts at
       rectification have been largely successful, indicating that there is water available
       if the proper efforts to secure it are pursued. However, A&B and other pumpers
       need standards to know when further efforts remain their responsibility and when
       that additional cost and effort passes to junior users.
       Based on the factual record before him, it seems that the Director determined by logical
inference that the pumping level has not exceeded a reasonable level. Since the Director has
discretion on whether or not to set a reasonable pumping level, this conclusion is within his
authority.
       Therefore, this Court finds that the Director based his decision that A&B did not exceed
reasonable pumping levels on substantial and competent evidence regarding A&B’s water use,
the unique geologic conditions in the area, and the finding that the aquifer is not being mined.
   C. The Director did not err in failing to analyze water availability at the 177 individual
      wells for purposes of an injury analysis to A&B’s senior water right. As a corollary,


                                                16
        the Director properly applied the CM Rules by finding that A&B must interconnect
        individual wells or well systems across the project before a delivery call can be filed.
        The district court found that the Director did not err by failing to separately consider each
well individually to determine a material injury under the 36-2080 water right, because the
system must be considered as a whole based on the way in which the water right is decreed.
A&B argues that this finding is arbitrary and capricious, because it failed to consider A&B’s
actual diversions and water use. Specifically, that “A&B has never – at any point in its history –
had the ability to pump water at one well or well system and deliver that water to any acre
throughout the project. Just the opposite, each of the well systems delivers water to specific
acres and specific water users.”
    1. Whether the Director erred in analyzing water right 36-2080 as a whole system as
       opposed to 177 individual wells.
        According to A&B, the project’s individual well systems cannot provide water to all
acres throughout the project. 9 The Hearing Officer addressed some of the potential limitations
on interconnection in his Recommendations:


9
 A&B cites the hearing testimony of Tim Luke, IDWR’s Water Distribution Section Manager, who testified that
water cannot be pumped from any well and delivered to any acre on the project. However, this testimony
demonstrates that interconnection is possible.
         Q. And you recognize, I guess, based upon your knowledge of the A & B project that certain
        lands in A & B are served by certain wells?
        A. True.
        Q. And that -- you would agree that any acre under the project cannot be physically served with
        water from any well? Depends on where you’re at?
        A. Any well owned by A & B?
        Q. Correct.
        A. I’m aware that there are specific wells -- A & B wells that serve certain lands in A & B. And
        that’s generally where -- well, I guess just that.
        Q. Well, Mr. Bromley talked to you about the water right and the fact that the water right doesn’t
        describe particular lands to particular points of diversion.
        A. Correct.
        Q. And that under the water right you could divert water from any well and apply it to any acre.
        My question to you, is that your understanding of how the A & B project operates as it exists
        today?
        A. Yeah. There's 177 wells and 62,000 acres. I realize that certain areas of the project are irrigated
        by certain wells. It’s not to say you can't add a well or move water from one well that was
        formerly serving or is serving lands that I would describe as Area A couldn’t be moved to lands in
        Area B within the district.



                                                         17
               Consideration of the system as a whole must also account for the effect
       upon individual systems when the number of short systems would constitute a
       failure of the project. The geography of the land within Unit B, the design of the
       system, and the practices in utilizing the system prior to entry of the partial decree
       indicate that the water right adjudicated is not satisfied by showing that the
       combined total of water that can be pumped from all the wells is equal to the
       amount necessary to avoid material injury if the water were equally distributed. It
       is proper to consider the entire system, but that consideration must account for the
       fact that water from one pump is not accessible to the entire acreage. Pumping
       water from wells in excess of what can be beneficially used on the property to
       which the water can be delivered would be waste, so counting excess water that
       cannot be utilized towards the water right would be improper. The theoretical
       right to apply the water from any pump to any land must be tempered by the
       reality of the system as it was designed and utilized and partially decreed. If the
       entire well system could be interconnected economically the issue of material
       injury would be gauged by the total capacity of the system to produce water.
       The Hearing Officer went on to note that there is uncertainty as to whether large portions
of the project can be interconnected, and that A&B would not be required to connect every point
of diversion. However, the Hearing Officer also found that these issues would not relieve A&B
of certain obligations:
       Considering the fact that the project was developed, licensed and partially decreed as
       a system of separate wells with multiple points of diversion, it is not A&B's
       obligation to show interconnection of the entire system to defend its water rights and
       establish material injury. However, it is equally clear that the licensing requested by
       the Bureau of Reclamation envisioned flexibility in moving water from one location
       to another. Consequently, there is an obligation of A&B to take reasonable steps to
       maximize the use of that flexibility to move water within the system before it can
       seek curtailment or compensation from junior users.
It seems clear that the Hearing Officer’s findings conclude that A&B does not have to
interconnect the entire system, but must take reasonable steps to divert some water throughout


       Q. Physically that could happen. But as the project exists, do you understand that any acre under
       the project can be irrigated by water from any well as the project exists?
       A. Yeah, it could.
       Q. How is that?
       A. It’s within your water right to do that.
       ...
       Q. So it’s your testimony that you think any acre under the project could be irrigated with any well
       as the project exists today? I’m not talking about theoretical or what could happen if --
       A. Not necessarily any acre, but some acres have been irrigated by different wells over time.



                                                       18
the project before junior members are impacted. Those reasonable steps are, again, a finding of
fact for the Director. This is consistent with the way water right 36-2080 was decreed by the
SRBA.
           a. SRBA Decree of A&B’s water right 36-2080
        The district court found that the “way in which the 36-2080 water right was licensed and
ultimately decreed in the SRBA is not typical.” The partial decree does not define or limit the
place of use for any individual point of diversion. Rather, the partial decree lists the place of use
as “within the boundary of A & B irrigation district service area, pursuant to section 43-323,
Idaho Code. This right is limited to the irrigation of 62,604.3 acres within the A & B irrigation
district boundary in a single irrigation season.” The district court held that the legal effect of the
SRBA partial decree “is that water diverted from any one of the points of diversion is
appurtenant to and therefore can be used on any and all of the 62,604.3 acres within the defined
place of use.” As mentioned above, this arrangement was intentional. In a response to IDWR
regarding the original permitting for the project, USBR stated that “[w]e emphasize that the
project is one integrated system, physically, operationally, and financially. . . . Therefore it is
impractical and undesirable to designate precise land areas within the project served by each of
the specific wells on the list.” Additionally, the SRBA partial decree notes the total quantity of
the right, 1,100 cubic feet per second (cfs) with a limitation of 250,417.20 acre feet per year
(afy), but it does not provide any specific rates of diversion from any of the individual wells.
        A plain reading of the SRBA partial decree in conjunction with the Hearing Officer’s
findings provides ample support to the Director’s Final Order. Therefore, we find that the
Director’s decision to analyze A&B’s water right on a system-wide basis was not arbitrary and
capricious, but rather it was based on a reasoned analysis of water right 36-2080 as it was
permitted and partially decreed.
   2. Whether the Director unconstitutionally applied the CM Rules by finding that A&B must
      interconnect individual wells or well systems across the project before a delivery call can
      be filed.
        In his recommendations, the Hearing Officer found that “there is an obligation of A&B to
take reasonable steps to maximize the use of [interconnection] to move water within the system
before it can seek curtailment or compensation from juniors.” The Director accepted this finding
in his Final Order. A&B argues that Idaho law does not require A&B to interconnect its separate
points of diversion as a condition to administer junior priority ground water rights.

                                                 19
       The argument advanced by A&B has four parts. First, that a mandate of interconnection
as a prerequisite of administration is an unconstitutional application of the CM Rules. Second,
that the actions of the Director contradict the plain language of A&B’s water right decree from
the SRBA. Third, that there is no mention in the Idaho Code or in the CM Rules of a senior right
holder’s need to interconnect as a condition of administration with juniors. And fourth, that the
act of interconnection of the A&B project will not address the problem of diminishing
groundwater supply.
           a. A&B’s argument that a mandate of interconnection is unlawful.
       A&B argues that Idaho is a prior appropriation state, and that the denial of its delivery
call on the basis of a new condition to administration unlawfully diminishes A&B’s priority. See
Idaho Const. art. XV, § 3 (“Priority of appropriation shall give the better right as between those
using the water . . . .”). “Priority in time is an essential part of western water law and to diminish
one’s priority works an undeniable injury to that water right holder.” Jenkins v. State, Dept. of
Water Res., 103 Idaho 384, 388, 647 P.2d 1256, 1260 (1982). This argument has two sub-parts.
                   i. A&B’s argument that the actions of the Director contradict the SRBA
                      partial decree.
       In this argument, A&B claims that the Director violated the plain terms of the SRBA
partial decree by reading into the decree a condition that is not spelled out. A decree entered in a
general adjudication shall be conclusive as to the nature and extent of all water rights in the
adjudicated water system. I.C. § 42-1420(1).
       [A] provision is to be included in a decree if it is necessary to define or for the
       efficient administration of a water right, and it is not necessary that the provision
       apply to all water rights. Therefore, if the provision is necessary for the efficient
       administration of a water right, we hold that the provision should be included in
       the decree, and remand for further factual findings as to the necessity of this
       provision either to the definition or the administration of these water rights.
State v. Nelson, 131 Idaho 12, 16, 951 P.2d 943, 947 (1998) (internal citation omitted). A&B
argues that absent a limitation or condition on the decree, the Director had no authority to deny
A&B’s request for administration on the basis of interconnection.
       Ultimately the answer to this argument is the same as the answer in the following subpart
ii. That is, whether the Director’s discretion includes the ability to require reasonable methods of
diversion and application by a senior right holder.




                                                 20
           The CM Rules provide a list of the factors that the Director may consider in his
determination of a senior right holder’s material injury. 10 The most pertinent provision is IDAPA
Rule 37.03.11.042(g) which allows the Director to consider “[t]he extent to which the
requirements of the holder of a senior-priority water right could be met with the user’s existing
facilities and water supplies by employing reasonable diversion and conveyance efficiency and
conservation practices.” This Court’s holding in American Falls touched on this very topic. The
CM Rules “give the Director the tools by which to determine ‘how the various ground and
surface water sources are interconnected, and how, when, where and to what extent the diversion
and use of water from one source impacts [others].’” American Falls, 143 Idaho at 878, 154 P.3d
at 449 (quoting A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 422, 958


10
     IDAPA Rule 37.03.11.042 states in pertinent part:

           01. Factors. Factors the Director may consider in determining whether the holders of water rights
           are suffering material injury and using water efficiently and without waste include, but are not
           limited to, the following:
           a. The amount of water available in the source from which the water right is diverted.
           b. The effort or expense of the holder of the water right to divert water from the source.
           c. Whether the exercise of junior-priority ground water rights individually or collectively affects
           the quantity and timing of when water is available to, and the cost of exercising, a senior-priority
           surface or ground water right. This may include the seasonal as well as the multi-year and
           cumulative impacts of all ground water withdrawals from the area having a common ground water
           supply.
           d. If for irrigation, the rate of diversion compared to the acreage of land served, the annual volume
           of water diverted, the system diversion and conveyance efficiency, and the method of irrigation
           water application.
           e. The amount of water being diverted and used compared to the water rights.
           f. The existence of water measuring and recording devices.
           g. The extent to which the requirements of the holder of a senior-priority water right could be met
           with the user’s existing facilities and water supplies by employing reasonable diversion and
           conveyance efficiency and conservation practices; provided, however, the holder of a surface
           water storage right shall be entitled to maintain a reasonable amount of carry-over storage to
           assure water supplies for future dry years. In determining a reasonable amount of carry-over
           storage water, the Director shall consider the average annual rate of fill of storage reservoirs and
           the average annual carry-over for prior comparable water conditions and the projected water
           supply for the system.
           h. The extent to which the requirements of the senior-priority surface water right could be met
           using alternate reasonable means of diversion or alternate points of diversion, including the
           construction of wells or the use of existing wells to divert and use water from the area having a
           common ground water supply under the petitioner’s surface water right priority.



                                                            21
P.2d 568, 579 (1997)). The Director did not impose a new condition, but rather he used his
discretion to analyze A&B’s delivery call using his statutory authority in the manner governed
by the CM Rules.
                   ii. A&B’s argument that there is no mention in Idaho law of a senior right
                       holder’s need to interconnect as a condition of administration.
       A&B argues that there is no language in I.C. §§ 42-602, 607, or CM Rule 40 that would
require A&B to interconnect its system as a condition to administration. A&B believes that this
precondition to administration shifts a burden onto A&B in violation of this Court’s opinion in
American Falls. See 143 Idaho at 877–78, 154 P.3d at 448–49 (“The Rules should not be read as
containing a burden-shifting provision to make the petitioner re-prove or re-adjudicate the right
which he already has.”).
       The answer here is the same as that in the subsection directly above. Idaho law does not
explicitly state that interconnection is a condition of administration, but the CM Rules allow the
Director to consider reasonable diversion in his determinations.
           b. A&B’s argument that interconnection of their water system will not address the
              issue of diminishing groundwater supply.
       Finally, A&B argues that interconnection will not solve the ultimate problem of
diminishing water supply and would negatively impact the district’s landowners: “Attempting to
move water from one well system to another . . . would only further reduce the amount of water
available for delivery to all landowners served by those wells.” In the Hearing Officer’s findings
presented above, it appears that there is no issue of diminishing ground water supply, as there
was a specific finding that the aquifer is not being mined. Absent findings that A&B has
exceeded a reasonable pumping level, there does not appear to be any evidence to support
A&B’s argument. Additionally, IDWR points out that A&B seeks to curtail junior users while it
simultaneously irrigates junior and enlargement acres. If water supply was an issue for A&B, it
seems unlikely that they would continue this practice.
       Given the language in the CM Rules, we find that the Director did not act arbitrarily or
violate Idaho law when he found that A&B must work to reasonably interconnect some
individual wells or well systems before a delivery call can be filed, and we affirm the district
court’s finding in this regard.
   D. The district court did not err in imposing the “clear and convincing” evidence
      standard on the Director’s determination of material injury in a delivery call.


                                               22
         In its Memorandum and Order on Petition for Judicial Review, the district court held that
“clear and convincing” was the proper evidentiary standard to determine material injury in a
delivery call.   Pocatello and IGWA both appeal, arguing that the application of a higher
evidentiary standard is not supported by Idaho law.          As Pocatello argues, the clear and
convincing evidence standard has only been applied in the context of adjudications or re-
adjudications which serve to permanently deprive a water right holder of a decreed property
right.
         This Court has free review over questions of law. Rahas v. Ver Mett, 141 Idaho 412, 414,
111 P.3d 97, 99 (2005). In State v. Kimball, this Court held that “[c]lear and convincing
evidence is generally understood to be ‘evidence indicating that the thing to be proved is highly
probable or reasonably certain.’” 145 Idaho 542, 546, 181 P.3d 468, 472 (2008) (quoting In re
Adoption of Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006)). In Idaho, “[a] subsequent
appropriator attempting to justify his diversion has the burden of providing that it will not injure
prior appropriations.” Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765-66 (1964)
(superseded by statute, I.C. § 42-103 (1971)). Idaho law also provides that the burden of
establishing waste is on the junior appropriator. Gilbert v. Smith, 97 Idaho 735, 739, 552 P.2d
1220, 1224 (1976). Pocatello argues that no evidentiary standard, “no matter how strict or
relaxed,” can change the allocation of burden of persuasion in administrative law, since the
burdens are defined in the rules. IDAPA Rule 37.03.11.042, which is stated in its entirety in Part
IV.C.2 above, governs the Director’s determination of material injury and reasonableness of
water diversions.
    1. Analysis of the District Court
         The district court stated that the clear and convincing evidence standard applied to a
finding of injury “based on the way in which the right is structured and in giving proper legal
effect to the decree . . . .” Such a standard, according to the district court, gives the “proper
presumptive weight to a decree.” In assigning an evidentiary standard, the district court focused
on the presumptions and burdens of proof found in the CM Rules and applicable case law.
         The reasoning behind the district court’s decision can be summed up in the following
excerpt:
                 The application of the clear and convincing standard of proof only makes
         sense from a common sense perspective. If the Director determines that a senior
         can satisfy the decreed purpose of use on less than the decreed quantity reflected,

                                                 23
       he needs to be certain to a standard of clear and convincing evidence. In making
       a determination of whether or not to regulate juniors, the Director is required to
       evaluate whether the quantity available meets or exceeds the quantity the senior
       can put to beneficial use. If the Director regulates juniors to satisfy the senior’s
       decreed quantity there is no risk of injury to the senior. However, if the Director
       regulates juniors to satisfy a quantity less than decreed, there is risk to the senior
       that the Director’s determination is incorrect. There is no remedy for the senior if
       the Director’s determination turns out to be in error and the senior comes up short
       of water during the irrigation season. Any burden of this uncertainty should be
       borne by the junior . . . . [I]f the Director’s determination is only based on a
       finding ‘more probable than not.’ The senior’s right is put at risk and the junior is
       essentially accorded the benefit of uncertainty. The requisite high standard
       accords appropriate presumptive weight to the decree.
       The district court also noted several opinions from this Court that use the clear and
convincing standard in connection with water rights. Forfeiture or abandonment of a water right
must be established by clear and convincing evidence. See Crow v. Carlson, 107 Idaho 461,
467, 690 P.2d 916, 922 (1984). That same standard is used when establishing prescriptive title to
the water right of another. See Gilbert, 97 Idaho at 739, 552 P.2d at 1224. Significantly, these
cases deal with the actual modification of a water right. In its decision, the district court held
that the futile delivery call defense was similar and “requires a showing of clear and convincing
evidence that diversions by a junior appropriator will not injure the rights of a senior
appropriator.” Additionally, the district court held that a “determination that a portion of a
decreed water right is being wasted (or is not being put to beneficial use) is a diminishment of a
property right. The decreed quantity is reduced by the amount determined not being put to
beneficial use.”
   2. Analysis of Applicable Case Law.
           a. American Falls Reservoir District No. 2 v. Idaho Department of Water Resources
       Although mainly focused on issues of burden shifting, this Court’s decision in American
Falls touched on the issue of evidentiary standards. In American Falls, the American Falls
Reservoir District and others sought a declaratory judgment that the CM Rules were
unconstitutional.   143 Idaho at 867–68, 154 P.3d at 438–39. This Court ultimately concluded
that the CM Rules were facially constitutional. Id. at 881, 154 P.3d at 452. To reach that
conclusion, this Court touched on the topic of applicable evidentiary standards. Id. at 876–77,
154 P.3d at 447–48.      However, this Court did not rule on whether the CM Rules were
constitutional “as applied,” since administrative remedies were not exhausted. Id. at 870–71,


                                                24
154 P.3d at 441–42. Thus, American Falls did not provide any exact insight into the proper
evidentiary standards for the CM Rules, although the opinion noted that “[r]equirements
pertaining to the standard of proof and who bears it have been developed over the years and are
to be read into the CM Rules.” Id. at 874, 154 P.3d at 445.
       As part of this analysis in American Falls, this Court also pointed out an important
distinction:
       [T]he water rights adjudications neither address, nor answer, the questions
       presented in delivery calls; thus, responding to delivery calls, as conducted
       pursuant to the CM Rules, do not constitute a re-adjudication. For example, the
       SRBA court determines the water sources, quantity, priority date, point of
       diversion, place, period and purpose of use. However, reasonableness is not an
       element of a water right; thus, evaluation of whether a diversion is reasonable in
       the administration context should not be deemed a re-adjudication. Moreover, a
       partial decree need not contain information on how each water right on a source
       physically interacts or affects other rights on that same source.
Id. at 876–77, 154 P.3d at 447–48 (internal citations omitted). Additionally, this Court held that
the CM Rules cannot be read as burden shifting provisions that would require the senior right
holder to re-adjudicate his right. Id. at 877–78, 154 P.3d at 448–49. The distinction between the
adjudication of a water right and an administration of that water right is a critical element in this
analysis.
            b. Previous Case Law
       As noted in American Falls, this Court has previously stated the appropriate evidentiary
standard to be used under the CM Rules. In Moe v. Harger, this Court dealt with a conflict
between senior and junior appropriators of surface water from the Big Lost River. 10 Idaho 302,
77 P. 645 (1904). In Moe, the junior appropriators sought to divert water from the river before
the water reached Moe, the senior appropriator. Id. at 307, 77 P. at 646. This Court stated the
issue as follows, “Appellants complain of the action of the trial court in incorporating in the
decree in this case an order perpetually enjoining them from in any manner interfering with or
diverting or using the waters of Lost river, except in accordance with the terms of the decree.”
Id. at 306, 77 P. at 647. In upholding the injunction, this Court stated as follows:
       So soon as the prior appropriation and right of use is established, it is clear, as a
       proposition of law, that the claimant is entitled to have sufficient of the
       unappropriated waters flow down to his point of diversion to supply his right, and
       an injunction against interference therewith is proper protective relief to be
       granted. The subsequent appropriator who claims that such diversion will not


                                                 25
       injure the prior appropriator below him should be required to establish that fact
       by clear and convincing evidence.
Id. at 307, 77 P. at 647 (emphasis added). In weighing the evidence, this Court determined that
clear and convincing evidence was necessary for the junior appropriators to prevail:
       This court has uniformly adhered to the principle, announced both in the
       Constitution and by the statute, that the first appropriator has the first right; and it
       would take more than a theory, and in fact clear and convincing evidence, in any
       given case, showing that the prior appropriator would not be injured or affected
       by the diversion of a subsequent appropriator, before we would depart from a rule
       so just and equitable in its application, and so generally and uniformly applied by
       the courts.
Id. at 307, 77 P. at 646–47.
       This Court next addressed the standard of proof in Josslyn v. Daly, 15 Idaho 137, 96 P.
568 (1908). One of the issues in that case was the right to water from a spring and a lake located
in a valley through which a creek flowed. Id. at 147, 96 P. at 571. The trial court held that the
spring was not tributary to the creek and that all waters used by the plaintiff-respondent from the
lake flowed back into the creek, without lessening or diminishing the flow in the creek. Id. at
148, 96 P. at 571. It therefore held that the plaintiff was entitled to use the water from the spring
and the lake. Id. We held that because the case had to be retried on other issues, “we think it
best to also order a new trial as to the volume and flow of water from this spring and lake, and
also on the issue as to whether these are in fact tributary and feeders to the waters of Seaman’s
creek.” Id. We then held that where a junior appropriator seeks to divert water from tributaries
to the main stream, the junior appropriator must prove by clear and convincing evidence that it
does not diminish the volume of water in the main stream. We stated:
       It seems self-evident that to divert water from a stream or its supplies or
       tributaries must in a large measure diminish the volume of water in the main
       stream, and where an appropriator seeks to divert water on the grounds that it
       does not diminish the volume in the main stream or prejudice a prior appropriator,
       he should, as we observed in Moe v. Harger, 10 Ida. 305, 77 Pac. 645, produce
       “clear and convincing evidence showing that the prior appropriator would not be
       injured or affected by the diversion.” The burden is on him to show such facts.
Id. at 149, 96 P. at 571–72 (emphasis added).
       Subsequently, this Court’s opinion in Hill v. Green, “involve[d] the right to the use of
certain of the waters of Indian Creek, a tributary of Medicine Lodge Creek, in Clark county.” 47
Idaho 157, 158, 274 P. 110, 110 (1928). After the spring runoff, “a great part of Indian Creek
becomes wholly lost by percolation into its [porous] bed before its juncture with Medicine Lodge

                                                 26
Creek.” Id. at 159, 274 P. at 110. The junior appropriators and their predecessors in interest
constructed irrigation works to divert water from Indian Creek, and the senior appropriators, who
had prior rights in Medicine Lodge Creek, contended that the junior appropriators were taking
water that would eventually flow into Medicine Lodge Creek. The district court found that the
junior appropriators were not taking any water that would ultimately be available for use by the
senior appropriators. It found that “the water table in this vicinity is such that no water lost by
percolation ever finds its way back into the bed of Indian Creek or into Medicine Lodge Creek,
nor is there any subterranean flow supporting the surface flow.” Id. The senior appropriators
appealed, stating that the two issues on appeal were:
       First, whether or not respondents, as a matter of law, can gain a superior right
       over prior appropriators from Medicine Lodge Creek by salvaging the waters as in
       their complaint alleged; and, second, if such a superior right can be so acquired, is
       the evidence of that clear and convincing kind required to justify the court in
       awarding them such a superior right.
Id. at 160, 274 P. at 110 (emphasis added). This Court affirmed the district court, stating:
               There is no question but that the burden of proof rested upon respondents
       to show by competent evidence that the water salvaged by them had not
       theretofore been appropriated or used by others with prior rights. It being shown,
       however, that the water salvaged would not, if undisturbed, reach the point of
       diversion of prior appropriators, their supply would not be decreased, and they
       have therefore, no cause for complaint.
Id. at 160, 274 P. at 111.
       In Silkey v. Tiegs, we again addressed the standard of proof, this time in administering
water rights between or among groundwater users. 54 Idaho 126, 28 P.2d 1037 (1934). The
users’ respective water rights had been previously adjudicated, and the court retained jurisdiction
for two years to determine whether there was sufficient subterranean water for the junior
appropriators to take any water from their wells. Id. at 127, 28 P.2d at 1037. Prior to the
expiration of that two-year period, the junior appropriators filed a motion contending that the
prior appropriator had never been able to obtain more than 21 inches of the 40 inches of water
she had been decreed, that there were at least 140 inches of water available in the aquifer, and
that they should be permitted to withdraw at least 60 inches of water because it would not harm
the senior appropriator. Id. at 128, 28 P.2d at 1037–38. The trial court denied their motion, and
the junior appropriators appealed. We affirmed the standard of proof that they were required to



                                                27
show by clear and convincing evidence that their withdrawal of the water would not harm the
senior appropriator.
               The trial court by denying appellants’ motion herein indicated he was not
       satisfied the provisional tests entitled them to more water, without interference
       with respondent’s prior right. The burden was on appellants herein to sustain
       their motion by direct and convincing testimony, this language in Moe v. Harger,
       10 Idaho 302, 77 P. 645, being particularly apt:
               “This court has uniformly adhered to the principle announced both in the
       constitution and by the statute that the first appropriator has the first right; and it
       would take more than a theory, and, in fact, clear and convincing evidence, in any
       given case, showing that the prior appropriator would not be injured or affected
       by the diversion of a subsequent appropriator, before we would depart from a rule
       so just and equitable in its application and so generally and uniformly applied by
       the courts. Theories neither create nor produce water, and when the volume of a
       stream is diverted and seventy-five per cent of it never returns to the stream, it is
       pretty clear that not exceeding twenty-five per cent of it will ever reach the settler
       and appropriator down the stream and below the point of diversion by the prior
       user.”
Id. at 128–29, 28 P.2d at 1038 (citation omitted) (emphasis added).
       We again affirmed the clear and convincing standard of proof in Cantlin v. Carter. 88
Idaho 179, 397 P.2d 761 (1964). There, the appellant had obtained a permit to appropriate water
from what he described as a swamp. Id. at 182, 397 P.2d at 762. Prior appropriators of water
from a ditch objected on the ground that the water sought to be appropriated was seepage water
from the ditch which they used. Id. The State Reclamation Engineer canceled the permit, and
the matter was appealed. Id. at 182, 397 P.2d at 762–63. We affirmed, and in doing so
reaffirmed the clear and convincing standard of proof stated in Moe v. Harger, Josslyn v. Daly,
and Silkey v. Tiegs:
              A subsequent appropriator attempting to justify his diversion has the
       burden of proving that it will not injure prior appropriations. Moe v. Harger, 10
       Idaho 302, 77 P. 645; Josslyn v. Daly, 15 Idaho 137, 96 P. 568; Jackson v.
       Cowan, 33 Idaho 525, 196 P. 216; Silkey v. Tiegs, 54 Idaho 126, 28 P.2d 1037. In
       Josslyn v. Daly, supra, at 15 Idaho 149, 96 P. at 571, this court stated:
               ‘* * * It seems self-evident that to divert water from a stream or its
               supplies or tributaries must in a large measure diminish the volume
               of water in the main stream, and, where an appropriator seeks to
               divert water on the grounds that it does not diminish the volume in
               the main stream or prejudice a prior appropriator, he should, as we
               observed in Moe v. Harger, 10 Idaho 305, 77 Pac. 645, produce
               ‘clear and convincing evidence showing that the prior appropriator


                                                 28
                would not be injured or affected by the diversion.’ The burden is
                on him to show such facts.’
Id. at 186–87, 397 P.2d at 765–66.
             c. Nebraska v. Wyoming
       In support of their argument for a preponderance standard, Pocatello and IGWA cite to
the United States Supreme Court opinion in Nebraska v. Wyoming (Nebraska II). 507 U.S. 584
(1993). In Nebraska II, the Court dealt with an ongoing interstate dispute between Nebraska,
Wyoming, and Colorado over water rights to the North Platte River. Id. at 584. In 1945, the
Court entered a decree that imposed storage and diversion restrictions on the upstream states,
Colorado and Wyoming, and apportioned the natural flow of the water between Wyoming and
Nebraska.     Id.   In 1986, Nebraska petitioned the Court for an enforcement order seeking
injunctive relief and alleging that Wyoming was violating the 1945 decree. Wyoming countered,
arguing that Nebraska had circumvented the decree by diverting waters for uses not recognized
by the decree. Id. at 589.
       As a starting point, the Supreme Court found the proper legal standards by which it could
resolve the interstate dispute.
                The disagreement in this case centers on the applicable legal standards.
       The question is whether these proceedings involve an application for enforcement
       of rights already recognized in the decree, or whether Nebraska seeks a
       modification of the decree. According to Wyoming, although the Court has
       jurisdiction to modify the decree under Paragraph XIII, Nebraska obtained leave
       to file its petition on the assurance that the case would involve only enforcement
       of existing rights. In Wyoming’s view, Nebraska subsequently, and improperly,
       transformed the case into a request for recognition of new rights–in essence, into a
       request for another equitable apportionment. If Nebraska is allowed to argue for
       modification of the decree, Wyoming and amicus Basin maintain, the same high
       evidentiary threshold applicable to claims for new apportionments applies. Under
       that standard, Nebraska can prevail only upon proof ‘by clear and convincing
       evidence’ of ‘some real and substantial injury or damage.’
       ...
       [W]e find merit in Wyoming’s contention that, to the extent Nebraska seeks
       modification of the decree rather than enforcement, a higher standard of proof
       applies. The two types of proceeding are markedly different. In an enforcement
       action, the plaintiff need not show injury. See, e.g., Wyoming v. Colorado, 309
       U.S. 572, 581 (1940). When the alleged conduct is admitted, the only question is
       whether that conduct violates a right established by the decree. To be sure, the
       right need not be stated explicitly in the decree. As the Master recognized, when
       the decree is silent or unclear, it is appropriate to consider the underlying opinion,

                                                29
       the Master’s Report, and the record in the prior proceedings to determine whether
       the Court previously resolved the issue. See, e.g., Wyoming v. Colorado, 286 U.S.
       494, 506-508 (1932). The parties’ course of conduct under the decree also may be
       relevant. But the underlying issue primarily remains one of interpretation. In a
       modification proceeding, by contrast, there is by definition no pre-existing right to
       interpret or enforce. At least where the case concerns the impact of new
       development, the inquiry may well entail the same sort of balancing of equities
       that occurs in an initial proceeding to establish an equitable apportionment.
Id. at 590–92 (internal citations omitted) (emphasis in original).
       The Supreme Court held that in interstate water disputes which invoke the Court’s
original jurisdiction, differing standards of proof should apply, depending upon whether the
proceeding is to enforce a decree or to modify a decree, with the higher standard applying to the
modification of a decree. Id. at 592. The Court’s use of the word “enforcement” is not
synonymous with “administration.” Trying to equate enforcement, as it is used by the Supreme
Court, with administration of water rights by the Idaho Department of Water Resources is
comparing apples to oranges.
       There was no federal water district encompassing the states involved in the litigation in
which the federal government administers water rights. The Court simply determines the amount
of water the upstream state may divert. It may be based upon a percentage of the river’s flow,
like in Nebraska v. Wyoming, 325 U.S. 589, 646 (1945) (Nebraska I) (“Accordingly, we
conclude that the flat percentage method recommended by the Special Master is the most
equitable method of apportionment.”), or a specific quantity of water, Wyoming v. Colorado, 309
U.S. 572, 581 (1940) (Wyoming II) (“We conclude that the decree is not violated in any
substantial sense so long as Colorado does not divert from the Laramie river and its tributaries
more than 39,750 acre feet per annum.”). When the Court adjudicated water rights between
Wyoming and Colorado in the Laramie River, it realized that awarding Colorado a specific
quantity of water would harm Wyoming in years of low water. The Court stated:
       The water to satisfy the Colorado appropriations is, and in the nature of things
       must be, diverted in Colorado at the head of the stream, and because of this those
       appropriations will not be affected by any variation in the yearly flow, but will
       receive their full measure of water in all years. On the other hand, the Wyoming
       appropriations will receive the water only after it passes down into that state, and
       must bear whatever of risk is incident to the variation in the natural flow. Of
       course, this affords no reason for underestimating the available supply, but it does
       show that to overestimate it will work particular injury to Wyoming.



                                                 30
Wyoming v. Colorado, 259 U.S. 419, 485 (1922) (Wyoming I). That type of harm to the
downstream state would occur because once the decree was issued, the water rights would not be
administered based upon the doctrine of prior appropriation.
       Enforcement as that term was used by the Supreme Court in Nebraska II simply meant
interpreting the decree and, if one state was diverting more water than it was decreed, enjoining
that violation. As the Court stated:
       In an enforcement action, the plaintiff need not show injury. When the alleged
       conduct is admitted, the only question is whether that conduct violates a right
       established by the decree. To be sure, the right need not be stated explicitly in the
       decree. As the Master recognized, when the decree is silent or unclear, it is
       appropriate to consider the underlying opinion, the Master’s Report, and the
       record in the prior proceedings to determine whether the Court previously
       resolved the issue. The parties’ course of conduct under the decree also may be
       relevant. But the underlying issue primarily remains one of interpretation.
507 U.S. at 592 (citations omitted) (emphasis added).
       That is illustrated by the Court’s decision in Nebraska II. The Court stated “that the
Inland Lakes question is fairly characterized as an enforcement issue.” Id. “The Inland Lakes
are four off-channel reservoirs in Nebraska served by the Interstate Canal, which diverts from the
North Platte at Whalen, Wyoming.” Id. at 593. The Lakes and the Canal were part of an
irrigation project operated by the United States Bureau of Reclamation (Bureau). Id. “Since
1913, the Bureau has diverted water through the Interstate Canal for storage in the Inland Lakes
during nonirrigation months for release to Nebraska users during the irrigation season.” Id. at
593–94. Wyoming contended that the decree did not grant storage rights in the Inland Lakes nor
did it establish a priority date. The Court held that although the decree did not explicitly
establish the storage rights, it was based upon their existence and Wyoming could not now
challenge the 1904 priority date, which was based upon the priority date of the original
components of the project. The Court wrote:
       The decree did not explicitly establish the Inland Lakes’ priority. But it is
       undisputed that the Court recognized a right to store 46,000 acre-feet of water in
       the Inland Lakes and, at Wyoming’s suggestion, counted that amount to reduce
       Nebraska’s requirement of natural flows in the pivotal reach. The Master
       therefore concluded that the Inland Lakes’ priority was a necessary predicate of
       the apportionment and should not be disturbed. He also suggested that
       Wyoming’s postdecree acquiescence in the Bureau’s administration of the Inland
       Lakes should prevent Wyoming from challenging the 1904 priority date now.



                                                31
               We think the evidence from the prior litigation supports the conclusion
       that the Inland Lakes’ priority was settled there. And even if the issue was not
       previously determined, we would agree with the Special Master that Wyoming’s
       arguments are foreclosed by its postdecree acquiescence. Accordingly, we clarify
       today that the Inland Lakes share a December 6, 1904, priority date with other
       original components of the North Platte Project. Pursuant to that priority, the
       Bureau has a right to divert 46,000 acre-feet of water during the nonirrigation
       season months of October, November, and April for storage in the Inland Lakes.
Id. at 594–95 (citations omitted).
       Thus, the enforcement issue addressed by the Court was simply an interpretation of the
decree. It did not involve a determination of whether a diversion by a junior appropriator
interfered with the water rights of a senior appropriator. There is no problem with applying a
preponderance of the evidence standard to the interpretation of a decree. We apply the same
rules of interpretation to a decree that we apply to contracts. DeLancey v. DeLancey, 110 Idaho
63, 65, 714 P.2d 32, 34 (1986).
       Another difference between an enforcement proceeding before the United States Supreme
Court and the administration of water rights under Idaho water law is that in the enforcement
proceeding, injury to another appropriator is irrelevant. As the Court stated, “In an enforcement
action, the plaintiff need not show injury.” Nebraska II, 507 U.S. at 592.
       In interstate water disputes filed in the United States Supreme Court under its original
jurisdiction, injury is relevant in order to determine whether there is a justiciable controversy for
entering a decree. The lack of injury, in the sense of failing to show that there is inequitable
apportionment of the water between the states, will result in dismissal of the petition. Kansas v.
Colorado, 206 U.S. 46, 117 (1907). Conversely, if the claims of two or more states to the water
in a watercourse exceed the water available, then there is injury sufficient for judicial
determination because the states will be unable to obtain the water they each claim. Nebraska I,
325 U.S. at 610–11.
       After the Supreme Court determined in Wyoming I the quantity of water that Colorado
could divert from the Laramie River, Colorado later sought to have Wyoming held in contempt
for diverting more than the 39,750 acre feet it was decreed, and Colorado asserted as a defense
that Wyoming had not been injured. The Court held that lack of injury to the downstream
appropriator entitled to the water was not a defense. The Court stated:
       But such a defense is not admissible. After great consideration, this Court fixed
       the amount of water from the Laramie river and its tributaries to which Colorado

                                                 32
       was entitled. Colorado is bound by the decree not to permit a greater withdrawal
       and, if she does so, she violates the decree and is not entitled to raise any question
       as to injury to Wyoming when the latter insists upon her adjudicated rights.
Wyoming II, 309 U.S. at 581. The only consideration regarding enforcement is whether the
upstream state took more water than was permitted under the decree, and the only defense is
whether the downstream state acquiesced in the upstream state doing so. Id. “That is the sole
available defense.” Id.
       The reason injury is irrelevant with respect to the interstate decree in Nebraska II is that
the federal government did not administer water rights in times of shortage based upon priority
of appropriation.   The Supreme Court adjudicated the initial decree in Nebraska I.             The
watercourse at issue was the North Platte River that originated in northern Colorado, flowed in a
northerly direction into Wyoming, and then eventually turned east across the Great Plains into
Nebraska. Nebraska I, 325 U.S. at 592–93. When it did so, it applied the standard of equitable
apportionment. Because the states involved were priority states, the Court was guided by the
rule of first in time, first in right, but it was not bound by that rule. Id. at 617–18. “[I]f an
allocation between appropriation States is to be just and equitable, strict adherence to the priority
rule may not be possible.” Id. at 618. The factors that the Court considered in making an
equitable apportionment included the following:
       Priority of appropriation is the guiding principle. But physical and climatic
       conditions, the consumptive use of water in the several sections of the river, the
       character and rate of return flows, the extent of established uses, the availability
       of storage water, the practical effect of wasteful uses on downstream areas, the
       damage to upstream areas as compared to the benefits to downstream areas if a
       limitation is imposed on the former-these are all relevant factors.
Id.
       In its equitable apportionment between the states, the Court was not concerned with the
harm that may be suffered by an individual appropriator. As the Court stated, “The equitable
share of a State may be determined in this litigation with such limitations as the equity of the
situation requires and irrespective of the indirect effect which that determination may have on
individual rights within the State.” Id. at 627. Once the Supreme Court enters a decree equitably
apportioning the water between or among states, the priority dates of the individual appropriators
in those states are irrelevant with respect to the enforcement of that decree. The apportionment
of water among the appropriators in each state was left to that state. The Court rejected fixing
the rights of each appropriator based upon strict priority for the reasons “(1) that it would deprive
                                                 33
each State of full freedom of intrastate administration of her share of the water and (2) that it
would burden the decree with administrative detail beyond what is necessary to an equitable
apportionment.” Id. at 643.
        An enforcement proceeding under federal interstate water law would be equivalent to the
administration under Idaho water law only if there was enough water for all appropriators in
Idaho to receive their decreed amounts. Then, administration would simply be interpreting the
decrees to determine what amounts had been decreed for each appropriator and measuring their
diversions to make sure that the appropriators only took their decreed amounts. However, that is
not reality.
        The difficult issue in administering water rights under Idaho law has always been
changing conditions that result in there being insufficient water to provide the full amount that
each appropriator is entitled under the appropriator’s decree or license. Thus, an enforcement
proceeding before the Supreme Court does not involve issues that are involved in administration
such as whether the appropriator making the call is suffering material injury, the reasonableness
of the appropriator’s diversion, the appropriator’s conveyance efficiency, whether the
appropriator is putting the water to beneficial use, whether the appropriator is wasting water, and
hydrology. American Falls, 143 Idaho at 876–77, 154 P.3d at 447–48.
        In this respect, the administration of water rights under Idaho law is more akin to
modification proceedings in the Supreme Court than to enforcement proceedings. In Nebraska I,
the Court stated that “the decree which is entered must deal with conditions as they obtain today.
If they substantially change, the decree can be adjusted to meet the new conditions.” 325 U.S. at
620. As the Court reiterated in Nebraska II, the modification of a decree can require the Court to
“answer unresolved questions and to accommodate ‘change[s] in conditions’-a phrase
sufficiently broad to encompass not only changes in water supply, but also new development that
threatens a party’s interests.” 507 U.S. at 591. “At least where the case concerns the impact of
new development, the inquiry may well entail the same sort of balancing of equities that occurs
in an initial proceeding to establish an equitable apportionment.” Id. at 592 (citations omitted).
        Thus, the issues considered in modifying a decree based upon changes in conditions, such
as decreasing or increasing water supply and the impact of new development, are more akin to
the issues involved in administering federal water rights than the issues involved in federal
enforcement. To the extent that Nebraska II sheds light on the appropriate standard of proof, it

                                                34
would support the higher standard of clear and convincing evidence for administering water
rights when a water source is over appropriated or during low-water years.
       It is Idaho’s longstanding rule that proof of “no injury” by a junior appropriator in a water
delivery call must be by clear and convincing evidence. Once a decree is presented to an
administrating agency or court, all changes to that decree, permanent or temporary, must be
supported by clear and convincing evidence.
                                        V. CONCLUSION
       We find that the Ground Water Act applies to the administration of A&B’s water right
36-2080. We also find that the Director had substantial and competent evidence to support his
decision not to set a reasonable groundwater pumping level and to analyze the water right on a
system-wide as opposed to a well-by-well basis. In addition, we find that the district court did
not err in imposing a clear and convincing evidence standard on the Director’s determination of
material injury in a delivery call. We therefore affirm the decision of the district court.
       Justices EISMANN, J. JONES, HORTON and TROUT, Pro Tem, CONCUR.




                                                  35
