WATER COURT PROS & CONS Henry’s Fork Watershed Council Rexburg, Idaho December 9, 2014

ISSUES Making SRBA court permanent Having SRBA court handle all water right cases. Transferring IDWR authority to SRBA court Improving IDWR hearing process

PERMANENT WATER COURT PROS Institutional knowledge Consistent decisions Efficiency CONS Location

ISSUES Making SRBA court permanent Having SRBA court handle all water right cases. Transferring IDWR authority to SRBA court Improving IDWR hearing process

CONCERNS No precedent IDWR has greater expertise and resources IDWR decision-making process is more streamlined and flexible Loss of IDWR rules

MORE CONCERNS Undermining Idaho Supreme Court precedent Added expense for water users Forum shopping Unintended consequences

J.R. Simplot Co. v. Idaho State Tax Comm’n, “Because the judiciary in Idaho is intended to apply a general background to the law, the expertise of an agency is often useful in technical areas of the law where the risk of failing to understand all of the implications of a decision are great.”

Keller v. Magic Water Co., 92 Idaho 276, 282-83 (1968): “the state engineer is ‘the expert on the spot’ . . . and we are constrained to realize the converse, that ‘judges are not super engineers.’ . . . . The legislature intended to place upon place upon the shoulders of the state engineer the primary responsibility for a proper distribution of the waters of the state.”

American Falls Reservoir Dist. No. 2 v. IDWR, 143 Idaho 862, 877 (2007): Conjunctive administration “requires knowledge by the IDWR of the relative priorities of the ground and surface water rights, how the various ground and surface water sources are interconnected . . . . That is precisely the reason for the CM Rules and the need for analysis and administration by the Director.”

IMPROVING IDWR HEARING PROCESS

STATUS QUO 42-1701A(3) – all IDWR actions may be challenged before IDWR 42-1701A(4) – all IDWR decisions may be reviewed by judiciary

CONCERNS Objectivity Process Capacity

ALTERNATIVES Corps of independent hearing officers SRBA Special Masters as hearing officers Rulemaking to better define process and involvement of IDWR staff

ISSUES State office of Administrative Law Judges, IDWR corps of hearing officers, or appointed as needed? Do parties have a right to a hearing officer, or is it up to IDWR? Can hearing officers be disqualified? Relationship between hearing officer and IDWR technical staff? Ensuring hearing officers have water rights expertise. Do hearing officers still make a recommendation to the Director of IDWR?

MORE ISSUES Relationship between hearing officer and IDWR technical staff? Ensuring hearing officers have water rights expertise. Do hearing officers make a recommendation to the Director?

QUESTIONS?