State v. United States , 115 Idaho 1 ( 1988 )

HUNTLEY, Justice,

concurring specially.

I concur in the majority opinion as to Part I, III and, IV and in the result as to Part II.

As to Part II, I do not see an “unlawful delegation of legislative” authority question at all — it is somewhat of an example of a case being simple or complex depending upon how one frames the issue.

I see the issue as being not one of the Idaho Legislature delegating authority, but rather it is:

It being granted the United States has immunity from any suit, may it waive that immunity upon the condition that it will subject itself only to basin-wide adjudications?

The answer is an easy “yes” — if parties adjudicating a case in Idaho do not wish to make their action comprehensive, they are certainly free to litigate to their heart’s content if they mind not that the extent of federal rights will not be adjudicated and the decree will be non-binding as to federal and Indian water rights.

The federal stance makes a lot of sense —why should taxpayer’s money and court resources be wasted on piece-meal litigation which leaves the validity of water decrees subject to later adjudication as against omitted parties in the river basin?

Accordingly, I see the “state’s rights” or unconstitutional delegation issues as merely diversionary, wasteful red-herrings which have been permitted to unnecessarily delay this litigation.