Dovel v. Dobson , 122 Idaho 59 ( 1992 )

McDEVITT, Justice,

dissenting:

I must dissent from the Court’s holding that there was “substantial competent evidence” to support the director’s decision that there “had not been a forfeiture of the water right appurtenant to the first and second fields.”

The Court relies on a bold assertion that Dobson, who had no knowledge of what had occurred prior to 1988 when he acquired the property that a portion of the land had been irrigated in the five years preceding 1988. The Court further relies on a similar assertion by Wolfgram (Dob-son’s immediate predecessor-in-interest), which Wolfgram subsequently recanted and acknowledged that the ASCS map (exhibit I) reflects what “was farmed” (far fewer acres).

The Court would reply that I am “weighing” the evidence. In truth and in fact, I have desperately reviewed this record to find “some” evidence to weigh. Our very existence depends on water, claims to our water should require greater scrutiny than the director afforded this transfer and the adverse claims entered.

The Court does not address the “duty of water” issue in that the appellant does not argue, nor did he raise an issue of a greater duty of water than that approved by the director; this is proper. I am, however, greatly concerned that the director is not correctly applying the proper law to the duty of water. Finding of fact 21 of the director’s memorandum decision and order states:

21. The duty of water in the Payette River Drainage is generally based on not more than 0.02 cfs per acre with consideration for reasonable losses incurred.

This is clearly not a sufficient finding as to the duty of water to support a water right. The historic Dobson Porter Creek water right was based on 1.6 cfs diversion for 96 acres, thus the duty of water under the decree is 0.0167 cfs per acre (1.6 cfs/96 acres = 0.0167).

The department’s finding of a forfeiture of 6 acres without a proportionate decrease in the 1.6 cfs diversion rate increased the duty of water to 0.0178 cfs per acre (1.6 cfs/90 acres = 0.0178). This is an enlargement of the right in violation of I.C. § 42-222.

The department’s error appears to have been caused by comparing the new duty of 0.0178 cfs (1.6 cfs/90 acres) to the limit of 0.02 cfs contained in I.C. § 42-220. Finding that the new duty of water was less than the statutory maximum, the department authorized the transfer. This was erroneous as the water right established the duty of water at 0.0167 cfs. Any proposed change in use cannot exceed the duty of water as originally established. I.C. § 42-222(1); Jenkins v. Department of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).