Opinion 97-1

ATTORNEY GENERAL OPINION NO. 97-1 TO: Robert I. Meline, Executive Director Lava Hot Springs Foundation P.O. Box 669 Lava Hot Springs, ID 83246 Per Request for Attorney General’s Opinion QUESTIONS PRESENTED 1. Does the Lava Hot Springs Foundation (the “Foundation”), under the terms of title 67, chapter 44, Idaho Code, have authority to control the use of hot springs and hot waters located on lands under the control of the Foundation? 2. If the Foundation has the authority to control the use of hot springs and hot waters on lands under the control of the Foundation, is such control exclusive, or is the use of such waters subject to the provisions of title 42, Idaho Code? 3. If the Foundation has authority to control the use of hot springs and hot waters on lands under the control of the Foundation, does such authority extend to authorizing the use of such hot springs and hot waters by private parties on private lands in exchange for an easement across such lands for a pipeline used for the discharge of the Foundation’s waste water, or would such a use have to be licensed by the Idaho Department of Water Resources? CONCLUSION 1. Yes, the Foundation maintains authority to manage and control the use of all hot waters lawfully appropriated under state law that rise and flow on the Foundation’s lands. 2. The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho Department of Water Resources (the “Department”) under the provisions of title 42 of the Idaho Code. 3. The Foundation has the authority under title 67, chapter 44, Idaho Code, to enter into agreements involving easements with private parties to discharge the Foundation’s waste water. However, the Foundation may not authorize the use of any portion of its water in a manner that is inconsistent with its state water right. Other parties seeking to use the Foundation’s waste water for new uses or on lands other than the authorized place of use must file for a permit from the Idaho Department of Water Resources. BACKGROUND Lava Hot Springs was acquired from the United States under an act of Congress in 1902 which conveyed certain lands to the State of Idaho for public use subject to state regulation. The act reads as follows: Chapter 1076.—An Act to grant certain lands to the State of Idaho. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That lots seven and eight in section twenty-one, the northwest quarter of the southwest quarter, and lots nine and ten in section twenty-two, all in township nine south, range thirty- eight east, base meridian, in the State of Idaho, are hereby ceded, granted, relinquished, and conveyed unto said State of Idaho for public use under such regulations as said State may prescribe. 32 Stat. 330 (1902). Seventeen years later, in 1919, the State of Idaho passed Senate Bill 9 vesting in the Department of Welfare the responsibility to manage the lands and property at Lava Hot Springs. 1919 Idaho Sess. Laws 108. The Lava Hot Springs Foundation was created in 1935, and the statutes were amended to make the Foundation responsible for the management and control of the lands and property at Lava Hot Springs. 1935 Idaho Sess. Laws 16. The Foundation, operating as an agency within the Department of Parks and Recreation, continues to manage the lands at Lava Hot Springs today. ANALYSIS A. Introduction The threshold issue raised by the questions presented is whether the unique language in title 67, chapter 44, Idaho Code, creates a special type of water right for the benefit of the Foundation that is different from all other state water rights acquired under the appropriation process. An underlying legal issue is whether it is possible in this state for another type of state water right to exist other than one acquired by appropriation under Idaho law. Idaho Code § 67-4401 provides: “All rights to the operation, management and control, and to the maintenance and improvement of the lands and property belonging to the state of Idaho situated within and near the city of Lava Hot Springs, in Bannock County, state of Idaho, hereinafter more particularly described is vested in the Lava Hot Springs Foundation which shall be an agency within the department of parks and recreation . . . .” Idaho Code § 67-4403 describes the lands and property placed under the jurisdiction and control of the Foundation. Idaho Code § 67-4403 provides: Description of property: The property hereinbefore referred to, and herewith placed under the jurisdiction and control of the said foundation, is described as follows: The northwest quarter (1/4) of the southwest quarter (1/4), and lots nine (9) and ten (10) in section twenty-two (22), and lots seven (7) and eight (8) in section twenty-one (21) in township nine (9), south, range thirty-eight (38) east of the Boise meridian, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the hot springs and hot waters arising and flowing thereon, in Bannock County, state of Idaho. Upon further analysis of Idaho’s Constitution and related water statutes, the language in Idaho Code § 67-4403 placing jurisdiction and control of the hot springs and hot waters under the direction of the Foundation is intended to refer to only those waters lawfully appropriated under state law. B. The Right to Use Water at Lava Hot Springs is Sanctioned Under Water Rights Acquired by Appropriation All rights to water under state law in Idaho are acquired by appropriation. Article 15, § 3 of the Idaho Constitution provides: “The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied, except that the state may regulate and limit the use for power purposes . . . .” Idaho Code § 42-101 provides: “All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the 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 therefrom for any beneficial purpose . . . .” Idaho Code § 42-103, prior to the 1971 amendments, provided: “The right to the use of the waters of rivers, streams, lakes, springs, and of subterranean waters, may be acquired by appropriation.” Idaho Code § 42-104 provides: “The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such purpose, the right ceases.” Idaho Code § 42-106 provides: “As between appropriators, the first in time is the first in right.” The consistent thread in Idaho’s Constitution and water statutes is that the right to use water must be acquired by appropriation. The Idaho Supreme Court has long held that the method to acquire water in Idaho is by appropriation and that the state may regulate the means of appropriating water within the state. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909). Unquestionably, the law of prior appropriation is specified as the method to establish the right to use water in Idaho. Absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation. The language in Idaho Code §§ 67- 4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs. The most reasonable interpretation of this language is that the Foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future. The legislature has had several opportunities over the years to pass laws regarding the use of water by the state acting through the governor or a state board for a special purpose. In every instance there is a clear expression in the statutes that the water for the special purpose should be appropriated in trust for the people of the State of Idaho.1 Additionally, Idaho Code § 42- 1503 requires that an application to appropriate water be filed by the Idaho Water Resource Board before a minimum stream flow can be established under Idaho law. Other statutory authority as well as past actions on the part of the Foundation and the Department indicate that the use of the water at Lava Hot Springs was based upon appropriative water rights developed under state law. Perhaps most instructive on the nature of the Foundation’s water rights is the language contained in Idaho Code §§ 58- 703 and 58-704, passed in 1931, which addressed cessions to the United States for the construction of a national veterans’ sanatorium or hospital at Lava Hot Springs. Idaho Code § 58-703 provides: “The state board of land commissioners, acting for and on behalf of the state of Idaho, is hereby authorized, empowered and directed to cede, grant, relinquish and convey to the government of the United States, . . . such portion of the hot mineral and cold water and water rights appurtenant to said lands as may be necessary and convenient [for the operation of a national veterans’ sanatorium or hospital].” The description of the lands provided in section 58-704 again refers to waters and water rights appurtenant thereto. The use of the terms “water rights” and “appurtenant” in sections 58-703 and 58-704 is a strong indicator that the Foundation merely controlled the use of the water under a traditional state water right that is appurtenant to lands at Lava Hot Springs. The grant from the United States in 1902 provided that title to Lava Hot Springs was to be held by the State of Idaho under such regulations as the state may prescribe. In 1919, the Idaho Legislature passed laws directing the department of welfare to manage and control the hot springs and hot waters at Lava Hot Springs. It appears that the Department of Welfare was directed to manage and control the hot springs and the same hot waters that had been used for many years at Lava Hot Springs prior to the passage of the 1919 Act. In fact, the Foundation recognized this earlier use and claimed a 3 cfs. year-round water right with a 1902 priority when it filed a Claim to a Water Right with the Idaho Department of Water Resources in 1980. The Foundation filed applications for additional water rights as its needs increased over the years and the Department has processed the applications and issued two water right licenses authorizing the use of additional waters at Lava Hot Springs. C. The Water at Lava Hot Springs is Subject to State Regulation Under Title 42 and Must Be Applied in a Manner Consistent With the Underlying Water Right Idaho Code § 67-4401 places a duty on the Foundation to manage and control the hot springs and hot waters arising from lands at Lava Hot Springs. The most reasonable interpretation of this statute is that jurisdiction and control is limited to those waters appropriated under state law. The Foundation’s water rights acquired under the appropriation process are the same type of water rights held by other water users in the state and are subject to regulation under title 42 of the Idaho Code. Finally, under Idaho Code § 67-4402, the Foundation is authorized to exercise such powers as are incidental or conducive to the attainment of the purposes of the Foundation. The authority granted to the Foundation in Idaho Code § 67-4402 appears sufficient to allow the Foundation to enter into agreements pertaining to easements, provided the purpose of the agreement is incidental or conducive to the attainment of the purposes of the Foundation. An agreement which pertains to an easement to discharge waste water from lands managed by the Foundation appears to fall within the grant of authority under Idaho Code § 67-4402. However, as with all appropriators of water, the Foundation must use its water in a manner that is consistent with its underlying water rights. The Foundation’s water rights are appurtenant to the lands described in Idaho Code § 67-4403 and should not be applied to other lands. If an adjacent property owner desires to make beneficial use of the Foundation’s waste water, that person needs to file an application for permit to appropriate water with the Idaho Department of Water Resources. The Foundation does not have the ability to enter into contracts authorizing the use of its waste water on lands not authorized under the water right. AUTHORITIES CONSIDERED 1. Federal Statutes: 32 Stat. 330 (1902). 2. Idaho Constitution: Art. 15, § 3. 3. Idaho Code: § 42-101. § 42-103. § 42-104. § 42-106. § 42-1503. § 58-703. § 58-704. § 67-4301. § 67-4304. § 67-4307. § 67-4308. § 67-4309. § 67-4310. § 67-4311. § 67-4401. § 67-4402. § 67-4403. 4. Idaho Cases: Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909). 5. Other Authorities: 1919 Idaho Sess. Laws 108. 1935 Idaho Sess. Laws 16. DATED this 9th day of January, 1997. ALAN G. LANCE Attorney General Analysis by: JOHN W. HOMAN Deputy Attorney General Natural Resources Division 1 See Idaho Code § 67-4301, appropriation of waters at Big Payette Lake; Idaho Code § 67-4304, appropriation of waters at Priest, Pend d’Oreille and Coeur d’Alene Lakes; Idaho Code § 67-4307, appropriation of waters at Malad Canyon; Idaho Code § 67-4308, appropriation of waters at Niagra Springs; Idaho Code § 67-4309, appropriation of waters at Big Springs; Idaho Code § 67-4310, appropriation of waters at Box Canyon; Idaho Code § 67-4311, Appropriation of waters at Thousand Springs.