Opinion 88-2

JIM JONES ATTORNEYGENERAL STATE OF IDAHO OFFICE OF M E AlTORNEY GENERAL BOISE 89720 TELEPHCNE I2081 334.2400 ATTORNEY GENERAL OPINION NO. 88-2 TO : R. Keith Higginson Director, Department of Water Resources Statehouse Mail Per Request f o r Attorney ~ e n e r a l ' s Opinion. QUESTIONS PRESENTED: 1) I s the embankment surrounding the southern edge of Mud Lake a dam- as defined i n Idaho Code 5 42-1711(b)? 2 ) Are there any l i a b i l i t y implications f o r the State of Idaho i f the Idaho Water Resource Board exempts the Mud Lake embankment from t h e dam safety regulations? 3 ) Would these l i a b i l i t y implications be a l t e r e d by having the landowners surrounding Mud Lake and the holders of water r i g h t s from Mud Lake accept responsibility f o r the embankment a s a dike rather than a dam? CONCLUSION: 1) Yes. The embankment surrounding the southern edge of Mud Lake i s a dam a s defined i n Idaho Code 5 42-1711(b) because t h e embankment i s an a r t i f i c i a l embankment s t o r i n g i n excess of 50 acre f e e t of water. 2) Idaho Code § 42-1710 mandates the regulation of a l l dams. The s t a t u t e provides no discretion t o exempt dams from regulation; there i s d i s c r e t i o n t o determine the degree of regulation. I f the Idaho Water Resource Board (Board) adopted regulations which v i o l a t e d t h e statutory duty, the Board p o t e n t i a l l y could be l i a b l e f o r any personal o r property damage caused as a d i r e c t r e s u l t of the violation of the statutory J c ~ t y . None of the immunity provisions of Idaho Code 5 6-904 or R . Keith Higginson . Director, Department of Water Resources Page 2 of Idaho Code § 42-1717 provides t h e Board a shield from t h i s l i a b i l i t y . 3 ) This a l t e r n a t i v e would not eliminate the l i a b i l i t y of t h e Board. ANALYSIS: Question No. 1 The answer t o t h e f i r s t question -- i . e , whether the embankinent surrounding the southern edge of Mud Lake i s a "dam" a s defined i n Idaho Code 5 42-1711(b) -- largely depends upon the f a c t s regarding t h e construction of the embankment. The f a c t s as the office understands them are gathered from written materials provided by t h e Idaho Department of Water Resources (Department) and from discussions with your s t a f f . Mud Lake, s i t u a t e d i n a depressed basin area i n northern Jefferson County, i s a n a t u r a l lake with no natural o u t l e t f o r drainage of water. -Camas and Beaver Creeks provide surface water t o the basin, and ground water percolating from i r r i g a t i o n of the Egin Bench t o the northeast a l s o provides inflow. Beginning i n the 1920fs, the early s e t t l e r s sought t o reclaim the land by separating Mud Lake from the surrounding marshes by t h e construction of dikes around portions of Mud Lake. The individual landowners gradually linked the dikes together t o form a t h i r t e e n mile long embankinent i n a crescent shape around t h e southern end of Mud Lake. The dikes caused Mud Lake t o change i n shape and i n storage capacity. The embanknent i s about t e n f e e t high, and the average storage capacity i s 37,930 acre f e e t when water reaches a height of eight f e e t on the embankment. The f i r s t question asks whether t h i s embankment i s a dam f o r . purposes of the Idaho Dam Safety Act, Idaho Code 5 42-1709 et s. Idaho Code 5 42-1711(b) defines a dam, i n p a r t , as follows: "Dam" means any a r t i f i c i a l b a r r i e r , together with appurtenant works, constructed f o r t h e purpose of storing water or t h a t s t o r e s water, which i s t e n (10) f e e t or more i n height from t h e natural bed of the stream or watercourse a t t h e downstream toe of t h e b a r r i e r , as determined by the department, o r from the lowest elevation of the outside R.' Keith Higginson Director, Department of Water Resources Page 3 l i m i t of t h e b a r r i e r , if it i s not across a stream channel o r watercourse, t o t h e maximum storage elevation, o r has o r w i l l have an impounding capacity a t maximum storage e l e v a t i o n of f i f t y (50) acre f e e t o r more. This d e f i n i t i o n i s i n t h e d i s j u n c t i v e . An a r t i f i c i a l b a r r i e r t h a t s t o r e s water i s a dam i f t h e b a r r i e r i s t e n (10) f e e t o r more i n height, or i f t h e impounding capacity a t maximum storage elevation i s f i f t y acre f e e t o r more, unless an exception applies. Here, none of t h e exceptions a p p l i e s . The embankment here c l e a r l y s t o r e s water i n excess of 50 acre f e e t . I t would t h e r e f o r e be a "dam" i f t h e embankment i s an " a r t i f i c i a l b a r r i e r . " While t h e i n i t i a l construction by man of t h e embankment would normally i n d i c a t e t h a t t h e embankment i s an a r t i f i c i a l b a r r i e r , recent l i t i g a t i o n concerning Mud Lake c a s t s some doubt on t h i s conclusion. In Marty v . S t a t e , J e f f e r s o n County C i v i l No. 1-3504 ( D i s t . C t . December 17, 1987) (order granting p a r t i a l summary j u d q e n t ) , t h e d i s t r i c t c o u r t concluded t h a t "Mud Lake must be considered a s a n a t u r a l a s opposed t o an a r t i f i c i a l l y created body of water so f a r as t h e r u l e s of law and r i g h t s of t h e public o r of individuals a r e concerned." - Id. a t 5 . Thus, t h i s decision makes the s t a t u t o r y d e f i n i t i o n of dam ambiguous. Did t h e l e g i s l a t u r e intend t h e Department t o r e g u l a t e man-made s t r u c t u r e s a s dams under t h e Idaho Dam Safety Act i f such s t r u c t u r e s have acquired t h e a t t r i b u t e s of a n a t u r a l embankment f o r t o r t law purposes? The r u l e s of s t a t u t o r y construction a r e well known. The primary goal i n s t a t u t o r y construction i s t o a s c e r t a i n and give e f f e c t t o t h e l e g i s l a t i v e i n t e n t . Summers v . Dooley, 94 Idaho 87, 89, 481 P.2d 318, 320 (1971). I f a s t a t u t e i s ambiguous, a court w i l l "go o u t s i d e t h e language of t h e s t a t u t e i t s e l f t o a s c e r t a i n and t o e f f e c t u a t e t h e l e g i s l a t i v e i n t e n t . . . . Indicia of l e g i s l a t i v e i n t e n t may be ' c o l l e c t e d from the context [ o f a s t a t u t e ] , from t h e occasion and n e c e s s i t y of the law, from the mischief f e l t , and t h e remedy i n view.' Noble v. Glenns Ferry Bank, Ltd., 91 Idaho 364, 367, 421 P.2d 444, 447 (1966) (quoting Offield v. Davis, 100 Va. 250, 40 S.E. 910, 912 [ 1 9 0 2 ] ) . " S t . Benedict's E o s p i t a l v . County of Twin F a l l s , 107 Idaho 143, 148, 686 P.2d 88, 93 (App. 1984). R: Keith Higginson . Director, Department of Water Resources Page 4 The legislative intent in this instance can perhaps best be seen in the recent amendments to the definition of a dam in Idaho Code 5 42-1711(b). In 1987, the Idaho legislature added five categories that were to be exempt from dam regulation: (1) Barriers constructed in low risk areas as determined by the director, which are six (6) feet or less in height, regardless of storage capacity. (2) Barriers constructed in low risk areas as determined by the director, which impound ten (10) acre-feet or less at maximum water storage elevation, regardless of height. (3) Barriers in a canal used to raise or lower water therein or divert water therefrom. (4) Fills or structures determined by the director to be designed primarily for highway or railroad traffic. (5) Fills, retaining dikes or structures, which are under jurisdiction of the division of environment, department of health and welfare, designed primarily for retention and treatment of municipal, livestock, or domestic wastes, or sediment and wastes from produce washing or food processing plants. See Act of March 25, 1987, ch.98, 1987 Idaho Sess. Laws 192. The statement of purpose for ch.98 stated, in relevant part, as follows: The Dam Safety Program will continue to concentrate on regulation of dams and tailing structures in accordance with the Safety of Dams Statutes, Idaho Code ( $ 5 42-1709-1721) particularly the dams that pose a threat to the public or could cause extensive property damage. The amendment would improve the efficiency of the program without any change in costs by excluding 40 small, insignificant dams in remote areas. By raising the size limits of dams regulated, fewer small dams would require R: Keith Higginson Director, Department of Water Resources Page 5 review and approval, except for those in high risk (developed) areas in the state. The Department's letter dated December 18, 1987, makes it clear that the Mud Lake embankment was not one of the "insignificant dams" that were intended to be exempt from regulation: The department has included the [Mud Lake] structure on the inventory of dams since at least 1971. It was evaluated in the Corps of Engineers Phase I inspection program and desiqnated a larqe dam located in a significant risk area. Because the structure confines a terminal lake, only a part of the water stored would be released during failure. The area potentially subject to flooding during failure is divided into cells by the roads and canals radiating outward from the structure. A single break would flood several hu~dred to a few thousand acres of farm land. Some homes could be affected but water levels would not exceed 2-3 feet on the first floor elevation. (Emphasis added.) Given the risk of failure of the Mud Lake embankment and the history of its construction, this type of structure certainly seems to be of the type the legislature intended the Department to regulate under the Idaho Dam Safety statute. This conclusion is further supported by the fact that the area was recently subject to substantial flooding that resulted in the filing of the Marty case. This conclusion is not contrary to the district court's order in the Marty case. First, that order did not purport t o . decide the jurisdiction of the Department under the Idaho Dam Safety statute. Rather, the district court's conclusion that the Mud Lake embankment had become a natural barrier was used to support the district court's ultimate conclusion that the doctrine of strict liability did not apply to the action for damages before the district court. Second, the district court relied on three cases and one treatise on water rights for reaching the conclusion that the Mud Lake embankment had become a natural barrier. See Wilber v. Western Pro~erties, 540 P.2d 470 (Wash-App. 1975); Ramada Inns v. Salt River Valley Water Users' ~ s s ' n ; 523 P.2d 496 (Ariz. 1974); Los Anqeles County Flood - R: ~ e i t h Higginson , Director, Department of Water Resources Page 6 Control D i s t r i c t v. Mindlin, 106 Cal.App.3d 698, 165 Cal.Rptr.233 (1980); 1 S. Wiel, Water Riqhts i n the Western States, § 60 (3rd Ed. 1911). None of these cases o r t r e a t i s e supports a conclusion t h a t the a r t i f i c i a l channel o r water body t h a t has some characteristics of a natural water body i s no longer subject t o regulation under a s t a t u t e such as the Idaho Dam Safety s t a t u t e . The Los Anqeles County Flood Control D i s t r i c t case concerned the valuation of r e a l property i n an eminent domain case 106 Cal.App.3d a t 703, 165 - ~ a l , ~ ~ t r . a t 235-236. The Wilber and Ramada Inns cases were both damage actions involving claims based on s t r i c t l i a b i l i t y . 540 P.2d a t 474; 523 P.2d a t 499. Significantly, the court i n the Ramada Inns case made clear t h a t i t s holding should not be applied too broadly. The court expressly cautioned the defendant water users as follows: "[Blut t h i s does not mean t h a t the water belongs t o the public as do wholly natural waters . . ., nor do we imply t h a t the water users are relieved from the duty t o maintain and repair the canal." 523 P.2d a t 498 ( c i t a t i o n s omitted). Therefore, we conclude t h a t the Mud Lake embankinent i s a dam within the meaning of Idaho Code 5 42-1711(b). The Board and the Department have the authority and duty t o regulate it under the Idaho Dam Safety s t a t u t e . guestion No. 2 The answer t o t h i s question depends on the nature of the duties imposed on the Board and on the Department i n the administration of the Idaho Safety of Dams Statutes and on the immunity provisions of Idaho Code § 42-1717 and the Idaho Tort Claims Act, Idaho Code 5 5 6-901 e t seq. The determination of the duties of t h e Board and of the Department requires a review of Idaho Code 5 s 42-1710, 42-1714, and 42-1717. Idaho Code 42-1710 mandates t h a t the Departinent "shall supervise" a l l dams i n the s t a t e of Idaho. The plain meaning of the language expresses a l e g i s l a t i v e i n t e n t t o create a mandatory program f o r the supervision of a l l dams. The t e x t of Idaho Code 5 42-1717 supports t h i s conclusion by outlining i n d e t a i l the d i r e c t o r ' s duties i n carrying out the dam safety program; a t l e a s t six of these duties are prescribed with the mandatory "shall. " Idaho Code § 42-1714 requires the Board t o "adopt and revise . . . such rules and regulations . . . as may be necessary f o r the carrying out of the provisions of sections 42-1710 through - R. Keith Higginson Director, Department of Water Resources Page 7 42-1721, Idaho Code." The Board does not have authority t o adopt regulations t h a t are inconsistent with the statutory definition of a dam contained i n Idaho Code § 42-1711(b). See Holly Care Center v. State, Department of Employment, 110 Idaho 76, 78, 714 P.2d 45, 47 (1986). Thus, i f t h e Board adopted regulations t h a t exempted the embankment surrounding Mud Lake from the definition of a dam, the Board's action would be i n violation of i t s s t r i c t statutory duty. Your second question asks whether such conduct would expose the Board t o l i a b i l i t y i f a person suffers personal injury or property damage as the d i r e c t r e s u l t of t h i s violation of statutory duty. The answer t o t h i s question i s governed by Idaho Code 5 42-1717, which s t a t e s i n relevant part: No action s h a l l be brought against the s t a t e , the water resource board, the director, or the department of water resources or t h e i r respective agents o r employees f o r the recovery of damages caused by the p a r t i a l or t o t a l f a i l u r e of any dam, reservoir or mine t a i l i n g s impoundment structure o r through t h e operation of any dam, reservoir or mine t a i l i n g s impoundment structure upon the ground t h a t such defendant i s l i a b l e by v i r t u e of any of the following: ( a ) The approval of t h e dam, reservoir or mine t a i l i n g s impoundment structure. ( b ) The issuance o r enforcement of orders r e l a t i v e t o maintenance o r operation of the dam, reservoir or mine t a i l i n g s impoundment structure. ( c ) Control and regulation of the dam, reservoir or mine t a i l i n g s impoundment structure. ( d ) Measures taken t o protect against f a i l u r e during an emergency. ( e ) The use of design and construction c r i t e r i a prepared by t h e department. ( f ) The f a i l u r e t o issue or enforce orders, t o control o r regulate dams, or t o make measures t o p r o t e c t against dam f a i l u r e . The s i x exceptions l i s t e d above are sweeping i n scope. Nonetheless, it i s our opinion t h a t none of them i s intended t o absolve the Board from l i a b i l i t y i n the event t h a t t h e Board R . ~ e i t h Higginson Director, Department of Water Resources Page 8 affirmatively announced i t s intention t o exempt particular dams from regulation. Much t h e same r e s u l t i s reached i f the situation i s analyzed under the Idaho Tort Claims Act, Idaho Code § 6-901 e t seq. That a c t makes l i a b i l i t y the rule f o r negligent acts of governmental e n t i t i e s , with certain specific exceptions. Sterlinq v. Bloom, 111 Idaho 211, 214-215, 723 P.2d 755, 758-759 (1986). The f i r s t exception i n Idaho Code 5 6-904, commonly - called the "discretionary function" exception, i s the only one t h a t arguably would apply t o the Board's adoption of a regulation exempting the Mud Lake embankment from dam safety regulation. However, case law makes it clear t h a t a c t s of an administrative agency i n violation of a s t a t u t e or v a l i d regulation generally are not within t h i s exception. Op~enheimer Industries v. ~ohnson Cattle &, 112 Idaho 423, 425, 732 P.2d 661, 653 (1987). We conclude t h a t the Board i s not shielded by the immunity provisions of the Dam Safety Act o r the "discretionary function" exception of the Tort Claims Act i f it exempts the Mud Lake embankment from the dam safety program. The discussion i n Question $10. 2 makes clear t h a t the Board would be l i a b l e i f a person suffered personal or property damage as the d i r e c t r e s u l t of a Board refusal t o carry out i t s statutory duty. If the s t a t e attempts t o transfer t h i s responsibility by contract, a s t h i s question suggests, the issue would be whether the contract i s void as ~igainst the public policy expressed i n the Idaho Safety of Dams s t a t u t e . Our answer t o Question No. 2 again makes c l e a r t h a t the Board has no authority t o contract away i t s s t a t u t o r y duty. AUTHORITIES CONSIDERED: Idaho Statutes Act of March 25, 1987, ch.98, 1987 Idaho Sess. Laws 192 Idaho Code § 6-901 e t seq. Idaho Code 5 6-904 Idaho Code 5 42-1709 et seq. Idaho Code !j 42-1710 Idaho Code 5 42-1711 Idaho Code 5 42-1714 R . Keith Higginson Director, Department of Water Resources Page 9 Idaho Code 5 42-1717 Idaho Cases: Holly Care Center v. S t a t e , Dep Idaho 76, 714 P.2d 45 (1986). artment of Employment, 110 mart^ v. S t a t e , J e f f e r s o n County C i v i l No. 1-3504 ( D i s t . C t . December 17, 1987). Oppenheimer I n d u s t r i e s v . Johnson C a t t l e Co., 112 Idaho 423, 732 P.2d 661 (1987). S t . ene edict's Hospital v. Couilty of Twin F a l l s , 107 Idaho 143, 686 P .2d 88 (App. 1984). S t e r l i n q v. Bloom, Summers v. Dooley, Other Cases: Los Anqeles Count Cal.App.3d 698, 16 111 Idaho 211, 723 P.2d 755 (1986). 94 Idaho 87, 481 P.2d 318 (1971). .Y Flood Control D i s t r i c t v. Mindlin, 5 Cal. Rptr. 233 (1980). Ramada Inns v . S a l t River Valley W~iter Users' Ass'n, P.2d 496 (Ariz. 1974). Wilber v . Western P r o p e r t i e s , 540 P.2d 470 (Wash.App. 1975). Other: 1 S. Wiel, Water Riqhts i n t h e Western S t a t e s , 3 60 (3d ed. 1911). Statement of Purpose f o r Act of March 25, 1987 Idaho Sess. Laws 192. Ti , e. R. ~ e i t h Higginson Director, Department of Water Resources Page 10 DATED t h i s 4th day of March, 1988. JIM JONES Attorney General Analysis by: DAVID J. BARBER Deputy Attorney General Natural Resources Division CLIVE J . STRONG Deputy Attorney General Chief, Natural Resources Division cc: Idaho Supreme Court Supreme Court Library Idaho State Library