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Groups Seek to Join Swan Falls Suit by Nate Poppino Ag Weekly, July 3, 2008

BOISE, Idaho - Idaho Power Co. has responded to the state of Idaho's attempts to dismiss and resolve the remaining issues in a lawsuit over the Swan Falls Agreement.

Meanwhile, Jerry Rigby, chairman of the Idaho Water Users Board, and ground-water users attorney Randall Budge have filed on behalf of six irrigation districts and canal companies to participate in the case, stating that the resolution sought by Idaho Power would harm their clients.

The Swan Falls Agreement is a 24-year-old deal between Idaho Power and the state in which Idaho Power surrendered water rights for guarantees it would receive average daily minimum flows at Swan Falls, located on the Snake River about 40 miles south of Boise near Murphy.

Idaho Power sued the offices of the governor, attorney general and the Idaho Department of Water Resources in May 2007, claiming both sides were mistaken about the amount of water available at the Swan Falls Dam. Two issues remain after an April decision: whether Idaho Power's rights are subordinate to water used for previously planned recharge efforts, and whether the state has properly administered water rights in the Snake River Basin.

The state filed on May 7 for summary judgment on the recharge and to dismiss the administration arguments. Both motions are scheduled to be heard within the next few months: the dismissal in July and the summary judgment in September. The case isn't set for trial until February 2009.

If accepted in a July 15 hearing, the water users would be the first directly affected surface water users to participate in the case, said Rigby, an attorney in Rexburg. The group, whose members all draw water from above American Falls Reservoir, only wants to participate in the summary judgment regarding recharge.

The group, which actively engages in recharge projects, simply seeks to preserve the state's two-river approach to the Snake River, Rigby said - users located below Milner Dam cannot make water calls on users located above the dam. Idaho Power threatened that arrangement when it argued it didn't subordinate all of its rights in the agreement, he said.

The water resources board, once independent, is now tied loosely to IDWR, a defendant in the case. But Rigby said he consulted the attorney general's office before taking the case, and that IWRB is still independent enough to avoid a conflict of interest.

One example, he said, is that the board shares staff with IDWR Director Dave Tuthill but is equal to him in terms of influence.

"He cannot control us," Rigby said. "We cannot control him."

Bob Cooper, spokesman for the Idaho attorney general's office, said the state welcomes "the participation of interested parties." Idaho Power spokesman Dennis Lopez said the company would wait until the July 15 hearing to comment on the water users' motion.

Responding to the state's most recent filing, Idaho Power attorneys wrote that the company is perfectly within its rights to seek a judicial solution, since the state's duties in the trust are placed with Gov. C.L. "Butch" Otter and not Tuthill. Tuthill is the hearing officer for administrative appeals to the agency.

Also, the attorneys wrote, the utility doesn't plan at this time to pursue any claims for water rights administration, meaning the ruling would have no legal effect or application.

Idaho Power also argued to preserve its request for an injunction against the state, keeping it from taking any action affecting the utility's water rights on the basis of the state's "asserted" ownership of those rights. The general request, attorneys wrote, is an essential safeguard that would allow the utility to respond to unknown but possible future illegal actions by the state.