42-1411A. SERVICE OF NOTICE OF AND DETERMINATION OF WATER RIGHTS ESTABLISHED UNDER FEDERAL LAW. (1) The district court shall determine the water rights established under federal law in accordance with the procedures established in this section.

(2) The district court shall determine the following procedures for water rights established under federal law:

(a) The contents of a notice of water right claims established under federal law;

(b) The method of service of the notice of water right claims established under federal law;

(c) The location of any depositories of notices of claim for water rights established under federal law, if the district court determines that claim depositories are necessary to provide other claimants reasonable access to the notices of claims established under federal law.

(3) The district court shall be guided by the following three (3) principles in establishing the procedures required in this section:

(a) The purpose of this notice is to provide notice to other claimants of the filing of water rights established under federal law comparable to the notice of filing for water rights acquired under state law;

(b) The procedures shall not impose any burden greater than the burden placed upon the director to prepare, file, and serve the notice of filing for a director’s report; and

(c) The procedure shall comply with the McCarran amendment, 43 USC 666.

(4) Any claimant of a water right established under federal law shall serve all such notices of claim on the other claimants in accordance with the procedures established by the district court.

(5) Any claimant may contract with the director to perform all or any portion of the service required in this section. The director shall require in any contract that the cost of the services provided by the director are reimbursed by the claimant of a water right established under federal law.

(6) The United States, if it filed any notices of claim for a water right established under federal law, and any other claimants of such water rights, shall file an affidavit demonstrating proof of service in compliance with this section.

(7) The district court shall provide at least sixty (60) days for filing objections to water rights established under federal law where the number of those water rights are five hundred (500) or less, at least one hundred twenty (120) days where the number of these water rights are more than five hundred (500) and not more than five thousand (5,000), and at least one hundred eighty (180) days where the number of these water rights are more than five thousand (5,000).

(8) Any claimant who desires to object to a claim established under federal law shall file an objection with the district court within the time specified in the notice of water right claims established under federal law. The claimant shall also send a copy of the objection to the claimant whose claim is the subject of the objection and to the director. Any claimant may file a response to an objection.

(9) The notice of claim, objection, and responses to an objection shall identify the issues to be litigated.

(10) If a claimant of a water right established under federal law has filed notices of claim for one (1) water use based upon state and federal law, the district court shall develop procedures, after an opportunity for hearing, for coordination of the determination of such claims based upon state and federal law.

(11) The district court shall conduct the trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure.

(12) Each claimant of a water right established under federal law has the ultimate burden of persuasion for each element of a water right. Since no independent review of the notice of claim has occurred as provided for water rights acquired under state law in a director’s report, a claimant of a water right established under federal law has the burden of going forward with the evidence to establish a prima facie case for the water right established under federal law. All such proceedings shall be governed by the Idaho rules of civil procedure and Idaho rules of evidence.

(13) The district court shall enter a partial decree that contains or incorporates a statement of each element of a water right as stated in subsection (1) of section 42-1409, Idaho Code, as applicable, and that contains such general provisions, remarks, and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director.

(14) If no objections are filed to a notice of claim for a water right established under federal law, the claimant shall appear at a hearing scheduled by the district court and shall demonstrate a prima facie case of the existence of the water right established under federal law prior to entry of a decree for such claimed water right established under federal law. If the claimant fails to present a prima facie case of the existence of the water right established under federal law, then the district court shall enter an order determining that the claimed water right does not exist.

(15) Any party may appeal in accordance with the Idaho rules of civil procedure.

(16) The attorney general shall represent the state of Idaho in all matters regarding claims to water rights established under federal law, including, but not limited to, filing objections to water right claims established under federal law.

History:

[42-1411A, added 1994, ch. 454, sec. 19, p. 1464; am. 1994, ch. 455, sec. 3, p. 1483; am. 1996, ch. 186, sec. 3, p. 588.]