Oakley, David B.

English

University of Denver

Water Law Review Volume 8 Issue 1 Article 49 9-1-2004 McKay v. Boise Project Bd. of Control, No. 28660, 2004 Idaho LEXIS 149 (Idaho 2004) David B. Oakley Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation David B. Oakley, Court Report, McKay v. Boise Project Bd. of Control, No. 28660, 2004 Idaho LEXIS 149 (Idaho 2004), 8 U. Denv. Water L. Rev. 290 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW RE VIEWupheld the circuit court's reversal of the 1996 Order, but remandedthe case to LUC to clarify whether LCI had violated the 1991 Order.Kyle K ChangIDAHOMcKay v. Boise Project Bd. of Control, No. 28660, 2004 Idaho LEXIS149 (Idaho 2004) (reversing the lower court's award of damages for thedestruction of a cash crop when the Boise Project Control Board raisedthe reservoir water level pursuant to a flowage easement since the plainlanguage of the easement contained no ambiguity, the activity re-mained within the parameters of the easement, and the activity wasreasonable; affirming the lower court's holding that the Boise ProjectControl Board does not qualify for immunity because the decision toraise reservoir levels was operational and not discretionary).In 1979 the Boise Project Control Board ("Project") obtained aflowage easement from ajudgment that allowed the Project to raise thelevel of water in the Hubbard Reservoir to 2,771 feet for any routineirrigation purpose. The judgment did not require the Project to giveany notice before changing the water level in the reservoir. In 1992Darwin and Patricia McKay ("McKay") leased a parcel of land locatedon the Hubbard Reservoir, which the), used to grow turf grass as a cashcrop. During the spring of 1997, the Project raised the water level inthe Hubbard Reservoir to 2,767.8 feet as part of a plan to provide waterfor irrigation. The high water damaged a portion of McKay's crop.McKay sued the Project for the damage to his crop in the DistrictCourt of the Fourth Judicial District. McKay claimed the Project negli-gently used the flowage easement and the Project intentionally tres-passed on his leasehold. The district court rejected the Project's de-fense of governmental immunity for performing discretionary func-tions. The district court then awarded McKay damages because theProject breached its duty to manage the flowage easement in a reason-able manner and in accordance with the 1979 judgment. Accordingly,the district court issued a permanent injunction that changed thescope of the flowage easement from allowing flooding for routine irri-gation operations the Project may desire, to provide that the Projectcan only flood McKay's estate in the good faith pursuit of legitimateirrigation goals. The Project appealed the district court's decision tothe Supreme Court of Idaho.On appeal, McKay argued he lacked privity to the 1979 flowageeasement. McKay asserted he was not a party to the 1979 judgmentand thus not bound by thatjudgment. However, the court determinedMcKay failed to raise the issue in a timely manner as required by IdahoAppellate Rule 15. Therefore, the court refused to consider the issueof privity.Volume 8COURT REPORTSNext, the court reversed the district court's determination of negli-gence by finding no ambiguity in the plain language of the easementand no unreasonable activity by the Project. The court held the 1979judgment contained no ambiguity given the plain language of theeasement that allowed the Project to raise the water level for any activ-ity supporting the irrigation of fields. Since the Project did not raisethe water level above 2,771 feet and their purpose supported irrigation,the Project's activities did not violate the plain language of the ease-ment. Additionally, the court noted McKay planted his crop below the2,771-foot level at his own risk. The court also held McKay lackedstanding to assert wasteful use of water as a violation of an alleged dutyowed to him, because the statutes relied upon by McKay only allowednegligence claims by other users of the water, the State, or a servientestate to an easement only if the waste directly caused the harm.McKay did not qualify as one of these categories. Therefore, McKaycould not recover under a theory of waste; the Project could not actnegligently if it did not owe McKay a duty to act reasonably in regardsto waste.Finally, the court addressed the Project's claim of immunity. Thecourt held that only discretionary functions carried out by a govern-mental entity and its employees retain immunity from tort claims. Thecourt considered routine matters, such as the decision of the Project toraise the reservoir water level for irrigation purposes, operational innature and not subject to immunity.In conclusion, the court reversed the permanent injunction, va-cated the lower court's damage award, and remanded for further pro-ceedings.David B. OakleyLOUISIANABuckskin Hunting Club v. Bayard, 868 So. 2d 266 (La. Ct. App. 2004)(affirming the grant of a permanent injunction prohibiting huntersfrom entering private land because: (1) no public access right existedto private land subject to intermittent flooding, (2) no public use rightexisted to private waterways merely because the waterway was naviga-ble, and (3) public use right to banks of navigable public waterways didnot include right to hunt).The Buckskin Hunting Club ("Club") filed suit in the 16th JudicialDistrict Court, Parish of Iberia, seeking an injunction to prohibit fur-ther trespassing by a group of hunters who had entered land leased bythe Club without permission. The hunters claimed in defense thatnavigable public and private man-made waterways through the land, aswell as intermittent flooding, both created a public right to use theland surrounding the waterways. The district court, after consideringIssue I

McKay v. Boise Project Bd. of Control, No. 28660, 2004 Idaho LEXIS 149 (Idaho 2004)

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McKay v. Boise Project Bd. of Control, No. 28660, 2004 Idaho LEXIS 149 (Idaho 2004)

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