Edward C. Shokal v. A. Kenneth Dunn

On December 21, 1978, respondent Trout Co. applied for a permit to appropriate 100 c.f.s. of waters from Billingsley Creek near Hagerman, Idaho. Numerous protests were filed by local residents, property owners, and Billingsley Creek water users. The Department of Water Resources (Water Resources) held a hearing on the application on April 24, 1979, and issued Permit No. 36-7834 on November 14, 1979, pursuant to an order of that same date. This order was subsequently amended on December 21, 1979. Some of the protestants, including the petitioners and appellants here, sought judicial review in the Fourth Judicial District Court, where the matter came before District Judge Gerald F. Schroeder. On December 22, 1980, Judge Schroeder issued an opinion and order reversing the decision of the Director of Water Resources and remanding the application for further proceedings. Judge Schroeder found Water Resources' consideration of at least two issues inadequate: (1) The financial ability of the applicant, and (2) the local public interest with respect to the proposed water project. Judge Schroeder also found errors of law in assigning the burden of proof. He held that the applicant for a permit had the burden of showing the impact of the project on the public resource, whereas a party who claimed a harm peculiar to himself had the burden of going forward to establish that harm. Judge Schroeder also determined that Water Resources had failed to properly evaluate the question of ""local public interest,"" holding that the applicant had the ultimate burden of proving that a proposed water use was in the local public interest under I.C. § 42-203A.[Footnote 1]