## Facts

- The Idaho Legislature enacted a statute directing the Idaho Department of Parks to appropriate, in trust for the people of Idaho, all unappropriated natural waters of Malad Canyon Springs for recreational and scenic (aesthetic) purposes and declared those uses “beneficial.”
- The Department of Parks applied to the Idaho Department of Water Administration for a permit to appropriate the unappropriated waters without any physical diversion, leaving the water in the canyon to support scenic and recreational values.
- Existing and prospective water users (including canal companies and an association) protested the application.
- The Department of Water Administration concluded (a) a state agency may appropriate water and (b) recreation and aesthetics are beneficial uses, but denied the permit because it viewed physical diversion as required for a valid appropriation.
- On judicial review, the district court held that an appropriative right could be established for the Parks Department without diversion and directed issuance of the permit.
- The Department of Water Administration and the protesting water users appealed; the Parks Department cross-appealed on additional issues.

## Issues

1. Whether a state agency may appropriate unappropriated waters for public recreational and scenic purposes pursuant to legislative authorization.
2. Whether recreational and aesthetic uses may be treated as “beneficial uses” supporting an appropriative right under Idaho law.
3. Whether physical diversion is required to acquire an appropriative water right when a specific statute authorizes a non-diversionary appropriation.

## Decision

- The Idaho Supreme Court affirmed the district court.
- The court held the Department of Parks could appropriate the unappropriated waters in trust for the public under the Malad Canyon statute.
- The court upheld the Legislature’s designation of recreational and aesthetic uses as beneficial uses.
- The court held that physical diversion was not required for this appropriation because the specific, more recent statute authorized appropriation without diversion.
- To the extent prior Idaho decisions imposed a diversion requirement inconsistent with the statute, the court overruled them.

## Legal Principles

- Absent an express constitutional or statutory prohibition, the Legislature may authorize a state agency to appropriate unappropriated water rights for public purposes.
- “Beneficial use” is not limited to consumptive or profit-generating uses; the Legislature may define additional beneficial uses, including recreational and aesthetic uses.
- The Idaho Constitution’s reference to a right to “divert and appropriate” does not itself impose a constitutional diversion prerequisite for all appropriations.
- When a specific, later-enacted water statute conflicts with older, more general appropriation rules, the specific statute controls.
- A valid appropriation may be recognized for instream or in-place public uses where authorized by statute, even without physical diversion.

## Conclusion

The court upheld a state agency’s statutory authority to secure an instream appropriation for scenic and recreational purposes, confirmed that such non-consumptive uses may constitute beneficial use, and rejected a diversion requirement where a specific statute authorizes appropriation without diversion.


Idaho Dep’t of Parks v. Idaho Dep’t of Water Admin., 96 Idaho 440, 530 P.2d 924 (Idaho 1974)