## Facts

- Alvin and Tim Musser owned Gooding County property with a decreed surface-water right for 4.8 cfs from the Martin-Curran Tunnel, priority date April 1, 1892; Howard “Butch” Morris leased the property and associated rights.
- The property was within Water District 36A, administered by a watermaster under the Idaho Department of Water Resources (IDWR) Director.
- The springs supplying the tunnel were tributary to the Snake River and hydrologically interconnected with the Snake Plain Aquifer.
- In spring 1993, the Mussers did not receive sufficient tunnel flows to satisfy their decreed right and claimed reduced planting and crop damage.
- After a senior delivery demand, the Director declined to direct the watermaster to distribute water in priority, asserting he lacked authority to conjunctively administer ground and surface water in the district absent a formal hydrologic determination.
- The Mussers sought a writ of mandate compelling the Director to deliver their full decreed right and to control aquifer-related distribution according to priority dates under Idaho Code § 42-602.
- The district court issued a writ of mandate ordering immediate compliance with § 42-602, awarded attorney’s fees to the Mussers, and prohibited payment of those fees and costs from the Snake River Basin Adjudication (SRBA) account.
- The Director and IDWR appealed the writ, the attorney’s fee award, and the SRBA-account payment restriction.

## Issues

1. Whether a writ of mandate properly issued to compel the IDWR Director to comply immediately with Idaho Code § 42-602 by distributing water in accordance with prior appropriation.
2. Whether the district court properly awarded attorney’s fees to the Mussers.
3. Whether the district court properly prohibited payment of the fee and cost award from the SRBA account.

## Decision

- The Idaho Supreme Court affirmed the district court in all respects.
- The Court held mandamus was appropriate to compel performance of the Director’s statutory duty under Idaho Code § 42-602 to distribute water in priority and protect decreed senior rights when a call and shortage were shown.
- The Court affirmed the award of attorney’s fees to the Mussers.
- The Court affirmed the order prohibiting payment of the fees and costs from the SRBA account.

## Legal Principles

- Idaho Code § 42-602 imposes a mandatory duty on the Director to supervise and control water distribution in accordance with the doctrine of prior appropriation.
- Under prior appropriation, when supply is insufficient and a senior makes a delivery call, administration must satisfy senior decreed rights before junior uses.
- Mandamus lies to compel a public official to perform a clear legal duty where the petitioner has a clear legal right and no plain, speedy, and adequate remedy at law exists.
- The Director may not refuse to act on a senior delivery call based solely on the absence of a broader formal determination regarding conjunctive administration where the relevant right is decreed and the connected nature of the water sources is established for purposes of distribution.

## Conclusion

The Idaho Supreme Court upheld a writ of mandate requiring the IDWR Director to distribute water in Water District 36A according to statutory prior-appropriation duties and to protect a senior decreed right despite the Director’s reliance on the lack of a formal conjunctive-management determination, and it also affirmed attorney’s fees and barred payment of those fees from the SRBA account.


Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (Idaho 1994)