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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 44635

In Re: SRBA CASE NO. 39576

SUBCASE NOS. 65-23531 and 65-23532.

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UNITED STATES OF AMERICA,

 Appellant,

v.

BLACK CANYON IRRIGATION 

DISTRICT, STATE OF IDAHO and 

SUEZ WATER IDAHO, INC.,

 Respondents.

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Boise, November 2017 Term

2017 Opinion No. 131

Filed: December 21, 2017

Karel A. Lehrman, Clerk

Appeal from the Snake River Basin Adjudication, State of Idaho. Hon. Eric J. 

Wildman, District Judge. 

District court judgment on preclusion, affirmed.

United States Department of Justice, Boise, for appellant. John L. Smeltzer 

argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State 

of Idaho. Michael C. Orr, Deputy Attorney General argued.

Sawtooth Law Offices, PLLC. and McDevitt & Miller, Boise, for respondent 

Black Canyon Irrigation District. Andrew J. Waldera appeared.

Givens Pursley, LLP, Boise, for respondent for Suez Water Idaho, Inc. Michael 

P. Lawrence argued. 

_________________________________

BURDICK, Chief Justice.

This water rights appeal flows from two consolidated subcases, numbers 65-23531 and 

65-23532, litigated in the Snake River Basin Adjudication (SRBA). The subcases concern the 

United States’ late claims (Late Claims) filed in January 2013, which assert “supplemental 
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beneficial use storage water rights” claims under the constitutional method of appropriation to 

store water in priority after flood-control releases. The special master recommended that the 

State’s motion for summary judgment be granted, concluding the Late Claims should be 

disallowed because, as the Director of the Idaho Department of Water Resources (Director) 

recommended, the Late Claims assert rights that had not been claimed when the underlying

water rights were adjudicated and decreed. Alternatively, the special master concluded the Late 

Claims should be disallowed because, as intervenor Black Canyon Irrigation District (BCID)

asserted, the decreed water rights already authorize the rights the Late Claims now assert, and

hence, the Late Claims are unnecessary. The district court agreed with the special master insofar 

as the Late Claims were precluded. However, the district court rejected the special master’s 

alternative recommendation that the Late Claims were duplicative of the rights already decreed 

and unnecessary. The district court entered judgment reflecting these conclusions. The United 

States timely appeals the district court’s ruling on preclusion, and we affirm for the reasons 

below.

I. FACTUAL AND PROCEDURAL BACKGROUND

The United States has been decreed rights to 700,000 AFY in Cascade Reservoir, and 

163,000 AFY in Deadwood Reservoir. These water rights were decreed in the Payette 

Adjudication, and when that adjudication was consolidated with the SRBA, they were decreed 

again in the SRBA. The Payette Adjudication and the SRBA were both general adjudications.1

No objection was made to the water rights as they were decreed in the Payette Adjudication and 

the SRBA.

The specific decrees provide in relevant part as follows2

:

 1 “ ‘General adjudication’ means an action both for the judicial determination of the extent and priority of the rights 

of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all 

rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and 

for the administration of those rights.” I.C. § 42-1401A(5). 2 As relevant to understanding the tables that follow in the text above, we have previously explained:

The purpose of use element of a storage water right generally contains at least two authorized 

purposes of use. The first authorizes the storage of water for a particular purpose (i.e., “irrigation 

storage,” or “power storage”). The second authorizes the subsequent use of that stored water for an 

associated purpose, which is often referred to as the “end use” (i.e., “irrigation from storage,” or 

“power from storage”). Each purpose of use is assigned its own quantity and period of use, which 

may or may not differ from one another. With respect to storage rights for irrigation, for example, 

it is typical for the “irrigation storage” purpose of use to be a year-round use (January 1 to 

December 31), and the “irrigation from storage” purpose of use to be limited to the irrigation 

season (e.g., March 15 to November 15).
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Right Reservoir Purpose Period of Use Quantity Priority

65-2927A Cascade Irrigation Storage 01-01 to 12-31 697,500 AFY 12/24/1937

Irrigation from Storage 01-01 to 12-31 697,500 AFY 12/24/1937

Power Storage 01-01 to 12-31 697,500 AFY 12/24/1937

Power from Storage 01-01 to 12-31 697,500 AFY 12/24/1937

65-2927B Cascade Municipal Storage 01-01 to 12-31 2,500 AFY 12/24/1937

Municipal from Storage 01-01 to 12-31 2,500 AFY 12/24/1937

65-9483 Deadwood Irrigation Storage 01-01 to 12-31 163,000 AFY 12/31/1926

Irrigation from Storage 04-01 to 11-01 163,000 AFY 12/31/1926

65-2917 Deadwood Power Storage 01-01 to 12-31 163,000 AFY 12/31/1926

Power from Storage 01-01 to 12-31 163,000 AFY 12/31/1926

The decrees grant the United States rights to water in specific quantities, which are “essentially 

equal to the active capacit[ies] of Cascade and Deadwood Reservoirs.” 

Cascade and Deadwood Reservoirs are on-stream reservoirs created by dams. Annual 

stream flows frequently exceed the Reservoirs’ capacities, and accordingly, the United States, 

through the Bureau of Reclamation (BOR), manages flood-control releases. Flood-control 

releases generated disputes in the SRBA and led to Basin-Wide Issue 17, where water rights 

holders sought resolution of what “effect flood control releases have on storage water rights” 

where the decrees lack “refill” remarks. See In re SRBA, 157 Idaho 385, 390, 336 P.3d 792, 797

(2014). While Basin-Wide Issue 17 was being litigated in the district court, on January 31, 2013, 

the United States filed the Late Claims at issue here. The Late Claims assert “supplemental 

beneficial use storage water rights” claims under the constitutional method of appropriation as 

follows:

Subcase Reservoir Purpose Period of Use Quantity Priority

65-23531 Cascade Irrigation Storage 10-01 to 09-30 1,066,653 AFA 09/30/1965

Irrigation from Storage 01-01 to 12-31 697,500 AFA 09/30/1965

Power Storage 10-01 to 09-30 1,066,653 AFA 09/30/1965

Power from Storage 01-01 to 12-31 697,500 AFA 09/30/1965

Municipal Storage 10-01 to 09-30 1,066,653 AFA 09/30/1965

Municipal from Storage 01-01 to 12-31 2,500 AFA 09/30/1965

65-23532 Deadwood Irrigation Storage 10-01 to 09-30 268,113 AFA 09/30/1965

 

In re SRBA, 157 Idaho at 389, 336 P.3d at 796.
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Irrigation from Storage 04-01 to 11-01 163,000 AFA 09/30/1965

Power Storage 10-01 to 09-30 268,113 AFA 09/30/1965

Power from Storage 01-01 to 12-31 163,000 AFA 09/30/1965

The Late Claims surfaced after the Idaho Department of Water Resources (IDWR) 

shifted to a computerized water accounting system in 1993. That shift brought about the change 

from a “physical fill” system of accounting to a computerized “paper fill” system of accounting. 

The physical fill system is summarized as follows:

Upon completion of the flood control releases, the reservoirs refill with spring 

runoff to the point of maximum physical fill. When the dam has refilled, typically 

in early June to mid-July, the stored water, including the “refill” water, is 

allocated to those holding storage rights in the reservoirs and is available for 

irrigation purposes. 

In a paper fill system, by contrast,

All water entering the . . . Reservoirs is counted toward the initial paper 

fill of the reservoirs. When flood control water is passed through the reservoirs 

the water passed for flood control is not deducted from the storage accounting of 

the reservoir, even though it is no longer physically stored in the reservoir.

The United States filed the Late Claims to assert “supplemental beneficial use storage 

water rights – separate water rights with a junior priority – which, in conjunction with existing 

storage water rights, would allow Reclamation to complete one physical fill of its reservoirs in 

years when it must release water for flood control.” The district court granted the filing of the 

Late Claims on May 22, 2013. On December 30, 2013, the Director issued its reports

recommending disallowance of the Late Claims for the sole reason that they were “not claimed 

in prior adjudication.” On March 20, 2014, the United States timely objected, and on August 26, 

2014, the district court entered an order retaining jurisdiction over the subcases pertaining to the 

Late Claims. On November 14, 2014, the district court granted Suez Water Idaho, Inc.’s (Suez)3

motion to participate “on a limited basis for purposes of participating in proceedings related to 

the application of law” because that limited participation resulted in no “undue delay or prejudice 

to the existing parties.” Thereafter, on January 9, 2015, the district court referred the subcases to 

the special master and assigned the power “to conduct all proceedings necessary to issue a 

recommendation . . . .”

 3 Suez’ former name was United Water Idaho, Inc. However, on November 9, 2015, it formally changed its name to 

Suez Water Idaho Inc. For consistency, the entity is referred to as Suez, even though it was actually named United 

Water when it moved to participate.
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On May 11, 2015, BCID moved to participate. BCID, an irrigation district, is the 

principal spaceholder in Cascade Reservoir and has beneficial interests in the United States’ 

decreed water rights. See United States v. Pioneer Irrigation Dist., 144 Idaho 106, 115, 157 P.3d 

600, 609 (2007). The special master permitted BCID’s participation. Unlike Suez, BCID was 

granted party status.

On August 25, 2015, the State moved for summary judgment, contending, in part, that the 

Late Claims were precluded. BCID responded by contending summary judgment should be 

granted in its favor as the non-movant, asserting the decreed water rights already authorize the 

rights the Late Claims now assert, and hence, the Late Claims are unnecessary. On November 

19, 2015, the special master entered an order recommending the State’s motion for summary 

judgment be granted, concluding the Late Claims were precluded. The special master did not 

reach BCID’s contention that summary judgment should be granted in its favor as the nonmovant. The parties then filed motions to alter or amend the special master’s order. As relevant 

here, BCID contended the Late Claims were unnecessary because, as BCID asserted, the existing 

rights already authorize the water rights asserted in the Late Claims. On April 22, 2016, the 

special master affirmed his recommendation that the Late Claims were precluded; however, the 

special master agreed with BCID that the existing rights already authorize the water rights 

asserted in the Late Claims. Accordingly, the special master ultimately recommended 

disallowance of the Late Claims because (1) they were precluded, and (2) as “an additional basis 

for disallowance,” they were unnecessary because the existing rights already authorize the water 

rights asserted in the Late Claims. 

When the parties challenged different recommendations of the special master, the district 

court adopted the special master’s recommendation that the Late Claims were precluded. 

However, the district court rejected the special master’s “alternative basis for disallowance”

recommendation, reasoning that the special master lacked the power to address BCID’s 

arguments implicating the scope of the existing decrees. The United States timely appeals the 

district court’s ruling that the Late Claims are precluded.4

 4 Although the United States makes additional, alternative arguments on appeal that the Late Claims are unnecessary 

as duplicative of the existing rights, it waived this argument by failing to raise this argument below. Kirk v. Wescott, 

160 Idaho 893, 899, 382 P.3d 342, 348 (2016) (“Hence, issues not raised below but raised for the first time on 

appeal will not be considered or reviewed.” (quoting Whitted v. Canyon Cnty. Bd. Of Comm’rs, 137 Idaho 118, 122, 

44 P.3d 1173, 1177 (2002))). Accordingly, we do not address this argument. 
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II. ISSUES ON APPEAL

1. Are the Late Claims precluded?

2. Are the State and Suez entitled to attorney fees on appeal?

III. STANDARD OF REVIEW

The district court may appoint a special master in any general adjudication 

and shall specify the special master’s powers and duties in the order of reference. 

Subcases referred to a special master are governed by the I.R.C.P. and the Idaho 

Rules of Evidence (I.R.E.). 

The special master’s findings which the court adopts are considered to be 

the findings of the court. The special master’s conclusions of law are not binding 

upon the district court, although they are expected to be persuasive. To the degree 

that the district court adopts the special master’s conclusions of law, they are also 

the conclusions of the court. 

The question of compliance with the rules of procedure and evidence is 

one of law. This Court freely reviews conclusions of law.

State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 740, 947 P.2d 409, 413 (1997) 

(citations omitted).

This Court has explained that, when it reviews a summary judgment on appeal,

it does so under the same standards employed by the district court. “The fact that 

the parties have filed cross-motions for summary judgment does not change the 

applicable standard of review, and this Court must evaluate each party’s motion 

on its own merits.” Summary judgment is proper “if the pleadings, depositions, 

and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Idaho R. Civ. P. 56(c).[5] Where the case will be 

tried without a jury, “the trial court as the trier of fact is entitled to arrive at the 

most probable inferences based upon the undisputed evidence properly before it 

and grant the summary judgment despite the possibility of conflicting inferences.” 

This Court freely reviews the entire record that was before the district court to 

determine whether either side was entitled to judgment as a matter of law and 

whether inferences drawn by the district court are reasonably supported by the 

record. 

Borley v. Smith, 149 Idaho 171, 176–77, 233 P.3d 102, 107–08 (2010) (citations omitted).

IV. ANALYSIS

A. The Late Claims are precluded.

We first address whether res judicata bars the Late Claims. Whether res judicata applies 

is a question of law over which this Court exercises free review. Ticor Title Co. v. Stanion, 144 

 5 Effective July 1, 2016, Idaho Rule of Civil Procedure 56 was amended. The relevant portion of the rule now 

provides: “The court must grant summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a).
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Idaho 119, 122, 157 P.3d 613, 616 (2007). Res judicata consists of claim and issue preclusion. 

Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803, 805 (2002).

Claim preclusion “bars a subsequent action between the same parties upon the 

same claim or upon claims ‘relating to the same cause of action.’ ” Under this 

doctrine, a claim is also precluded if it could have been brought in the previous 

action, regardless of whether it was actually brought, where: (1) the original 

action ended in final judgment on the merits, (2) the present claim involves the 

same parties as the original action, and (3) the present claim arises out of the same

transaction or series of transactions as the original action. 

Berkshire Invs., LLC v. Taylor, 153 Idaho 73, 81, 278 P.3d 943, 951 (2012) (citations omitted). 

We agree with the district court that the undisputed facts show that claim preclusion bars

the Late Claims, making summary judgment proper on this issue. The first requirement—a final 

judgment on the merits—is satisfied. The Payette Adjudication resulted in a partial decree in 

January 1986, which was certified as a final judgment under Idaho Rule of Civil Procedure 

54(b). That final judgment incorporated the relevant parts of the Director’s Proposed Findings of 

Water Rights in the Payette River Drainage Basin, and those findings encompassed the water 

rights decreed in this case. As the Proposed Findings, which the Payette Decree incorporated, 

state:

This recommended decree includes all of the rights established before 

October 19, 1977 to the waters of the Payette River and its tributaries including 

groundwater, and upon its adoption supercedes all prior judgments of the Court. 

Any water user who heretofore diverted surface water or groundwater from within 

the boundaries as described in Exhibit 1, or who owns lands to which previously 

established rights were appurtenant and who, upon being joined to this action, 

failed to claim such water rights has forfeited such rights as provided in Section 

42-1411, Idaho Code.

Additionally, when the Payette Adjudication was consolidated with the SRBA, the SRBA court 

decreed the water rights in 2003 and certified the partial decrees as final judgments under Idaho 

Rule of Civil Procedure 54(b). The partial decrees were incorporated into the SRBA’s final 

unified decree, which “is binding against all persons . . . .” No objection was made to the water 

rights as they were decreed in the Payette Adjudication and the SRBA. Instead, the Late Claims 

were not asserted until January 31, 2013.

Claim preclusion’s second requirement looks to the identity of the parties. We note at the 

outset that we have never analyzed the identity of parties requirement as it arises in a general 

adjudication. Generally, claim preclusion reaches to “the same parties or their privies[.]” Ticor 

Title, 144 Idaho at 124, 157 P.3d at 618. We have acknowledged this principle as it applies to a 
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private adjudication, Hagerman Water Right Owners, 130 Idaho at 742, 947 P.2d at 415 (“A 

Prior Decree Entered in a Private Adjudication is Binding Only Upon Parties and Privies to that 

Decree.”), which finds support in the statutory definition of “private adjudication.” I.C. § 42-

1401A(8) (explaining that a private adjudication “binds only those persons joined in the action”). 

A general adjudication, by contrast, is “conclusive as to the nature of all rights to the use 

of water in the adjudicated water system, except as provided in section 42-1420,[6] Idaho Code, 

and for the administration of those rights.” I.C. § 42-1401A(5) (emphases added). The 

Legislature’s definition of general adjudication thus appears to give the identity of parties 

requirement little relevance, if any, in this context. The Legislature’s distinction between a 

general adjudication and a private adjudication finds support in the various doctrines governing 

jurisdiction. Like a general adjudication under section 42-1401A(5), a final judgment in a 

proceeding where the court has in rem jurisdiction bars subsequent proceedings arising from the 

same transaction or occurrence already litigated, absent an identity of parties requirement, 

because in rem proceedings are brought against property, not parties. 50 C.J.S. Judgments § 1387 

(2017); Restatement (Second) of Judgments § 30 (1982); Restatement (First) of Judgments § 79 

cmt. d (1942) (stating that “[i]n proceedings in rem, however, persons who have not been named 

or specifically described in the proceedings, are nevertheless bound as to the subject matter by a 

valid judgment, although they are not parties”). A general adjudication, like an in rem

proceeding, is brought against property, not parties. See Nevada v. United States, 463 U.S. 110, 

144 (1983) (“[W]ater adjudications are more in the nature of in rem proceedings”); Mont. Trout 

Unlimited v. Beaverhead Water Co., 255 P.3d 179, 194 (Mont. 2011) (concluding certain 

interpretation of statute “comport[ed] with the nature of water right adjudication as in rem

proceedings”). Conversely, like a private adjudication under section 42-1401A(8), a final 

judgment in a proceeding where the court has either in personam or quasi in rem jurisdiction 

 6 Idaho Code section 42-1420 enumerates certain exceptions from the conclusive effect of a decree entered in a 

general adjudication. Although the exceptions are irrelevant to this case, the exceptions include: (1) “a water right 

for domestic use or stock watering use, specifically excluded from the general adjudication by court order;” (2) “a 

water right application for permit filed under chapters 2 or 15, title 42, Idaho Code;” (3) “a water right permit issued 

under chapters 2 or 15, title 42, Idaho Code, unless the director required the permit holder to file a notice of claim in 

accordance with subsection (7) of section 42-1409, Idaho Code;” (4) “a water right license issued under chapter 2 or 

15, title 42, Idaho Code, if proof of beneficial use had not been filed on the date of commencement of the general 

adjudication, unless the director required the license holder to file a notice of claim in accordance with subsection 

(7) of section 42-1409, Idaho Code;” and (5) “a claim to a water right established under federal law, if the priority of 

the right claimed is later than and junior to the date of entry of the order commencing the general adjudication.” I.C. 

§ 42-1420(1). None of these apply here.
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precludes only the “same parties or their privies” from bringing subsequent proceedings arising 

from the same transaction or occurrence already litigated. See Ticor Title, 144 Idaho at 124, 157 

P.3d at 618; Restatement (First) of Judgments § 79 cmt. d (1942). A private adjudication, like in 

personam or quasi in rem proceedings, is brought to define the rights of specific parties. I.C. § 

42-1401A(8) (stating that a private adjudication “binds only those persons joined”); Restatement 

(First) of Judgments § 79 cmt. d (1942) (“In proceedings quasi in rem, as in proceedings in

personam, only those persons who are parties as that term is herein used are thereby bound.”). 

However, we need not conclusively decide the applicability of the identity of parties 

inquiry in this context because it is so clearly satisfied in this case. The United States was a party 

to the Payette Adjudication and the SRBA, and in those adjudications, it was decreed the 

underlying water rights. Thus, assuming the identity of parties requirement applies here, it is 

satisfied.

We turn finally to claim preclusion’s third requirement. This inquiry asks whether “the 

present claim arises out of the same transaction or series of transactions as the original action.” 

Berkshire Invs., 153 Idaho at 81, 278 P.3d at 951. “A critical component in deciding whether 

claims are the same for purposes of res judicata is that the subsequent or present claim must be 

one that arose out of the same cause of action and should have been litigated in the first suit.” 

Maravilla v. J.R. Simplot Co., 161 Idaho 455, 459, 387 P.3d 123, 127 (2016); accord Joyce v. 

Murphy Land & Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242–43 (1922) (explaining that 

claim preclusion bars “every matter which might and should have been litigated in the first 

suit”). The Late Claims arise from the same transaction already litigated, as they assert 

“supplemental beneficial use storage water rights” that would work “in conjunction with existing 

storage rights[.]” And since the Late Claims assert a priority date of September 30, 1965, the 

Late Claims indisputably predate both the Payette Adjudication and the SRBA and should have 

then been asserted. City of Pocatello v. Idaho, 152 Idaho 830, 841, 275 P.3d 845, 856 (2012) 

(explaining that a beneficial use water “right dates from the application of the water to a 

beneficial use” (quoting Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24 

Idaho 63, 82, 133 P. 655, 661 (1913))). We conclude the district court was correct to observe, “If 

the late claims now asserted were ever valid, the plain language of the final judgment 

extinguished those claims and expressly barred any future assertion of those same claims.”

The United States attempts to overcome claim preclusion’s fatal resolution of the Late 
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Claims by contending the Late Claims are excepted from claim preclusion. As it elaborates, 

“where a change in fact or law gives rise to a new claim that could not have been brought at the 

time of the initial action, claim preclusion does not apply.” The United States is correct that, for 

claim preclusion to apply, the claim must be one that “might and should have been litigated in 

the first suit.” Joyce, 35 Idaho at 553, 208 P. at 242–43. More specifically, this Court has 

explained:

Ordinarily, efficiency requires that all claims to relief based upon the same 

underlying transaction be pursued in a single action. This is because matters 

common to the several components of the action need be addressed only once, 

rather than several times in greater or lesser detail. However, sometimes a single 

trial covering all aspects of the case will be neither desirable nor feasible. 

Evidence bearing upon one aspect of a case may be unduly prejudicial with 

respect to another. Or certain matters may be ripe for trial while consideration of 

others would be premature.

Duthie v. Lewiston Gun Club, 104 Idaho 751, 758, 663 P.2d 287, 294 (1983) (quoting Heaney v. 

Bd. of Trs. of Garden Valley Sch. Dist. No. 71, 98 Idaho 900, 902–03, 575 P.2d 498, 500–01 

(1978)).

According to the United States, the Late Claims “are dependent on material operative 

facts that post-date the Payette Adjudication, namely: IDWR’s accounting procedures for Basin 

65, which were not developed until 1993 . . . .” In support, the United States cites to U.S. 

National Bank Association v. Kuenzli, 134 Idaho 222, 999 P.2d 877 (2000), to contend the Late 

Claims are not barred by claim preclusion. In Kuenzli, the Kuenzlis and Dennett entered into an 

agreement under which the Kuenzlis were to purchase Dennett’s farm for $300,000. Id. at 224, 

999 P.2d at 879. As part of that agreement, Dennett reserved an option allowing him to 

repurchase the farm at any time during escrow. Id. During escrow, the Kuenzlis learned that the 

farm had significantly appreciated in value and, accordingly, began moving to sell the property 

to a third party for $975,000. Id. Dennett swiftly responded by exercising his repurchase option. 

Id. The Kuenzlis disputed Dennett’s right to do so, but Dennett obtained a judgment for specific 

performance in his favor. Id. The judgment was affirmed on appeal, id. (citing Dennett v. 

Kuenzli, 130 Idaho 21, 24, 936 P.2d 219, 222 (Ct. App. 1997)), and Dennett then “took 

possession of the property on May 15, 1997, and an escrow contract was signed by the Kuenzlis 

on June 10, 1997.” Id.

Thirteen days later—on June 23, 1997—the Kuenzlis prepared a notice of default, 

alleging that Dennett was in default for failing to making three installment payments of $30,000 
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in 1994, 1995, and 1996, the three years after he exercised his repurchase option. Id. at 225, 999 

P.2d at 880. Dennett then paid the installment payments, plus interest, “under protest” to the 

escrow agent, U.S. Bank. Id. U.S. Bank responded by lodging an interpleader action to determine 

who was entitled to the funds. Id. In the interpleader action, Dennett cross-claimed for a 

declaratory judgment that he was not in default, and sought “other relief.” Id. The district court 

ruled in Dennett’s favor, concluding the only enforceable contract for installment payments was 

entered into on June 10, 1997, and nothing required Dennett to make installment payments for 

1994, 1995, and 1996. Id.

When the Kuenzlis appealed, this Court addressed their argument that claim preclusion

barred Dennett’s cross-claim since it was not asserted in the initial proceeding. Id. at 226, 999 

P.2d at 881. This Court explained that “[i]t would have been impossible” for Dennett to assert 

rights to the funds in the initial proceeding because the Kuenzlis did not assert he was in default 

“until after the earlier litigation had run its course.” Id. Thus, Dennett’s cross-claim was not then

ripe, as his “right to the money deposited with U.S. Bank could not have been asserted during the 

earlier litigation.” Id. And, while the Kuenzlis pointed to the Restatement’s “transactional 

approach,” this Court clarified that the Kuenzlis’ reliance on the Restatement did not assist them. 

Id. The Restatement explains that:

Material operative facts occurring after the decision of an action with respect to 

the same subject matter may in themselves, or in conjunction with the antecedent 

facts, comprise a transaction which may be made the basis of a second action not 

precluded by the first.

Id. (quoting Restatement (Second) of Judgments § 24, cmt. f (1982)). As this Court reasoned, 

“The Kuenzlis’ notice of default and the resultant interpleader action are ‘material operative 

facts’ comprising a second ‘transaction’ and allowing a ‘second action not precluded by the 

first.’ ” Id. Accordingly, claim preclusion did not bar Dennett’s cross-claim. Id.

Kuenzli does not lend support to the United States in this case. In Kuenzli, the dispute 

over the funds did not arise until the first action resolved. In fact, the resolution of the first action 

held an integral role in creating the dispute over the funds because, had Dennett not prevailed in 

the first action, he would not have been able to exercise the repurchase option, and the Kuenzlis 

would have sold the property to the third party for a big profit. Here, by contrast, the Late Claims

arose before both the Payette Adjudication and the SRBA. The Late Claims assert “supplemental 

beneficial use storage water rights” under the constitutional method of appropriation, with a 
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priority date of September 30, 1965.7 The Late Claims thus required proof “with definite 

evidence” that the claimed water was actually diverted and beneficially used at that time. City of 

Pocatello, 152 Idaho at 841–42, 275 P.3d at 856–57; accord Joyce Livestock Co. v. United 

States, 144 Idaho 1, 8, 156 P.3d 502, 509 (2007) (“The two essentials for obtaining a water right 

under the constitutional method were typically diversion and application to a beneficial use.”).

This analysis is “focused purely on the actions of the appropriator[.]” Idaho Power Co. v. Idaho 

Dep’t of Water Res., 151 Idaho 266, 275, 255 P.3d 1152, 1161 (2011). Therefore, it “would [not] 

have been impossible . . . to have claimed the disputed [water rights]” in the earlier adjudications 

because the Late Claims are clear that the two key elements—diversion and beneficial use—both

predate the earlier adjudications. But cf. Kuenzli, 134 Idaho at 226, 999 P.2d at 881. Accordingly,

the district court was correct to recognize that, “If the Late Claims have any merit now . . . , that 

same merit must have existed during the Payette Adjudication” and the SRBA. 

Nor are we persuaded by the United States’ argument that only with the advent of 

computerized accounting did it have reason to believe proceedings to address flood-control 

administration were necessary. Three threshold considerations invalidate this argument. First, 

this argument erroneously attempts to trade Kuenzli’s clear “impossible to bring” standard for an 

anomalous “did not foresee the need to bring” standard. Second, this Court has been very clear 

that “[r]es judicata precludes the relitigation of the same claim even if there is new evidence to 

support it.” Taylor v. Riley, 162 Idaho 692, 703, 403 P.3d 636, 647 (2017) (citing Wolfe v. Farm 

Bureau Ins. Co., 128 Idaho 398, 403, 913 P.2d 1168, 1173 (1996)). Third, the United States’ 

effort to ascribe operative significance to IDWR’s accounting system ignores the bedrock 

principle that the constitutional method of appropriation is “focused purely on the actions of the 

appropriator[.]” Idaho Power Co., 151 Idaho at 275, 255 P.3d at 1161. IDWR’s accounting 

system is therefore irrelevant in this proceeding.

8

 7 We note that in 1971, the Legislature “amended Idaho Code §§ 42-103 and 42-201 to require compliance with the 

statutory application, permit, and license procedure in order to acquire new water rights.” Joyce Livestock Co. v. 

United States, 144 Idaho 1, 7, 156 P.3d 502, 508 (2007); accord United States v. Pioneer Irrigation Dist., 144 Idaho 

106, 110, 157 P.3d 600, 604 (2007).

8 Additionally, the United States’ attempt to inject issues of accounting in this case contravenes our precedent. This 

Court did not equivocate when, in 2014, it explained: “Which accounting method to employ is within the Director’s 

discretion and the Idaho Administrative Procedure Act provides the procedures for challenging the chosen 

accounting method.” In re SRBA, 157 Idaho 385, 394, 336 P.3d 792, 801 (2014). The United States has not availed 

itself to the proper administrative procedure to challenge the Director’s method of accounting.
13

Moreover, the propriety of the United States’ reliance on IDWR’s accounting system is 

belied by the record. Displayed in the record are certain water claims filed in June 1983, seeking 

a “[s]econd refill right” in American Falls Reservoir, a right permitting “actual multiple fill or 

refill of [Palisades] Reservoir[,]” a right to provide “optimum Project benefits including flood 

control” in Island Park Reservoir, and a right permitting “refill or second fill of [Arrowrock] 

reservoir capacity[.]” The record thus shows that issues of refill rights and flood-control 

administration were previously relevant and should have been raised during the Payette 

Adjudication or the SRBA, both of which post-dated the claims just referenced. Cf. Rangen, Inc. 

v. Idaho Dep’t of Water Res., 159 Idaho 798, 806, 367 P.3d 193, 201 (2016) (“If Rangen wanted 

its water rights to be interpreted differently, it should have timely asserted that in the SRBA.”). 

These issues were nonetheless not raised until this proceeding. As such, the decrees authorize 

specific, measurable quantities of water, not a certain number of reservoir “fills.” The quantities 

set forth in the decrees are binding and must control. It cannot now reasonably be contended that 

the specific, measurable quantities of water decreed are anything less than determinative, as the 

record demonstrates that as far back as 1934, it was recognized that decreed water rights would 

“no doubt be governed by the amount set out in the . . . decree[.]”

In sum, we conclude the undisputed facts show that claim preclusion bars the Late 

Claims, making summary judgment proper on this issue. We thus hold that claim preclusion bars 

the United States in this proceeding from seeking to litigate issues of refill and flood-control 

administration, and from attempting to supplement the water rights already decreed with 

quantities of water in excess of the quantities already decreed. See supra Part I. Absent the 

United States undertaking appropriate proceedings to set aside a final judgment under Idaho Rule 

of Civil Procedure 60(b), we emphasize that the decrees are conclusive and final, which 

comports our general reluctance to allow already-decreed water rights to be relitigated. See, e.g., 

City of Blackfoot v. Spackman, 162 Idaho 302, ___, 396 P.3d 1184, 1190 (2017) (“Furthermore, 

it is equally clear from the plain language of the decree that recharge is not listed as an 

authorized use under the purpose of use element of 181C. Claiming, at this stage, that recharge is 

an authorized use of 181C, is nothing more than an impermissible collateral attack . . . .”); Idaho 

Ground Water Assoc. v. Idaho Dep’t of Water Res., 160 Idaho 119, 128, 369 P.3d 897, 906 

(2016) (“Allowing IGWA to collaterally attack this determination would severely undermine the 

purpose of the SRBA and create uncertainty in water rights adjudicated in that process.”); 
14

Rangen, 159 Idaho at 806, 367 P.3d at 201 (“Any interpretation of Rangen’s partial decrees that 

is inconsistent with their plain language would necessarily impact the certainty and finality of 

SRBA judgments and, therefore, requests for such interpretations needed to be made in the 

SRBA itself.”); State v. Nelson, 131 Idaho 12, 16, 951 P.2d 943, 947 (1998) (“Finality in water 

rights is essential.”). Finality is for good reason, especially in water law; otherwise, the 

approximate $94 million the State expended in judicial and administrative costs during the 

SRBA would be jeopardized as mere wasteful expenditures. See Ann Y. Vonde et al.,

Understanding the Snake River Basin Adjudication, 52 Idaho L. Rev. 53, 56 (2016).

Because we affirm the district court’s ruling on summary judgment that claim preclusion 

bars the Late Claims as a matter of law, we need not reach whether the Late Claims are 

additionally precluded by issue preclusion, the Payette Decree, and Idaho Code section 42-1411 

(1969).

B. We decline to award attorney fees on appeal.

The United States did not request attorney fees on appeal. The State and Suez request 

attorney fees on appeal under section 12-117, which provides in relevant part:

Unless otherwise provided by statute, in any proceeding involving as 

adverse parties a state agency or a political subdivision and a person, the state 

agency, political subdivision or the court hearing the proceeding, including on 

appeal, shall award the prevailing party reasonable attorney’s fees, witness fees 

and other reasonable expenses, if it finds that the nonprevailing party acted 

without a reasonable basis in fact or law.

I.C. § 12-117(1).

Based on the above, the State and Suez are the prevailing parties on appeal. However, the 

United States did not act without a reasonable basis in fact or law. Instead, the United States 

advanced complex arguments in good faith. We therefore decline to award attorney fees on 

appeal. 

V. CONCLUSION

For the reasons above, we affirm the district court’s ruling that claim preclusion bars the 

Late Claims. We award costs on appeal, but not attorney fees, to the State and Suez.

Justices HORTON, BRODY, BEVAN and WALTERS, J. Pro Tem, CONCUR.