COMMISSIONERS MINUTES                                                          FEBRUARY 23, 2005


The Elmore County Commissioners met in special session on the above date in the Commissioner’s Room, basement of the Elmore County Courthouse, 150 South 4th East, Mountain Home, Idaho.

Present at the meeting were Chairman Larry Rose, Commissioners Mary Egusquiza and Connie Cruser. Also present at the meeting was Clerk Gail Best, Prosecutor Aaron Bazzoli and Court Reporter Vanessa M. Starr.

The purpose of the public hearing was to receive testimony on the appeal by King Hill Domestic Water and Sewer Users Association (KHDW) of the Findings of Facts, Conclusions of Law, and Order entered by the Elmore County Planning and Zoning Commissioner on October 21, 2004 concerning the registration of an existing Confined Animal Feeding Operation (CAFO) operated by Rocky Mountain Land and Cattle Company, LLC. That registration originally came before Planning and Zoning on May 1, 2002, was appealed to the Board of County Commissioners and then to District Court. District Court of the Fourth Judicial District, Judge Michael Wetherell presiding. That Court’s decision of April 2, 2004, requires that the Commission make a determination as to the nature of the water right held by the applicant on April 30, 2002 and the number of animal units supported by that water right on that date. The Court further directed that the Commission should determine whether the information provided by the Applicant in its application is complete and accurate. Therefore, testimony at the hearing shall be limited to the issues listed above. The subject property is located in Sections 1, 2 and 12, Township 5 South, Range 10 East and in Sections 5, 6, 7 and 8, Township 5 South, Range 11 East, B.M.

Chairman Rose stated that participants may submit written testimony prior or during the hearing to the Elmore County Commissioners, 150 South 4th East, Mountain Home, Idaho, 83647. Prosecutor Bazzoli clarified what will be accepted as material that will be heard during the hearing, which would be was this an existing CAFO as of April 30, 2002 and was there sufficient water rights for the number of cattle confined. Chairman Rose asked the Prosecutor for further clarification and was advised to review page 33 of the Memo Decision and Order dated April 2, 2004.

Richard Carlson, P.O. Box 21, Filer, Idaho, 83328, stated he is the attorney for the King Hill Domestic Water and Sewer Users Association. Mr. Carlson stated he has turned in a letter this evening (Exhibit 7) which he hopes the Board would consider prior to making their decision. Mr. Carlson stated the two main considerations he would be addressing are what was the nature of Rocky Mountain’s water right held on April 30, 2002 and the number of animal units supported by that right on that date.


First, what was the water right that was held - Mr. Carlson said there is no disagreement between the parties as to whether there was a water right (#61-10120) which would support 1,083 head. Mr. Carlson displayed Exhibit 1, an aerial photo which he had colored in red the area of Section 6 that the feed lot is located on - the South Half of the Northwest Quarter is the authorized place of use for the water right #61-10120. Mr. Carlson stated they are disputing the other water source lower down, the Southeast Quarter of the Southeast Quarter is the authorized place for the second water right (#37-19839) which is clearly not in the confinement area. Mr. Carlson stated that under Idaho Code § 42-111 you cannot stack one water right with another one. Commissioner Cruser asked what is stacking? Mr. Carlson stated that adding one water right with another is referred to as stacking - for example one water right has a 13,000 gallon daily limit, you cannot add a second water right so you could get 13,000 plus 13,000 gallons for a total of 26,000 gallons. Therefore as of April 30, 2002 the maximum water right for Rocky Mountain on #61-10120 was 13,000 gallons daily which would support 1,083 head of cattle.

Mr. Carlson then showed the Board Exhibit 3, a letter from the Idaho Department of Resources which gives the same analysis that Mr. Carlson had just given the Board agreeing that there was only one water right (#61-10120) which would support 1,083 head of cattle.

Commissioner Egusquiza asked why anyone would want to drill a second well if 13,000 gallons would be all they could use? Mr. Carlson stated that the second well could be used for domestic purposes but not for stock purposes.

Mr. Carlson stated that Mr. Foster’s affidavit mislead and confused the Planning and Zoning Commission and showed the Board his Exhibit 5, an application to rent water from the water supply bank from May 1, 2002 to October 10, 2002 or the end of the King Hill Irrigation District pumping season. Mr. Carlson noted that this application to rent water was never signed, dated or filed.

Prosecutor Bazzoli asked Mr. Carlson if he wanted the Board to consider this Exhibit 5 or ignore it? Mr. Carlson stated some of both.

Mr. Carlson then produced Exhibit 7 which is a Water Supply Rental Agreement signed by Roger Ball of Rocky Mountain Land & Cattle on April 12, 2002 and approved by Karl J. Dreher, Director of the Idaho Water Resource Board on April 24, 2002. Mr. Carlson asked the Board to note that the use of water listed on the agreement was for irrigation purposes.

Mr. Carlson showed the Board Exhibit 6 which is also a Water Supply Rental Agreement signed by Brett Ball of Rocky Mountain Land & Cattle on May 10, 2002 and approved by Karl J. Dreher, Director of the Idaho Water Resource Board on June 5, 2002. Mr. Carlson asked the Board to note that use of water listed on this agreement was for stockwater but that the period of diversion covered was from May 1, 2002 to October 10, 2002 or the end of the King Hill Irrigation District pumping season. Mr. Carlson asked the Board to particularly note that the period of diversion started May 1, 2002 so April 30, 2002 was not covered by this agreement, the critical date in Judge Wetherell’s Order. Mr. Foster’s affidavit got the Planning and Zoning Commission very confused over these Rental Agreements, thus causing the problem before the Board of County Commissioners now.


Mr. Carlson stated that there was on final subject be would like to touch on and that is “grandfathering”. Mr. Carlson stated Judge Wetherell said “The very act of having a procedure for registering ‘existing CAFOs’ is to establish their ‘grandfather right’ and requires a finding of what that right is and upon what the right is based.” The purpose of “grandfathering” a land use is to recognize (validate) an existing lawful use of property which, by change in the law, becomes an unlawful use after the change. The County should not set a precedent of “grandfathering” unlawful land uses. Mr. Carlson said there is no such thing as a provisional grandfathered water right that may or may not be granted.

Commissioner Rose asked if the King Hill Water Users feel Rocky Mountain Land & Cattle was an existing CAFO? Mr. Carlson stated he feels an illegal one, but that is not up for discussion in the scope of tonight’s hearing.

K.C. Duerig, 4199 N. Meridian, King Hill, Idaho, 83633, read his testimony into the record:

February 23, 2005

Elmore County Board of Commissioners
630 N 8th E
Mountain Home, ID 83647

Dear Commissioners,

This is a letter for the record in matter of the Appeal of the Supplemental FCO for Rocky Mountain Land and Cattle as filed by the Elmore County Planning and Zoning Commission on October 25th, 2004.

In the Findings of Fact, #1, two water rights; #61-10120 and #37-19839, are referenced, which claim to give RMLC the right to water 1083 head of cattle with each water right. What is ignored, but is still fact, is that the Place of Use for the stockwater right on #37-19839 is ONLY in the SESE section of Township 05S Range 11E Section 6, which is NOT in the CAFO facility area. According to the map that was included with Mr. Foster’s affidavit, the CAFO facility area is located in Township 5S Range 11E Section 6 SWNE, SENE, NESE Quarters and Township 5S Range 11E Section 5, NWSW and NWSW Quarters.

The only PERMITTED Place of Use for stockwater with #61-10120 is 5-11-6 SWNE, which does fall within the CAFO Facility area.

Therefore, RMLC could only document ONE valid stockwater right (#61-10120) on April 30, 2002, which allowed them to legally water 1083 head of cattle, not the 3486 head that they listed as being held on April 30, 2002 in their application for registration.

In the Findings of Fact #2, The assertion is made that The afore mention water rights allowed for 2,166 cattle. Since Idaho Water Law (Idaho Statute 41-111) prohibits the ‘stacking’ of domestic water rights for stockwater use, the fact is that RMLC only had a single domestic water right with stockwater for 1083 head of beef cattle on April 30, 2002.


In the Findings of Fact #3, Reference is made to the application for an additional water right dated December 12, 2001. This application for a new water right was NEVER included in the application for registration and therefore could NEVER have been considered in the granting of the registration. Even though it was granted on October 21, 2002 with a priority date of December 12, 2001, it has no effect on what was legally in effect on April 30th, 2002. You cannot undo the illegal watering that was taking place on April 30th, 2002 with a change that takes place on October 21st, 2002.

In the Findings of Fact #4, reference is made to an application to rent water from the Idaho Water Bank. This application was submitted to the Idaho Water Bank on May 10th, NOT in April, and approved on June 5th, 2002. This rental agreement has an effective date of May 1st, 2002, which means that it cannot be considered as a “Water right permit or license from the State of Idaho” as required by CAFO Ordinance 2001-3, Sec III. A.7. on April 30th, 2002. Again, You cannot undo the illegal watering that was taking place on April 30th, 2002 with a change that takes place on May 1st, 2002.

A copy of this Water Supply Bank Rental Agreement was submitted as part of the record in this matter before the P&Z Commission, and was ignored. All through this process, the only reference to the Water Bank Rental is the un-signed, un-dated, un-approved application form that was submitted as part of the Registration application on April 30th, 2002.

In Conclusions of Law

#1 is correct: Article III of the CAFO Ordinance 2001-3 did require existing CAFOs to register with the county.

#2 is correct: Article III of the CAFO Ordinance 2001-3 did require that existing CAFO’s provide proof of various information including a “Water right permit or license from the State of Idaho”.

#3 is correct:

#4 is partially correct: Although Article II does not require the Commission to make a determination that the water right is adequate for an existing CAFO, Article VII, A.,1. Criteria For Approval, General requirements, states that: 1. The CAFO must comply with and not be in violation of any federal, state or local law. It is illegal to water stock without a stockwater right.

#5 is partially correct: Although Article III does not authorize the Commission to deny registration of an existing CAFO because a water right is inadequate, Article VIII requires that the Commission deny registration of an illegal act. Since RMLC was in violation of Idaho Water Law Idaho Statute 41-111) by watering 2800 head of cattle (see Attachment “Animal Species and Numbers” to the application for registration) with only a water right for a maximum of 1083 head, it is obvious that the permit should have been denied for any numbers greater than 1083 head.


#6 is correct: RMLC did provide complete and accurate information regarding their water right on April 30th, 2002. They did submit a copy of their domestic water right #61-10120 showing that they could water 1083 head of cattle IF THEY DID NOT USE THAT WATER FOR ANY OTHER USE, such as the domestic use for the ranch house and outbuildings. They did not submit any proof of any other “Water right permit or license from the State of Idaho”.

IN CONCLUSION:

Throughout this process, we have maintained that RMLC never had the right to water more than 1083 head of cattle on April 30th, 2002. This information has been stressed many times.

In the Request for Appeal Planning and Zoning Decisions of May 1, 2002 (page 179, official record) I stated in part:”...The application contains a water right that would water 1083 head of cattle and an un-approved, un-signed, un-dated application to rent water...” (page 181, para 4, official record).

During the July 11th, 2002 P&Z Hearing, Beverly Soggs submitted a letter from the King Hill Domestic Water Users Association dated February 15th, 2002, with a copy to the Prosecuting Attorney requesting that action be taken on the evidence presented that RMLC was operating an unlicensed CAFO, and included the November 29, 2001 IDWR letter stating that RMLC only has water rights for 1083 head. (Page 208, para. 1,official record)

She goes on to refer again to the 1083 head water right in paragraph 3, page 208, official record

From the minutes of the July 17th, 2002 P&Z Meeting: “The Commission discussed the lack of sufficient water rights. H. Hawkins offered they cannot operate without the water, so that problem will solve itself.” (Page 259. para 4, official record) Mr. Hawkins did not claim to have the legal water to handle the livestock on hand, just that he was watering them and would continue to do so.

During the September 11th, 2002 Public Hearing before this Board, I opened my testimony with the following: “I fail to comprehend how the Elmore County Planning and Zoning Commission could grandfather an operation to a level that is illegal according to Idaho Department of Water Resources Rules and Regulations. Planning and Zoning grandfathered RMLC for 2,800 head of cattle (1,680 Aus), ignoring the fact that RMLC had, and still only has, a water right for 1083 head of stock on a domestic water right.” (Page 274, para 1)

I repeat that statement with the addition that I cannot understand how they could do the same thing....,again.

In a staff report to the P&Z, dated August 11th, 2004, Staff Attorney Phil Miller summarized the issues remanded from Judge Wetherell as follows:
1. Whether the registration application is complete.
2. Whether the application registration is accurate.
3. Whether a water right or permit exists and the evidence of the rights or permit.
4. How many cattle of animal units were allowed under the water rights at the site on April 30th, 2002.

The most important fact to be ascertained, to my mind, is stated by Judge Wetherell in his Court Findings, #6...what evidence shows as to that right or license and how many cattle or animal units the right establishes the CAFO is entitled to, if is found to be an existing CAFO, on the date of its application, April 30, 2002.”

Please keep in mind that even though RMLC did have a legal right to water 1083 head of cattle on April 30th, 2002, they could only do so if they did not use any water for any domestic use, such as drinking, cooking, sanitary uses, etc. It is un-realistic to suppose that they were not using water for these purposes at all. This means that they could only be grandfathered for 1000 head of cattle legally.

Respectfully submitted this 23rd day of February, 2005.

Knight C. Duerig, Chairman, King Hill Domestic Water Association


Beverly Soggs, 4199 N. Meridian, King Hill, Idaho, 83633, gave the Board a notebook containing a copy of the record she had compiled for them.

Hal Hawkins, 183 N. 400 W., Idaho Falls, Idaho, 83402, stated that he is the General Manager for Rocky Mountain Land & Cattle. Mr. Hawkins said he came to the area in the year 2000 and was asked to look at how to expand the CAFO located on the former Barber Caven Ranches. Mr. Hawkins stated Elmore County did not have a CAFO ordinance in place yet and everyone was in a learning mode. Mr. Hawkins said he was told the day would come that all CAFOs would have to be registered. At the time he was told he did not have to register. Mr. Hawkins stated he would like to clarify that they had to rent water twice for two different purposes - one for irrigation purposes and one for stock water. Mr. Hawkins added that they have tried to play by the rules through the entire process and do whatever was required of them. Mr. Hawkins stated that the Planning and Zoning Commission has accepted their application twice, then it went before the Board of Commissioners and then went to the District Court, which has since remanded it back.

Scott Campbell, P.O. Box 829, Boise, Idaho, 83701, stated he is with the law firm of Moffatt Thomas and has been the attorney for Rocky Mountain Land & Cattle LLC at this for four years now. Mr. Campbell stated the Board needs to understand that water law in Idaho is very confusing and probably will remain so. Mr. Campbell stated the domestic water right could have been used according to Idaho law. Mr. Campbell stated he also would like to clarify that Exhibit A is an adjudication draft for the staff of the Department of Water Resources.

Mr. Campbell stated that the affidavit of Mr. Foster was inaccurate and was later corrected if the Board will refer to Tab 4 of his material. Mr. Campbell stated that Mr. Carlson’s reference to the water bank application is not correct, they are not relying on that rental agreement.


Mr. Campbell stated he was not certain that this evening’s hearing was even legal. Referring to Tab 1 of his material Mr. Campbell stated the Notice of Public Hearing was deficient if you look at the eighth line. Referring to Tab 2, page 32, Section 2) of the Court Findings stated that a final ruling cannot be made by the Court that a CAFO did exist on April 30, 2002. Then the Board must address Section 4) and Section 6) of those Court Findings.

Chairman Rose asked Mr. Campbell why, if he felt this hearing was improperly done, he had participated with his information? Mr. Campbell stated that this was the forum offered to present his material so he was there to do so.

Mr. Campbell stated that a hearing had previously been scheduled on this matter for January 19, 2005 and that the only way they had learned of the hearing was an article in the Times News since the Elmore County Clerk’s office had not sent them a Notice of Hearing or even sent them a copy of the appeal form. Mr. Campbell stated they had contacted the Clerk and she had then called off the hearing.

Mr. Campbell asked that the Board also refer to Page 27 of the Memorandum Decision and Order, last paragraph and continuing to page 28 as to “existing CAFO” and Tab 3, page 2 Item 5 of the Conclusions of Law. Mr. Campbell stated they believe the hearing procedures of the County Interim Ordinance No. 2001-03 were violated as well as the Idaho Constitution and the Right to Farm Act.

Prosecutor Bazzoli asked Mr. Campbell if it is his position that water rights cannot be stacked? Mr. Campbell replied he thought it is not the law in this state. Mr. Campbell stated that the water right is in the record. Mr. Campbell said he believes it is assumed there is a water right when you make application it says proof of water right to run the operation.

Prosecutor Bazzoli asked Mr. Campbell if he wanted response time for this hearing? Mr. Campbell said he would like two weeks time to respond to written information that was accepted in to the record this evening.

K.C. Duerig stated that Mr. Hawkins referenced a water right transfer in his testimony that transferred irrigation to stock water - that water right transfer was dropped. Mr. Duerig also stated if you are looking at an ordinance to control animals it would make sense it would be stock water.

Chairman Rose asked Mr. Carlson if he would like time to respond to the information presented this evening? Mr. Carlson stated that would be fine. Chairman Rose stated the record would be kept open until 5:00 p.m. on March 9th, 2005 to respond to testimony presented at this hearing and then Chairman Rose closed the hearing.

Motion by Rose, second by Egusquiza, to adjourn.
ROSE - AYE
EGUSQUIZA - AYE
CRUSER - AYE Motion carried and so ordered.





/S/ LARRY E. ROSE, Chairman
ATTEST: /S/ GAIL L. BEST, Clerk