Jenkins v. State, Department of Water Resources

Keith Jenkins (plaintiff) owned land in Idaho with appurtenant adjudicated water rights in Ching Creek and Cottonwood Creek. He diverted water from Ching Creek but not from Cottonwood Creek. Jenkins applied to the Idaho Department of Water Resources (defendant) to move the location where he diverted water from Ching Creek. Jenkins also sought to move where he could divert his Cottonwood Creek water rights to the same place on Ching Creek, contending that Cottonwood Creek flowed into Ching Creek and, therefore, he had been using Ching Creek for diverting under both rights. The local water district’s watermaster recommended rejecting the application. The department’s director agreed after finding that the water rights from both creeks were overappropriated, that Jenkins had not diverted water from Cottonwood Creek in 18 years, and that he had not diverted more than his adjudicated right from Ching Creek in any given year. Jenkins appealed the director’s decision to the Idaho district court. The district court determined that Cottonwood Creek did not flow regularly into Ching Creek, that Jenkins had not exceeded his Ching Creek rights in any given year, and that Jenkins had not used his Cottonwood Creek water rights in 18 years. Idaho law provided for a forfeiture of water rights if not used for five continuous years. The district court upheld the director’s decision. Jenkins appealed.