concurring in part and dissenting in part.
I concur with the Court’s opinion, except for part IV(B) (A General Provision Dealing With The Administration Of Water Rights Is Statutorily Authorized) part IV(C) (General Provision 2 Is Necessary for the Efficient Administration of Water Rights in the Reynolds Creek Basin), and the portion of part V (Conclusion) that vacates the judgment of the district court, from which I respectfully dissent.
I.C. § 42-1411(3) provides: “The director may include such general provisions in the *336director’s report, as the director deems appropriate and proper, to define and to administer all water rights.” (Emphasis added). Both the district court and this Court agree that General Provision 2 does not establish any rights to the use of excess water. Therefore, in my view, there is no basis for including General Provision 2 in the SRBA decree. The Court’s attempt to salvage General Provision 2 as necessary for the administration of the decreed water rights in the Reynolds Creek Basin is erroneous because General Provision 2 attempts to administer the use of excess water, the rights to which have not been decreed.
In my view, res judicata (claim preclusion) does not require the inclusion of General Provision 2 in the SRBA because the SRBA does not involve the same parties or their privies as those who stipulated to the Reynolds Creek Adjudication Stipulation. Aso, collateral estoppel (issue preclusion) does not require the inclusion of General Provision 2 in the SRBA decree because the rights to excess water were not decreed in the Reynolds Creek Decree.
I would affirm the district court in all respects.
ATTACHMENT A
GENERAL PROVISION 2: ADMINISTRATION OF RIGHTS TO WATER FROM THE REYNOLDS CREEK WATER SYSTEM.
The following language is from the “Stipulation by Certain Defendants for Entry of Decree Adjudicating Water Rights”, incorporated in the decree filed March 23, 1988, in the Reynolds Creek Adjudication, Owyhee County Civil No. 3456. The boundaries of the Reynolds Creek water system are shown in Figure 1. This language addresses the administration of water rights from the Reynolds Creek water system and is incorporated verbatim herein [explanatory language is added in brackets]:
3. There shall be two different methods of administering the water rights in Reynolds Creek, dependent upon whether there is “excess” water in Reynolds Creek at a given time, with “excess” water being defined as the amount of water in excess of 37 CFS flowing in Reynolds Creek at the upper Basin Tollgate weir, hereinafter identified, at any time when the flow at the Outlet weir, hereinafter identified, is more than 57 CFS. The Upper Basin Tollgate weir is located on Reynolds Creek in the SE/4 SW/4 of Section 24, Township 3 South, Range 4 West, B.M., and the Outlet weir is located on Reynolds Creek in the NEJ4 SE % of Section 12, Township 2 South, Range 4 West, B.M., Owyhee County, Idaho.
(a) Distribution During Periods of Water Shortage. During any period when the flow at the Upper Basin tollgate weir is at or less than 37 CFS, or the flow at the Outlet weir is at or less than 57 CFS, the Upper Reynolds Creek Basin and the Lower Reynolds Creek Basin shall be administered as one water district under one watermaster, in accordance with the water rights set forth in the Findings [list of recommended water rights for the Reynolds Creek water system], and any subsequent permits or licenses which have been or may be issued by the Department of Water Resources. [Upper and Lower Reynolds Creek Basins are illustrated in Figure 1.]
(b) Distribution During Periods of Excess Water. When the flow of water at the Outlet weir is more than 57 CFS, the Lower Users shall not have the right to object to the diversion by the Upper Users of water in excess of the amounts specified for their respective water rights in the Findings, or to require that the Upper Users limit their diversions to the amounts specified for their respective water rights in the Findings. The intent of this provision is that the Upper Users shall have the first opportunity to use “excess” water, so long as the flow of water at the Outlet weir is more than 57 CFS.
4. A watermaster may be called on at any time during the irrigation season, notwithstanding that there may be “excess” water flowing in Reynolds Creek at or above the Outlet weir.
5(a). The Upper Users shall not store excess water during the irrigation season, except as such storage is authorized and *337recognized in the findings, or storage for which licenses are subsequently issued under water permits numbers 57-7400, 57-7454; 57-7472 or 57-7473 to the extent, if any, that those permits authorize storage during the irrigation season, and Junayo Ranch Limited Partnership (Junayo Ranch), holder of those permits, acknowledges that no excess water feature or element is included in or authorized by those permits. The Upper Users shall not increase the capacities of their diversion facilities or their storage facilities as the capacities of those facilities existed on June 22,1987, or were authorized by water permits issued, or application for permits filed with the Director, prior to October 14, 1987. Any Lower User who makes an application for permit to appropriate waters of Reynolds Creek for storage purposes shall not have the right to require any Upper User to cease diverting any “excess” water in order to satisfy the new storage right which might be acquired pursuant to an such application. The Lower Users reserve the right, among themselves, to protest any application by another Lower User for a permit to appropriate water of Reynolds creek for storage purposes. The intent of this paragraph, as between the Upper Users and the Lower Users, is to furnish the Lower Users an opportunity to store any “excess” water, as defined herein, which remains available when the Upper Users are diverting water to the extent of the capacity of their presently existing facilities. The parties to this Stipulation do not intend hereby to establish or set the priorities or quantities of any rights to excess water, or to establish that any presently perfected right does or does not include or authorize the use of excess water.
5(b). The parties to this Stipulation acknowledge an historical practice of rotation irrigation during times of water shortage. Where a water right has more than one point of diversion, or where there are multiple water rights with multiple points of diversion in a single ownership, the amount of water that may be diverted is determined according to priority. However, the full amount of water diverted may be diverted through less than all of the points of diversion decreed for the water right or less than all of the points of diversion decreed for multiple water rights in a single-land ownership. This practice results in the point of diversion or the place of use for specific water right in a single-land ownership being different from the point of diversion and/or the place of use listed in the Director’s findings. However, the water is diverted and applied to a point of diversion and place of use listed for that single ownership in the Director’s findings. A single ownership is to be determined based upon contiguous places of use decreed to a single entity in this adjudication. This practice has allowed for the more efficient use of the water during times of shortage on the ranches as they are now owned. This practice will not be disturbed by the parties to this Stipulation.
6. Junayo Ranch, for itself and as successor in interest to C.T. Ranch Company and Junayo Ranch Company, former Upper Users agrees, that its water rights other than No. 57-2325 and No. 57-7040 do not entitle it to divert water to storage during the irrigation season, even though it may be physically possible to divert water into its storage facilities during the irrigation season, and that no diversion to storage is authorized under their rights Nos. 57-2325 and 57-7040 during the irrigation season unless all prior water rights on Reynolds Creek are being satisfied. Junayo Ranch further agrees that (1) storage capacity under permit No. 57-7454 shall not exceed twenty-five acre feet per annum (25 AFA) [AFY], (2) storage under any permit issued pursuant to application no. 57-7473 shall not exceed fifty acre feet per annum (50 AFA), (3) storage under permit no. 57-7454 combined with storage under any permit issued pursuant to application No. 57-7473 shall not exceed seventy-five acre feet per annum (75 AFA), and storage under any permit issued pursuant to application No. 57-7472 shall not exceed ten acre feet per annum (10 AFA) for the storage pond identified in that application, and Junayo Ranch further agrees that the condition or conditions imposed by the Director of the Idaho Department of Water *338Resources in any water permit now held by Junayo Ranch, or in any permit issued to Junayo Ranch pursuant to an application identified in this Stipulation, or any condition with respect to any such water permit, now held or hereafter issued to Junayo Ranch, imposed by this Stipulation or by an agreement between it and all of the other parties to this Stipulation, shall be carried forward into any supplemental decree entered in this action or any decree entered in any other action adjudicating the rights to the use of the waters of Reynolds Creek.