Matter of Hidden Springs Trout Ranch, Inc.

BAKES, Chief Justice,

dissenting:

The Department of Water Resources approved appellant’s water permit application with the proviso that protesters could obtain a review of the approval on public interest grounds by requesting a hearing within thirty days. Such contingent approval of the appellant’s permit application does not constitute a final agency decision entitled to judicial review. Consequently, this appeal should not have been substantively reviewed by either the district court or this Court.

I.C. § 42 — 203 was originally enacted in 1929. 1929 Idaho Sess. Laws, ch. 212, § 1. It established requirements for notice and a hearing in connection with the review of an application for a water permit, and also made provision for judicial review of the responsible agency’s “judgment” upon the application. However, in 1967, the legislature enacted the Administrative Procedure Act (APA), I.C. § 67-5201 et seq. In so doing, the legislature also specifically amended I.C. § 42-203 to require that action under that statute conform to the standards of the APA. 1967 Idaho Sess. Laws, ch. 374, § 2.

I.C. § 67-5215 of the APA states the following:

“67-5215. JUDICIAL REVIEW OF CONTESTED CASES. — (a) A person who has exhausted all administrative remedies *628available within the agency and who is aggrieved by a final decision in a contested case of an agency other than the industrial commission or the public utilities commission is entitled to judicial review under this act. This section does not limit utilization of or the scope of review available under other means of review, redress or relief provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” (Emphasis added.)

Two points should be noted. First, I.C. § 67-5215 by its own terms applies to all state agencies other than the Industrial Commission or the Public Utilities Commission. In addition, the definition of agency in I.C. § 67-5201(1) plainly includes the Department of Water Resources when it states, “ ‘agency’ means each state board, commission, department or officer authorized by law to make rules or to determine contested cases, except those in the legislative or judicial branch, the state militia and the state board of corrections.” (Emphasis supplied.) Second, I.C. § 67-5215 clearly requires that in order for an agency decision to be appealable the decision must be “final.” Certainly a decision such as the one in the case at bar, which is contingent upon the holding of another hearing and subject to change by the agency, cannot be termed final.

Although the paragraph addressing judicial review in I.C. § 42-203 remained in the statute following the passage of the APA and related amendments, there is nothing in I.C. § 42-203 which conflicts with I.C. § 67-5215, except for the time limit for bringing an appeal which is not at issue here. In addition, the legislature in 1980 made it abundantly clear that judicial review of Department of Water Resources actions is for “final” decisions or orders, and that such review is subject to the provisions and standards of I.C. § 67-5215. I.C. § 42-1701A(4). Although I.C. § 42-1701A was not effective during the time of the proceedings below, it seems clear that the legislature, by enacting that statute, was merely expressing in more explicit terms the procedure for appeal which was already applicable to the Department of Water Resources under the APA. For these reasons, I dissent from the majority’s review of this case, and the questionable result that it reaches on the merits when it states that an applicant for a water permit has no property right worth protecting from ex post facto legislation. See County of Tuolumne v. State Board of Equalization, et al., 206 Cal.App.2d 352, 24 Cal.Rptr. 113 (Cal.App.1962).

McFADDEN, J., concurs.