dissenting.
PART I. INTRODUCTION
THE CHALLENGE TO CERTIFICATION
The circuit court panel has presented this Court with the opportunity to review the two lines of Idaho cases which involve the release of retained water and respond with what we perceive to be the case law precedent applicable to the circumstances here presented. These circumstances appear to be almost identical to those presented in Kunz I, 526 F.2d 500 (9th Cir.1975), to the Honorable Ray McNichols, Chief Judge of the United States District Court for Idaho, and in turn to the circuit court panel.
When Kunz II was at the trial court level, Judge Callister, unlike Judge McNichols, did not allow the plaintiffs to pursue all of their theories of Utah Power’s liability, which included trespass, nuisance, strict liability, and negligence. Sua sponte, Judge Callister relegated the plaintiff to the single theory of negligence. Why he did that knowing full well that Judge McNichols had done otherwise under almost identical circumstances cannot be ascertained from the record. Seemingly, when the plaintiff landowners learned in the 1975 action that they were entitled to pursue all of their theories, it would have been discomforting to be denied that same opportunity in the sequel case. A jury presented with all cognizable theories would be better able to discern which, if any, fit the evidence displayed for them by the parties.
A jury which was only instructed on one issue, in this instance, negligence, was shorted. The net result is that, should the circuit court panel conclude, albeit without this Court’s assistance, that any one of the other three spumed theories is valid, the plaintiff landowners will face the expense of a second jury trial against an adversary better endowed monetarily. The circuit court panel obviously has no desire to preclude the plaintiffs from that second jury trial, and equally obvious, the landowners are willing to endure the expense and have at it. Accordingly, the panel has asked this Court to advise as to our perception of the state of Idaho law. My view is that this Court should endeavor to make a thorough review and analysis of all the pertinent case law touching on the subject.
Before we were positioned to approach that endeavor, Utah Power attempted to head us off at the pass. In a thirty page brief it opposed the panel’s request for acceptance of the certified questions. The briefing which so sought to dissuade us was equally as supplicative as the brief which was later submitted addressing the issues presented by the three certified questions. The main theories of Utah Power’s brief opposing the acceptance of the certified questions were two-fold: (1) That the panel misperceived what was to be learned from its rather extensive delving into Idaho case law precedent, much of which it has brought to our attention; and (2) that in any case for damages which is predicated on liability for interference with established and recognized water courses, negligence is the only applicable standard.
In urging the first, Utah Power declared that the panel’s “suggestion that there is a second line of cases, highlighted by Campion v. Simpson, 104 Idaho 413, 659 P.2d 766 (1983), is not accurate. Not only are these cases factually distinguishable, but they also required proof of negligence before liability will be found.” Defendant’s Brief in Opposition to Certification at 14-15. The brief proceeds to explain the facts of Campion and in the process explains that liability could not be imposed on Simpson, who was only acting “to protect his own property, without proof that the actions were unreasonable or negligent.” Id. at 15 (emphasis added). Absence of negligence is not necessarily reasonableness. Negligence was not involved in Campion, so it is removed from the equation, leaving only “unreasonable” as the adjective describing Simpson’s conduct.
*908At least the author of the brief recognized that wrongful and negligent are not synonymous. Negligence, otherwise known as “fault,” equates with carelessness, inattentiveness, or indifference. Wrongful conduct is conduct which is more akin to being deliberate, intentional, or calculated. In fact, the brief uses the word intentional in describing Simpson’s conduct in filling two of three channels of the Wood River in an effort to protect his own banks, thereby increasing the flow in the third channel and ultimately damaging Campion’s property. At page 16 of Utah Power’s brief opposing certification, it made what appears to be an effort to synthesize negligent conduct and wrongful conduct as being one and the same. It did this by intimating that a comparative negligence standard is applicable where wrongful conduct combines with other causes to produce damages, citing Campion, 104 Idaho at 416-17, 659 P.2d at 769-70. The attempt fell short of its mark, however, and that argument was abandoned by simplisticly stating that without negligent conduct or wrongful conduct, there can be no liability. The brief failed to establish any inaccuracy on the part of the panel in its view of Campion, and is a remarkable display of creative brief writing at its best. Negligent and wrongful, in describing conduct, are two words with different meanings. Neither includes the other, but either can create liability.
Touching briefly on the second point of the brief’s theme, it rather consistently, but ineffectively, argues:
3. Negligence is the standard in water course cases. As has been illustrated amply above, there is substantial Idaho law on the proper standards to be applied in water diversion, impoundment and discharge cases which involve watercourses or defined bodies such as lakes and reservoirs. Liability can be found in such cases only when there is proof of negligence. This court has spoken conclusively and repeatedly to that issue. Any attempt to impose liability without proof of fault is completely contrary to that very clear line of Idaho law and is precisely the reason the district court refused to allow these alternative theories to be pursued by the landowners at trial. Whether it is called ‘nuisance’ or ‘trespass,’ landowners are continuing to argue that they need not prove the negligence of Utah Power in order to sustain a prima facie case. Because there is ample Idaho law giving guidance on these issues, certification is unnecessary and should be rejected.
CONCLUSION
Since this court has repeatedly and clearly spoken to the appropriate theory that may be used in an attempt to impose liability in water diversion, impoundment and transportation cases, there is no justification for accepting the Ninth Circuit’s request for certification in this case. This court has clearly held that one may not be liable in cases of this type without proof of fault. Since all three of the theories pursued by the landowners, and now certified by the Ninth Circuit, would impose liability without proof of fault, they run contrary to clearly delineated Idaho decisions and unreasonably restrict the full development and use of one of the most vital resources in the State of Idaho, its water. The request for certification should be denied and the case returned to the Ninth Circuit for final resolution.
Defendant’s Brief in Opposition to Certification, 29-30.
Only the theory of strict liability, Rylands v. Fletcher, 1 Eng.Rul.Cas. 236 (1868), could be said to allow imposition of liability without fault. The logical conclusion to be drawn from Utah Power’s unprecedented attack against certification made in this Court is perhaps found in the words of Shakespeare: “Methinks he doth protest too much.” The brief was not persuasive.
The minutes of the Court show Justices Shepard, Bistline, Huntley, and Johnson voting on the panel’s request for acceptance of the certified questions. Justice Bakes deemed himself disqualified and did not vote, nor was a justice pro tem appoint*909ed to vote in his stead, as four of the votes cast were to accept the certification.
PART II.
THE ERRONEOUS INTERPRETATION OF BURT
Basically the task undertaken by the Circuit Court of Appeals is not to divine the answer to the three certified questions which it has referred to this Court, and which this Court has answered by three successive negatives, no, no, no. The panel has sought assistance from this Court in order to ascertain whether the United States District Court, the Honorable Marion Callister, committed error sua sponte, in taking away from the jury the issue squarely presented to the panel: Whether the United States District Court erred in its conclusion that Burt v. Farmers Cooperative Irrigation Co., Ltd., 30 Idaho 752, 168 P. 1078 (1917), “specifically rejected the strict liability doctrine set out in Fletcher v. Rylands, L.R. 2, Exch. 265.” Memorandum Decision of Judge Callister at 3. The district court made that strong statement of rejection of Fletcher v. Rylands, notwithstanding that it did so in the face of its own acknowledgment of this exact language from Burt:
Under the common law one who diverted water from its natural course did so at his peril, and was held practically to be an insurer against damage which might result from such action. The common law has been modified and relaxed in this and other arid states, so that the owner of an irrigation ditch is only liable for damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining or operating the ditch. (Citations Omitted).
Memorandum Decision of Judge Callister at 3, quoting Burt, 30 Idaho at 767, 168 P. at 1082.4
Unfortunately, Judge Callister failed generally in his reading of Burt, and particularly in the paragraph quoted. The Burt court did not reject the common law doctrine of Fletcher v. Rylands, i.e., strict liability for damages occasioned by the escape of artificially impounded waters. The Burt court was aware of Fletcher v. Rylands, which it cited to, as “L.R. 1 Exch. 265, affirmed, L.R. 3 H.L. 330; 1 Eng.Rul. Cas. 236.” The citation continued on by citing for the same proposition three cases from Massachusetts and one case from New York.5
The extent of the Burt quotation is set out in two sentences. The first sentence concerning the common law is sound, and is indeed supported by its citations. This was all a matter of elementary learning in first year law school torts. The second sentence is equally sound, provided, however, that the reader comprehend that it has absolutely no application to the preceding sentence, but rather is confined to the liability of one who constructs, maintains, and operates a ditch. A ditch is a ditch, and in Idaho law we deal with drainage ditches and with irrigation ditches as artificial structures which are by no means entitled to the same status as is accorded to natural water courses. All that the Burt court was saying at that point in its discussion was that the common law of Idaho would not accord to non-natural water courses the status which the common law in England, and the common law developed by that time in Massachusetts and New York, accorded to natural water courses, including natural water sources impounded into reservoirs. 30 Idaho at 567, 168 P. at 1082-83. While it is readily understood that one judge, Judge Callister, was led astray by his own misreading of Burt, it is not understood how four Idaho jurists could in turn so readily subscribe to Judge Callister’s view that Burt “specifically rejected the strict liability doctrine set out in Fletcher v. Rylands.” The ready answer is simply the failure to do at least a modicum of homework.
*910The reader of Judge Callister’s memorandum decision, and in turn today’s opinion for the Idaho Supreme Court, is left with the clear impression that Burt’s statement implies that the common law has been relaxed by judicial determination, that the concern in Burt was predicated upon a land owner’s suit against the owner (or constructor, or maintainor) of an irrigation ditch, and that the issue there was whether an injured and monetarily damaged land owner could recover on a strict liability theory as well as on a negligence theory.
The actual fact of the matter is miles apart from the impression created. While I am not privy to Judge McNichols analysis of Burt (in Kunz I), it is strong in my mind that he was aware of what the Burt case was all about. Burt was not a damage action, and in that respect alone it should have played no part in Judge Callister’s order in Kunz II which deprived the landowners of their clear right to proceed against Utah Power on the theory of strict liability.
Additionally, the language in Burt relative to modification of the common law had nothing to do with any judicial action. It did have to do with legislative action. As is often the case, the reading of the full caption of a reported case may be helpful:
C.G. BURT, W.W. NUSBAUM and F.G. PICKETT, Commissioners of Drainage District No. 1 of Canyon County, Appellants, v. FARMERS’ CO-OPERATIVE IRRIGATION COMPANY, LIMITED, and NOBLE DITCH COMPANY, LIMITED, Respondents.
30 Idaho 752, 168 P. 1078 (1917). In the year 1913, the legislature authorized the creation of drainage districts. 1913 Sess. Laws, ch. 16, p. 58. The plaintiff in Burt, Drainage District No. 1, Canyon County, was created in accordance with the statute, and its domain established. The trial court’s pertinent findings and conclusions are set out in the reported case. Included therein are provisions of the enabling legislation. Of specific pertinence is Section 9, which provides that the Commissioners shall report and determine, “[fjourth: What lands will be injured [by the construction of a drainage system] and the aggregate amount of such injuries, and they shall award to each tract, or lot, by whomsoever held, the amount of damage so determined by them.” In a similar vein, the fifth paragraph of Section 9 made provision for the determination of the benefits which would arise from the construction, and provided that the commissioners of the district should “apportion and assess the estimated costs of the same on the lands so benefited ...,” all of which is more fully set out in the reported case, 30 Idaho at 761-62, 168 P. at 1080-81.
Section 9a was added to the Act in 1915, prior to the litigation, judgment and appeal in Burt. It provided:
In determining the amount which each tract of land will be benefited by such proposed drainage system the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water.
1915 Sess.Laws, ch. 42, p. 123-25; 30 Idaho at 763, 168 P. at 1081 (emphasis added). At that point the court noted that, although the legislative power had not been directly called in question, precedential case law from the Supreme Court of the United States was dispositive, discussing the same on pages 763 through 765. At page 765, the Burt court declared that,
[t]he object sought to be accomplished by the addition of Section 9a is not difficult to determine. We quote from the opinion of Mr. Chief Justice Sullivan in the former appeal (29 Idaho [377] 393, 161 P. [315] 320 (1916), as follows:
It seems in this irrigated country the question of drainage is now confronting almost every irrigated section, and there seem very cogent reasons for a return to the former rule above stated *911(referring to the common-law rule hereafter stated), at least to the extent of assessing lands for the construction of a drainage system from which seepage or percolation damages or injures other lands. The early settlers of the arid regions were not confronted with the question of drainage, but time and experience have proven that a drainage system is absolutely necessary where large areas of desert land are reclaimed by irrigation.
30 Idaho at 765-66, 168 P. at 1082. The Burt court went on to explain the 1915 amendment:
By section 9a it is provided that such high land shall be considered as being ‘benefited’ to the extent and in the amount such lands are responsible for damages to low lands from seepage and saturation by irrigation water. We have no doubt of the power of the legislature to provide that lands which by reason of artificial irrigation contribute by seepage and saturation to the swampy condition of lower lands shall contrib-. ute their just proportion of the cost of the construction of drainage works for the reclamation of such lower lands. This court has held that an irrigation district may construct drainage works as a necessary complement of its irrigation system. [Citations omitted.]
30 Idaho at 766-67, 168 P. at 1082 (emphasis added). It was against that backdrop that the Burt court continued on with the statement that “[u]nder the common law one who diverted water from its natural course did so at his peril, and was held practically to be an insurer against damage which might result from such action. (Fletcher v. Rylands, L.R. 1 Exch. 265, affirmed L.R. 3 H.L. 330; 1 Eng.Rul.Cas. 236)....” 30 Idaho at 767, 168 P. at 1082.
On a proper viewing of the Burt opinion, it is readily seen that the real issue at stake was the questioned authority of a drainage district to obtain monetary payments from the two named defendants through assessments levied because of benefits conferred. The defendants in their argument likened the assessments to damages masquerading under a different guise, and hence contended that they were unjustly treated because they were not proven to be guilty of any negligence. The court’s holding in response to that argument was very simply stated: “No reason is apparent why the legislature may not restore the common-law rule in part or for some purposes only, as it undertook to do in section 9a.” 30 Idaho at 768, 168 P. at 1083 (emphasis added). Conversely put, the legislature can restore the common-law rule in part, and here it did so in enacting section 9a.
The Burt case went on to use a police power analogy in explaining that section 9a was valid:
Nor must the legislation be held invalid because the legislature in terms provided for the enforcement of a liability as though it were a special benefit to the lands assessed, although the ground for the liability may be found in the police power of the state. (Donnelly v. Decker, 58 Wis. 461, 46 Am.Rep. 637,17 N.W. 389.) The legislature having power to provide for the levy of the assessment, the legislation must be upheld, even though in providing for the execution of the power the legislature may have confused the principles upon which the assessment was to be based, and may have provided in the same act for the levy of assessments on the basis of benefits received and responsibility for injuries inflicted.
30 Idaho at 768, 168 P. at 1083. Earlier on the same page the court had stated the reasoning which supported its police power rationale as a means of effecting assessments on land for benefit conferred:
The practical effect of requiring assessments to be made against the tract of land as a benefit, instead of creating a personal liability of the owner thereof, is to relieve the owner of the tract from any personal liability. By a proper exercise of the police power of the state the owner of land might be held personally liable for any damage which results from his action in bringing water upon his land by artificial means. If the legislature chose to provide for such liability only in connection with drainage districts and to *912limit assessments to the lands only and relieve the owners from personal liability, the owners cannot be heard to complain.
30 Idaho at 768, 168 P. at 1083. The holding of Burt is inescapable. The general discussion of the relaxation of the common law as applied to ditches is simply dicta. It served only the purpose of leading into the court’s conclusion that where assessments for benefits conferred by the construction of a drainage system are concerned, the 1915 amendment reinstated the common law rule that lack of negligence was not a justifiable reason for refusing to pay the assessment.
PART III.
CONCERNING THE ERRORS OP UTAH POWER’S WAYS
In its briefing to this Court, Utah Power made a number of factual allegations which have not yet been held up to the truth-seeking light of trial. Despite their lack of finality and the fact that the district court has yet to consider most of the evidence in the context of a trial (keep in mind the procedural posture of this case: The landowners are appealing from the effective dismissal of several substantive theories, not from a judgment entered subsequent to trial) these factual allegations were made and apparently considered by this Court. It therefore behooves someone to refute them.
One such set of allegations derives from Utah Power’s argument that one benefit to the landowners of the Bear River-Bear Lake system is the availability of additional irrigation water for reclaimed agricultural lands. Utah Power Brief at 2. However, Utah Power fails to disclose the direct primary benefit to it of millions of dollars of earned profits from hydropower generation.
Despite Utah Power’s omission, this Court should not ignore the plain economic motivation for which Utah Power’s series of hydropower generating plans and related water reservoirs and control works were originally constructed and continue to be operated.6 Utah Power’s attempt to divert attention from its business purpose of generating and selling electricity for profit by cloaking its activities under a mantle of alleged benevolent service to irrigation, recreation, and fisheries interests, is a mere tactic designed to support its specious “balancing” contention.
Utah Power contends that how it makes management and operational decisions regulating the storage level in Bear Lake, including alleged reliance on snow survey and forecast runoff reports and other data, supports the reasonableness of its operations. Utah Power Brief at 2. It characterizes the Circuit’s finding that the 1983-1986 spring ruhoff was “unusually heavy” as an “understatement,” while conceding it to be accurate. Id. Utah Power then amplifies the record by selectively quoting certain statistics to support its alleged reasonable operations. The Circuit omitted any specific statistics in its factual statement and findings.
Utah Power’s select statistics should have been regarded by this Court as outside the factual record. More importantly, however, Utah Power’s “statistics” are grossly incomplete and misleading for several reasons, and illustrate the maxim that “anything can be proven with statistics” and their selective manipulation.
Utah Power sought to create the impression that the “unusually heavy” runoff was solely responsible for the flooding discharges, and thus eliminate its own significant role in creating the problem. Utah Power’s statistics failed to advise the Court that there was more than adequate storage capacity which could have held all of the actual runoff which occurred in the flood *913years 1983-1986, if Utah Power had regulated the lake level consistently with the irrigation reserve provided by the Compact. Utah Power refused to do so. In addition, Utah Power’s statistics failed to advise the Court that in each flood year, even prior to spring runoff commencing, Utah Power had allowed the lake to be at 5919 feet or higher, far in excess of the irrigation reserve of 5914.61 feet set by the Compact.
Utah Power’s statistics failed to advise the Court that significantly less flooding and damage would have occurred if Utah Power had met its own target lake level elevation of 5918 feet in the flood years 1983-1986. It failed or refused to do so. Utah Power’s statistics failed to advise the Court that Bear Lake is functionally full at a 5923 foot level. Utah Power’s failure to operate consistently with the irrigation reserve level, or even to meet its corporate-set 5918 foot target level, converged with the “unusually heavy” (higher than average) runoff to create the necessity for Utah Power to make flooding discharges. Utah Power’s statistics also fail to advise the Court that the arbitrary maintenance of elevations higher than required by the irrigation reserve provided in the Bear River Compact was solely discretionary on the part of Utah Power.
Utah Power failed to advise the Court that its corporate operating policy establishing a target lake elevation of 5918 feet posed a risk of flooding downstream landowners one year in every five according to its own prior risk analysis study done in 1971.7 See Appendix A, which is the cover memo and pages 3 through 5 of the Bear River-Bear Lake operating criteria prepared by Utah Power in October of 1971, after the initial flooding which ultimately gave rise to the litigation in Kunz I. Utah Power conceded at trial that its 5918 foot corporate-set target lake elevation was exceeded prior to spring runoff in each year from 1983 through 1986. From these facts it is evident that the effect of lake elevations higher than Utah Power’s optional “Minimum Power Release Elevation” of 5918 feet, or the Compact s irrigation reserve level of 5914.61 feet, placed the risk of flooding damage squarely on downstream landowners in years of higher-than-average or “unusually heavy” runoff. Yet Utah Power did not tell the Court that all historic runoff statistics compiled since the facilities were constructed in 1917 establish that no flooding in any year through 1986 would have occurred, if Utah Power had operated consistently with the 5914.61 foot irrigation reserve level.
It is clear that Utah Power has declined to operate the system in a manner which would be consistent with the Bear River Compact. This is evidenced by the adoption of a “Minimum Power Release Elevation” level of 5918 feet as company policy, despite the fact that the level, on its face, did not comply with the Compact. In the “unusually heavy” successive runoff years of 1971-1972 and 1983-1986, even a reduction to the 5918 foot level was not achieved. Thus the runoff could not be contained, nor could discharges of water beyond the banks of Bear River, with resultant flooding, be avoided.
Historically, the Bear River drainage has been known to be highly variable as to quantity and timing of spring runoff, even more than most watersheds. This is due to extremes in geographic features, including elevations, and to the variability of weather patterns. See, Kunz I, 526 F.2d at 502.
Utah Power knows that actual runoff in prior years has been two to two-and-one half times above projected runoff. That situation occurred in 1971-1972, and was litigated in Kunz I. Thus Utah Power’s assertion that it was “surprised” when the same level of runoff occurred in 1983-1986, lacks credibility. What happened in 1971-1972 and again in 1983-1986, could hardly have come as a surprise or have been unforeseeable. The fact is Utah Power simply chose to operate on the basis that if heavy runoffs occurred the risk would be transferred to landowners below Bear Lake.
*914Utah Power’s balancing of competing interests argument is simply used to justify the low priority Utah Power gives to meeting the flood control duty it clearly had after Kunz I. It is not surprising that the interests of recreation and fisheries, which allegedly favor a high lake level, directly parallel Utah Power’s hydropower and irrigation interests.
Despite Utah Power’s lip service to balancing the various interests, the objective facts demonstrate that Utah Power operated the system, as a matter of corporate policy and after study and deliberation, with little or no regard to the flood control duty owed to downstream landowners. Utah Power’s assertion at page 4 of its brief that “in 1983, when the tremendous and unforecasted runoff occurred, Utah Power stored as much of the runoff as was physically possible,” begs the issue. The amount of water it is physically possible to store varies depending on Utah Power’s advance planning and regulation of the lake level.
Utah Power’s attempt to distinguish between stored and bypassed water is a distinction without a difference. Utah Power undertook to and did divert, manage, and control all of the natural flow of Bear River. It diverted all such water by Stewart Dam into its regulatory system and artificial works and attempted to control and manage storage and releases, whether bypassed or not. In fact, Utah Power made controlled discharges from its diversion works which released combined stored and bypassed water in excessive quantities into the natural downstream channel of Bear River, which in turn overflowed the banks onto Landowners’ lands. The Circuit’s Order so states.
Utah Power has the responsibility, both legal and moral, to ensure that discharges do not exceed the carrying capacity of the natural channel. This responsibility flows from Utah Power’s voluntary undertaking to dam and control the water; its exclusive control, and the Landowners’ dependent position and total lack of control; the lack of flood easements or other legal authorization for overflows of released water from the natural channel; and the plain language of the Dietrich Decree which limits Utah Power’s discharges to the “natural channel.”
Utah Power insists the Dietrich Decree gives Utah Power the right but not the obligation to divert and store up to 5500 cfs from Bear River (an amount greater than any historic natural flow). Such an argument deliberately ignores the plain language of the Dietrich Decree, as construed in Johnson v. Utah Power & Light, 215 F.2d 814, 816 (9th Cir.1954), and Gossner v. Utah Power & Light Co., 612 P.2d 337 (Utah 1980). Those cases held that Utah Power has no right to discharge water from its system into the natural channel of Bear River in amounts which overflow the banks. Johnson and Gossner directly contradict Utah Power’s construction of the Decree, and this Court should have followed the holding in those cases.
• The Compact represents the balance achieved through the legislative process and through interstate negotiations between Idaho, Wyoming, and Utah. It was approved by Congress. The Compact’s balance is consistent with the Dietrich Decree, which is the source of Utah Power’s water rights on the Bear River, and with the Idaho statutory and common law governing water rights, trespass and nuisance.
Utah Power disregarded the balance of the Compact arrived at through this process. Utah Power concludes it is free to operate at any higher level it deems in its exclusive wisdom is appropriate. The higher lake level Utah Power deems appropriate not surprisingly favors its own interests and is consistent with its perceived duties to recreation and fisheries, thereby sacrificing the legal flood control duty which would protect the Landowners.
Utah Power diverts at its Stewart Dam the entire flow of the Bear River, the major river system in a several thousand square mile drainage area covering parts of three states. The size, degree and magnitude of Utah Power’s artificial works, and its control of all flows in Bear River, plus the substantial hydropower generated as a result of harnessing the entire natural flow *915of the Bear River, clearly distinguish the Bear River system from the irrigation and drainage systems which have formed the factual backdrop for so many of the Idaho cases which deal with the damage occasioned by the release of stored or managed water. This is a distinction not only of degree, but of kind, and it therefore merits the adoption of rules which take into account the unique facts which set such large operations apart from other systems.
PART IV.
FAILURES OF THE MAJORITY OPINION
The Ninth Circuit appeal by the Landowners, which underlies the certified questions which are before this Court, is two-pronged: It challenges the validity of the evidentiary rulings and instructions in the negligence action, and also challenges the sua sponte dismissal of the alternative theories. The majority opinion fails to recognize the two-pronged nature of the appeal.
The majority opinion fails to comprehend that in each of the three certified questions reference to Idaho law implicitly means existing Idaho law. The panel’s concern is the state of Idaho law, both statutory and case precedent, which was in effect at the times when the flood-damaging waters were intentionally released by Utah Power. This Court has not been asked to redefine the law, or to declare what it presently perceives the law ought to be. This Court has no controversy before it, and hence has no occasion to forge new law.
Yet the majority opinion, after reciting the three certified questions, and after noting the panel’s recognition of two lines of cases emanating from this Court, develops its own approach to answering the questions: “Our task essentially is to determine which line of cases more closely applies to the factual circumstances presented here, which involves an artificial water diversion and storage system (Bear Lake) which is subsequently discharged into a natural channel (Bear River) and thereafter causes flooding.” At 903, 792 P.2d at 928. Readily appearing to dictate a pre-ordained result, the Court holds that “the Stephenson and Burt line of cases applies,” and accordingly responds “no” to the three certified questions which supposedly tells all. Id.
The Court asks itself: Why does Idaho case law limit the theories of liability which can be brought against a ditch/canal constructor/owner/operator whose waters overflow, whereas no such limitations apply where the transgression is in placing an obstruction or breakwater barrier in a natural water course? The question is both poorly worded, and diversionary. The evolving law as to non-natural watercourses dealt initially in terms of seepage and flooding from artificially constructed irrigation (and, later, drainage) canals. In regard to such artificial irrigation works, it was statutory law which imposed a duty of care upon the constructor/owner/operator.
To the interested reader, it may seem inconceivable that an opinion emanates from this Court, in response to the panel’s straight forward request for an answer to three questions, which makes no mention of I.C. § 42-1204, and the thorough discussion of its application made by Justice McFadden in authoring this Court’s 1976 Brizendine opinion, Brizendine v. Nampa Meridian Irrigation Dist, 97 Idaho 580, 548 P.2d 80 (1976). That opinion was unanimous. One of those justices is the author of today’s opinion for the Court. Today’s majority in speaking of Burt states that therein “we wrote:....” At 904, 792 P.2d at 929 (emphasis added). Every justice on the Court when Burt was issued has long ago passed away. Although Burt was correctly decided, better I would think that today “we” would more providently be concerned with the teaching of Brizendine. Unfortunately for Brizendine, it does not fit into the theme of what some may perceive to be the very shallow analysis by which the majority opinion is today able to espouse that “[t]he same policies which compelled this Court to limit the liability of irrigation canals from suit for all but an action in negligence also extends to those entities which operate the artificial water diversion and storage systems, i.e., dams and reservoirs which supply the water to *916the irrigation canals.” At 904, 792 P.2d at 929. This assertion is made despite the fact that no statute analogous to I.C. § 42-1204 exists for artificial water diversion and storage systems. The statute which modified the common law and which undergirds the limitation of liability applicable to irrigation canals does not apply to dams and reservoirs. Therefore, that modification of the common law should not apply to limit the theories of liability available to plaintiffs who seek compensation for damage caused by waters released from dams and reservoirs.
Quietly and subversively the majority opinion puts irrigation ditches and canals in the same category with dams and reservoirs. This it does without any examination of the two Idaho cases cited to by the Burt court, the territorial decision of McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623 (1886), and Stuart v. Noble Ditch Co, 9 Idaho 765, 76 P. 255 (1904). The McCarty opinion was issued just three years after the enactment of what is now codified as I.C. § 42-1204, and which has not been amended in 110 years. Obviously the complaint in that action was founded on the statute. The allegations of the complaint included the giving of notice to the defendant in compliance with the statute, and the defendant’s yet persisting in not repairing his ditches so as to stop the overflowing of plaintiff’s land. The real issue in the case was defendant’s claim that plaintiff at very little expense to himself could have avoided the damages. The Stuart case was somewhat different, but not much. The allegations of the complaint were couched in the language of what is now I.C. § 42-1204. Likewise the requirement of notice was apparently involuntary under the statute. Although the company called itself the Noble Ditch Company, it appears that it was the owner and operator of a ditch of sufficient stature to be called a canal. Those two cases seem to stand for no more than that the statute mentioned created liability, and there was no need to resort to invoke any claim of strict liability. For certain those cases were not limitations on the liability imposed by Fletcher v. Rylands, but rather were creation of statutory liability.
The majority opinion, notwithstanding the exhibition of little research into prior case law, is entitled to credit for its citation to Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917). The majority sees that Boise Development case as dealing with the alteration or obstruction of natural streams, which, in consideration of the fact that the instant case deals with the natural stream or watercourse which was at one time the Bear River, makes pertinent the statement that “ ‘liability in such cases [does not] rest solely upon the narrow ground of negligence, but rather upon the broad legal principle that no one is permitted to so use his property as to invade the property of another.’ 30 Idaho at 690, 167 P. at 1035.” At 905, 792 P.2d at 930 (emphasis added).
However, it is quickly observed that the citation to the foregoing case is but a diversionary tactic. The author immediately retreats to asserting that such case law has no application “to the factual scenario set forth in the (panel’s) certification order.” Id. This thought is said to flow from the fact that Utah Power is simply carrying out its balancing duty. Apparently this is urged upon the premise that Utah Power has God-like authority in that regard. The explanation is that in carrying out its duty, Utah Power must not be held to any standard of conduct other than reasonableness, and that reasonableness must be only equated with not being negligent. This is not acceptable, except to the four members of this Court who wrongly apply it to the claim of the plaintiffs in this case. To my mind, it is pure ipse dixit, every bit as much as so as Utah Power’s supplications to this Court to decline to accept the certified question. Utah Power, completely in charge of the operation by which the waters of a natural watercourse, Bear River, were impounded, and stored in a reservoir superimposed on Bear Lake, has assumed the responsibility that goes hand in glove with authority. Kunz I, 526 F.2d 500, taught Utah Power the lesson of foreseeability. Yet, far into the spring months of each of the years in question, it filled that *917reservoir to the point where it became inevitable that the lands of the landowners would be flooded. The decision to throw this risk to the landowners was one within the power of one entity to make — Utah Power.
The decision to do as it did was not negligence. Far from that, it appears to have been just the opposite, a calculated business decision, a matter of corporate economics. Eventually it all came to pass, and the stored waters had to be released, not to irrigate the farms of the landowners but to flood those fertile fields. This type of conduct is available to corporate entities. The only risk of decision which they faced was the possibility of being sued, not a bad risk at all to those.who know the tremendous expense and risk of litigation. The landowners have been inequitably treated, whether they ultimately prevail or lose.
As I stated earlier, far better that Chief Justice Bakes and those who joined his opinion would have been more concerned with the Brizendine case, wherein Justice Bakes was part of a unanimous Court. That Court clearly understood that the rule of Rylands was alive and well in Idaho. Justice McPadden is not now, and was not in 1976, much given to idle writing. Had he thought that Rylands had expired somehow, he would have so written. Instead he wrote that the cross-appeal need not be considered because the plaintiffs had prevailed on the theory of negligence. In signing on to Justice McFadden’s opinion, not one member of the Court spoke up to urge that Rylands had died somewhere in the past. The rule of Rylands clearly applies to the claim of the plaintiffs. Moreover, a deliberate, calculated, intentional decision on the part of Utah Power to continue the impounding of waters far into the spring months, knowing what it knew, and the previous experience it had had, was not negligence but deliberate conduct, and a jury is entitled to hear the evidence. Nor can I see any reason for not allowing the jury to hear evidence on the theories of trespass and nuisance. Clearly the state of Idaho law at the least allows the landowners the opportunity to test out their claims.
APPENDIX A
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. The same quote, made the backbone of the thesis of Chief Justice Bakes’ opinion for himself and three other justices, is set forth in that opinion at 904, 792 P.2d at 929.
. Inexplicably, Chief Justice Bakes in authoring the majority opinion has omitted all citations found in Burt.
. As a side note, it bears mentioning that the trial court excluded the Landowners’ proffered evidence regarding Utah Power's interest in maintaining a high lake elevation to maximize hydropower profits, despite its obvious relevancy and materiality. This evidentiary ruling apparently has been challenged by the Landowners as reversible error on even the negligence theory in the Circuit Court, and will presumably be decided in the Circuit’s ultimate opinion.
. This evidence was excluded by the trial court, and is another evidentiary ruling challenged as reversible error by the Landowners in the Circuit.