dissenting.
I respectfully dissent. It is my view that Naylor Farms was entitled to recover its attorney fees under I.C. § 12-117.
The district court correctly noted that Latah County adopted Ordinance No. 258 for the purpose of regulating water. As the court noted:
Although Ordinance 258 is enacted as a zoning ordinance, it purports to establish a ‘Groundwater Management Overlay Zone.’ In other words, by its own terms, the ordinance purports to manage groundwater. Additionally, the purposes set forth in the ordinance all relate to issues of groundwater quantity and quality. Consequently, the Court concludes that Ordinance 258 does attempt to regulate water.
This conclusion is supported by the following colloquy in the County’s 30(b)(6) deposition:
Q. [Counsel for Naylor Farms] Handing you what’s been marked as Exhibit 25. I don’t have copies for everybody because we just marked it.
A. [Commissioner Kimmell] Okay.
Q. That is a March 23rd, 2005, article from the Lewiston Morning Tribune.
A. Yes.
Q. It says down towards the middle of the article there that, ‘Likewise, Latah County Commissioners Paul Kimmell and Tom Stroschein let everyone know that they had passed an emergency ordinance that limits certain water-depleting land uses in a newly designated Moscow sub-based area.’ And there’s a quote, ‘Since we can’t manage water directly,’ said Kimmell, VeT do it indirectly.’ First of all, is that what you said to the Tribune?
A. I don’t recollect my exact words, but based on the accuracy of the newspaper.
Q. What did you mean there when you said, ‘Since we can’t manage water directly, we will do it indirectly’?
A. I believe what I meant there was land use ordinances have the ability to consider water resources within — as part of the land use itself. Water, land, air quality are all part of our authority under the Local Land Use Planning Act.
Q. Okay. So I take it then that the purpose of these particular land uses that — the purpose behind choosing these particular land uses that are listed down here that are prohibited *813under Section 2 was to essentially eliminate those uses that could potentially require a large quantity of water?
A. That’s correct.
Q. Commissioner Kimmell, is it fair to say that Ordinance 258 was a way for the Commission to control who in Latah County gets the water through land-use planning?
A. I wouldn’t agree with how you have stated that. I would say that 258 helps us better manage the water resources in Latah County.
Q. By prohibiting some uses — use of water for certain land uses outright?
A. Correct.
As noted by the district court, the ordinance, itself, makes a number of references in its statement of purpose that pertain to groundwater management (“maintain sustainable groundwater resources”, “policies for groundwater management”, “regulate developments which could jeopardize ... water quantity,” and the like). While the Court is correct that counties may, pursuant to I.C. § 39-126, participate with regard to water “quality” management, there is no legislative or other authority for counties to manage water “quantity.” Section 39-126 provides that counties and other political subdivisions of the State are “authorized and encouraged to implement ground water quality protection policies within their respective jurisdictions, provided that the implementation is consistent with and not preempted by the laws of the state ...” The code section repeatedly refers to water “quality”, but the word “quantity” appears nowhere in the section. Nothing in the Local Land Use Planning Act (I.C. §§ 67-6501, et. seq.) provides counties or cities the authority to regulate water quantity issues.2
It should be kept in mind that the ordinance was adopted after the county was unsuccessful in opposing Naylor Farms’ water right application with the Idaho Department of Water Resources. After failing to stop Naylor Farms’ project by trying to shoot down the water rights application, the county turned to Plan B, which was an attempt to shoot down the project by utilizing a power— management of groundwater — that the county did not possess.
The Commissioners were well aware that they were treading on thin ice in adopting the ordinance. It appears rather apparent that their effort was to stymie Naylor Farms by attempting to employ groundwater management authority, which they understood they lacked. Thus, it appears to me that they subjected themselves to the imposition of Section 12-117 fees. Naylor Farms has borne an unfair and unjustified financial burden attempting to correct a misstep that Latah County should never have taken. Ater v. Idaho Bureau of Occupational Licenses, 144 Idaho 281, 160 P.3d 438, 443 (2007).
. I.C. § 67-6502(k) says a purpose of the Act is to "avoid undue water and air pollution.” Again, the purpose is limited to water quality, not quantity. While I.C. § 67-6537, which is designed to encourage the use of surface water (as opposed to ground water) for irrigation purposes, requires local governing boards to consider the effect of a comprehensive plan (or amendment thereto) on source, quantity and quality of ground water (subsection 4), it provides no authority for local governing boards to regulate or prohibit the usage of either surface or ground water and specifically preserves the state’s authority in such matters (subsection 3).