Residents who live near any of the thousands of miles of Idaho irrigation canals could be affected by a proposed amendment to state law that would limit canal owners’ liability for damages under some circumstances.
House Bill 398 was introduced at the request of Norm Semanko, executive director of the Idaho Water Users Association, and gets a public hearing Wednesday.
If it passes out of the committee, it would go to the House floor.
The bill says canal owners shall not be liable for damages or injury caused by the discharge of water into a ditch or canal by a third party without the permission of the owners and any “act of God,” including fire, earthquake, storm, flood or “similar natural phenomenon.”
But what if poor maintenance occurred before an act of God?
A federal judge in 2009 found that poor maintenance of a navigation channel by the Army Corps of Engineers led to some of the damage and flooding after Hurricane Katrina in 2005. Justice Department lawyers have tried to get the decision overturned, arguing the federal government has immunity under the Flood Control Act of 1928.
Gophers are among the most common saboteurs of irrigation canals. In April 2011, the burrowing critters were deemed the “major culprit” in a canal breach that inundated a Caldwell subdivision.
Would gophers be considered a “natural phenomenon” under the proposed Idaho law?
“I don’t think this bill would resolve the question of gopher liability, one way or the other,” said Dan Steenson, a Boise attorney who drafted HB 398. He represents several irrigation districts.
“Gopher holes are a condition that canal companies are accustomed to countering,” said Steenson. “Canal managers have an obligation to check canal banks to see if there are holes that would affect the ability to retain water.”
Steenson said unauthorized discharges into canals and excavation along or through a ditch bank are a problem for canal owners statewide. Canal companies have been sued for damages.
“It has come up, but I don’t know that it’s come up a lot,” he said of litigation.
COMPLAINTS ARE RARE
The Boise Project Board of Control manages 1,500 miles of irrigation canals in Southwest Idaho, including the New York Canal.
It’s rare for the board of control to get complaints, much less lawsuits, Boise Project Board of Control manager Paul Deveau told the Idaho Statesman in September.
But mysterious flooding of homes along two different sections of the canal in Boise last year led to complaints and litigation.
Bob Allis, a Boise Bench resident, sued over damages to his home on Hillcrest Lane. He said it’s taken a financial and emotional toll on his family.
“We feel much sorrow for anyone that has to undergo the avenue we have for the past two years — and any legislation that would limit the liability for issues of this nature is, in our minds, unethical and not in the interest of the public,” Allis said last week.
Amanda Wheelwright, a resident on Minuteman Way in East Boise, said she and two other neighbors had filed a notice of claim with the Boise Project Board of Control about water damage to their property this past summer. They haven’t received a response.
TAKING THE COURTOUT OF THE EQUATION?
Wheelwright, who believes the bill is too vague, said she plans to testify against HB 398 Wednesday.
“Whatever limited liability they have for anything going wrong in the canal and affecting residents is quickly disappearing,” Wheelwright said.
Barbara Jorden, a lobbyist for the Idaho Trial Lawyers Association, said the law change is unnecessary.
“If they have maintained a waterway and there’s something out of their control that happens, then they typically aren’t responsible for that person who is adversely affected,” Jorden said.
But she said the proposed legislation would remove the ability for a victim to seek damages or for a court to determine where responsibility lies.
“When you give someone straight-up immunity, they’re just immune, period — so the courts can’t make the determination,” Jorden said.
Katy Moeller: 377-6413
