Can the Idaho legislature kill an approved minimum stream flow application just by passing a concurrent resolution?

Plain-English summary

Representative Stan Hawkins asked the Attorney General about a provision in Idaho Code § 42-1503 that allowed the Idaho legislature to reject, by concurrent resolution, a minimum stream flow application approved by the Director of the Department of Water Resources.

The AG concluded the provision would be found unconstitutional under either of two analyses, and the Idaho Supreme Court had recently signaled in Idaho Power Company v. State (1983) that the same kind of legislative oversight over the Water Resource Board's planning function was unconstitutional.

Path one: rejection is a legislative act. Legislative power, under Idaho Const. art. 3, § 1, is the power to determine government policy. As the U.S. Supreme Court explained in INS v. Chadha (1983), the legislature is acting legislatively whenever its action alters legal rights, duties, or relationships, including those of the executive branch. Rejecting a minimum stream flow alters the rights of the Water Resource Board, the Director, and any member of the public who could request a stream-flow filing under § 42-1504. So rejection is a legislative act. Legislative acts in Idaho must take the form of a bill, with the "Be it enacted" enacting clause (art. 3, § 1), the printing, reading, and voting requirements (art. 3, § 15), and presentment to the Governor for signature or veto (art. 4, § 10). A concurrent resolution does none of those things. It cannot serve as a vehicle for legislative action.

Path two: rejection is an executive act. If rejection were instead characterized as executive (because the legislature is reviewing an executive decision), then it would violate the separation-of-powers doctrine in Idaho Const. art. 2, § 1, which prohibits one branch from exercising powers belonging to another. The legislature cannot exercise executive power.

Either characterization made the provision unconstitutional. Because the AG concluded the rejection mechanism failed under both analyses, he did not address Representative Hawkins' second question about what legislative action would suffice to prevent approval.

The AG also noted the Idaho Supreme Court's Idaho Power Company v. State decision had already struck down a related provision authorizing legislative oversight of the Water Resource Board's water-planning functions on similar reasoning. The Idaho Constitution had been amended in 1984 (after Idaho Power) to authorize legislative oversight of the Board's water-planning function, but that amendment did not reach the minimum-stream-flow approval process.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho Code § 42-1503 was enacted in 1978 to govern the Idaho Water Resource Board's filings to appropriate water for minimum stream flows. The procedure required the Board to apply, the Director of the Department of Water Resources to solicit input from affected agencies and conduct public hearings, and the Director to approve if the public interest would be served. The provision that drew the constitutional question was the final step: approved applications were to be submitted to each legislature by the fifth legislative day, and "(i) shall not become finally effective until affirmatively acted upon by concurrent resolution of the Idaho legislature; or (ii) except that if the legislature fails to act prior to the end of the regular session to which the application was submitted, the application shall be considered approved."

The "legislative veto" structure had become a flashpoint in federal and state constitutional law in the 1980s. INS v. Chadha (1983) struck down a federal one-house veto of executive deportation suspensions, holding that the action altered legal rights, was therefore legislative in nature, and had to satisfy bicameralism and presentment.

Idaho's framers had built in two specific guards against legislative shortcuts: the "Be it enacted" enacting clause (art. 3, § 1), the procedural requirements of art. 3, § 15, and gubernatorial presentment (art. 4, § 10). Together those provisions ensure the executive branch can veto, and the legislature can override only by a supermajority. A concurrent resolution bypasses all three.

The AG also pointed to Idaho Power Company v. State, 104 Idaho 570 (1983), where the Idaho Supreme Court invalidated a provision authorizing legislative oversight of the Water Resource Board's water-planning function on the ground that art. 15, § 7's reference to "such laws as may be prescribed by the Legislature" applied "primarily to procedural matters, and not to the specific, substantive grants of power" to the Board. The 1984 constitutional amendment that followed authorized legislative oversight of water planning, but did not reach minimum stream flow approval.

Common questions

What was the constitutional problem with rejecting a stream flow by concurrent resolution?

A concurrent resolution does not meet the requirements for legislative action: the "Be it enacted" enacting clause, printing, reading, and voting procedures, or presentment to the Governor for signature or veto. If rejection is a legislative act, it must take the form of a bill that passes through all three.

What if the rejection were characterized as executive instead?

Then the legislature would be exercising executive power, which Idaho Const. art. 2, § 1 forbids. The separation-of-powers doctrine prevents one branch from exercising powers belonging to another.

Did the Idaho Supreme Court's Idaho Power Company decision bear on this?

Yes, indirectly. Idaho Power (1983) struck down legislative oversight of the Water Resource Board's water-planning role on similar reasoning. The 1984 constitutional amendment after Idaho Power authorized that specific oversight, but it did not amend the minimum-stream-flow approval procedure in § 42-1503.

What about the federal INS v. Chadha decision?

Chadha established that a federal legislative veto altering legal rights and duties was a legislative act subject to bicameralism and presentment. The AG cited Chadha for the principle that legislative action altering rights must comply with constitutional procedure. Idaho's structure parallels the federal one in this respect.

Did the AG say what valid legislation could prevent stream flow approval?

No. Because the AG concluded the rejection-by-resolution mechanism was unconstitutional, the opinion did not address Representative Hawkins' second question (what legislative action would suffice to prevent approval). The implication was that any legislative action would have to take the form of a bill passing through both chambers and presented to the Governor.

Citations

Constitutions: Idaho Const. art. 2, § 1; art. 3, §§ 1, 15; art. 4, § 10; art. 15, § 7.

Idaho statutes: Idaho Code § 42-1503 (Supp. 1987); Idaho Code § 42-1504 (Supp. 1987).

Federal cases: Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

Idaho cases: Idaho Power Company v. State, 104 Idaho 570, 661 P.2d 736 (1983); Griffith v. Van Deusen, 31 Idaho 136, 169 P. 929 (1917); Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-06.pdf

Original opinion text

Full opinion text is preserved in the linked PDF. The opinion analyzed Idaho Code § 42-1503's legislative veto over approved minimum stream flow applications under two paths: first, that rejection is a legislative act and must comply with art. 3, §§ 1 and 15 (enacting clause, printing/reading/voting) and art. 4, § 10 (presentment to the Governor); second, that even if characterized as an executive act, it would violate art. 2, § 1's separation-of-powers requirement. The AG cited INS v. Chadha (1983) for the federal analogue and Idaho Power Company v. State (1983) for Idaho Supreme Court treatment of analogous oversight provisions, and concluded the provision would be found unconstitutional.

DATED this 26th day of June, 1987.

JIM JONES
Attorney General
State of Idaho