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Shokal v. Dunn - 109 Idaho 330, 707 P.2d 441 (1985)

Rule:

The "reasonably probable" standard shifts the risk of failure and shows that the state is more willing to take a risk by providing individuals with the opportunity to put water to beneficial use. It indicates a willingness on the part of the state to take a chance that a proposed water use with sound prospects of financing will become a successful venture, thereby benefiting both the water user and the state. It is an appropriate standard for the financial resources requirement of Idaho Code § 42-203A (Michie).

Facts:

Respondent Department of Water Resources issued respondent Trout Co. applicant a permit to appropriate a certain section of water for fish propagation and hydropower generation. Petitioner individuals, Edward C. Shokal, Cole M. Reed and Billie Reed, protested raising issues on operational criteria. The district court found inadequate the Department's consideration of Trout's financial ability and the local public interest, affirmed the order as to public matters and remanded the case for new trial. Petitioners sought further appellate review, arguing that as concerned parties, they should have been granted a hearing at which they could object to the operational criteria for the project, cross-examine witnesses, and present their own evidence.

Issue:

Did the district court err in not applying the “reasonably probable” standard for the financial showing the applicant had to make in order to comply with Idaho Code § 42-203A ?

Answer:

Yes.

Conclusion:

The Supreme Court of Idaho affirmed the district court's decision to remand the matter for a new trial and affirmed the order as it related to public interest matters, but it reversed the district court's holding on Trout's financial resources, affirmed and reinstated the Department's decision and order on the issue of financing. The lower court's requirement that Trout show that they "then and there" had the financial resources to complete a project was far too restrictive.

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