Wayne Kunz Olive Kunz Glenn v. Turner Carol Turner v. Utah Power & Light Company

ORDER

Various landowners (“Landowners”) brought suit against the Utah Power & Light Company (“Utah Power”) for damages to real and personal property caused by flooding waters that were discharged from a lake used as a water storage system by Utah Power. The district court dismissed all of the Landowners’ theories of liability except for the negligence theory. In a special verdict, the jury found that Utah Power was not negligent and the court entered judgment for Utah Power. On appeal, Landowners contend that the court below erred in dismissing its alternative theories of liability. We certify several questions to the Idaho Supreme Court because we are unable to determine if, under Idaho law, an action may be maintained pursuant to strict liability, direct trespass, or private nuisance theories for damages caused by the intentional discharge of stored water.

BACKGROUND

In Kunz v. Utah Power & Light Co., 526 F.2d 500 (9th Cir.1975) (“Kunz I”), we described the structure and operation of the identical river system involved here. We borrow extensively from that description.

Bear Lake lies on the border between Idaho and Utah. Bear River begins high in the Uinta Mountains of Utah,…