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Nez Perce Water Claim Rejected Judge says 1893 Pact Reduced Reservation Associated Press The Times-News - November 12, 1999

TWIN FALLS -- In a ruling with major implications for southern Idaho irrigators, a district judge has rejected the Nez Perce Tribe's claim to much of the water in the Lower Snake, Clearwater, Salmon and Weiser rivers.

District Judge Barry Wood held that an 1893 agreement legally reduced the Nez Perce reservation to just a fraction of the land the tribe originally inhabited -- and ruled that the tribes were not entitled to much of the water in the Snake and other rivers. The tribes had argued that fishing rights, granted under an 1855 treaty, entitled them to the expansive water rights.

In a major victory for the state of Idaho, irrigators and power generators, Wood ruled that the fishing rights reserved by the Nez Perce in 1855 and subsequent treaties did not include in-stream rights to water outside the reservation's boundaries in north-central Idaho.

The Nez Perce had claimed all the water in the Snake River in connection to tribal fishing rights and salmon survival. Critics feared those claims might dry up irrigated agriculture in southern Idaho; protesters to the Nez Perce's claims also included Idaho Power Co.

Wood's Nez Perce ruling came on the heels of a separate -- but controversial -- water rights decision last month by the Idaho Supreme Court. The Supreme Court ruled that the federal government is entitled to a water right for all the unappropriated water in three wilderness areas and one national recreation area, a decision decried by much of the state's political leadership.

The high court is being asked to reconsider that 3-2 decision.

The tribe had argued that the right to fish necessarily requires water in the rivers, so that without the water rights the right to fish would be a hollow promise.

But Wood said that since the treaties were intended to resolve conflict between the tribe and settlers on the land previously claimed as reservation, it was inconceivable that the federal government would have given the Nez Perce rights to water on off-reservation land "intended to be developed and irrigated by non-Indian settlers."

Wood's decision, issued late Wednesday, case came amidst inconclusive efforts to mediate a settlement.

There was no immediate comment from tribal leaders.

Although Thursday was a state holiday, the state's top natural resource lawyer, Deputy Attorney General Clive Strong, was impressed by Wood's use of U.S. Supreme Court precedent as the foundation for his ruling.

"This is a landmark decision giving effect to prior Supreme Court decisions that limit the tribal right to harvest to simply that -- a right to harvest. It doesn't carry with it a property interest," Strong said. "And with that determination we now have removed a significant cloud over water rights within the state of Idaho."

The judge, who has been handling Snake River water rights adjudication matters since Daniel Hurlbutt retired late last year, emphasized that his ruling applied only to off-reservation water rights and made no determination about the quantity of any on-reservation rights the Nez Perce may have. He cited the fact that there was no agreement on the exact reservation boundaries.

But Wood said the official Nez Perce Reservation, which had been halved to 7 million acres by the 1855 treaty, was slashed to less than 100,000 acres by the 1893 agreement. He based that conclusion of the U.S. Supreme Court in a 1998 South Dakota case.

In that ruling, the high court held that the federal legislation ratifying an 1892 agreement under which the Yankton Sioux Tribe ceded reservation land back to the government in return for compensation officially diminished the size of the reservation over which tribal leaders had jurisdiction.

Wood pointed out that the same federal legislation also ratified the 1893 agreement in which the Nez Perce ceded all but a fraction of their reservation for nearly $1.7 million in compensation.

"In this court's view, pursuant to the holding in Yankton Sioux, the boundaries of the Nez Perce Reservation were diminished to the extent of all unallotted lands not expressly reserved in the 1893 Agreement."

Strong said that conclusion may have even more far-reaching implications than the specific water right finding.

"This guidance will help to resolve a number of jurisdictional conflicts that have existed over the years," he said.

The judge maintained in his 49-page opinion that the Nez Perce were trying to use a water right to correct a number of unforeseen problems that have developed over the past century and impaired its guaranteed fishing rights -- access, overfishing by others and now scarce water.

"In the future there will unquestionably emerge other unforeseen factors which may also pose a threat to fish habitat," Wood wrote. "However, at some point only so many interpretations can be exacted from the Treaty language."