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Attorneys Report Progress in Nez Perce Water Rights Dispute by Jennifer Sandmann Times-News, July 2(?), 2002

TWIN FALLS -- Logjams broke in the lengthy legal struggle between the Nez Perce Tribe and just about everybody else who relies on Snake River water, but the details remain confidential as negotiations in the case continue.

The dispute over whether a historic Nez Perce fishing treaty places the tribe first in line when it comes to Snake River water remains one of the most complex and important issues in the legal sorting of Snake River Basin water rights.

The Nez Perce Tribe says its 1855 fishing treaty is useless because river conditions have deteriorated salmon runs, and it is using Snake River Basin Adjudication as an opportunity to remedy the problem. The case is inextricably linked to issues including dam breaching, flushing water downstream for the fish and relicensing Idaho Power Co.'s hydroelectric operations on the river.

Fifth District Judge Roger Burdick last month urged attorneys to provide leadership in reaching resolution. It's a more than 10-year-old issue that has scared Idahoans dependent on the Snake River for water.

Mediator Francis McGovern of Duke University said conceptual agreements have been reached on some of the sticking points.

"We had an exhausting series of days last week in Boise," McGovern said.

Attorneys Tuesday morning still were looking over the latest language outlined in the mediation, the details of which remain confidential as talks continue.

"We have made great strides. We aren't quite there, yet," McGovern said.

Only sketchy details were provided in court Tuesday.

McGovern segmented the issues into five broad categories: the Snake River upstream of Milner, the Salmon and Clearwater drainages, the tribal component, forest practices, and general conditions.

The Nez Perce Tribe is willing to drop its claims to water rights on private lands if other issues are resolved, said Steven C. Moore, an attorney representing the tribe for the Native American Rights Fund.

Time for resolution and timely implementation of an agreement is running short, because attorneys said the agreement would require the enactment of new federal legislation.

Attorney Scott Campbell, who represents some irrigators, questioned whether the thorny, multi-faceted case could be resolved soon.

"I think it's totally unrealistic to have something resolved in two or three weeks," he said.

But Burdick remains optimistic. He scheduled the next courtroom update for July 24 in Ada County. And he postponed deadlines in another Nez Perce water rights case out of caution that action on another front could flare up and potentially derail progress.

Snake River Basin Adjudication is the legal inventory of some 150,000 water rights in 38 of the state's 44 counties. The case can't be closed without resolution of the Nez Perce dispute, one of the big remaining issues.

Former water Judge Barry Wood in 1999 ruled that fishing rights did not entitle the Nez Perce to a water right for virtually the entire river. The tribe appealed to the Idaho Supreme Court, which has yet to make its ruling. While parties have been litigating the case, they also have been in meditation to seek a resolution outside of the courtroom.