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Water Rights Deal has Benefits for All, Touring Lawyers say by Eric Barker Lewiston Tribune, July 3, 2004

Lawyers from the city of Lewiston, state of Idaho and Nez Perce Tribe are touring Idaho on a campaign to educate people about the proposed settlement of tribe's water rights claims.

The lawyers met with people from Lewiston and Orofino Thursday, Coeur d'Alene and Sandpoint Wednesday and Idaho Falls Friday and told them the deal has benefits for all sides.

"I think this is a great global solution to a lot of problems," said Don Roberts, attorney for Lewiston.

Any of the parties involved could have litigated their claims but chose the certainty of settlement over the possible risk and reward of going to court.

Steven Moore, an attorney for the tribe compared the uncertainty of going forward with the court case to standing at the edge of an abyss. The chasm could be bridged by a court victory or widened by a defeat.

"If you lose, the abyss looks pretty dark," he said.

The proposed settlement announced in May would give up most of the tribe's water claims "now and forever" in exchange for fish- friendly flows in the Salmon and Clearwater rivers, 30 years of flow augmentation from the Upper Snake River Basin, an on-reservation water right, habitat protections and more than $90 million.

Irrigators in southern Idaho would gain certainty of having enough water for their crops each year. They would also get some protections from Endangered Species Act lawsuits.

Cities in the Clearwater and Salmon river basins would be able to continue their current uses of water and would be able to grow in the future. The state would continue to have sovereignty over Idaho water and would also gain some protections against ESA lawsuits.

"There is no city in the Clearwater Basin that is going to be negatively impacted," said Roberts, "It protects current domestic, commercial, municipal and industrial use."

Rather than describe provisions of the settlement as impacts to the parties, deputy Attorney General Clive Strong described them as benefits. People may be opposed to the settlement for philosophical reasons, according to Strong. But they won't be harmed by its provisions, he said.

For instance, Strong said some people in the upper Clearwater Basin wanted the case to continue in the hopes that it would address their concerns over tribal sovereignty and jurisdictional issues. But he said the settlement does not give the tribe jurisdiction over nontribal members.

Moore said it is possible the state could prevail if the case were to go forward, and it is just as possible the tribe could win.

Either way, the case would take several years and cost millions of dollars, according to Strong. Moore pointed out the settlement has not been finalized and any of the parities, including the tribe, could decide to risk the benefits in the settlement against the possible spoils of a court victory.

"One choice for them that is still on the table is walking away from this deal and litigating."

He described the decisions faced by tribal members as important as those faced before the treaties of 1855 and 1863.

Likewise the state or different water interest groups could also risk it all for a court victory. Doing so involves uncertainty, according to Strong. By settling, "that uncertainty goes away," he said.