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Water Deal Goes to Legislature, Tribe by Rocky Barker The Idaho Statesman, November 27, 2004

Agreement has wide support in southern Idaho

Idaho's congressional delegation proved handily they had the clout and savvy to press through Congress a complicated water deal between the state and the Nez Perce Tribe.

The $193 million deal — which would provide benefits for endangered salmon; legal cover for Idaho water users and loggers; and cash, water and land for the tribe — awaits the signature of President Bush. It passed Congress after only a single hearing when Idaho Republican U.S. Sen. Larry Craig attached it to the omnibus budget bill last week.

But now the legal settlement will face far greater scrutiny in the Idaho Legislature and the Nez Perce Executive Tribal Council, which both must approve the agreement before March 31. The agreement has widespread support across politically powerful southern Idaho because it offers a legal framework for limiting the amount of water they must flush down the Snake River to aid endangered salmon and steelhead.

By ensuring a flow of 427,000 acre-feet of water — enough to keep Shoshone Falls flowing for two and a half days — the deal allows the state to meet its obligations to protect endangered salmon and steelhead and still have water in reservoirs like Lucky Peak and Anderson Ranch. A tribal victory in court could recognize tribal control of all or most of the water in the Snake River and its tributaries, including the Boise River.

But in north-central Idaho communities like Orofino and Kooskia, leaders see few benefits, a lot of confusion and an undercutting of their own legal challenges to jurisdiction over land with the Nez Perce.

"We're concerned that there are 10 federal agencies and the tribe involved in this program, and that means the tribe and the federal government are going to have quite a bit of influence over our water and land," said John Schurbon, mayor of Kooskia

Opponents — tribal and non-tribal — believe they would eventually get a better deal in court.

"Idaho has many aces in its hand, and it's walking away from the table with a handful of cash," said Rep. Skip Brandt, R-Kamiah.

Steven Moore, a Colorado attorney who negotiated the deal for the Nez Perce and supports it, still believes the tribe has a strong legal case on its water claims.

"We feel if people want to roll the dice, the tribe is still very much in the game," Moore said.

Tribe relinquishes claims
The agreement came after three years of secret negotiations prompted by the tribe's water claims in a state court reviewing all water rights in the Snake River. Idaho 5th District Court Judge Barry Wood rejected the tribe's claims not only to the water in the Snake and its tributaries, but to most of the water on its reservation.

Under the deal, the tribe retains 50,000 acre-feet of water rights for future use, but those rights cannot stop existing water use. The tribe retains access to springs on federal lands in the area it formerly occupied, but gave up rights the 1855 treaty recognized on private lands.

"We believe the tribe is holding four aces in regard to those rights, and we were willing to give those up," Moore said.

For Betty and Bill DeVeny, who have a ranch eight miles southwest of Riggins, the settlement adds new uncertainty to their business. They graze cattle on the Nez Perce National Forest and have state-recognized rights to water their livestock from springs on federal land.

"We have no idea how this agreement would affect our rights," Betty DeVeny said.

Other ranchers worry that a proposed transfer of land managed by the Bureau of Land Management to the tribe would end their grazing on that acreage, which Moore said is not true. Instead, the tribe will offer them permits managed by the Bureau of Indian Affairs.

The state legislation will include minimum stream flows in the Salmon and Clearwater river drainages. But they will be set by the state with the water rights held by the state.

Agreement offers protection
Supporters, including Gov. Dirk Kempthorne, say the deal offers thousands of farmers and loggers a way to continue their business without the threat of lawsuit or federal enforcement under the Endangered Species Act. Separate of the water rights agreement with the tribe, the agreement sets up federally endorsed, voluntary 30-year conservation plans.

Farmers, ranchers and timberland owners who agree to follow the rules of the plan are considered in compliance with the Endangered Species Act requirements to protect salmon, steelhead and bull trout habitat. The details for ranchers have not yet been hammered out, so the final legislation remains unfinished.

Schurbon and DeVeny say that adds to their anxiety.

"I think one reason people are so upset is that it was done in secret," DeVeny said.

State lands that provide funding for schools will be managed under the rules in the agreement, reducing the timber harvest and costing school children, Brandt said. Schurbon said that, and the limits private timber owners will face, will lower the tax base for local governments.

But without the deal, federal agencies or environmental groups in court could shut down all timber harvests on those lands unless similar rules are put in place, said Clive Strong, a deputy Idaho attorney general who helped negotiate the deal.

Still, the deal can't guarantee the conservation plans will stand up to a legal challenge. Even the southern Idaho reservoir framework could be overturned by a court challenge by salmon advocates. If that happens, the deal could be called off.

Roll of the dice
Schurbon, Brandt and others in north central Idaho are confident that Judge Wood's decision would be upheld in the Idaho Supreme Court and have a good chance in the U.S. Supreme Court, as well. Their major argument against the deal is Idaho had no need to negotiate anything.

"We won in district court, and Judge Wood did a good job," Brandt said. "Do we think for a minute the Idaho Supreme Court isn't going to support his decision?"

Moore said the strength of the Indians' legal arguments has some Nez Perce tribal members arguing the same thing, only with the opposite outcome.

"There are members of the tribal community who believe we gave up too much," Moore said.

Roger Ling, a Rupert attorney for several irrigation districts and canal companies in southern Idaho, said lawyers looked closely at how the U.S. Supreme Court had ruled on other Indian water rights cases in the past. "That gave us a great deal of uncertainty how that would come out," Ling said.

Now that the Nez Perce Water Agreement has passed Congress it goes to the Idaho Legislature and the Nez Perce Executive Business Council where it will face closer scrutiny. It has widespread support in southern Idaho but faces strong opposition from north central Idaho residents.

What does the Nez Perce water deal provide?

For the Nez Perce

• Recognizes the tribe's right to use 50,000 acre-feet of water on its reservation. It will be administered on tribal lands under tribal water code.
• Gives the tribe a $50 million trust fund for natural resource and economic development.
• Provides $23 million for a sewer and domestic water supply system and a water quality lab on the reservation.
• Provides $10.1 million in lieu of federal reservoir storage space.
• Transfers management of the Kooskia federal hatchery on the Clearwater River to the tribe. It also would co-manage the Dworshak hatchery with the federal government.
• Transfers ownership of $7 million worth of federal land chosen from 11,000 acres within the boundaries of the tribe's reservation.
• Gives access and allows use of springs and fountains on federal lands in the territory the tribe ceded to the United States in its 1863 treaty.
• Gives the tribe and the state more say in how 200,000 acre-feet of water in Dworshak Reservoir are used to aid salmon and steelhead migration through a memorandum of agreement with the federal agencies that now make the decisions.

For salmon and steelhead

• Makes changes in state water rules that will all but guarantee that 427,000 acre-feet of water is available every year from southern Idaho to aid salmon migration.
• Authorizes up to another 60,000 acre-feet of water currently diverted by farmers to be purchased and left in the Snake River for salmon.
• Establishes state minimum stream flows on the Salmon and Clearwater rivers and tributaries to aid salmon spawning and migration.
• Institutes strict forest practices in the Clearwater and Salmon river drainages to ensure salmon and steelhead habitat is protected from destructive logging and road-building on state lands and private lands where landowners participate.
• Approves a cooperative habitat restoration plan with a $38 million habitat trust fund split between the state and the tribe.

• The Nez Perce Tribe waives all of its claims to water rights in the Snake River Basin beyond those recognized in the pact.
• Clears the final major hurdle to completing the huge inventory of water rights that has been going on since 1987.
• Limits challenges of timber sales based on the Endangered Species Act on state land in the Salmon and Clearwater basins.

• Protects the current state water distribution system including federal storage reservoirs like Lucky Peak, Arrowrock and Anderson Ranch that supply the Treasure Valley with water for drinking and irrigation.
• Protects existing uses, properly modified, from prosecution under the Endangered Species Act if landowners choose.
• Pays $11 million to farmers between Buhl and Murphy who sell their water rights that currently allow them to pump their water from the Snake River high up to surrounding plateaus.

• Establishes a $2 million fund for counties to offset the loss of the high-lift pumping farmers.

For the federal government

• Limits legal challenges under the federal Endangered Species Act to the Bureau of Reclamation's operation of Snake River dams in Idaho, but only after a public process.

President Bush must sign the omnibus budget bill that includes the Nez Perce Agreement. Then the Idaho Legislature and the Nez Perce Tribal Executive Committee must approve the agreement by March 31, 2005.

Also by that date, the state has to identify and negotiate minimum stream flows in the Upper Salmon River Valley, and negotiate the framework of a salmon protection plan for the Lemhi and Pahsimeroi basins in eastern Idaho.

The Bureau of Reclamation must finish consulting with federal fisheries agencies as required under the Endangered Species Act by March 31, 2005. But if the rules that come out of this public process exceed the demands for Idaho water outlined in the agreement, the deal can be negated.

Link to read a summary of the agreement