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Legislators See No Problems with Settlement by Adam Wilson Lewiston Tribune, May 21, 2004

Details of water claims settlement must still be worked out

The public will determine whether the Idaho Legislature agrees to the proposed settlement of the Nez Perce Tribe's claims to Snake River Basin water, lawmakers say.

The terms in the Snake River Basin Adjudication came as no surprise to legislators, who had been updated on the details by the attorney general's office in closed-door meetings in Boise in January.

"There's a lot of details to be worked out, but for the most part I'm happy to have it behind us," said state Sen. Joe Stegner, R-Lewiston.

"I think it's going to be hopefully a positive move and does settle some important questions. It allows all the parties, the tribe, the state and the federal government, to move forward."

The only thing likely to prevent the Legislature from approving the agreement next year is public dissatisfaction, said Stegner and other lawmakers.

The Nez Perce had laid claim to the water in the Snake, Clearwater and Salmon rivers as part of the tribe's 1855 treaty with the federal government, which guaranteed fishing rights.

Negotiations to settle the case took more than a decade, involved tens of thousands of individual water rights, and resulted in an extremely complex agreement mandating a certain amount of Snake River water will make it to the Lewiston area, but also promising to pay southern Idaho irrigation farmers for the water.

The agreement would also grant the Nez Perce new authority over fish hatcheries and Dworshak Reservoir on the Clearwater River.

For Sen. Skip Brandt, whose district includes the entire Nez Perce Indian Reservation, the deal is a mixed package.

"It's a very confusing issue; it's even hard to discuss it in short terms," he said. "Every part of the agreement is very complicated and touches everything from tribal claims to appropriations of water and money down the road."

Brandt, a Kooskia Republican who has opposed increased tribal jurisdiction, sees the tribe, as well as southern Idaho business interests, coming out ahead in the settlement.

"The swap protects southern Idaho irrigators, whereas the Salmon River, Clearwater users are not treated at all," he said.

"I'm disappointed that we're going down that road, that we are not taking an approach that we are all Americans and we all want the same thing, not that we're segregating the water rights and the claims."

However, Sen. Laird Noh, chairman of the Senate Natural Resources and Environment Committee, said the northern Idaho interests that had a stake in the case also had a seat at the table.

"The forest industry in general was very involved, and they are certainly not southern Idaho irrigators," said the Kimberly Republican. He noted Potlatch Corp. and the Lewiston Orchards Irrigation District were directly involved in the negotiations.

Rep. Mike Naccarato, a Lewiston Democrat, said the questions surrounding LOID were the only disappointment in the proposed settlement.

The settlement does not deal with tribal claims to the water used by LOID.

Aside from that, Naccarato said he would trust the judgment of those who participated in negotiations.

"The tribe seems to agree with it, and if things work out with the way they say it's going to, I don't have a problem with it," he said.

Because of the complexity of the agreement, few legislators are familiar with the exact details of the plan.

Stegner said he and other lawmakers will have to rely on the people and interest groups affected by the proposal to raise any important issues before the next legislative session.

"The question always is, do we have a full grasp of the impacts, both the intended and the unintended consequences? We will make the best effort we can to comprehend all that, and we usually do a reasonably good job," Stegner said.

"If there is no significant opposition from people or interest groups, then quite often the Legislature has no opposition either."

Noh, who is recognized as the Senate's leading expert in water law, said the agreement promises 30 years of certainty in water levels and stability under the Endanger Species Act.

"There were definitely trade-offs, and I think in giving up the legal fight over the water rights, the tribes were very aggressive ensuring there would be protections and potential for recovery of salmon and steelhead," Noh said.

The agreement also will keep water issues in the public eye, an important issue as demand for limited resources grows, he added.

Some of the largest impacts in north central Idaho may not be directly related to water, but the financial settlement the tribe reached.

Congress must agree to establish a $50 million trust fund for the tribe's environmental activities under the proposed agreement. The tribe would also receive $23 million for sewer and water projects and $7 million for the purchase of land.

"It's going to give the tribe a lot more power and influence with money," said Brandt.

But he noted that before anything can take place under the agreement, the Nez Perce, the Legislature and Congress have to agree to its conditions.

"Everything has to come together by May 31 of '05. If any of those wheels fall off, we could be back to square one."