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Judge Orders End to Tribal Water Dispute

by Rocky Barker
The Idaho Statesman, May 30, 2003

Nez Perce, feds, Idaho must settle on water rights

The Nez Perce Tribe, the state of Idaho, the federal government and irrigators have until Tuesday to negotiate a deal over the tribe's water rights claims.

Idaho District Court Judge Roger Burdick of Twin Falls has told the parties that he will order an end to the mediation of the claims and told them to prepare to argue their case in court.

“I understand the costs the parties might be put to by this decision; however, I believe that this issue must come to some conclusion,” Burdick said in a letter to Francis McGovern, the Duke University law professor mediating the case.

The Nez Perce Tribe claims all of the water in the Snake River Basin, based on the right to fish off its reservation, reserved in an 1855 treaty with the United States.

An Idaho judge ruled in 1999 that the tribe's fishing rights did not entitle the tribe to rights over the entire river. The case is pending before the Idaho Supreme Court.

If the Nez Perce claims are recognized, other users, such as farmers and manufacturers, may have less water to use, have to pay more for it, or have to completely stop using it. That would have devastating effects on Idaho's economy.

The parties to the lawsuit have been near a conceptual agreement for more than a year but have been unable to hammer out the final details. Since Burdick´s May 7 letter, negotiations have stepped up.

Though under a gag order, which bars them from discussing specifics, several attorneys have expressed hope that a final deal will be struck.

“We think there are reasons for hope,” said Bennett Raley, assistant Interior secretary for Water and Science.

“Any time you have a deadline, that sort of spurs people toward action,” said Heidi Gudgell, an attorney with the Nez Perce Tribe.

“We're still all hopeful an agreement can be reached,” said Roger Ling, an attorney for irrigation districts and canal companies that divert water upstream of Milner Dam near Burley.

A year ago, McGovern reported in court that the agreement is divided into five broad categories — the Snake River upstream of Milner Dam, the Salmon and Clearwater drainages, the tribal component, forest practices and general conditions. The tribe would be 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.

Efforts to save Idaho salmon, spawning habitat, hydroelectricity and dams are involved in the outcome because the tribe is basing its water right on its fishing right.

Idaho uses more water per capita than any other state in the nation — 22,000 gallons per person per day. Nationally, each person uses about 1,408 gallons daily.

Most of the water is used to irrigate crops. Across southern Idaho, 3.5 million acres of farmland is irrigated, which accounts for $2.9 billion of income annually. This represents 14.5 percent of the income generated in southern Idaho and small areas of Wyoming and Oregon, according to U.S. Bureau of Reclamation cash receipts.

The current court case is a continuation of a history of tension over control of water in Idaho. Farmers have guarded their right to divert water from the Snake River and its tributaries since the first settlers arrived in the 1860s. Idaho law protects farmers' right to use the water based on the date it was first diverted or pumped onto croplands.

The current battle began in 1977, when a group of Idaho Power Co. customers sued the company over declining streamflows at dams on the Snake River. They said the company wasn't doing enough to prevent upstream farmers from reducing the flows through its hydroelectric turbines. That meant less electricity and, thus, higher prices.

Idaho Power then sued the farmers and their irrigation companies, contending they were using its water illegally. In 1983, the Idaho Supreme Court ruled for Idaho Power.

In 1984, Idaho Power and the state struck a deal, known as the Swan Falls Agreement, based on the name of the dam for which the company had historic water rights. Idaho Power took less water than it had a right to claim; the state agreed to determine who owned what water and decide whether any was left for new development.

Everyone who used water in Idaho was required in 1987 to refile or file their claims with the Idaho Department of Water Resources. The agency sorts through the claims and makes recommendations on each claim to the state court about who owns how much water. The court then rules on the validity of the claims.

This process, called the Snake River Basin Adjudication, is working through 180,000 claims at a cost to Idaho of more than $40 million.

The Nez Perce dispute is the largest remaining issue, and the resolution of the other claims hinges on its outcome. Gudgell said even if the mediation is formally ended, attorneys can continue to negotiate.

If a deal is struck through the process, that is only the beginning. Any agreement will have to be approved by the court, the Idaho Legislature, the Nez Perce Executive Council and Congress.

Clive Strong, the deputy attorney general who is the state's lead attorney said talks are ongoing.

“We continue to see whether a settlement is possible,” he said.

Rocky Barker
Judge Orders End to Tribal Water Dispute
The Idaho Statesman, May 30, 2003

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