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Controversy Rears in Nez Perce Agreement Debate by Patricia R. McCoy Capital Press, February 25, 2005

BOISE -- The deep divide between supporters and opponents of the proposed Nez Perce Settlement became public here Feb. 22, the first of two days of legislative hearings on three bills implementing the agreement.

Witnesses on the opening day were mainly proponents of the settlement, intended to settle tribal claims in Idaho’s long-running Snake River Basin Adjudication. Persons who participated in the original negotiations were the first panel called before the House Resources and Conservation Committee hearing.

The handful of stakeholders invited to speak on the opening day of the hearing included opponents. One was Mark Pollot, an attorney formerly with the U.S. Department of Justice, representing the Federal Claims Coalition, which asked him to review the agreement.

“Up to that point, I knew nothing of the agreement, beyond what I’d read in the newspaper. My first impression: the Nez Perce Tribe won – more than they could possibly have won in litigation,” Pollot said.

Pollot urged lawmakers to reject the settlement, calling it too convoluted in some respects and vague in others.

“We’ve heard several times today that this agreement will end litigation. Based on my experience, it will not. Rather, it will fuel lawsuits,” he said.

Don Roberts, Lewiston city attorney, spoke favorably for the agreement, representing the North Idaho cities of Lewiston, Lapwai, Kendrick, Bovilland Julietta, plus the Lewiston Chamber of Commerce, the Port of Lewiston and the Lewiston Orchards Irrigation District.

“Even with the water the agreement lets the Nez Perce take from the Clearwater River, total usage in the region would be under 400 cubic feet per second. We have a water quality, not quantity, problem on the Clearwater.

Some of our greatest pressures stem from the Endangered Species Act and federal regulation. Whatever we can do to help the fish lessens that pressure. The agreement does that,” Roberts said.

Money Concerns

Agreement opponents seem concerned about the $50 million multiple-use water and fisheries resources trust fund, plus $23 million for design and construction of a water supply and sewer system being provided to the tribe, he said.

All those monies are coming from the federal government.

“The tribe is getting truckloads of money, and the federal government is willing to pay. Why? The federal government has trust obligations to the tribe. It can be argued that building Dworshak Dam and related canal projects did not protect tribal water rights. There could be a lot of litigation from that. An Oregon tribe is currently suing the federal government over that exact issue,” Roberts said.

“We forget that money will help enhance life for both the tribe and other residents of north-central Idaho,” he said.

The time allowed to review the settlement is too short, said Rep. Lenore Barrett, R-Challis, a committee member.

“We’re here today and tomorrow, and then we’ll vote as a committee.That’s a real squeeze. I just don’t think that’s right,” Barrett said, drawing applause from the audience.

That drew a warning from Chairman John A. Stevenson, R-Rupert, who told guests he would tolerate no further outbursts supporting either side.

“I recognize this is a contentious issue, and respect your feelings, but we will follow the rules,” Stevenson said.

Three Bills

The three pieces of enabling legislation were introduced by Rep. Dell Raybould, R-Rexburg. They are:

• House Bill 152, which defines the agreement and authorizes Idaho Gov. Dirk Kempthorne to implement it as soon as it is ratified by the state and the Nez Perce.
• HB 153, which amends existing code to continue allowing the withdrawal of 427,000 acre feet of water from Idaho for flow augmentation through the 30-year lifetime of the agreement.
• HB 154, which implements the instream flows set up in the agreement. The instream flows will be held by the state of Idaho through the Idaho Water Resources Board, and will be totally subordinate to all existing water rights, as well as all future domestic, commercial, municipal and industrial use.

One of the first speakers was Rebecca Miles, secretary of the Nez Perce Tribal Executive Committee.

The tribe will hold its own hearings later this week, then vote in March, she said.

“The settlement is emotionally difficult for me and my people. We view it as going against our history, our treaty rights granted to us in 1855 and 1863, and our cultural connection with water and fish. Most tribal members knew nothing about it until it was made public to everyone last April. After studying it carefully, I support it personally as the best alternative for my people, especially when we look at eight to 10 years of litigation on multiple legal issues,” Miles said.

High interest in the legislation caused Stevenson to move the hearing to the Jordan Ballroom in the Student Union Building at Boise State University. A near standing-room-only crowd attended.

The second day’s hearing on Feb. 23 began with presentations from eight persons representing various stakeholders, including the Idaho Cattle Association, followed by public testimony. Stevenson promised to hold the hearing open long enough to allow all interested persons to speak.

Mike Webster, ICA president-elect, was among the panelists scheduled to testify on Feb. 23. He said the settlement was debated at last November’s ICA convention.

“We had two resolutions introduced, one for and the other against it. I finally asked how many actually understood the agreement. Nobody raised their hand. We were probably no different than any other organization,” Webster told the Capital Press on Feb. 22.

“We tabled the resolutions and put together a task force, which included several North Idaho cattlemen, some of whom run cattle in the area affected by the settlement. They came back to our board with a report saying the agreement is better than litigation and probably as good as we could get. ICA leaders also sought to educate themselves. We voted not to oppose the agreement, feeling that it’s in the interest of the greatest good for the greatest number of people in Idaho,” he said.

Rep. Ken Roberts, R-McCall, whose district includes Valley and Idaho counties, said his constituents are very opposed to the settlement.

“In Valley County, the major issue is over 30 more years of flow augmentation, with from 130,000 to 150,000 acre feet of water drawn from Cascade Reservoir. We’ve already had several years of that. When reservoir levels are lowered, the remaining water warms up. We get algae blooms, coupled with toxic phosphorus levels. That means less boating, fishing or swimming. This is a huge issue in my area. Our economy is very dependent on recreation,” Roberts said.