Taking your water rights; The next step for tribes after hunting and fishing claims.

Editor’s note:

The following information is from the Water Rights Coalition (WRC), P.O. Box 89, Whitebird, ID 83554.

In January, 2005, the Idaho legislature will vote on whether to adopt the Snake River Basin Adjudication (SRBA)Water Rights Settlement Agreement with the Nez Perce Tribe. Citizens’ water rights are at stake.

Here’s a little background:

In 1993, the Nez Perce Tribe and the U.S. Government on behalf of the Nez Perce Tribe filed 1134 water rights claims in the SRBA, including (a) claims to water for consumptive use on trust and fee land within the former reservation, (b) claims for certain springs on public and private lands within the 1863 ceded area; and (c) claims for instream flows both on and off the 1855 Reservation.

The Nez Perce Tribe’s claims to in-stream flows for the Snake, Salmon and Clearwater River Basins both on, and off, the former reservation are based solely on the argument that such flows are necessary to protect the Tribe’s claimed treaty fishing rights. The instream flow claims will likely have a significant adverse economic and regulatory impact on privately held lands, as well as public property.

In 1999, the SRBA Court held against the Tribe on its two primary claims: a) claims to water for consumptive use on trust and fee land within the former reservation and (b) claims for certain springs on public and private lands within the 1863 ceded area. Furthermore, following the 1998 ruling handed down by the U.S. Supreme Court in South Dakota v. Yankton Sioux, SRBA Judge Barry Wood held that the Nez Perce Reservation was “diminished to the lands that the Tribe currently owns.” The Nez Perce Tribe currently owns only approximately 11% of the 750,000 acre 1863 Reservation.” In Yankton Sioux, the court held, “the area remains predominantly populated by non-Indians with only a few surviving pockets of Indian allotments,” and, “those demographics signify a diminished reservation.” In finding numerous similarities between the Yankton Sioux Treaties and Agreements of the latter nineteenth century and the Nez Perce Treaties and Agreements from the same era, Judge Wood wrote, “... the present boundaries of the Reservation are clearly at issue... the boundaries will ultimately have to be particularly described so that the water rights can also be properly described. To date, these “diminished” boundaries have not been addressed.

Instead, the Tribe appealed Judge Wood’s ruling to the Idaho Supreme Court, which ordered a secret mediation between the parties. That secret mediation lasted five years. From that secret mediation came a one-sided settlement agreement, so costly, complex and open-ended as to boggle the mind. This settlement agreement completely obscures the separation of powers between federal and state governments, and allows the federal government and the tribe to dictate, through the settlement agreement, what the state of Idaho can do with its water.

With this settlement agreement:

• The Nez Perce tribe will receive an excessive and enormous amount of money (tax dollars) and large land concessions worth $193,000,000.00, all to the public detriment Remember, they lost in court. Imagine what we would be paying had they won!

• The tribe will receive an on-reservation consumptive use right of 50,000 AF, with a priority date of 1855. This ignores the reservation diminishment ruling.

• The Tribe will be guaranteed water rights on hundreds of streams within the former 1855 reservation, and significant unprecedented instream flow water rights.

• The Tribe will be given control of the Kooskia Fish hatchery and Co-management of the Dworshak Fish Hatchery. This could lead to less “clipped fin” fish for sportsmen.

• Minimum Stream Flows (MSF) will be established within the Salmon and Clearwater Basins. These MSF’s will be owned by the Idaho Water Resources Board, and, although these MSF’s are junior to existing water rights, as well as future commercial, domestic, industrial, and municipal uses, they are senior to future agricultural rights. The state must also give 6 settlement months notice to the Tribe before making any changes to the MSF’s.

• The Nez Perce Tribe has first right to purchase BLM lands within the Reservation.This deprives businesses and private citizens of equal footing to purchase those lands.

• The mitigation of the legal impact on county, municipal, and private interests caused by the management of Idaho water by federal agencies is not addressed and remains wide open. -These local entities and private citizens will be required to defend their rights in court against this settlement agreement.

• Ambiguous Riparian Management Measures could drastically reduce timber harvests.

• All landowners who sign on to the Forest Management Section of the settlement agreement will be required to map all streams on their property within 15 years.

• Landowners who do not sign on to the settlement agreement may face sanctions and fines for violations of the Endangered Species Act (ESA).

• Although the settlement agreement claims to provide protection from the ESA, federal wildlife agencies cannot predetermine the outcome of future analysis under the ESA, and, therefore, this so-called protection is spurious.

• Enrollees in the Forest Management Section of the settlement agreement will be required to allow Idaho Department of lands to enter their property for monitoring purposes.

• This settlement only addresses the claims of the Nez Perce Tribe and does not address the water rights of any other Tribe. This settlement will be the benchmark used by hundreds of Tribes throughout the U.S. to establish MSF’s and consumptive use water rights.

• BLM lands transferred to the Tribe will jeopardize future grazing rights and other private uses on these BLM lands.

• Lands transferred to the Tribe will be removed from the tax rolls, impacting the taxbase of counties and cities.

• This settlement does not address many other equally important issues, such as the Lewiston Orchards Irrigation District, dams on the Snake River, and Treaty injury claims pertaining to the construction and operation of Dworshak Dam.

• The State of Idaho must cooperate with future research projects under the Forest Management Section without knowing the financial and other burdens.

• The Tribe may pursue any other litigation pertaining to water rights or any other treaty right other than those specifically addressed by the settlement agreement.

• Every land title within the settlement agreement area will be clouded, since no one knows how far this agreement will reach 5,10,20 years from now.