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Court Says NO to Tribe’s Water Rights Claims

This is a significant victory for property rights in Idaho!

Court Says NO to Tribe's Water Rights Claims
A chinook salmon leaps through white water in the Rapid River in Idaho as it attempts to clear a migration barrier dam in this file photo. (Bill Schaefer/Getty Images)

Court Says NO to Tribe’s Water Rights Claims

Property Owners Win Summary Judgment Battle
in North Idaho ‘Water War’

By Rich Loudenback

(Gem State Patriot) – State District Court Judge Eric J. Wildman, presiding in the Coeur d’Alene-Spokane River Basin Adjudication (CSRBA), has ruled on motions for summary judgment regarding tribal water right claims filed by the United States.

Bob Bingham, Kootenai County Commissioner is the founder and past president of the North West Property Owners Alliance (NWPOA), one of the parties to the CSRBA. Although not actively involved in the Alliance any longer due to county obligations, he shared his read on this important ruling with Gem State Patriot News. The following are the most important points that stand out to him:

Water right claims really must be based upon the “primary purposes” of the federal reservation at the time it was created.

  • The court ruled the tribe cannot receive federal water rights for “secondary purposes”, i.e. things like commercial, municipal, industrial, instream flows for fish habitat, maintenance of lake levels in Lake Coeur d’Alene, water storage, power generation, aesthetics, recreation, religious, cultural, ceremonial, and maintenance of wetlands, springs, and seeps for game habitat and gathering activities.
  • The tribe is not entitled to water rights or any other right outside the boundary of the current reservation.
  • Because the tribe was provided land and the land was to reside, hunt, fish and raise crops”, the tribe has an implied right to water for those purposes and those purposes only.
  • The tribe’s domestic and agricultural water rights within the reservation are prior (established 1873) to other water rights within the reservation.

What is left to decide in future negotiations and/or court is the amount of water the tribe gets for domestic and farming activities and fishing and hunting within the boundaries of the reservation. This next round of litigation is called the “quantification phase.” That phase will seek to quantify the tribe’s water right quantity – if any -for each of the following:

  • Agriculture
  • Domestic uses
  • Fishing and hunting

Two points can be well defined; DOMESTIC – the tribe has <2100 actual members, AGRICULTURAL – the rates of required crop irrigation are well known.

For the other two; HUNTING – wildlife have no trouble living in the reservation boundaries with the natural ebb & flow of our climate, FISHING – the tribe has the lower 3rd of the lake to fish from, nothing interferes with their right to fish.

COMMENTS FROM NWPOA’S ATTORNEY

NWPOA’s attorney Norm Semanko, with the Idaho law firm of Moffatt Thomas, who also represents the North Idaho Water Rights Alliance and others in the case, confirmed that the CSRBA Court’s ruling was a positive one. “There is a lot to like. Judge Wildman determined that the primary purposes of the reservation are limited to agriculture, fishing and hunting, and domestic uses. All other purposes and the related claims were disallowed by the court. The judge found that the tribe has relinquished all of its rights and interests outside of the current reservation.”

Semanko further noted that the judge specifically rejected the broad “homeland” purpose of use for the reservation as overly broad (it would include every possible use of water) and contrary to law. The secondary purposes that were rejected by the court include industrial, commercial, water storage, power generation, aesthetics, recreation, and maintenance of Lake Coeur d’Alene lake levels – anything that isn’t agriculture, fishing, and hunting, or domestic.

“Importantly, the judge recognized that the tribe ceded the northern portion of the reservation, including approximately two-thirds of Lake Coeur d’Alene. In doing so, he relied directly on the U.S. Supreme Court’s decision in the Lake Case, thereby rejecting the tribe’s arguments in the CSRBA,” Semanko added.

The judge concluded that the tribe relinquished its off-reservation rights in prior agreements. The court ruled: “The language of the agreements is plain, unambiguous and absolute. It establishes that the Tribe gave up all of its off-reservation rights and interests.” “Accordingly, the tribe is not entitled to federal reserved water rights outside the boundaries of the reservation for instream flows, as a matter of law”, Semanko stated.

Also important, Judge Wildman found that the tribe’s domestic and agriculture water rights are limited to the lands within the current boundaries of the reservation and do not reach to places like the Rathdrum Aquifer. “There are no off-reservation rights”, Semanko observed.

“NWPOA and the other objectors prevailed on most of the important issues and are to be commended for a fine job of helping protect the water rights and private property interests of those living in the area,” Semanko concluded.

GETTING TO THE TRIBE

Back in February 2015, NWPOA director Jeff Tyler commented in his article ‘Watch For Water Wars’ in the Coeur d’Alene Press, “Getting to the Tribe, I have met with the representative of the Coeur d’Alene Tribe and it was conveyed to me that their desire was to be a good partner in a process they did not ask for.

You see the Bureau Of Indian Affairs (federal government) files the claims for all tribes across the nation. They promise tribes that if they go along they can together control large amounts of state water worth millions of dollars in negotiated settlements. (You would think they have learned from previous government promises)

The Tribe spokesman told me “The Tribe is most interested in making sure that the lake and its tributaries have enough water to protect future generations of people, animals, and fish living in the basin and that we have enough water for people living on the reservation for the foreseeable future into perpetuity.”

Does that sound like they are only interested in the waters of the Reservation land, about 345,000 acres, in which they only own around 25 percent with about 2,000 tribe members? I would like to trust our local Tribe but Ronald Reagan once famously quoted “trust but verify.”

http://srba.state.id.us/NORTHIDAHO.HTM

Read More on Case No. 49576:

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