US seeks to strike down Idaho water rights forfeiture laws
BOISE – U.S. officials are seeking to strike down Idaho laws passed in the last five years that pave the way for the Idaho Department of Water Resources to get ranchers to take control of water rights in backyards of water from federal public lands with a state-approved confiscation procedure.
The Idaho Legislature, in court papers filed last month, seeks to intervene in the case with statewide ramifications for millions of acres of land in U.S.-administered Idaho. Forest Service and the US Bureau of Land Management.
The US Department of Justice, in a lawsuit filed in June against Idaho and the Idaho Department of Water Resources, argues that the state’s forfeiture proceedings violate the Supremacy Clause of the US Constitution. It states that federal law takes precedence over state law. The Justice Department also says the laws violate parts of the Idaho Constitution.
The Idaho Attorney General’s Office in court documents countered that state laws were valid and enforceable. The court has yet to decide whether the Idaho legislature can intervene.
Shelley Keen, head of the water allocation office for the national water resources agency, declined to comment on the merits of the lawsuit. Scott Graff, spokesman for the Idaho attorney general’s office, said the office does not comment on ongoing litigation.
At the heart of the case is a 2007 Idaho Supreme Court decision involving a ranching company’s claim to water rights to federal pastures to provide water for livestock. In that case, the court upheld a lower court’s decision that the Joyce Livestock Company had established a right to water and dismissed US right to water claims.
Officials and ranchers in Idaho interpreted the decision to mean that the federal government cannot maintain water rights because it does not use the water for beneficial purposes because it does not own livestock that grazes the earth and drinks the water.
But the federal government maintains that it uses the water for beneficial purposes because it issues grazing permits to ranchers who, in turn, graze cattle that drink the water.
In 2017, Idaho lawmakers approved a state law that, according to an affidavit filed in federal court in July by Republican Senate President Pro-Tem Chuck Winder, “clarifies that a pasture permit cannot be considered an agent of the federal government”.
This appears to be a change in state law as outlined by the Idaho Supreme Court in its 2007 Joyce Livestock Company decision.
In addition to this ruling, the impetus for recent Idaho water rights forfeiture laws also stems from a nearly three-decade effort to conclude Idaho water law rulings by the Snake River Basin Court of Arbitration and the Idaho Courts of Appeals which concluded in 2014. Ownership of some 160,000 water rights was decided.
Among those rulings were thousands of in-stream water rights involving ranchers on federal public pastures. Stream water is water that flows into streams, as opposed to water that is diverted from streams.
Many ranchers agreed to agreements in which they received water rights in the streams dated a day before the federal government, giving ranchers priority water use.
But the Joyce Livestock Company of Owyhee County in southwestern Idaho has not agreed to accept a deal giving it a pre-federal water right. Instead, he went through an expensive process to determine water rights in the streams that eventually went to the Idaho Supreme Court and led to the Joyce Livestock decision.
By then, however, many water rights had already been decided by the Snake River Basin Arbitration Tribunal as belonging to the federal government.
Recently enacted water rights forfeiture laws in Idaho create a state process in which ranchers can potentially take control of federal water rights already decided by the court.
Ranchers have begun to use this process, and the Idaho Department of Water Resources this year, at the request of ranchers, launched multiple lawsuits against asserted federal water rights based on those water rights that were not used for beneficial purposes.
The Justice Department has responded with the ongoing lawsuit in federal court seeking to strike down the state laws on which the process is based. It is not clear whether any water rights have changed hands under the new state laws.
Cameron Mulrony, executive vice president of the Idaho Cattle Association, did not respond to a phone message seeking comment.
On a larger scale, the Federal Court case reflects developments in the western United States, where the Forest Service and Bureau of Land Management are moving toward a multiple-use strategy for public lands. that considers recreation and wildlife instead of just grazing livestock. That’s especially true in fast-growing Idaho, where many newcomers find the state’s vast federal public lands a chance to explore some wild places.
Some of these activities, such as hiking, driving all-terrain vehicles, hunting and shooting, fishing, camping, and other activities on public lands where livestock graze can interfere with livestock operations .
Ranchers, some of whom are part of families who have grazed cattle on the same federal land for generations, are also under pressure from conservation groups who cite potential violations of environmental laws by challenging grazing permits issued to ranchers. pastoralists by the Forest Service and the Bureau of Land Management.
Securing water rights to these grazing plots is seen by some herders as a safeguard against the removal of water or grazing rights in a changing political landscape.
The Idaho-based Western Watersheds Project, whose goal is to eliminate the harmful ecological impacts of grazing on public lands, is one of the groups that has challenged grazing permits.
“The livestock industry has long tried to use water rights as a way to assert livestock grazing as a dominant use on public lands,” said Erik Molvar, the group’s executive director.
He added: “But the reality is that livestock grazing is a privilege, not a right, and should only be allowed in areas where it is compatible with wildlife, public recreation and all other multiple uses that should be managed on public land. ”
This story has been updated to correct that Western Watersheds Project only wants to eliminate the negative ecological impacts of grazing on public lands, not completely eliminate grazing on public lands.