Idaho Completes Massive Water Rights Review

Idaho's Lawyers and Judiciary Came Together to Mark the End of the Snake River Basin Adjudication

The adjudication is the largest ever completed and covers all of the water in the Snake River Basin that begins in Yellowstone National Park, stretches west to the Oregon border and north to Clearwater County. This review has secured the fortunes of thousands of farmers and dairies who control 93 percent of all water in the basin. Its results are also vital to fish processors and other water-intensive businesses in the basin.

The Idaho Supreme Court, the Kempthorne Institute and the University of Idaho College of Law will hold a two-day conference Monday and Tuesday commemorating the end of the process. Monday evening on The Grove, the signing of a unified decree will mark the completion of all but about 50 disputed water rights.

"The resolution of more than 158,000 claims ... reflects the rule of law as the bedrock of Idaho," said Idaho Attorney General Lawrence Wasden.

Besides defining their rights, the adjudication means many farmers and communities who pump their water out of the Eastern Snake Plain Aquifer - a Lake Erie-sized reservoir that underlies Southern Idaho from Ashton to Kings Hill - now face the same concerns over low water years as farmers using surface water.

The connection between groundwater and surface water was clearly recognized in the adjudication, and the law now reflects how pumping affects surface water rights in dry years. But it also lays out the legal infrastructure to ensure pumpers have access to water as the state's economy and population shifts.

IDAHO ESTABLISHES CONTROL

The adjudication began in 1987 as a result of the Swan Falls Agreement between the state and Idaho Power Co., which resolved a lawsuit over the utility's water rights for the Swan Falls Dam on the Snake River south of Kuna. Jim Jones, who as attorney general negotiated the agreement for the state, credited then-Gov. John Evans for insisting that it include an adjudication of all Snake River water rights.

Jones, now a Supreme Court justice, called the adjudication "a model for its conduct and efficiency."

It has cost the state of Idaho more than $93 million, but other Western states have spent far more on lawsuits over tribal water rights and similar disputes.

The adjudication also ensured that Idaho controlled its water. Prior to the process, American Indian tribes and the federal government all were making claims on water they say was reserved in treaties and in federal laws that set aside public resources. By calling an adjudication, the tribes and federal agencies had to get their rights resolved in state court under a federal law called the McCarran Amendment, passed in 1952, which waives federal immunity in water right cases.

Before adjudication, "we didn't have any protection on what the feds might do in the future," said John Rosholt, a Twin Falls attorney who was involved in the Swan Falls Agreement.

The Shoshone-Bannock Tribes reached an agreement with the state that recognized its claim to more than a million acre-feet of water flowing in rivers and stored underground and in reservoirs. Some of the water is used by farmers on the Fort Hall Reservation. Other water is allowed to flow down the Snake River to help the salmon that are a critical part of life for the American Indians.

GROUND, SURFACE RIGHTS TIED TOGETHER

Water law in Idaho and all of the arid West is based on a simple idea: first come, first served. Known as the prior appropriation doctrine, this principle of "first in time, first in right" means that the first farmers, canal companies and miners that diverted water for irrigation and industry owned the first rights to use the water.

When the system was tied solely to surface water, it was relatively easy to administer: As water flows dropped during the summer, the users with the newest rights were turned off first. There were exceptions, but even in droughts the prior appropriation doctrine laid out a clear priority system.

The huge boom in the development of cropland by pumping ground water, beginning in the 1940s, laid the stage for the most divisive disputes between the people who pump their water from groundwater and those who depend on the springs that naturally flow out of the same source, the Eastern Snake Plain Aquifer.

DECADES ON THE JOB

For Idaho's water attorneys, the adjudication has dominated their lives.

Water users paid them tens of millions of dollars, a point most are very sensitive about today. But they laughed at themselves in a cartoon published in the April 1988 issue of the Idaho Bar Association's newsletter, "The Advocate," offering commemorative T-shirts saying "I retired on the Snake River Adjudication" or "I put my kids through college on the Snake River Adjudication."

Current Idaho Chief Justice Roger Burdick, the third of five presiding judges on the adjudication, is part of an oral history of the SRBA published this week: "Through the Waters," edited by Randy Stapilus and the water law section of the Idaho Bar. Burdick said the lawyers acted reasonably for the most part, fighting for their clients' interest but also quitting when appropriate.

Source: Idaho's Statesman

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