Ranchers seek to intervene in Idaho-US water rights fight

September 2, 2022 GMT

BOISE, Idaho (AP) — Individual ranchers and the Idaho Farm Bureau Federation are seeking to intervene in a lawsuit filed by the U.S. Department of Justice challenging recently-passed state water rights laws.

The request filed earlier this week in U.S. District Court involves laws passed in the last five years that create a path through the Idaho Department of Water Resources for ranchers to take control of federal public land instream water rights through a state-approved forfeiture procedure.

The Idaho Legislature is also seeking to intervene in the case with statewide ramifications for millions of acres of land in Idaho administered by the U.S. Forest Service and U.S. Bureau of Land Management.

The Justice Department in a lawsuit filed in June contends that the state’s forfeiture procedure violates the U.S. Constitution’s supremacy clause. It states that federal law takes precedence over state law. The Justice Department also said the laws violate parts of the Idaho Constitution.

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The Idaho attorney general’s office in court documents countered that the state laws are valid and enforceable. The court hasn’t yet ruled on whether the Idaho Legislature or the ranchers can intervene.

Russ Hendricks of the Idaho Farm Bureau Federation in an affidavit told the court he believes the U.S. is seeking to interfere with Idaho’s recently passed laws “in order to maintain purported stock water rights that it has likely forfeited by lack of beneficial use.”

The complex water law case involves a nearly three-decade effort by the Snake River Basin Adjudication Court that concluded in 2014 and determined ownership of some 160,000 water rights. The case also involves a 2007 Idaho Supreme Court ruling in favor of a rancher who sued the U.S. government over water rights.

Idaho officials and ranchers have interpreted that ruling to mean that the federal government can’t maintain water rights because, without cattle that graze the land and drink the water, it does not put the water to beneficial use.

But the federal government contends it does put the water to a beneficial use because it issues grazing permits to ranchers that in turn graze livestock that drink the water.

The Legislature in 2017 approved a change in state law that said a rancher with a grazing permit can’t be considered an agent of the federal government. State laws also possibly go beyond the 2007 ruling by the Idaho Supreme Court.

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The Idaho Department of Water Resources, in information obtained by the Idaho Conservation League, said there are nearly 18,000 stock water rights potentially at stake that were decided by the Snake River Basin Adjudication. Of those, 11 ranchers have filed 254 claims with the Idaho Department of Water Resources seeking to get control of water rights on federal grazing allotments from the federal government.

Lawmakers capped the application fee at $100, so ranchers can file multiple claims for that amount.

“This is really a state’s rights vs. federal rights issue,” said Marie Callaway Kellner of the Idaho Conservation League.

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Don Pickett, co-owner of Pickett Ranch & Sheep Co., in an affidavit to the court said the Snake River Basin Adjudication “process severely limit our exercise of our water rights and render them effectively worthless, because it allows the federal government to dictate our use of our own stock water rights.”

The state agency recently initiated multiple actions against water rights claimed by the federal government based on those water rights not being put to beneficial use.

The Justice Department responded with the lawsuit now playing out in federal court that seeks to nullify the state laws the ranchers’ claims are based on.

If the court OKs the Legislature’s request to intervene, taxpayers will be covering the cost of both the attorney general and the Legislature’s attorney.