Legislature can intervene in Idaho-US water rights fight

September 15, 2022 GMT

BOISE, Idaho (AP) — The Idaho Legislature can intervene in a lawsuit filed against Idaho by the U.S. Department of Justice challenging recently-passed state water laws, but a federal judge has yet to rule on whether ranchers and the Idaho Farm Bureau Federation can take part.

The Justice Department, in court documents filed this month, challenged a request by ranchers to intervene, contending ranchers have not shown that the Legislature and state attorney general’s office can’t adequately represent their interests.

The Justice Department also contends that ranchers failed to identify any water rights or other property interests they claim to own that are part of the case.

The complex water-law case has statewide ramifications for millions of acres of land in Idaho administered by the Forest Service and Bureau of Land Management. It 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.

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Instream water is water that flows in streams, as opposed to water that is diverted from streams.

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

The Idaho attorney general’s office in court documents countered that the state laws are valid and enforceable.

Chief U.S. District Court Judge David C. Nye, at the beginning of September, granted the Legislature’s unopposed request to intervene. He wrote that “the Legislature has significant protectable interests relating to this action and that existing parties do not adequately represent their interests.”

Nye in that order also noted that ranchers had “significant protectable interests that are not adequately represented by the existing parties or the Legislature.” But the time to challenge the ranchers’ request to intervene had not expired, and the Justice Department then challenged the ranchers’ request.

It’s not clear when the court will rule on whether ranchers can participate.

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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 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.