Stoneberg: Idaho also fighting feds over water rights
You may recall that I wrote an article a few weeks ago that exposed the attempt by the Montana Department of Natural Resources (DNRC) to illegally give our ranchers’ vested stockwater rights to the Bureau of Land Management (BLM). Well, we are not alone! I just read an article in the June 20, 2020 Tri-State Livestock News by the Idaho Farm Bureau Federation (IFBF) that detailed what was happening with stockwater rights in Idaho.
First, a bit of history. In 1987 the Idaho Water Court began to adjudicate the Snake River Basin, a sizable piece of the state. When the ranchers learned the BLM was planning to file on all the water in the basin, they looked to the state water bureau and administration for help. They were told the state would protect their water rights and were told not to file. Unfortunately, the state lied. Many of the ranchers filed anyway. The Department of Interior solicitors threatened the ranchers with exorbitant legal fees if they contested the department’s filings (these are the same public servants that we pay to protect our rights!). All the ranchers took the threats seriously and dropped their filings except for two, Tim Lowry and Paul Nettleton, who knew the law was on their side. The public servants presenting the federal government’s case lived up to their threat with delays and appeals and all manner of legal maneuvers that would drag the case out to increase the ranchers’ legal fees. In fact, Nettleton testified before the Idaho legislature that, “…DOJ negotiators quietly confided to our attorneys that we might win, but it would be expensive enough to put us into bankruptcy.” Although it cost each rancher over a million dollars, they won their case in the Idaho Supreme Court in 2007.
The Idaho Supreme Court ruled the ranchers and their cattle were not agents of the federal government, therefore, the BLM could not use the ranchers’ cows as their beneficial use. Idaho law, the same as Montana law, states the water must be diverted and put to beneficial use before a water right can be attained. Therefore, the BLM could not hold a water right. It turns out the Idaho Water Court had awarded the BLM about 17,000 water rights before the 2007 Supreme Court decision was handed down. Since the BLM cannot legally hold a water right, they stand to lose them through non-use. In 2017 the Idaho legislature finally codified the Supreme Court’s decision and opened the door for the ranchers to file competing claims to the stockwater rights on their federally managed allotments.
So how did the public servants in the Department of the Interior take this turn of events? They hatched a new scheme to steal the vested water rights from the ranchers. They are asking Idaho ranchers who water livestock on federal allotments to sign voluntary agreements stating that they are limited agents of the federal government. IFBF Director of Government Affairs Russ Hendricks claimed that if a permittee signs this agreement, “He is saying, I am an agent of the federal government and as such, my cattle are putting this water to beneficial use for the BLM so they can hold stockwater rights in their name.” In other words, the BLM obtains the ranchers’ vested property rights and avoids paying ‘just compensation’ as mandated by the US Constitution.
Over the years, the federal government has tried every legal maneuver to obtain control of the stockwater on the federally managed allotments in the west. They have been rebuffed at every turn. It has been clearly shown time and again that they have no legal basis to hold a water right on our allotments. Apparently, getting control of the ranchers’ stockwater rights on their federally managed allotments is key to some secret long range plan. Since the BLM has no intention of using the water, why are they so determined to take it from the lawful owners who are putting it to a productive beneficial use? Another perplexing question concerns why DNRC is so anxious to give Montana owned water to the federal government? It would be nice if the BLM would accept the fact they cannot own the water and put their time, energy and money into helping the allotment holders improve the rangelands.
Unfortunately, when you look at what has transpired in Idaho, the future does not bode well for us here in Montana. We have a much harder row-to-hoe since the Montana Supreme Court has already upheld the preliminary ruling of the Montana Water Court that illegally gave the water on the federal allotments in the Beaver Creek Basin to the BLM. The Water Court is forging ahead as I just saw a legal notice in the Glasgow Courier announcing a preliminary adjudication of the Rock Creek Basin in Valley County. Unless we act swiftly they (DNRC, Water Court, BLM, etc.) are going to quietly pick us off one basin at a time. Hopefully, we can avoid expensive litigation by banding together and drafting legislation that will reinstate and protect ranchers’ vested stockwater rights on their federal allotments. Remember: do not accept a permit or sign as a voluntary agent of the federal government!
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