Ridenbaugh Press/Water Rights

The Snake River Basin Adjudication isn’t the first general water rights adjudication in Idaho: There have been many, all smaller in scope than the SRBA but widely scattered around the Snake River Basin. One of the difficult issues in the SRBA for years has involved reconciling those earlier and more limited adjudications, which are generally not considered to be invalid, with the current one.

That came up in a subcase (65-23481) decided on February 27 by Judge Eric Wildman, bringing into play earlier adjudications in the Lemhi River and Payette River basins.

The specific case concerns a late claim to rights claimed by Allen Ranch LLP in the Payette River area, earlier reviewed by a special master.

In his description of the background, Wildman noted “The Special Master’s initial recommendation analyzed the late claim under two separate components: the stockwater claim; and the early and late period of use irrigation claim. The Special Master initially determined that the filing of the early and late period of use portion of the late claim was barred for failure of the claimant, Allen Ranch, LLP, to have the right adjudicated in the Payette Adjudication. The Special Master reasoned the Payette Adjudication decreed all rights to the Payette River established prior to October 19, 1977.

“As such, any rights established prior to that date but not adjudicated in the Payette Adjudication were deemed lost under principles of res judicata as well as the express language of the Payette Decree. Thereafter, the Claimant filed a Motion t0 Aller or Amend the Special Master’s Recommendation asserting this Court’s decision in Order Conditionally Granting Motion to File Late Notice of Claim; 0rder Requiring Filing of Amended Claim; Order Requesting Amended Director’s Report if Amended Claim is Filed, Subcases 74-15015 and 74-15861 (Jan 12, 2009). The Special Master followed the holding in Riggan and recommended that the claim be allowed to proceed based on law-of-the-case but recommended that the Court re-evaluate the holding in Riggan.”

The surprise in the case was the new decision’s ruling that the holding in the Riggan case was erroneous:

“Although, the Court’s ruling was not contested, it was in error in two respects. First, even if a “window” existed for the filing of a beneficial use claim, the claim would still have had to be confirmed in the final judgment, which it was not. … Similarly, in the instant case, the “window” is also irrelevant. The Payette Decree by its express language decreed all water rights established prior to October 19, 1977, and provided further that such rights having earlier priorities that were not claimed were deemed forfeited.”

Wildman said that he agreed with the special master’s legal reasoning, however, and because of that the claimant had not met the standard needed to support a late notice of claim.

He concluded, “this Court adopts the Amended Special Master ’s Report and Recommendation except for the part of the recommendation that the Claimant “be granted leave of court to file a beneficial use claim for the early and late irrigation season with a priority date no earlier than May 20, 1971, and no later than July l, 1971.” For the reasons previously explained, the Court rejects this part of the recommendation on the basis that the Claimant has failed to meet the “meritorious position” standard.”

Adjudication Judge Eric Wildman on March 22 delivered a set of proposed rules of procedure – Administrative Order 1 – for the adjudication in the Coeur d’Alene-Spokane River Basin Water System.

The rules would be familiar to anyone who followed the rules of the Snake River Basin Adjudication. Nor is it likely to be a surprise to most participants in the Panhandle adjudication.

Wildman noted by way of history that “on September 9, 2011, the Court entered an Order in the above-captioned matter [to] establish a CSRBA Steering Committee. Among other things, the Steering Committee is charged with identifying procedural issues of basin-wide significance in the CSRBA and recommending appropriate mechanisms for the resolution of such issues. Consistent with that charge, it is the Court’s intent that the Steering Committee review the attached Proposed AO1 and deliverate on any procedural issues that are identified therein.”

On February 10, the Oklahoma Attorney General filed a request on behalf of the Oklahoma Water Resources Board asking the Oklahoma Supreme Court to adjudicate water rights formally in three major stream systems in southeastern Oklahoma. That request was granted on February 23.

The AG also filed for dismissal of the federal lawsuit filed by the Choctaw and Chickasaw Nations claiming “prior and paramount” rights to and “dominion” over water within a 22-county area of southeastern Oklahoma.

The far-reaching claims raised by the Nations’ lawsuit, which they refused to dismiss, led to the State’s filing to initiate a general stream adjudication.

From a state information sheet:

Through general stream adjudication, the court confirms the existing water rights in a particular stream system. Every Oklahoman holding a water use permit from the OWRB in the Kiamichi, Muddy Boggy, and/or Clear Boggy Basin stream systems will receive a notice from the OWRB and will be provided with an opportunity to confirm the validity of their permitted water right(s). Those claiming a right to the use of the water in any of the three Basins will also be provided an opportunity to be heard regarding their respective claims. Ultimately, the court will enter a final judgment determining and confirming water rights, including the amount, priority, place and purpose of each use. The process should be relatively uncomplicated for those holding permits as those permits set forth the amount, priority, place, and purpose of those holders’ uses. Similarly, all riparian uses recognized by state law will be confirmed. However, the process could be considerably more complicated and time-consuming for those claiming water rights but lacking a permit (e.g., the Chickasaw and Choctaw Nations).

When Oklahoma was admitted as the 46th state in 1907, it was provided “equal footing” with the original states. Being so admitted recognizes Oklahoma’s sovereign authority to regulate use of the natural resources located within its boundaries. In the 100 plus years since, the State of Oklahoma has managed and protected its water resources. Not only has the State expertly performed this charge, it has enacted specific laws to protect local water users throughout Oklahoma and continues to aggressively defend in court its ability to enforce those laws. This defense includes provisions against the transportation of stream water out of its area of origin (stream basin) unless the basin’s long-term needs are first satisfied.

In August 2011, the Choctaw and Chickasaw Nations initiated a lawsuit against State of Oklahoma officials seeking total control over the water in 22 southeastern Oklahoma counties. The Tribes claim that their water rights are “superior and paramount” to those claimed under State
law and that their water rights and regulatoryauthority are “the supreme law of the land.” If successful, the Tribes’ claims could render all State permits and related water uses invalid. Tribal law would effectively displace State law.

More specifically, the Tribes claim in their lawsuit that the Oklahoma Water Resources Board, the State’s water management agency since 1957, cannot take action on water use permits from the Kiamichi, Muddy Boggy, and Clear Boggy Basin stream systems unless and until a comprehensive
adjudication—a formal legal determination—of all water rights within those basins is completed.

Consequently, on February 10, after the Tribes refused to drop their lawsuit and negotiate without litigation, the State formally petitioned the Oklahoma Supreme Court to settle the Tribes’
claims through such a comprehensive stream adjudication. Thus, the State has chosen to counter the Tribes’ direct threat to State sovereignty and
southeastern Oklahoma water rights through a commonly accepted, congressionally recognized process that will confirm the water rights of all claimants to water within the three identified stream systems.

Notices about water right claims in the Northern Idaho Adjudication are being sent to Benewah, Latah and Clearwater property owners in the Coeur d’Alene drainage area. This area covers the majority of Benewah County, 13 square miles of in Latah County and 10 square miles in Clearwater County.

The Idaho Department of Water Resources is continuing its multi-year process of cataloging and confirming all surface and ground water rights in the Coeur d’Alene-Spokane River Basin Adjudication. Approximately 4,000 property owners will receive a water right claim notice in this mailing. The deadline to file a water right Notice of Claim for these property owners is June 10, 2011.

A Notice of Claim is NOT required to be filed where the individual property owner and water user is not the owner of the water right (if the individual property owner receives all of their water from a city, an irrigation district, water utility district or a company). A water delivery organization typically files for the water right used by all its customers or patrons.

A notice is mailed to every property owner to insure all water right owners are notified of the process. There are records for about 4,000 water rights, while it is expected that over 13,000 water right claims will be filed in the adjudication.

Water users of a small domestic and/or stock water right may elect to file a Notice of Claim now or wait until later in the process. All other users are required to file a water right claim with IDWR.

Peter Gleick of the Pacific Institute has posted an interesting essay raising the question, whose water is it?

“This question is perhaps the thorniest question in the world of water,” he writes. “The answer is critical to California’s growing water crisis. It is critical to water in the western U.S. It is critical to the spat between Alabama, Georgia and Florida over the Apalachicola-Chattahoochee-Flint river system (say that three times fast). It is critical to Egypt and the nine other nations that share the Nile. It is critical to the Israelis, Palestinians, Jordanians, Lebanese and Syrians who share the tiny Jordan River. It is critical to disputes among users of water around the world.”

He writes in the course of it about the riparian (or, in a variation, the Harmon) doctrine of water: If it comes to my property, it’s mine. And about the difficulties and limitations inherent in that approach. [AlterNet, August 6]

Ridenbaugh Press has launched a wiki reference on the Snake River Basin Adjudication.

The site contains some overview information about the adjudication, and will be filled in with more over time. Readers are invited to add to the site.

A quick user note: You need to set up an account (basically, name and password) to get to the content. It’s pretty quick and painless (and, of course, free).

5th District Judge John Melanson on June 19 ordered Department of Water Resources Director David Tuthill – or his successor, since Tuthill was set to leave that job at the end of June – to review and amend some aspects of his orders to address water calls in the Magic Valley.

Specifically, he “Remanded on issue of seasonal variation; Director abused discretion in ordering ‘replacement plan’ and failure to provide timely hearings; affirmed in other respects.”

The decision has significant impact within the Snake River Basin Adjudication but, although SRBA Judge Melanson delivered it, it is not part of the adjudication. The case arose in district court in Gooding County through an administrative appeal of the department’s actions. Delivered earlier to Judge Barry Wood (himself a former SRBA judge), it was assigned in July 2008 to Melanson, who also undertakes general district court work outside his SRBA responsibilities.

The calls came from Clear Springs Foods and Blue Lakes Trout Farm, both fish farmers in the Buhl area and holders of relatively senior water rights in the area. They contended that spring flows feeding their water supplies had diminished in recent years, in large part because of strong water use by groundwater pumpers over the Eastern Snake Plain Aquifer. The two fish farm companies issued a water “call” – a demand that junior water right holders back off their water use so that senior rights were maintained, and a request that the Department of Water Resources enforce the request, as state law provides.

Blue Lakes delivered its call to the department in March 2005, and Clear Springs in May of that year. A series of negotiations (with groundwater users and others) and orders followed.
In July 2008 Tuthill, as director, issued a final order intended to meet that demand, but intended also to ease the impact of water loss on the groundwater users. He ordered either curtailment of water use or a plan for groundwater users to replace the water on a phased-in basis.

The case was appealed to district court in July 2008, and intervention was granted to two others, the Idaho Dairymen’s Association (in October 2008) and Rangen, Inc. (in November 2008).

An oral argument on the case occurred on April 29. Continue Reading »

David Tuthill

Idaho Department of Water Resources Director David Tuthill said on May 26 that he plans to retire from the department as of the end of June.

He has been director since January 2007; previously, he had led the water management division and for some years before that was the adjudication bureau chief, the IDWR official most directly involved in overseeing work on the SRBA.

In that capacity, he was central in setting – from the department’s point of view, across the aisle from the SRBA Courts – the pattern for researching and resolving water claims and the state’s review of them. Mont by month, those numbers have dropped dramatically, and the number of basins reviewed increased. The SRBA has some resolution in sight, a situation unknown when Tuthill moved in more than a decade (and three SRBA judges) ago.

Water resource directors in Idaho ordinarily are appointed by the governor (with state Senate confirmation) for four-year terms (roughly matching those of the governor). Governor C.L. “Butch” Otter will appoint a replacement to fill the rest of the term; that appointee will need Senate confirmation in 2010.
From Tuthill’s departure memo: Continue Reading »

The state level of a long-running water battle in the Klamath River Basin appeared, in May, to have been resolved in the wake of a counterpart federal settlement.

The limited water in the Klamath, sought after by irrigators, the Klamath Tries of Oregon, fish advocates and others, has been the subject of legal battles for more than a decade. In 2001 irrigation was shut off, hurting farmers but helping the fish; in 2002, irrigators got their water but tens of thousands of fish were reported as having been killed. In January 2008, involved groups agreed to the Klamath Basin Restoration Agreement, which provided for dam removal and an approach for apportioning the water.

That still left state water issued unaccounted for. But on May 20 the tribes and the irrigators filed with the state Department of Water Resources an agreement with a plan that reflects the federal approach.

[see Eureka (CA) Times-Standard, May 22]