NOTE: The Idaho law in this article was current as of the date of its publication in 2007.

Synopsis

This article will provide a comparison of the North Idaho Adjudication (NIA) with the Snake River Basin Adjudication (SRBA), an overview of the adjudication process, and potential NIA issues.

Introduction

In 2006, the Idaho State Legislature passed a bill authorizing adjudication of the water rights in three North Idaho watersheds.[1]  The three watersheds, in order of their proposed adjudication, are the Coeur d’Alene-Spokane River Basin, the Palouse River Basin, and the Kootenai and Clark Fork-Pend Oreille River Basins.[2]  The decree of water rights for these basins will complete adjudication of all Idaho water rights.  All Idaho attorneys should be aware of the North Idaho Adjudication (NIA) so that their clients may receive counsel related to it and safeguard their water rights.

Comparing NIA to SRBA

The primary differences between the Snake River Basin Adjudication (SRBA) that is currently working toward final decree and the coming NIA are the total number of claims and the ratio of surface water diverters to groundwater well users.  The SRBA decreed over 150,000 separate water rights,[3]whereas the total number of water rights within the three NIA watersheds is about 24,500.[4]  This difference in the number of water rights means that the SRBA Court’s expertise at processing and handling claims and objections could potentially benefit the NIA region to assure efficiency in the use of both court and water rights holders’ expenses.  Also, the SRBA Court’s expertise is one reason not to allow venue in District One, see below, but to use the Twin Falls SRBA Court to assure good water law as an outcome.  Secondarily, due to the numbers of NIA water rights holders and the SRBA Court’s expertise, adjudication should only take a relatively few short years, instead of the decades that the SRBA consumed.

Surface Water v. Groundwater Users

The ratio of surface water users to groundwater well users differs dramatically between the SRBA and NIA regions.  In the SRBA region, the historic method of procuring water in that relatively dry geographic area[5]was through diversion of the Snake River into ditches serving flat agricultural areas.  Over decades, significant numbers of senior water rights were developed in surface water irrigation prior to many groundwater well users beginning to compete for the water resource.   In North Idaho, the mountainous terrain and lack of navigable rivers with steady flows for good diversion works has meant that development of water rights occurred differently.   Flat topography and ditch works for irrigation serve relatively few water users up north, in comparison to the more numerous groundwater well users.[6]

More Rain, Fewer People

Another significant difference between the SRBA and the NIA regions is that the NIA region has higher annual rainfall[7]and only fifteen percent of Idaho’s population.[8]  This difference probably accounts for some NIA regional attitudes reflecting disbelief that they should be concerned about the amount of available water.  If a landowner up north wanted water, he would simply dig or drill a well, or drop a pipe into the nearest lake or river, with little concern except as to proximity to source point or other potentially polluting circumstances.  Further, with fewer people in that higher rainfall environment, neighbors could ignore how others conserved or wasted water, unless there was a polluting occurrence that could not be ignored.  Thus, North Idaho’s compliance with IDWR permit processes will probably be found to have been lower than SRBA region compliance.  When the cupboard is bare, every crumb is counted, but with a full larder, waste may be ignored.

Domestic Water Rights Included

All that is about to end.  In addition to decree of municipal, agricultural and industrial uses and unlike the SRBA adjudication, IDWR has stated that the NIA adjudication will include decree of domestic water rights.[9]  Domestic water rights are:

(a) The use of water for homes, organization camps, public campgrounds, livestock and for any other purpose in connection therewith, including irrigation of up to one-half (1/2) acre of land, if the total use is not in excess of thirteen thousand (13,000) gallons per day, or

(b) Any other uses, if the total use does not exceed a diversion rate of four one-hundredths (0.04) cubic feet per second and a diversion volume of twenty-five hundred (2,500) gallons per day.[10]

The danger for Idaho attorneys’ clientele is that small domestic groundwater well users in the NIA region may not pay sufficient attention to the NIA process.  This does not necessarily mean that NIA region domestic water rights holders could lose their right to take water for a beneficial use[11], but it does mean that unless they verify their right as reported in the IDWR Director’s Report or make a claim to prove their right following commencement of the NIA that the priority date of their right could be advanced to the date of the final decree.[12]  Since the SRBA process has taken over nineteen years[13]and the NIA is targeted for completion in 2015 or thereabouts,[14]NIA region domestic water rights holders will want to be proactive with IDWR to make sure their historic priority date(s) are preserved.

Other Significant Issues

As in the SRBA, the NIA process will include federal reserved rights claims.  Federal reserved rights are important for three reasons.  The first reason is that federal immunity to state laws is waived when water rights within an entire stream system are adjudicated.[15]  The second reason is that federal lands constitute a large percentage of land in the NIA region.  Finally, as trustee for Indian lands, the federal government reserves rights to water for the tribes, subject to certain legal restrictions unenunciated here.[16]  During the NIA, Indian water rights will be adjudicated for the Coeur d’Alene and Kootenai tribes.

Federal Reserved Rights

The McCarren Amendment[17]waives federal immunity to suit in state courts for the purpose of adjudicating water rights for entire stream systems.  That statute mandates consent to joinder should a state request it.  Due to the presence of federal lands within the NIA, that adjudication will require joinder of the federal government under the McCarren Amendment.

Further, beyond claims the federal government may have in its own water rights, the McCarren Amendment waiver has been ruled to create state court jurisdiction over claims of the federal government in its capacity as trustee for Indians[18]and claims of Indian tribes in their capacities as trust beneficiaries.[19]  Thus, the NIA will adjudicate federal water rights on federal lands, federal reserved water rights in its capacity as trustee for the Indian tribes, and federal reserved water rights based on Indian tribal claims in their capacities as beneficiaries.

Indian Water Rights

The Coeur d’Alene-Spokane River Basin is the home of the Coeur d’Alene Tribe.  The Kootenai Tribe’s reservation is within the boundaries of the Kootenai and Clark Fork-Pend Oreille River Basin.  The Coeur d’Alene Indian reservation was created by Executive Order of President Ulysses S. Grant on November 8, 1873.[20]  The Kootenai Tribe’s reservation was created October 18, 1974 by allotment.[21]

The U.S. Supreme Court decided the Winters[22]case in 1908, which ruled that the Gros Ventre and Assiniboing Indian tribes impliedly reserved their water rights in Montana by the 1888 agreement that created that reservation, and that the later admission into the United States of the Territory of Montana as the State of Montana did not sever those rights from the Indians.  Thus, the Winters case created the rule that lacking express agreement or a treaty reserving water rights, Indian tribes are federal trust beneficiaries of impliedly reserved water rights sufficient to support activities occurring on reservations as of the date when agreements or treaties with the United States created such reservations.  Therefore, in the NIA the Coeur d’Alene Tribe and the Kootenai Tribe will probably be found to enjoy implied reserved water rights as of the dates of creation of their respective reservations.  Facts related to such a finding on behalf of the Coeur d’Alene Tribe may be subject to the doctrine of collateral estoppel, due to a United States Supreme Court case ruling that submerged lands under Lake Coeur d’Alene and the St. Joe River inside the exterior boundaries of the Coeur d’Alene Reservation are held in trust by the federal government for tribal use.[23]  The question will then arise as to what quantities of water are necessary to support the Indians’ reserved rights.  The U.S. Supreme Court developed the Practicably Irrigable Acreage (PIA) standard based on the number of acres of trust land in a reservation,[24]but this measurement technique may not adequately address fishing rights, timber growth or other non-agricultural uses, which NIA region tribes will probably require.

Types of Indian Water Claims

To narrow the scope of such concerns, potential types of NIA tribal claims should be identified.  Some claims will be for reservation uses, such as domestic, commercial, municipal, and industrial uses; springs and ponds for livestock and wildlife; irrigation from surface and groundwater; water to develop or maintain wildlife habitat; and recreation.  Other claims may be related to water from outside reservations flowing across reservation boundaries and into reservations, so-called off-reservation claims, flowing either by surface or groundwater action.  Off-reservation claims may be related to instream flows to support fishing and other traditional activities of a tribe on its reservation, even if no diversion for a beneficial use occurs, but likely only if the documents that created the Indian reservation expressly recognized such purposes.[25]  In the NIA, it is conceivable that groundwater usage by non-Indians over the Rathdrum Aquifer may impact adjudication of on-reservation claims of the Coeur d’Alene Tribe.  More easily envisioned are on-reservation impacts related to instream off-reservation flows from the Coeur d’Alene, St. Joe, and St. Maries Rivers.[26]  In any case, adjudicators would be wise to avoid creation of future problems as were created by Indian and federal negotiators in the 1800’s, when even express water allocations did not include an expectation of future water scarcity due to competing uses.[27]

Further, the Nez Perce Tribe and the State of Idaho negotiated fruitlessly from 1987 until 1998 when the SRBA Court appointed Frances McGovern as mediator.[28]  In all fairness, efforts during that time productively isolated issues and educated various parties regarding numerous extremely complex issues, including impacts of the potential settlement on Endangered Species Act (ESA)[29]habitat, hydroelectric power generation, and off-reservation agricultural users.  However, as of October 2006, there were few water rights-related discussions between the two NIA region tribes and the State of Idaho, thus the probability of an appointed mediator for tribal claims is high.

The NIA Calendar

Pursuant to Idaho Code sections beginning at 14-1401, the Coeur d’Alene-Spokane Watershed Basin adjudication is scheduled to commence in fiscal year 2008, which begins July 1, 2007.  IDWR’s petition will be filed and venue will probably lie with the SRBA Court in the Fifth District, pursuant to its special jurisdiction granted by the Idaho Supreme Court’s Provisional Order of September 29, 2006.[30]  While the Court is not bound by its own provisional order, changing venue to North Idaho is unlikely.[31]  The broad outlines of the NIA call for each watershed’s adjudication to undergo a five-stage, five-year process.

Using the Coeur d’Alene-Spokane Watershed Basin adjudication as an example, the first stage will include commencement of suit by an IDWR petition to the SRBA Court, the initial taking of claims, and the conduct of meetings to prepare and work with various entities.[32]  The second year’s work includes the conducting of field examinations by IDWR.[33]  The third year IDWR will prepare recommendations of its findings for the court, in which all records and claims will be collated and sorted into compilation of its Director’s Report[34]that should be ready for issuance in 2010.[35]  Publication of IDWR’s Director’s Report constitutes an expert opinion[36]for the Court to use in addressing objections to that Report.  Finally, in 2011, IDWR envisions the Coeur d’Alene-Spokane Watershed Basin to reach the dispute resolution phase.[37]

Long-Arm Venue

The Idaho State Supreme Court believes that the Twin Falls-based SRBA Court is sufficiently practiced at addressing concerns of distant water rights holders to mollify objections while maintaining cost efficiencies, thus the venue for the NIA is not likely to be North Idaho.[38]   The strong likelihood is that the Idaho Supreme Court will make permanent its provisional order granting special jurisdiction to the SRBA Court.  NIA assignment to the SRBA court will require some combination of video/telephone conferencing and internet-based claims filing.  Efforts in this direction are being planned.[39]  Major objections in the NIA will be handled with physical visits to North Idaho.[40]  Thus, venue and jurisdiction for the NIA will probably remain as provisionally granted.

NIA Process for Most Users

Once the NIA petition is filed by IDWR, standard Idaho Rules of Civil Procedure and the SRBA Administrative Rules will apply.  Pursuant to Idaho Rule of Civil Procedure 11(c), verified pleadings are currently required to be attested to before a person authorized to take oaths, such as a notary public, or other person pursuant to Rule 28(a).   A claim is a pleading before the adjudication courts and pursuant to Idaho Code the SRBA Court required claimants’ affidavits[41]to be entered into evidence to support a claim.  In order to allow internet filing to occur, statutory changes are being introduced in the Legislature to remove this requirement.[42]  Thus, most NIA water rights claimants will be able to file their own documents over the internet directly to the court.  Then, they will be able to provide evidence to support their claims or counterclaims through video/telephone conferencing equipment located in Coeur d’Alene directly to the SRBA court, unless hearings physically located in North Idaho are determined to be required.  In that case, SRBA Court personnel may get to travel to what United States Supreme Court Justice Kennedy apparently believes is the most beautiful part of Idaho.[43]

Evidence of a non-permitted beneficial use or constitutional water right[44]may be offered through an owner’s or neighbor’s affidavit, well drillers’ records, deeds, estate transfer records, photographs or other physical evidence.  Changes in any point or place of diversion of water, place of use, yearly time period of use, or nature of use of water must currently be and should have been reported in the past to IDWR.[45]  Also, changes in ownership, including division of a right into fractional ownership, or changes of the address of a water rights owner must be reported to IDWR.[46]  Idaho attorneys should counsel their clients that these records should be gathered now in preparation for the NIA.

Unresolved Issues

Challenges before the SRBA Court resulted in Judge Wood’s finding in a recent case that IDWR’s management of surface and groundwater rights, the Conjunctive Management Rules (CMRs), resulted in a “diminishment in vested rights,” because the CMRs did not “contain reasonable and objective standards, omit[ted] significant [legal] concepts, and failed to establish a timeframe for administration commensurate with the needs for irrigation.”[47]  Specifically, IDWR was barred by that ruling from using CMRs that shuffle junior and senior water rights priorities for the purpose of managing water rights for a given watershed.  The Wood decision requires it to adhere to Idaho’s Constitution requiring “first in time, first in right” priority.[48]  Thus, IDWR must recreate management rules that account for that court’s decision for use in the NIA.  This is important because unlike the SRBA the NIA does not primarily involve a battle between off-reservation senior surface water diverters against off-reservation junior groundwater pumpers.  In the NIA, albeit primarily in the Coeur d’Alene-Spokane Watershed, the senior water rights will be the on-reservation federally reserved Indian water rights located upstream from the numerous off-reservation non-federally reserved downstream groundwater pumpers on the northern shores of Lake Coeur d’Alene and the Rathdrum Prairie Aquifer.  The location of the Kootenai Tribe’s reservation on the Kootenai River may trigger a similar set of issues.

Further, the NIA process will probably involve the ESA concerning problems associated with Lake Coeur d’Alene’s heavy metal sediments located in the superfund[49]site that extends from the Bunker Mine Complex down the Coeur d’Alene river, through the Lake, and into the Spokane River.  Provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)[50]will thus also contribute to the complexity of the NIA.  The NIA will involve significant federal and state issues of great magnitude and intertwining complexity.

Washington’s Interests

One final NIA issue warrants mention.  In 2003, the City of Spokane had an estimated population of 196,624.[51]  Spokane procures its water from the western end of the Rathdrum Prairie Aquifer.  Overshadowing the NIA process may be the insistence of our sister state to impose a temporary moratorium on Idaho’s constitutionally-authorized[52]grants of water rights during the pendency of the NIA.  Washington State could bring suit to argue that adverse impacts of Idaho’s NIA or its continued constitutional issuance of water rights permits during the NIA implicate interstate commerce violations.  Also, Washington could bring suit demanding creation of an interstate compact between Idaho and Washington as a remedy for interstate disputes over water.  Whatever Washington State’s approach, there should be no doubt of its concerns over the NIA.

Conclusion

While appearing to present a simpler puzzle than the SRBA, the NIA will probably involve as many or more complex federal issues, but there will be fewer parties encumbered by those issues.  Ordinary water rights holding clients of Idaho attorneys will enjoy electronic filing and local access to a public hearing process run by experienced SRBA Court personnel.  After the NIA, every Idaho citizen can bask in the satisfaction that Idaho is the only State to have successfully adjudicated all of its water rights.