A gamble not worth taking

Post Register editorial board members are Roger Plothow, publisher; J. Robb Brady, publisher emeritus; Marty Trillhaase, Opinions page editor; and Dean Miller, managing editor .

If the state of Idaho continued fighting about water with the Nez Perce tribe in court -- and won -- it still couldn't secure much better terms than those it got by settling with the tribe.

There is no limit on the potential costs of breaking the deal, gambling with Idaho's water and then losing in court.

So it's stunning to think critics, including the Idaho Farm Bureau and the Shoshone-Bannock tribes of Fort Hall, want you to take that chance.

Fortunately, their best prospect for success just passed by.

The House Resources and Conservation Committee on Friday approved the deal by a wide margin. Idaho has until the end of next month to ratify this settlement. Worked out after five years of negotiations, it means certainty for all sides:

• The Nez Perce waive their claims to the Snake, Boise, Clearwater and Payette rivers, as well as springs on private and state lands in northcentral Idaho. It filed a claim under its 1855 treaty. If the tribe prevailed, virtually every other water right in Idaho would be junior.

• Congress appropriated about $193 million to cover the settlement's costs. The tribe will receive about half to protect fish habitat, develop domestic water and sewer systems and compensate the tribe for waiving some claims.

• The tribe also receives control of 11,000 acres of Bureau of Land Management lands and two hatcheries.

• Eastern Idaho irrigators receive a 30-year guarantee that the feds won't arbitrarily take their water to flush endangered salmon and steelhead migrating to the Pacific Ocean. The deal includes $57 million to continue buying 427,000 acre-feet each year from willing upper Snake River sellers and another $13 million to enable the feds to buy 60,000 acre feet of water each year below Milner Dam down to Swan Falls.

Critics contend this deal undermines property rights in northern Idaho. Even if they're right, there are better remedies than killing a deal that affects so many people and so much of the economy.

The cost of buying out the small number of cattle ranchers who would be grazing on newly converted tribal lands, for instance, pales in comparison to paying a small army of federal, state and tribal lawyers to continue this litigation.

Critics argue the state's legal position is strong. That's true. The Snake River Basin Adjudication court ruled the Nez Perce have no claim to the Snake and other rivers outside its reservation. How likely is it, they ask, that an elected Idaho Supreme Court would rule otherwise on appeal?

Not likely. But you can't be sure. As conservative as the Idaho Supreme Court is, it has recognized federal water rights in the past.

Either way, continuing the fight in the state Supreme Court means spending millions -- on top of the $5 million already spent on negotiations plus untold millions on more litigation.

Even a win in the state courts wouldn't settle anything. The loser inevitably will appeal to the U.S. Supreme Court. Can anyone be certain what the federal court would do?

Right now, Idaho is coming off a victory in the courts. Imagine if the tribes win a legal round or two. Would the settlement's critics advocate launching new negotiations then -- when the state would be in a weaker legal posture?

Add it up and you have to wonder whether the critics are being distracted by other issues, such as the often contentious relationship between the Nez Perce and its nontribal neighbors. In any event, eastern Idaho's interests are clear. An economy built on irrigation shouldn't gamble with its water. Here's a chance to control events -- instead of waiting for events to control us.

Marty Trillhaase