Senate OKs water deal

Agreement with Nez Perce Tribe nears completion

By COREY TAULE
ctaule@postregister.com

BOISE -- With only a few people watching from the gallery Wednesday, a group of tired and hungry Idaho senators overwhelmingly approved one of the largest and most complex water-rights settlements in U.S. history.

Beginning at 4:30 p.m., the Senate for two hours debated three bills that encompass the state's agreement with the Nez Perce Tribe. One bill passed with only seven dissenting votes. Two passed with five dissenting votes.

Congress and President Bush already approved the deal, and the $193 million in federal money the tribe would receive. All that remains to make it a reality is for Gov. Dirk Kempthorne and the tribe to sign off on it.

And that will be a relief to many southern Idaho farmers.

As part of the settlement, the Nez Perce Tribe forever waives its off-reservation claims to water in the Snake River. The tribe claimed that an 1855 treaty gave it the right to virtually all the water in the Snake River and its tributaries.

An Idaho District Court judge dismissed that claim in 1999, but it became clear that the vast majority of lawmakers didn't want to risk having the tribe's claim upheld in either the Idaho Supreme Court or the U.S. Supreme Court.

"That's a pretty dark cloud to have hanging over the water rights of this state," said Sen. Stan Williams, R-Pingree.

Sen. Don Burtenshaw, R-Terreton, carried two of the three bills on the Senate floor Wednesday. Senate President Pro Tem Robert Geddes of Soda Springs carried the other.

Opposition to the agreement came mostly from northern Idaho lawmakers concerned about private property rights.

Sen. Skip Brandt, R-Kooskia, argued passionately that Idaho should allow the courts to decide this issue. Brandt wondered aloud whether lawmakers really understood what they were voting on or whethher they were simply looking at the long list of people and special-interest groups that support the deal.

"There's no turning back," Brandt said. "This isn't a rule. This isn't statute. If we say yes to this agreement, it's forever."

Although Idaho appears on the brink of settling one dispute, it may soon enter into another.

An attorney for the Shoshone-Bannock tribes said recently that the tribes plan to file two lawsuits if the Nez Perce deal is finalized.

Pocatello attorney Bill Bacon said the agreement gives the Nez Perce nearly all the aboriginal water rights belonging to the Lemhi Band of Shoshone, which resides on the Fort Hall Indian Reservation.

The Sho-Bans have identified 32 streams in the agreement that "are clearly in the Shoshone decreed territory, and 25 streams that are in a historically disputed area between the Nez Perce and the Shoshone," the tribes said in a press release.

Also, Bacon said the tribes are prepared to file a state lawsuit demanding that Kempthorne honor a water-rights settlement the Sho-Bans say he agreed to with them in April 2002.

The tribes say Kempthorne agreed in principle to a settlement concerning off-reservation water rights the Sho-Bans had claimed. Kempthorne told 40 or 50 Sho-Bans that the state was ready to sign the deal, Bacon said.

But Senate Minority Leader Clint Stennett of Ketchum said two facts give him comfort that the state has nothing to fear from the Sho-Bans: Kempthorne never signed the agreement, and the Sho-Bans voluntarily gave up their off-reservation claims in the Snake River Basin Adjudication, which led to the settlement with the Nez Perce Tribe.

"I don't believe the Sho-Bans have a claim here after running this into the ground," Stennett said.

Idaho's 35 senators weren't the only ones working late Wednesday. Kempthorne issued a press release at 7:30 p.m. praising the overwhelming vote on the three bills.

"The Legislature's approval of these three pieces of legislation gives us the tools we need to protect Idaho's sovereignty over its water," Kempthorne said.

On the INTERNET

Information on the Nez Perce water-rights settlement:

• www.idwr. state.id.us/

INSIDE

• GOP names top picks for Noble's Senate seat / B5