U.S. Water News Online
TWIN FALLS, Idaho -- Federal attorneys have told the Idaho
Supreme Court that the United States government has rights to water
flowing through the Deer Flat National Wildlife Refuge even though it
failed to formally claim them.
But state lawyers maintained the government should have stated its
claim in the executive order creating the refuge in 1937. That
mirrored the majority view taken last week by the Supreme Court in
denying federal water rights in three wilderness areas.
The debate pits demands for water to preserve habitat against
irrigator demands for their livelihood. The court took the case under
advisement. A decision is likely next year.
Retired Snake River Basin Adjudication Judge Daniel Hurlbutt early
last year rejected the federal claims to water through the string of
islands in the Snake River south of Boise. The issue of federally
reserved water rights is a major focus in the Snake River
Adjudication, which is sorting out more than 150,000 water rights
claims in 38 of Idaho's 44 counties.
U.S. Justice Department lawyer Mark Haag argued that the
government did not need to outline its water rights when establishing
the refuge because officials assumed the Snake River would never go
Haag, repeatedly questioned by the justices, said federal water
rights are implied because the islands -- which constitute
approximately 8 percent of the Deer Flat Refuge -- technically must
be surrounded by water to protect migratory waterfowl.
The federal claim calls for enough water to protect the birds from
predators, cattle, and motor vehicles. It also calls for a periodic
scouring flow to clear channels between islands.
To a question from Justice Gerald Schroeder, Haag contended that
if upstream users diverted their full allotments during drought years
when flows are low, the wetland areas would no longer be islands.
That alone, he maintained, justifies the federal claim.
``If water is necessary, then the U.S. gets that right,'' he said.
But Justice Wayne Kidwell, who sided with Schroeder and Chief
Justice Linda Copple Trout previously against the federal wilderness
water claims, suggested Haag was speaking hypothetically and the
river would never go dry.
But Haag argued that the government had no choice since it must
present every justification for its claim now ``or forever hold our
He said the government's failure to specifically claim a water
right in creating the reserve 63 years ago only ``suggests that no
one in '37 saw the possibility that the Snake River could be dried
However, attorney Roger Ling, representing A&B; Irrigation, argued
that the state owns the water within its boundaries.
Since the islands make up only 8 percent of the refuge and the U.S
owns only a portion of them, Ling said granting a federal water right
would set a dang erous precedent.
``If it was necessary to have a water right, they should never
have created the refuge'' without one, he said. ``The implied intent
must be at the time the reservation was made.''
Idaho Deputy Attorney General Clive Strong then asked the Supreme
Court to dismiss the federal government's appeal on technical
grounds. Haag pointed out that the court has already rejected that
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