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 dry.
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 piece.''
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 up.''
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 petition once.
Return to the U.S. Water News' Archives page Or Return to the U.S. Water News Homepage
Editor@uswaternews.com
*Your Name:
*Your Email:
*Friend's Email:
Use a comma to separate e-mail addresses:
*Your Comments:
Hi, I thought you might like to read this article.
*Required Fields