U.S. Water News Online
TWIN FALLS, Idaho -- The Idaho Supreme Court has set
Valentine's Day to hear oral arguments in reconsidering its
controversial ruling that upheld Forest Service water right claims in
three wilderness areas and one national recreation area.
The hearing will be in Boise.
The court in November agreed to rehear its controversial Oct. 1
ruling that upheld Forest Service water right claims to all
previously unclaimed, or unappropriated, water within the Frank
Church-River of No Return, Gospel Hump and Selway-Bitterroot
wilderness areas and the Hells Canyon National Recreation Area.
The three-to-two ruling sparked controversy as dissenting Justice
Gerald Schroeder and other critics of the ruling asserted that it
meant all water rights upstream of those wilderness areas claimed
after the wilderness areas were established would be invalid.
Seven petitions for rehearing were submitted to the Supreme Court
in October, which said the court erred in ruling a federal reserved
water right was implied by the Wilderness Act.
Others said the court was simply following previous U.S. Supreme
The underlying issue is the interpretation of the Wilderness Act
and whether Congress intended to reserve water rights in wilderness
areas. The petitioners disagree with the court's interpretation of a
clause that refers to water in that act.
The state attorney general's office has said the clause means
Congress considered water rights, and if Congress had intended to
reserve a federal water right it would have said so.
The state Supreme Court ruled that the clause was meant only to
preserve the status quo between the states and the federal
Writing for the majority, Justice Cathy Silak argued that
appropriating water in a wilderness area is incompatible with the
tenets of the Wilderness Act and therefore, in designating wilderness
areas Congress must have included the water that was part of the
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