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 Court rulings.
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 government.
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 wilderness.
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