Letters from the West

House says public dollars should pay for ranchers’ legal fees in water fight

Paul Nettleton is considered a hero by other ranchers for standing up to the federal government to defend his water rights. Now, lawmakers want to pay his legal fees.
Paul Nettleton is considered a hero by other ranchers for standing up to the federal government to defend his water rights. Now, lawmakers want to pay his legal fees. Idaho Statesman file

In a voice vote, the Idaho House on Monday advised the state’s Constitutional Defense Fund to pay two ranchers’ $600,000 legal fees because their victory in the Idaho Supreme Court preserved this state’s sovereignty over its water.

House Speaker Scott Bedke, R-Oakley and one of the four people who oversee the fund, stepped down from the lectern and handed the gavel over to Majority Leader Mike Moyle so he could lead the debate. Bedke, a rancher himself, said the two ranchers, Paul Nettleton and Tim Lowry of Owyhee County, stood alone against the federal government in their claim that it could not hold the rights to the water their cattle drank on federal lands.

The Idaho Supreme Court ruled on their behalf, saying they, not the federal government, were putting the water to beneficial use — a key element of a state water right. But the court ruled the federal government presented “a legitimate issue,” not a frivolous case, so it did not have to pay the ranchers’ legal fees.

“I think there’s a wrong out there that needs to be righted,” Bedke said.

Only one House member rose to challenge the proclamation. Rep. Maxine Bell, R-Jerome, questioned its constitutionality and warned it could open future private claims to state payments.

“It troubles me a little bit that they need the help, but it troubles me more a little bit that we might be stepping out in a place where we would continue to have to go, and continue to find funding for the Constitutional Defense Fund,” Bell said.

The measure now goes to the full Senate for consideration.

In 2007, Nettleson’s Joyce Livestock Co. and Lowry’s LU Ranching Co. won a lawsuit against the U.S. Bureau of Land Management for access to water on federal grazing land. The matter grew out of the state Snake River Basin Adjudication, a 29-year process that resolved more than 158,000 claims to water. Early in the process, the state determined the federal government held the water rights — since it controlled the land — and the ranchers who used the water were its agents, Bedke said.

“One thing I was sure of,” Bedke said, “we were not acting as their agent.”

But he and other ranchers couldn’t afford the legal fight and settled.

Nettleton and Lowry did not settle, arguing their claims in the 1870s preceded the passage of the Taylor Grazing Act in 1934 on which the BLM based its filing. The Idaho Supreme Court upheld the adjudication court’s ruling, saying the BLM’s argument “reflects a misunderstanding of water law.” The U.S. Supreme Court turned down the government’s appeal.

“These ranchers were brave enough to stand up to the federal government,” said Majority Caucus Chairman John Vander Woude, R-Nampa. “They’ve gone into debt at the risk of their ranches for the state of Idaho.”

Bedke is going the proclamation route because state law, passed in 1994, says Idaho can’t pay legal fees for private parties in the adjudication. Since the two ranchers’ victory strengthened the state’s control over its water, he said, they deserved to have the state cover the fees to a San Francisco law firm.

Since the House is not passing a law to pay the bill, the proclamation is not unconstitutional, Deputy Attorney General Brian Kane said in a letter to Rep. Elaine Smith, D-Pocatello.

”Under the Idaho Constitution, a binding law can only be made if passed by the House and Senate and presented to the governor for his signature,” Kane wrote in a March 15 letter obtained by the Idaho Statesman through a public records request. “A proclamation does not meet those legal requirements to become law.

“As a policy pronouncement of the House, no constitutional issues are raised,” Kane said.

This is not the first time the ranchers have sought help from the Idaho Constitutional Defense Fund, set up to protect the state’s sovereignty and controlled by a council made up of the governor, attorney general, House speaker and Senate president pro tem. In 2009, Lowry asked Attorney General Lawrence Wasden if the defense fund could be used to pay their fees. The council and the Legislature do not have the authority to appropriate public money for private purposes, Assistant Attorney General Clive Strong wrote in a Feb. 2, 2009 letter.

The House also is expected to approve legislation that would direct the Idaho Department of Water Resources director to begin proceedings to force the federal government to forfeit the stockwater rights currently recognized under state law, based on the Joyce decision. After the 2007 ruling, all stockwater rights went to the ranchers who used them, but thousands of claims prior to then are federal.

“There’s unequal treatment under the law and we’re trying to fix this legislatively,” Bedke said.

Rocky Barker: 208-377-6484, @RockyBarker

Water needs in a growing state

The Andrus Center for Public Policy will hold a conference: “Idaho’s Water: Supply and Quality in a Time of Growth,” from 8 a.m. to 4 p.m. April 17 at the Boise State University Student Union Building. Tickets are on sale now at the Andrus Center website.

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