Clive Strong’s modest style and professionalism don’t permit him to toot his own horn about his profound contributions to public service during a 34-year career as an Idaho assistant attorney general.
Fortunately, others can put his remarkable career in natural resources law into crisp perspective.
“Nobody has done more in the last 34 years to protect Idaho’s water than Clive Strong — modernizing Idaho’s water law, engineering a successful adjudication of the Snake River Basin, resolving numerous major, seemingly intractable water disputes,” said retired Idaho Supreme Court Chief Justice Jim Jones, who hired Strong in 1983 when Jones was attorney general.
The soft-spoken Strong became a powerful voice and negotiator when wrestling with Swan Falls water rights, which — as a result of decisions between 1952 and 1982 — had left Idaho Power essentially in control of the Snake River. Even while Strong focused on the tangle of 158,000 different water rights claims in the Snake River Basin, he juggled natural resource issues for the AG, including working with the Land Board and nuclear waste matters at the Idaho National Laboratory as outlined in the 1995 agreement with the Department of Energy.
Strong could have left public life and pursued a lucrative private law practice. But the prospect of solving complex matters in his AG work was as exciting as it was challenging — on occasion requiring him to argue before the U.S. Supreme Court.
The Statesman Editorial Board visited with Strong about his tenure, which ended with his retirement this month. He leaves the state in the enviable position (neighboring states consider his adjudication work a model) of having water-rights policy mostly settled. What follows are lightly edited excerpts from the conversation.
Q: Where are we regarding water rights?
A: When I joined the office I was assigned the Swan Falls case — as you know, a very controversial case — over control of the Snake River. (The state of Idaho) had recently lost a decision in the Idaho Supreme Court that favored Idaho Power Co. and was confronted with the situation that the company may have control of the entire Snake River upstream from Swan Falls. ... We had a couple of very heated legislative sessions in which there were efforts to support the company’s water rights, which were unsuccessful. Then we were successful in 1984 in negotiating the Swan Falls agreement. That was largely due to Gov. John Evans and then-Attorney General Jim Jones and Idaho Power CEO Jim Bruce and their thoughtfulness.
Q: What was at stake?
A: We saw this as an opportunity for Idaho gaining control of the resource, and so under the Swan Falls agreement the plan was to get the Snake River Basin water rights quantified so we could effectively manage the resource. ... We started negotiating with the Shoshone-Bannock tribes and were ultimately able to negotiate a resolution in 1990 ... and from there we began that 27-year process of adjudicating the water rights. ... What it has done for Idaho is put us in a position where we know what water rights exist, we have had an opportunity to address some of the long-lingering issues out there, get them clarified — and more importantly, I think, to document the history of water law in Idaho.
Q: What prompted Jones, three days after hiring you, to give you that Swan Falls assignment?
A: I never asked him that question. It may have been just where I came from and my upbringing. I grew up in Wendell, which sits up above the Thousand Springs, the focal point of the Swan Falls controversy — how to manage that groundwater supply. My family homesteaded in that area, so I have a farming background and I also have a background with the fish farmers, in the sense that my dad was a mechanic and worked with the farms down there. I guess Jim Jones was looking for somebody young who might stay awhile.
Q: You ran for the Idaho Supreme Court, losing in the 2016 primary. What is your perspective on appointing judges, versus electing?
A: I can make arguments both ways. I would make the argument, right now, that I think our current election process does not work. It doesn’t work because, if you look at it, we are electing judges in a primary and we’re having a closed primary — which limits the opportunity for people to have input into that process. Our judges are being elected by a minority of the population. So, in our current system, I don’t find it very useful. But I do think that, to some extent, there is wisdom in having elected judges if done the right way.
Q: Darrell Early is succeeding you. What issues is he inheriting?
A: Darrell worked for me for 17 years; he’s litigated a large portion of the issues with regard to nuclear waste. I think he’s well suited to step right in and take that over. His biggest challenge will be trying to get a handle or understand all the water issues – that’s been primarily my area.
Q: What are the sticking points around water rights?
A: People don’t look at them on a global basis. They look at them on an individual basis and they don’t understand the interconnections between all the water supplies. What the adjudication did was to force us to come to grips with how interconnecting surface and groundwater can be managed, and there’s no other state that has really grappled with that issue.
Q: When you “adjudicate,” how does that work?
A: Everyone who believes they have an entitlement to water will file a claim in the adjudication and they will say, “This is what I believe I am entitled to.” The Department of Water Resources will look at each individual claim (in this case we had over 158,000 claims) and make recommendations on what it believes you are entitled to. Anybody who disagrees may file an objection. Once the objection is filed, then that issue goes to court — that’s where we, as the AG’s office, got involved. Once the objections were before the court, we would litigate on behalf of the state on what we thought those claims should look like. ... We defend the state’s interest (and there also are federal claims to consider, which impact the individual claims).
Q: Eventually these claims get resolved. You must be intrigued by the process.
A: I am a problem solver. ... You get into these things and you kind of get sucked in a little bit. (For example), one of the fundamental principles of Idaho water law is what we call the Zero Flow of Milner Dam (the geographic dividing line of the Snake River Basin, between Burley and Twin Falls). We didn’t know the significance at first, but we figured that out in about 2004 (the principle was established in a report written in 1920).
Q: Does Idaho own the riverbeds?
A: Under what’s called the Equal Footing Doctrine .... the state owns the beds and banks of all the waters.
Q: How many aquifers are there? Are they interconnected?
A: I don’t know if anybody could tell you how many aquifers there are in Idaho — there’s a tremendous number. Obviously the Snake River Plain Aquifer is the biggest one and the most hydrologically connected, but a lot of aquifers aren’t.
Q: Is the stored liquid waste at INL a threat to that aquifer?
A: In my opinion, yes. ... We still have the tanks over there that have the liquid sodium waste. We don’t have any evidence presently that they are leaking, but if they do, we are not going to have a solution for that.