North Idaho Adjudication brings troubled waters

The 2006 Legislature passed two statutes which will force citizens of Bonner, Boundary, Kootenai, Shoshone, Benewah and Latah counties to deal with general water rights adjudications in three geographic segments.

Will the process be worth the cost and effort, or will it be a huge waste of money and produce more problems than solutions? I have the following observations — you decide:

I have been an active participant in the Snake River Basin Adjudication in southern Idaho since the first legislative committee hearings in 1985, which debated and ultimately passed sweeping statutes, forcing the SRBA upon the unsuspecting citizens of 38 of Idaho's 44 counties.

Questions were asked and promises were made to the Legislature during those hearings. Cost to state government? No more than $12 million. Actual cost? Over $80 million, not including private party litigation costs. How long will it take? Ten years was the answer. Today, we are entering year 20 of the SRBA. Will the SRBA settle all the legal fights over water use? Yes, it will resolve all uncertainties involving water rights in southern Idaho. The reality? More litigation costs involving water rights and water use has been filed in Idaho during the 20 years of the SRBA than the preceding 100 years since Idaho became a state in 1890.

You may think things will be different in the North Idaho Adjudication. After all, it will be much smaller and northern Idaho has too much water, not too little as is so southern Idaho. State officials predict nine years for the North Idaho Adjudication. If their predictions are as accurate as they were in the SRBA, 18-plus years is more realistic.

Some officials say that it is crucial to adjudicate the water rights to protect North Idaho against claims by Washington state for water from the Rathdrum Prairie Aquifer. The law is clear, any state can sue another state for equitable apportionment of a shared water source. The lawsuit must be brought in the U.S. Supreme Court and private citizens cannot participate. If Washington state seeks apportionment of the Rathdrum Prairie Aquifer, the North Idaho Adjudication will not stop it or provide Idaho with any significant defense it does not already possess.

Some have said in the press that the federal government and the Indian Tribes can take the water if the North Idaho Adjudication does not take place. Just the opposite. Only by commencing the North Idaho Adjudication can the federal agencies and Indian Tribes claim ownership of water rights easily. True, the federal agencies and tribes could file a lawsuit in federal court to seek adjudication of claims for federal or tribal water rights, but they would have to serve each water user in the six counties and force them into federal court. Highly unlikely.

If North Idaho Adjudication proceeds, expect tribes and federal agencies to claim as much water as they could ever remotely justify under the greatest extension of facts and legal theories. They did this in the SRBA and they will do this again in northern Idaho. The tribes will be represented by the federal government in addition to private attorneys. The federal attorney will be paid with tax dollars and they will have unlimited funds to hire experts and consultants to support tribal water right claims.

This happened in the SRBA. It will happen in northern Idaho because the tribes will assert that the "trust" obligation of the federal government to the tribes requires these expenditures. In short, your tax dollars will help fund litigation for the tribes against your water rights. A good deal? I don't think so.

Finally, the federal agencies — the Forest Service, Bureau of Land Management, Fish & Wildlife Service, etc. — will claim as much water under as many novel legal theories as possible. They did it in the SRBA and they will do it in northern Idaho. If the SRBA experience is any indication, these claims will jeopardize existing water rights and restrict or eliminate future water development if they succeed. Not a pretty picture.

Some will criticize my characterizations as scare tactics or gross exaggerations. If I could have the space and time, I could give innumerable concrete examples of the horrific costs, extreme risks and grave uncertainties encountered by parties in the SRBA. Many have lost their water rights. Others have spent tens of thousands of dollars defending their water rights. The total amounts are clearly into the millions of dollars in legal fees and costs in that phase of the SRBA alone.

Would this be something worthwhile for northern Idaho? Would the end product be worth the costs, the risks, the uncertainties, the turmoil? Some people say yes, but I do not agree. You decide.

? Scott Campbell has practiced law in Idaho for over 28 years, with emphasis on environmental law and has represented clients in the SRBA since it began in 1987. He chairs the Water Law and Environmental Practice Group of the Boise-based Moffatt Thomas law firm.