COTTONWOOD For producers who graze cattle by permit on federal lands, as much as the issue is about water and livelihoods, it is just as much or more so about ensuring a permitted right isn’t lost.
“This is about protecting your interests, about protecting your private property rights,” said Norman Semanko. “Water rights are private property rights, and you have the right and precedent to have water rights decreed on the federal allotment in your name,” he said. “Why wouldn’t you not want to protect yourself like that?”
A water attorney with Parsons, Behle and Latimer of Boise, Semanko spoke to more than 35 people who gathered last Thursday, Jan. 4, at the Cottonwood Sales Yard for an hour and a half presentation hosted by the Idaho Cattle Association (ICA). The ICA has been making the rounds across the state on an informational push to producers about a 2017 state law that encourages Idaho federal lands grazing permittees to file for stockwater rights on water within their allotments.
Effective last July 1, Idaho Code 42-5 codifies the 2007 Idaho Supreme Court decision in the case of Joyce Livestock Company vs. United States of America that an agency of the federal government cannot obtain a stockwater right under Idaho law, unless it actually owns livestock and puts the water in beneficial use. The decision came as the result of overlapping claims filed by two ranchers and the federal government for in-stream water rights during the Snake River Basin Adjudication, which began in 1987 to determine the water rights in the Snake River Basin drainage and a final decree issued in 2014.
The state law clarified a grazing permittee cannot be considered an agent of the federal government — without this clarification the agency could claim it is putting water to beneficial use through its agent. The court also held federal ownership or management of the land alone does not qualify it for stockwater rights.
As part of the law, if a federal agency acquires a stockwater right, that cannot be used for any purpose other than watering livestock; and any application to change ownership or nature of the right shall be denied.
Legislative intent in the 2017 law, according to code, was to “protect Idaho stockwater right holders from encroachment by federal government in navigable and non-navigable waters.”
One push for the ICA is to encourage permittees to file on their claims as to do otherwise relinquishes that right to the federal government, which is highly questionable as a result of the Joyce decision and if challenged it could be lost permanently.
“Ever hear of third-party lawsuits? You’re not always the only ones that care about what goes on with federal land,” Semanko said. “What if someone comes in and successfully argues that your permit shouldn’t be renewed or this land shouldn’t be subject to grazing at all because there’s no water right here? Oh, let’s go to court and talk about that. Whoops, looks like it’s forfeited. And then where are you at? You didn’t file your claim.”
During his presentation, Semanko outlined the background leading up to the Joyce decision and its aftermath. From this, summarizing his reasonings for encouraging permittees to file, he said these filings are determined in state court and decisions are binding against the federal government; that due to the beneficial use issue the permittee has a “great chance of winning” a claim; and lastly, the fees and costs to file have been both greatly reduced and eliminated.
Currently the filing fee is $25 a claim with a $100 cap. Fees for newspaper publication and investigation by the Idaho Department of Water Resources (IDWR) have been eliminated. Noting the state’s commitment in encouraging claims, the legislature funded two full time employees to assist permittees with filing and processing.
“They are rolling out the red carpet for people to file these claims,” Semanko said.
Among the questions from attendees was the Nez Perce Tribe’s standing in this, which Semanko noted has a different kind of water right – federal reserve rights – where beneficial use rules don’t apply, and they have a right that can’t be forfeited or lost.
“But that doesn’t mean the folks who have actually used those springs can’t also file claims to them,” he added.
Concerning the side-by-side federal agency right on allotment and private right on the allotment have not caused a problem, according to Semanko. He clarified this discussion isn’t meant to convey an “us vs. them” stance between the federal government and permittees, but rather an encouragement for those in the industry to file claims as insurance to protect their water rights.
“Tell the federal folks — you’ve got a water right decreed there already and that’s great if you think it covers me; I’m not challenging that,” Semanko said. “I’m not trying to make that go away. I just want my right decreed to me in my allotment.”