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Nez Perce, Landowners Square Off Over Water Rights by Pat McCoy Capital Press - January 11, 2002

BOISE -- The Nez Perce Tribe wants roughly 50 percent of the water contained in some 1,800 springs and seeps in several Idaho Power counties, from Adams to Latah.

The tribe's claims have upset some 800 landowners.

The claims, based on 1863 treaty rights, were filed by the tribe as part of the Snake River Basin Abjudication, backed by the federal government as trustee for the Nez Perce, said Steven W. Strack, deputy attorney general.

The state is opposing those claims on several general grounds, he said.

"The treaty seems to imply it would only include springs and seeps on public lands. There is no anticipation these kinds of rights would apply to private lands," said Strack.

"Also, the state argues the tribe is claiming a lot more than they're entitled to. In the Treaty Commision reports of the era, federal officials indicated the springs and seeps involved were few in number, and in very remote areas. The intent in 1863 seems to have been to give the Nez Perce rights to only remote springs that had no other potential use," he said.

The tribal claims are for everything beyond a quarter of a mile from a perennial stream. Some 1,200 of those springs and seeps are on private lands held by some 800 landowners, and another 600 on public lands, Strack said.

Federal Right
In filing those claims, the tribe is asking for access to the springs and seeps involved across private lands for stockwater, wildlife, cultural and ceremonial uses, he said.

"It's an interesting legal issue," Strack said. "A federal reserve water right on private land is unheard of. There's been a lot of interest as people learn about this. The majority of the private lands involved are ranchettes. There are a few remote ranches where the springs are a source of domestic water for a landowner."

Strack sent a general letter to water right claimants in the region last fall alerting them to the tribal claims, and advising them that the state is objecting.

However, the state cannot represent the interests of individuals in the SRBA, he said.

Some people chose to get their own attorney and intevene in the case early. Others are waiting to see what happens, he said.

The case is in the middle of the discovery period right now, and that will continue until May. Summary judgements and motions are slated to be filed the last week of May. If those don't resolve the case, a formal trial is scheduled to begin in October, Strack said.