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Shoshone-Bannock Tribes Wary of Nez Perce Deal by John O'Connell Idaho State Journal, February 23, 2005

Attorney: Proposed pact has 'muddied the water'

POCATELLO -- Shoshone-Bannock Tribal leaders say their water could be used to appease the Nez Perce Tribe if the state approves a landmark water rights agreement.

Shoshone-Bannock Tribal Chairman Nancy Murillo is scheduled to testify at Boise State University today, before the House Resources and Conservation Committee votes on three bills related to the Nez Perce Agreement.

Testimony on the controversial water settlement, also called the Snake River Water Rights Agreement, started Tuesday and continues at 1:30 p.m. today - there wasn't enough room at the state capital to accommodate the expected crowd, so it was moved to BSU.

Shoshone-Bannock Tribal Attorney Bill Bacon said his clients don't object that the agreement acknowledges water rights on the Nez Perce Reservation. But the Shoshone-Bannocks believe it goes too far by also recognizing Nez Perce claims of off-reservation water rights.

"In many ways, this (settlement) raises more questions than it answers," Bacon said. "Now we've absolutely muddied the water with extraneous issues."

The settlement awards $193 million, three-quarters of which is federal money, to place in trust accounts for land transfers - both on and off the reservation - protection of fish habitat and improvements to tribal drinking water and sewer systems. The deadline for reaching an agreement before the settlement money is withdrawn is March 31.

Gov. Dirk Kempthorne signed the agreement and President Bush approved it in December.

The debate dates back to a 1906 U.S. Supreme Court decision called the Winter's Doctrine. The court ruled Indian tribes have unlimited water rights on their reservations. Given the scarcity and demand for water in recent years, the federal government started working to define tribal water rights in order to have a basis to negotiate water rights for nontribal members.

The Shoshone-Bannock Tribes reached an agreement with Idaho and quantified their water rights - 581,000 acre feet per year - in 1990.

The Nez Perce Tribe, however, also claimed an off-reservation water right in its ongoing negotiations, arguing the state must maintain a minimum water flow in the Snake River and its tributaries to protect their fishing rights.

A district judge ruled against their off-reservation claim and ordered mediation on the issue. The tribe appealed the case to the Idaho Supreme Court.

The Nez Perce Agreement concedes both on- and off-reservation water rights and requires the release of up to 427,000 acre feet of water each year below Hell's Canyon, in addition to the monetary component.

"In all probability, they would have lost that ruling before the Supreme Court," Bacon said.

According to Jerry Rigby, chairman of the Idaho Water Board and an attorney for the Committee of Nine, the administrative body that oversees much of the water delivery in the Snake River Valley, in addition to resolving the tribe's concerns, the agreement addresses requirements of the Clean Water Act, Forest Preserve Act, Endangered Species Act and other federal requirements.

Bacon doubts the agreement will have any impact on efforts to enforce a federal biological opinion, which has not yet been released, regarding how to best preserve the river's endangered species.

He believes the state should quantify the Nez Perce Tribe's on-reservation rights and let the rest play out in court.

"The provisions they have can impact our 1990 agreement. If they need water, they can get it from the Upper Snake. Which agreement are they not going to honor?" Bacon said. "We object to sending water that could be used in our end of the state, not only for the Shoshone-Bannock Tribes, but also for farmers, downstream."