BOISE — An effort to codify in state statute an Idaho Supreme Court ruling on who owns in-stream stock watering rights on federally administered land is still on the legislative docket for this year.
The 2016 Idaho legislative session is winding down — lawmakers hope to adjourn by the end of March — but a bill that would codify that landmark ruling into Idaho law will be introduced this year, said Rep. Judy Boyle, a Republican rancher from Midvale who is leading the effort.
“We’re going to do it this year,” she said.
The U.S. Bureau of Land Management and thousands of ranchers in Southern Idaho filed overlapping claims to in-stream stock watering rights on federal land during the state’s Snake River Basin Adjudication.
All but two of the ranchers capitulated when they realized fighting the BLM in court would cost a lot of money.
But Owyhee County ranchers Tim Lowry and Paul Nettleton refused to back down, and in 2007 the Idaho Supreme Court ruled in their favor.
But they were left with $1.5 million in legal bills because the court didn’t allow them to recover attorney fees.
The court ruled on their side because the BLM doesn’t own livestock and therefore can’t put the water to beneficial use, Justice Dan Eismann, who wrote the court’s decision, told ranchers during an Idaho Farm Bureau Federation water rights conference in January.
Eismann said “water rights on federal land are appurtenant to the person who is watering the stock.”
If Boyle’s bill passes, “From this point forward, you cannot apply for stock watering rights unless you put it to beneficial use,” said IFBF Director of Governmental Affairs Russ Hendricks.
Boyle’s bill would not only prevent the federal government from filing for in-stream stock watering rights in Idaho, it would also seek to take back the thousands of stock watering rights decreed to the BLM during the SRBA and give them to the ranchers who initially filed overlapping claims.
“Under (the court) opinion, they can’t put it to beneficial use so they can’t legitimately have the water right,” Boyle said. “And the ones who are putting it to beneficial use are the ranchers with the leases.”
Lowry applauded the effort to transfer those rights to the ranchers “because the BLM wound up with all those rights essentially by default because those ranchers couldn’t afford to defend their rights.”
Nettleton said he and Lowry thought they had set a precedent that would prevent other ranchers in Idaho from having to go through what they did but were shocked to find out livestock producers in North Idaho were having to fight that same fight in the North Idaho water adjudication.
“It would be very important to get that (victory) codified in state law,” he said.
Boyle said it’s proper for the state to provide a remedy on this issue.
“The state is the one that made the mistake and the state needs to correct it,” she said.