NEZ PERCE TRIBE
DEPARTMENT OF NATURAL RESOURCES
365 Lapwai, ID 83540
Snake River Currents
Snake River Basin
Adjudication Reaches Milestone
Tribe, other parties,
complete framework for resolution of water right claims. A step towards
Since 1998, the Nez Perce
Tribe, the United States, the State of Idaho, local communities and other water
users in Idaho have engaged in mediation as part of the Snake River Basin
Adjudication (SRBA) to resolve conflicting water right claims in the Snake River
Basin. The SRBA Court ordered that the mediation take place under
confidentiality restrictions. The parties have now agreed on a “term sheet”
which will guide the settlement of this case, outlines the responsibilities of
the parties in fulfilling the agreement, and allows the court’s confidentiality
order to be removed. Although the term sheet agreement does not represent the
final consent by the Tribe, or any party, to a settlement of the Tribe’s water
right claims, it captures important elements of a potential settlement.
The State of Idaho began the SRBA in 1987 in
order to establish an accurate inventory of the nearly 150,000 water rights in
the Snake River Basin. The SRBA is considered a “general stream
adjudication,” and all claims to water rights in the Snake, Salmon and
Clearwater River Basins had to be filed in the SRBA or be forever lost. Because
of federal laws authorizing the determination of federal and tribal water rights
in state courts, the Tribe had to participate in the process or risk losing its
water rights. The United States also had to bring it water rights claims for
federal lands in the SRBA
The Tribe and the United
States (Bureau of Indian Affairs, Department of the Interior) acting as trustee
of the Tribe, filed thousands of claims to water rights in the SRBA. There are
three categories of claims: (1) Claims to water for consumptive use on trust and
fee land within the Reservation, (2) Claims for certain springs in the 1863
ceded area (for access and stock watering); and (3) Claims for instream flows
(to provide for fish resources and aquatic habitat).
Water Right Claims on
Trust and Tribal Fee Lands Within the Reservation
These water claims are for
a variety of purposes including water for fish hatcheries, cultural, domestic,
commercial, municipal and industrial uses; water for irrigated agriculture,
livestock watering, wildlife habitat, and recreation. Legally, these are
referred to as “Winters” water rights.
Springs and Fountains
Water Right Claims
These water claims are
based on the Treaty of 1863 which expressly reserved the springs and fountains
in the 1863 ceded area for Tribal members to use in common with non-Indians.
The Tribe filed claims for one-half the flow of these springs, some of which are
located on public lands and some on state or private lands.
Instream Flow Water
The purpose of these water
claims is to protect fish and aquatic habitat, both on and off the Reservation,
in the Snake, Salmon, and Clearwater Rivers and their tributaries. The claims
are based on Article 3 of the Treaty of 1855 which reserved the exclusive right
of the Tribe to take fish on the Reservation and the in-common right to take
fish at all usual and accustomed places outside the Reservation.
Hundreds of legal
objections to the Tribe’s claims were filed, particularly the instream flow
claims, because those claims could affect the rights of agricultural interests
in southern Idaho to divert water to grow crops. The objectors include the
State of Idaho, Idaho Power Company, irrigators in southern Idaho and other
water users. And recently, the North Central Idaho Jurisdictional Alliance has
entered the fray.
On November 10, 1999, the
SRBA Court dismissed the Tribe’s off-Reservation instream flow claims. Even
worse, in a misguided attempt to clarify the difference between on-Reservation
and off-Reservation claims, the Court concluded that the Reservation was
diminished by the 1893 Agreement between the Tribe and the United States under
the Dawes Act. Because these issues are vitally important to the Tribe, notices
of appeal were promptly filed by both the Tribe and the Department of Justice.
Why is the SRBA in State Court Rather than Federal Court?
Because of sovereign
immunity, the federal government and Tribes historically could not be brought
into state court to have their water rights determined. However, in 1952
Congress passed the McCarran Amendment which allowed federal water rights to be
decided in state general stream adjudications.
In 1976, the Supreme Court
ruled that the McCarran Amendment also applies to state adjudications of Indian
reserved water rights, which are held in trust by the U.S.
Background on the Agreed Conceptual Framework for Settlement
After five years of
negotiations, the parties have developed a framework for a proposed settlement
agreement. The framework, or “term sheet,” is divided into three separate
components: (1) the Nez Perce Tribal component; (2) the Salmon/Clearwater
component; and (3) the Snake River flow component.
The proposed settlement
agreement would: finally and fully determine Nez Perce claims to water rights in
Idaho; set out the understandings and criteria necessary to provide long-term
Endangered Species Act compliance for water use in the Snake River Basin in
Idaho and for timber land management activities on state and private lands; and
protect existing water uses.
The proposed settlement
agreement does not:
cover the operations of the Hells Canyon Complex; resolve the Tribe’s Endangered
Species Act dispute with the Bureau of Reclamation for the operations of the
Lewiston Orchards Irrigation District’s diversion system on Sweetwater and Webb
Creeks; prevent the Tribe from filing certain claims against the United States
for the construction of Dworshak Dam; or resolve the dispute over the impacts of
the lower Snake River dams on fish. These issues will continue to be addressed
in other forums.
sheet does not constitute a final settlement of the Nez Perce Tribe’s water
right claims. The term sheet provides
the basis for the final agreement. For a settlement to be reached, the parties
must agree on the specifics of each component of the term sheet.
Nez Perce Tribal Component
In exchange for the Tribe’s
agreement to resolve their water right claims, as well as to resolve other
Tribal water-based claims, the proposed settlement would provide specific
monetary and non-monetary natural resource benefits for the Tribe. The specific
provisions of this component include:
on-Reservation multi-use consumptive water right claims will be decreed in the
amount of 50,000 acre-feet per year (an acre-foot of water is enough water to
cover 1 acre 1 foot deep or 325,850 gallons), primarily from the Clearwater
River. Water from tributary sources will be decreed only to the extent water
is unappropriated and existing water rights are not injured.
The Tribe’s springs and fountains claims on
federal lands within the 1863 ceded area will be decreed, while similar claims
on non-federal (state and and private) lands will be waived.
lands valued at $7 million will be transferred to the Tribe. The BLM
recreational lands along the Clearwater River and Lolo Creek corridors will be
excluded from this transfer.
U.S. and Tribe will enter agreements providing for tribal management for Kooskia
National Fish Hatchery and tribal co-management of the Dworshak National Fish
U.S., the Tribe, and the State of Idaho will enter into an agreement for the use
of 200,000 acre-feet of water in Dworshak Reservoir as part of a flow
augmentation plan for salmon.
U.S. will establish a $50 million water and fisheries trust fund for use by the
Tribe in acquiring lands and water rights, restoring and improving fish habitat,
fish production, agricultural development, cultural preservation, and water
United States will provide $23 million for design and construction of sewer and
water system projects for local Nez Perce communities.
lieu of contracting 45,000 acre-feet of Payette River storage space for a
30-year term, the U.S. will pay to the Tribe the $10.1 million rental value of
that storage space.
Tribal members not served
by a public water system may receive water rights in one of two ways through the
SRBA process. Tribal members who have an interest in an allotment will receive
a portion of the water the Tribe eventually receives for its on-reservation
water claims. Tribal members who own fee land (not held in trust by the U.S.)
will receive a water right for that land if they filed a Notice of Claim to a
Water Right with the Idaho Department of Water Resources (IDWR).
component incorporates three elements: establishes instream flows in
approximately 200 rivers and streams identified by the Tribe as having special
value; provides for increased resource protection measures for forest practices
on state and private lands; establishes a habitat trust fund to implement
habitat improvement projects.
Instream flows will be
established and held by the Idaho Water Resources Board for nearly 200 streams
of importance to the Nez Perce Tribe. These flows will permit existing uses
to continue and provide for future domestic,
municipal and industrial development and will limit future agricultural
diversions of water. However, in streams where water use has been fully
developed and aquatic habitat has been impaired, specific measures to improve
habitat conditions will be identified through a process that brings the three
sovereigns together with local landowners and community groups to identify
habitat improvement measures that can be implemented. A specific list of
“developed streams” was prepared as part of the term sheet.
Under the Forestry
component of this agreement, riparian and streambank protection measures will
reduce adverse impacts on habitat for aquatic species on enrolled lands. This
voluntary program supplements existing Idaho Forest Practice Rules and
provides a mechanism for timber harvesting activities on all state and private
lands in the Salmon/Clearwater River Basins to comply with the Endangered
Basins Habitat Trust Fund will be established to provide funding for habitat
improvement projects under both the flow and forestry programs described
above. The Tribe will direct the expenditures of a third of the Habitat Trust
Snake River Flow Component
The Snake River flow
component anticipates 30-year Biological Opinions (BiOps) from NOAA Fisheries
and the U.S. Fish and Wildlife Service under the Endangered Species Act on
continued operation of the Bureau of Reclamation’s projects in the upper Snake
River Basin. These BiOps would address issues relating to flows from the Snake
River above Brownlee Reservoir and the use of this water for flow augmentation.
The significant provisions in this component include the following:
Minimum flows defined by the Swan Falls
Agreement will be decreed instream flows by the SRBA Court to the Idaho Water
The State of Idaho will extend provisions of
state water law for the term of the agreement to allow Reclamation to lease up
to 427,000 acre-feet of water from Idaho water banks for flow augmentation.
Bureau of Reclamation will be allowed to rent or acquire up to 60,000 acre-feet
of consumptive natural flow water rights from the Snake River between Milner and
Swan Falls for flow augmentation purposes. When added to the other rentals,
this water will increase the total water available for flow augmentation to
487,000 acre-feet. The U.S. will compensate local governments for impacts
caused by Reclamation’s acquisition of this additional 60,000 acre-feet.
Over the course of next
year, the parties must complete the tasks outlined in the term sheet relative to
quantifying instream flows and identifying habitat improvement measures for
developed basins in the Salmon and Clearwater basins and complete United
States-Tribal agreements for hatchery management, transfer of the BLM lands and
Dworshak flow augmentation. For the settlement to be final, the parties must
draft federal and state legislation which is adopted
and obtain final tribal
approval. Up until that time, the Tribe
has the option of withdrawing from the proposed agreement.
Over the next few months,
tribal staff and members of NPTEC will hold informational meetings with tribal
members to discuss the details of the settlement framework and answer
questions. Location and time of these meetings will be announced in future
newsletters. Stay tuned!
Currents is published by Greg Haller, SRBA Coordinator for the Nez Perce Tribe
Department of Natural Resources. For
information regarding this newsletter, please contact Greg at (208) 208-843-7368
ext. 2612. For additional
information about the SRBA and the proposed settlement of the Tribe’s claims,
please contact Heidi Gudgell, SRBA attorney for the Nez Perce Tribe Office of
Legal Council at (208) 208-843-7355 ext. 2381.
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