By Lacy Rammell-O’Brien
Greek philosopher Heraclitus of Ephesus is attributed with the expression, “No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”[i] The Idaho Water Adjudications are much like Heraclitus’ river, flowing and changing as they roll through the state. Long-time followers of the Idaho Water Adjudications know that on November 19, 1987, the Snake River Basin Adjudication commenced and opened decades of litigation.[ii] Since that time, four more general stream adjudications have commenced. This article summarizes the changes since October 2020, when the last Water Adjudications update was published in The Advocate.[iii]
An adjudication is a court proceeding resulting in the judicial determination of water rights claimed by parties asserting validity and ownership of those rights.[iv] The Idaho Water Court, based out of the Fifth Judicial District in Twin Falls, presides over the Idaho Water Adjudications.[v] Pursuant to statute, the Idaho Department of Water Resources (“IDWR”) is not a party to the Adjudications.[vi] IDWR’s role is as an “independent expert and technical assistant to assure that claims to water rights acquired under state law are accurately reported” and to “make recommendations as to the extent of beneficial use and administration of each water right under state law.”[vii]
Snake River Basin Adjudication (“SRBA”)
The SRBA remains one of the largest legal adjudications in U.S. history, issuing over 158,000 decrees.[viii] The SRBA covered administrative basins in 38 of Idaho’s 44 counties. [ix] On August 26, 2014, the Water Court issued the Final Unified Decree. The Final Unified Decree is “conclusive as to the nature and extent of all water rights within the Snake River Basin within the State of Idaho with a priority date prior to November 19, 1987[…].”[x] The Court explicitly retained jurisdiction over “[a]ny domestic and stock water right, as defined in Idaho Code § 42-111 (1990), Idaho Code § 42-1401A(5) (1990), and Idaho Code § 42-1401A(12) (1990), the adjudication of which was deferred in accordance with this Court’s June 28, 2012, Order Governing Procedures in the SRBA for Adjudication of Deferred De Minimis Domestic and Stock Water Claims”.[xi] The Water Court has continued to decree “deferred” domestic and stock water claims in accordance with the Final Unified Decree.
On November 15, 2021, the United States filed a Motion to Adjudicate Deferred De Minimis Domestic and Stock Water Claims, asking the Court to set a deadline for the filing of all deferred de minimus domestic and stock water right claims in the SRBA.[xii] The United States argued that it had waived its sovereign immunity under the McCarran Amendment with the understanding that the “adjudication of rights to the use of water of a river system or other source” would be conclusive as to all water rights within the SRBA.[xiii] The McCarran Amendment allows for a limited waiver of the United States’ sovereign immunity so that it may appear as a party in state court general stream adjudications.[xiv] The United States argued that the continued taking of deferred claims was in violation of the McCarran Amendment and the Deferral Stipulation executed and filed by the State of Idaho and the United States on December 20, 1988.[xv] The Water Court held a status and scheduling conference on February 15, 2022, during which it appointed Special Master Theodore Booth as settlement moderator and stayed litigation.[xvi] Following months of negotiations, the parties agreed to a further stay of proceedings until December 31, 2023.[xvii]
Coeur d’Alene – Spokane River Basin Adjudication (“CSRBA”)
The CSRBA is Phase One of the North Idaho Adjudication (“NIA”).[xviii] On July 8, 2008, the State of Idaho filed a Petition to Commence the CSRBA.[xix] On November 12, 2008, Judge John Melanson issued the Commencement Order.[xx] The CSRBA contains five administrative basins (91-95) covering Benewah, Bonner, Clearwater, Kootenai, Latah, and Shoshone counties.[xxi]
State-based claims in the CSRBA are mostly resolved. As of July 5, 2023, there are eight unresolved state-based claims in Basin 95 Part 1 and six unresolved state-based claims in Basin 95 Part 2.
As of July 5, 2023, there are 284 unresolved federal reserved claims across basins 91-95. The United States filed claims to federal reserved water rights as trustee on behalf of the Coeur d’Alene Tribe of the Coeur d’Alene Indian Reservation. The United States cited “Winters v. United States, 207 U.S. 564 (1908) and its progeny, as well as the operative documents and circumstances surrounding the creation of the Coeur d’Alene Reservation” as the basis for its claims. [xxii] The Water Court bifurcated proceedings on the Coeur d’Alene Tribe’s claims.[xxiii] The Water Court first evaluated “entitlement” to particular uses of water, to be followed by the “quantification” stage of the amount of water associated with those uses.[xxiv]
On September 5, 2019, the Idaho Supreme Court issued its decision on the “entitlement” phase of the proceedings, holding that the Coeur d’Alene Tribe had reserved water rights consisting of domestic uses, agricultural uses, hunting and fishing uses, plant gathering, and cultural uses.[xxv] The Idaho Supreme Court also affirmed the holding of the Water Court that the Coeur d’Alene Tribe’s water rights included instream flows on the Reservation and that the Tribe voluntarily relinquished rights to off-Reservation instream flows.[xxvi]
Following the decision of the Idaho Supreme Court, the parties agreed to a stay of litigation.[xxvii] They pursued settlement negotiations with a court-appointed mediator.[xxviii] At a status conference held on April 18, 2023, the parties informed the Water Court that mediation had been unsuccessful.[xxix] On May 26, 2023, the Water Court entered an Order lifting the litigation stay, along with a scheduling order setting trial for April 2026.[xxx]
Palouse River Basin Adjudication (“PRBA”)
The PRBA is Phase Two of the NIA.[xxxi] On October 3, 2016, the State of Idaho filed a Petition to Commence the PRBA.[xxxii] On March 1, 2017, Judge Eric Wildman issued the Commencement Order.[xxxiii] The PRBA covers one administrative basin (87) in Benewah, Latah, and Nez Perce counties.[xxxiv] As of July 5, 2023, there are 182 objections to 101 contested subcases in the PRBA, with 2,212 water right claims pending decree.
The rolling hills of the Palouse have set the stage for a shared issue with several players. Among the many individuals and entities that filed claims in the PRBA are the State of Idaho, the City of Moscow, the Potlatch entities, Schweitzer, the University of Idaho, the Nez Perce Tribe, and the United States as Trustee on behalf of the Nez Perce Tribe and Allottees of the Nez Perce Indian Reservation.[xxxv]
At the heart of the United States’ and the Nez Perce Tribe’s objections to state-based claims and the federal reserved claims are two treaties. The first is the Treaty of 1855.[xxxvi] The second is the Treaty of 1863, which states in relevant part: “The United States also agree to reserve all springs or fountains not adjacent to, or directly connected with, the streams or rivers within the lands hereby relinquished, and to keep back from settlement or entry so much of the surrounding land as may be necessary to prevent the said springs or fountains from being enclosed; and further, to preserve the perpetual right of way to and from the same, as watering places, for the use in common of both whites and Indians.”[xxxvii]
The United States argues that a portion of the PRBA includes lands that were ceded by the Nez Perce Tribe as part of the Treaty of 1863. The United States objected to certain state-based claims on the grounds that they should recognize corresponding federal claims for “up to half of the natural spring flow” based on the phrase “for the use in common” in the Treaty.
The Nez Perce Tribe filed joinder in the objection of the United States, arguing that “up to half of natural spring flow” should be recognized in the claims as “expressly reserved for the use of the Tribe and its members.”[xxxviii] The federal reserved claims filed by the United States and Nez Perce Tribe closely mirror the state-based surface water claims. Like the federal reserved claims in the CSRBA, the PRBA federal/tribal claims rely on the Winters doctrine and related caselaw.
The parties are now subject to a protective order issued by the Water Court.[xxxix] They are currently in negotiations with an eye toward settlement of the United States and Nez Perce Tribe’s objections and federal reserved claims in the basin. [xl]
Clark Fork – Pend Oreille River Basins Adjudication (“CFPRBA”)
The CFPRBA is Phase Three of the NIA.[xli] On October 23, 2020, the State of Idaho filed a Petition to commence a general adjudication of all rights arising under state or federal law to the use of surface and ground waters from the Clark Fork – Pend Oreille River basins water system and for the administration of such rights.[xlii] On June 15, 2021, Judge Wildman entered the Commencement Order for the CFPRBA pursuant to Idaho Code § 42-1406B.[xliii]
The CFPRBA covers two administrative basins (96 and 97) in Bonner, Boundary, and Kootenai counties.[xliv] It does not include administrative basin 98.[xlv] Claims filing ended in the CFPRBA on June 23, 2023, although second-round service and motions to file late claims may yield more filings. As of June 8, 2023, there have been 7,543 state-based claims and 24 federal reserved claims filed in the CFPRBA.
IDWR anticipates up to 9,000 claims to be filed in the CFPRBA and hopes to have Part 1 of the Basin 97 Director’s Report completed and filed with the Idaho Water Court in 2024.
Bear River Basin Adjudication (“BRBA”)[xlvi]
On November 20, 2020, the State of Idaho filed a Petition seeking commencement of a general adjudication of all rights arising under state or federal law to the use of surface and ground waters from the Bear River basin water system and for the administration of such rights.[xlvii] On June 15, 2021, Judge Wildman entered the Commencement Order for the BRBA pursuant to Idaho Code § 42-1406C.[xlviii]
The BRBA covers four administrative basins (11, 13, 15, and 17) in Bannock, Caribou, Cassia, Franklin, Oneida, and Power counties.[xlix] As of June 8, 2023, 816 state-based claims have been filed in the BRBA. IDWR anticipates that approximately 13,000 claims will be filed in the BRBA.
As of July 5, 2023, property owners in Basin 11 have received Commencement Notices alerting them to the need to file their water right claims with IDWR. In addition to the new field office in Preston, Idaho, staff from IDWR’s adjudication section have held a week-long public claim-taking workshop in Montpelier, Idaho to help people in Basin 11 file their claims. IDWR is proceeding with the goal of filing the Basins 11 and 13 Director’s Report with the Idaho Water Court in 2026.
Heraclitus is remembered for his philosophy of constant change. The Idaho Water Adjudications, water users, and law practitioners are not the same as they were in 1987. The evolution of the Adjudications, like the waters of Idaho and those who use them, will guide this winding river toward resolution. The Idaho Water Adjudications flow onward, collecting claims and issuing decrees that clarify and record how water is being used statewide.
Lacey Rammell-O’Brien is a deputy attorney general representing the Idaho Department of Water Resources. She is a fifth-generation Idahoan and third-generation admirer of Gary Larson’s The Far Side. The views expressed in this article do not reflect those of the Office of the Attorney General of IDWR.
[ii] Commencement Order, In re SRBA Case No. 39576 (Nov. 19, 1987).
[iii] Meghan M. Carter & Jennifer R. Wendel, Water Rights Adjudications in Idaho Have Statewide Impacts, 63 ADVOCATE 16 (2020).
[iv] A “general adjudication” is defined in Idaho Code section 42-1401A(5) as “an action both for the judicial determination of the extent and priority of the rights of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and for the administration of those rights.”
[vi] Idaho Code § 42-1401B.
[viii] Ann Y. Vonde et al., Understanding the Snake River Basin Adjudication, 52 IDAHO L. REV. 53 (2016).
[ix] IDWR has divided Idaho into over 50 administrative basins to coordinate water management activities.
[x] Final Unified Decree, In re SRBA Case No. 39576 (Aug. 25, 2014).
[xi] The Court also retained jurisdiction to “resolve any issues related to the Final Unified Decree that are not reviewable under the Idaho Administrative Procedures Act and/or the rules of the Idaho Department of Water Resources”. Final Unified Decree at 13.
[xii] Subcase No. 00-92095, Motion to Adjudicate Deferred De Minimis Domestic and Stock Water Claims (Nov. 15, 2021).
[xiii] Subcase No. 00-92095, Motion to Adjudicate Deferred De Minimis Domestic and Stock Water Claims (Nov. 15, 2021).
[xiv] 43 U.S.C. § 666 (1952).
[xvi] Subcase No. 00-92095, Order Appointing Special Master Theodore Booth as Settlement Moderator; Order Staying Litigation (Feb. 15, 2022).
[xvii] Subcase No. 00-92095, Stay Order; Order Setting Status Conference (Nov. 8, 2022).
[xviii] Idaho Code § 42-1406B.
[xix] Petition, In re CSRBA Case No. 49576 (Jul. 8, 2008).
[xx] Commencement Order for the Coeur d’Alene-Spokane River Basin General Adjudication, In re CSRBA Case No. 49576 (Nov. 12, 2008).
[xxii] Subcase No. 91-7755 et al., Notice of Claim Federal Reserved Water Right, (Jan 31, 2014).
[xxiii] Subcase No. 91-7755 et al., Order Consolidating Subcases; Order Bifurcating Proceedings, Scheduling Order (Feb. 17, 2015).
[xxiv] Subcase No. 91-7755 et al., Order on Motions for Summary Judgment (May 3, 2017); Amended Final Order Disallowing Water Right Claims (Jul. 26, 2017).
[xxv] In re CSRBA Case No. 49576 Subcase 91-7755 et al., 165 Idaho 517, 448 P.3d 322 (2019), reh’g denied (Nov. 4, 2019).
[xxvii] Subcase No. 91-7755 et al., Order Granting Unopposed Motion to Amend Scheduling Order, Order Staying Proceeding, Order Setting Status Conference (May 21, 2020).
[xxviii] Subcase No. 91-7755 et al., Order Granting Unopposed Motion for Appointment of Mediator, Order Extending Stay (June 15, 2021).
[xxix] Subcase No. 91-7755 et al., Order Lifting Stay (May 26, 2023).
[xxx] Subcase No. 91-7755 et al., Scheduling Order on Quantification (May 26, 2023).
[xxxi] Idaho Code § 42-1406B.
[xxxii] Petition, In re PRBA Case No. 59576 (Oct. 3, 2016).
[xxxiii] Commencement Order for the Palouse River Basin Adjudication, In re PRBA Case No. 59576 (Mar. 1, 2017).
[xxxv] Subcase 87-4060 et al.
[xxxvi] TREATY WITH THE NEZ PERCES, 1855., 12 Stat. 957 (June 11, 1855).
[xxxvii] TREATY WITH THE NEZ PERCES, 1863., 14 Stat. 647 (June 9, 1863).
[xxxviii] Subcase 87-4060 et al., Nez Perce Tribe’s Joinder in United States’ Objection to Claim (Jan. 10, 2022).
[xxxix] Order Granting Joint Motion for Protective Order, In re PRBA Case No. 59576 (Mar. 9, 2023).
[xl] Joint Status Update and Motion for Court Notice of Future Settlement Meetings, In re PRBA Case No. 59576 (June 8, 2023).
[xli] Idaho Code § 42-1406B.
[xlii] Petition to Commence Clark Fork-Pend Oreille River Basins Adjudication, In re CFPRBA Case No. 69576 (Oct. 23, 2020).
[xliii] Commencement Order for the Clark Fork-Pend Oreille River Basins Adjudication, In re CFPRBA Case No. 69576 (June 15, 2021).
[xlv] Administrative Basin 98 is explicitly excluded from the NIA by Idaho Code § 42-1406B(1).
[xlvi] Idaho Code § 42-1406C.
[xlvii] Petition to Commence Bear River Basin Adjudication, In re BRBA Case No. 79576 (Nov. 20, 2020).
[xlviii] Commencement Order for the Bear River Basin Adjudication, In re Case No. 79576 (June 15, 2021).