Paul Nettleton of the Joyce Ranch, Owyhee County, Jake Putnam photo
By Sean Ellis
BOISE – A proclamation passed by the Idaho Legislature encourages the state’s Constitutional Defense Council to help reimburse two Idaho ranchers for the legal costs involved in their landmark court victory that resulted in several precedent-setting water law rulings.
The Idaho Supreme Court in 2007 unanimously ruled in favor of the Owyhee County ranchers, Tim Lowry and Paul Nettleton, in their battle with the U.S. Bureau of Land Management over who owns in-stream stock watering rights on the federally administered land.
Agreeing with the ranchers, the court ruled the BLM didn’t own the rights because it doesn’t own cattle and couldn’t put the water to beneficial use.
However, the court refused to grant the rancher's attorney fees and their ranches were each saddled with more than $1 million in legal bills.
Since then, they have negotiated the amount they owe down to about $300,000 each.
House Proclamation 1, which Idaho lawmakers overwhelmingly approved in March, asks that money from the Constitutional Defense Council Fund be used to help offset the ranchers’ legal fees.
During debate on the House floor, several lawmakers pointed out that the entire state has benefited from the ranchers’ court victory.
“They, on their own dime, perfected a public right for everyone,” said Idaho’s Speaker of the House, Rep. Scott Bedke, a Republican rancher from Oakley.
During the state’s Snake River Basin Adjudication process, which decreed more than 158,000 water rights, southern Idaho ranchers, and the BLM filed thousands of overlapping claims to in-stream stock watering rights on federal land.
All but two of the ranchers, Lowry and Nettleton, backed off or negotiated with the BLM when they realized fighting the federal agency in court would cost a lot of money.
The SRBA court ended up conveying 17,000 stock watering rights to the BLM.
During the past two legislative sessions, Idaho lawmakers have passed bills that codify the ranchers’ court victory into state law.
That means other ranchers won’t have to fight the same battle and the legislation will allow southern Idaho ranchers who didn’t file claims to stock watering rights on federal land during the SRBA to file them now.
Bedke said the ranchers’ court victory changed the way stock water rights are adjudicated in Idaho.
Before the ranchers’ victory, every stock water right in Idaho that was conveyed went to the federal government. Since the victory, those rights have gone to ranchers with grazing permits on federal allotments.
“Every permittee in the state benefits for their having stood up,” Bedke said. The case “changed the way stock water rights are adjudicated in the state of Idaho. It’s a big deal.”
The ruling has also benefited North Idaho ranchers. During the North Idaho Adjudication process, the U.S. Forest Service withdrew 36 claims to in-stream stock water rights after the Idaho Department of Water Resources, as a result of the Idaho Supreme Court case, sent the Forest Service a letter requiring evidence the agency was putting the water to beneficial use.
“They’ve gone in debt at the risk of their ranches to protect the water rights of the state of Idaho,” Rep. John Vander Woude, R-Nampa, said before House lawmakers voted in favor of the proclamation. “I would encourage the Constitutional Defense Council to also vote in favor of it.”
Agreeing with Nettleton’s Joyce Livestock Co. and Lowry’s LU Ranching Co. on their main point that the government can’t hold federal rangeland water rights because it doesn’t own cattle, the Idaho Supreme Court said the BLM’s argument reflected a serious misunderstanding of water law.
However, the court denied the ranchers the ability to recover attorney fees under the Equal Access to Justice Act, which the court said doesn’t allow state courts to award attorney fees against the federal government when the United States appears in an adjudication under the McCarran Amendment’s waiver of sovereign immunity.
That left the ranchers with a court victory that benefits the entire state but also with legal costs that jeopardize their ranches, Rep. Megan Blanksma, R-Hammett, said during debate on the House floor.
“Through their lawsuit, Joyce and LU ranches affected a public right that resulted in benefits to the entire state … yet they continue to struggle with legal fees that were involved in their effort,” she said.
“This is the right way to encourage the righting of an injustice,” she said of the proclamation’s call to help reimburse the ranches.
The court victory didn’t just affect LU and Joyce ranches, it “affected every water holder in the state of Idaho,” said Rep. Christy Zito, R-Hammett. “These ranchers fought for the sovereignty of our state, not just for the survival of their ranches.”
The Constitutional Defense Council consists of the governor, attorney general, speaker of the house and president pro tempore of the Senate.
According to state statute, the purpose of the council “includes, but is not limited to, restoring and advancing the sovereignty and authority over issues that affect this state and the well-being of its citizens.”
The proclamation states that payment of the ranchers’ attorney fees “would comport with the purpose of the Constitutional Defense Council and its use of funds in support of Idaho’s sovereignty and authority over stock water rights on federal lands in the state of Idaho.”
During debate on the proclamation in the Senate, Sen. Jim Rice, R-Caldwell, said state statute gives the council broad authority to defend the rights of the state and its citizens.
“The statute clearly is broad enough to give the Constitutional Defense Council the discretion to reimburse” the ranchers, he said.
Nettleton and Lowry told Idaho Farm Bureau Federation that they welcome the proclamation but aren’t sure how the council will vote on the issue.
“We’re not holding our breaths but I’m glad that they sent that message and it’s definitely a moral victory,” Nettleton said.
Lowry said there was no debate among his family on whether to fight the court battle “because what was going on was completely wrong, as the supreme court validated. The BLM had absolutely no right to hold the water right. We decided that we had no other option than to stand and fight.”
At the federal level, Sen. Mike Crapo, R-Idaho, has introduced legislation in Congress three times that seeks to get the ranchers reimbursed for their legal costs.
“Unfortunately, the low success rate for enacting private relief legislation and the ban on congressionally directed spending, such as earmarks, made it exceedingly difficult for Senator Crapo’s bill to advance in Congress,” said Lindsay Nothern, Crapo’s communications director.
“Clearly, the state of Idaho recognizes the efforts and sacrifices of Mr. Lowry and Mr. Nettleton, and it was encouraging to see the legislative debate this issue during its 2018 session,” he added. “Not only has it helped the ranching operations of Mr. Lowry and Mr. Nettleton, the legal victory yielded benefits to their ranching neighbors in Idaho and across the West as well.”
Friday, April 13, 2018
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