By Jaclyn De Candio for Protect The Harvest
Ranchers in Idaho are fighting back against a federal government push to confiscate vital water rights for livestock, thereby endangering the care and production of cattle. Current state law provides for individuals to acquire rights to public waters by granting permission to use them for beneficial purposes such as watering livestock.
Now, our federal government – the one that’s supposed to be accountable to we the people – is attempting to declare that state law unconstitutional. By nullifying the law, the U.S. government would jeopardize ranchers’ rights to provide life-sustaining water to livestock, as they have for decades.
A history of federal overreach
The fight for water rights in Idaho has a long history.
In 1978, the Supreme Court of the United States (SCOTUS) ruling in U.S. vs. New Mexico established that federal law does not automatically grant water rights to the government on national forests. Instead, these rights are subject to state water law. That SCOTUS decision set the stage for the current conflict in which ranchers and the federal government are clashing over how Idaho water law applies to federal lands.
Federal agencies continue to argue their case to retain water rights over states, citizens, and ranchers. The 1987 Snake River Basin Adjudication (SRBA) lasted until 2014, and aimed to create a clear record of water rights in the basin. It’s unclear if federal agencies definitively documented their stock water rights claims during the SRBA, particularly for stock watering purposes – a point of contention requiring further legal examination and interpretation.
Federal agencies argue that SRBA did not extinguish their existing water rights, even if they weren’t explicitly documented during the adjudication process. This is because they claim these rights are reserved under federal law for purposes such as “maintaining wildlife habitat.” Throughout the 1980s and 1990s, Idaho adjudicated water rights in the Snake River Basin. Ranchers claimed stock water rights on federal lands, but were dissuaded by federal government legal threats. The result was that federal agencies controlled most stock water rights on federal allotments. The exception was one successful legal challenge by ranchers who argued the government couldn’t claim beneficial use since they don’t own cattle.
Then, in 2007, a fifth-generation rancher won a critical case against the federal government. The Idaho law mentions stock water rights must be put to “beneficial” use, or they will be forfeited. This led to allowing private third-party permit holders, “such as the Idaho ranchers who actually use these water rights, to water their own stock, and doing so does not qualify as a beneficial use by the federal government.”
Subsequently, the Idaho legislature arranged its holdings and established an administrative process to determine if stock water rights were being put to beneficial use or if they should be forfeited. At that time, the federal government balked at the state legislation because it was vulnerable to forfeiture of water rights due to violating the guidelines.
Idaho’s Department of Water Resources also pressured the federal government by issuing orders threatening federal agencies with forfeiture of some stock water rights.
Undeterred, federal agencies believed the water rights forfeiture threat by the state was unwarranted and sought preferential treatment. The feds are attempting to circumvent an established precedent in Western water law: allocation based on beneficial use.
The cost to state and national cattle industries
Confiscating water rights from ranchers is wrong. The cost and feasibility of relocating cattle to other water sources is crippling and usually not an option. No doubt, federal agencies filled with unelected, bureaucratic civil servants are well aware of the burdens they are placing on ranchers. Idaho is home to nearly 450,000 beef cattle and 660,000 dairy cows, per the latest U.S. Department of Agriculture (USDA) data. Reducing, or eliminating, water accessibility threatens the livelihoods of ranchers, and threatens the national herd size as ranchers would have no choice but to reduce their herds without adequate water.
If the federal government is not kept in check, or made to follow the established guidelines/laws, it is likely more ranchers’ livelihoods will be at risk. There is also the dangerous precedent that the federal government has the right to override state law at its own discretion to eliminate the existing rights of citizens.
The Bureau of Land Management (BLM) and U.S. Forest Service are reportedly seeking ranchers to participate in “agency agreements.” Advocacy groups, including the Idaho Farm Bureau, have expressed concern that these agreements could be misconstrued as ranchers acting as official agents of the federal government and advise ranchers to be very wary before signing.
Fighting the water grab
The Idaho water rights dispute raises concerns that the state might be the first domino to fall in a nationwide effort by the U.S. government. The federal government’s lawsuit against Idaho in federal district court, arguing discrimination against their water rights, underscores this worry. “Discrimination” has become one of the U.S. government’s “trigger” words to force a resolution in its favor. Beyond Idaho’s borders, water users in other states are closely monitoring developments, apprehensive about the potential impact on their own rights. While this complex issue may have some positive aspects, significant challenges remain to be addressed.
Ranchers facing these agreements have two main courses of action. First, those who have already signed can potentially revoke their participation. This revocation process might involve gathering signatures to force action. Second, ranchers may have existing water rights claims on the same water source as the federal agencies (BLM or Forest Service). This option involves asserting their legal claim to the water in dispute.
Other state rights are next
The federal government’s overreach in Idaho’s water rights demands a firm, thoughtful, focused response. Americans, especially ranchers, cannot afford to be passive observers. Protect The Harvest urges citizens to become informed on these critical issues, engage when appropriate, share their experiences, and make their perspectives known. Inaction is dangerous. If Idaho doesn’t prevail, the federal government will undoubtedly pressure other states to comply. While a current water rights battleground is in Idaho, ranchers across the nation must stand together.
