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Spokane, Washington  Est. May 19, 1883

Tribe, state lawyers explain water rights settlement

Associated Press

LEWISTON – Attorneys representing the Nez Perce Tribe and Idaho are touring the state as part of a campaign to educate people about the proposed settlement of the tribe’s water rights claims.

The deal affects the state and federal governments, water users and the Nez Perce Tribe.

The lawyers met with people from Lewiston, Orofino, Coeur d’Alene, Sandpoint and Idaho Falls, telling them the deal has benefits for all sides.

Gov. Dirk Kempthorne, Interior Secretary Gale Norton and Nez Perce Tribal Chairman Anthony Johnson announced the settlement in May. It was the culmination of years of negotiations to resolve water claims in the Snake River Basin Adjudication.

Any of the parties involved could have litigated their claims but chose the certainty of settlement over the risk of going to court.

Under the settlement, the tribe gets 50,000 acre-feet of water from the Clearwater River for multiple uses and rights to water from springs or fountains on federal lands within historic reservation boundaries. The Nez Perce also get $7 million worth of land, management of the Kooskia National Fish Hatchery, co-management of the Dworshak National Fish Hatchery, $50 million for natural resource acquisition or improvements and $23 million for sewer and water systems on the reservation. In exchange, the tribe drops water claims on nonfederal and private lands.

The deal calls for improved habitat and water flows for endangered salmon in the Salmon and Clearwater rivers and revises the way minimum flows in the Snake River are determined.

“There is no city in the Clearwater Basin that is going to be negatively impacted,” said Don Roberts, Lewiston attorney. “It protects current domestic, commercial, municipal and industrial use.”

Rather than describe provisions of the settlement as impacts to the parties, Deputy Attorney General Clive Strong described them as benefits. People may be opposed to the settlement for philosophical reasons, Strong said, but he does not believe they will be harmed by its provisions.

For instance, Strong said some people in the upper Clearwater Basin wanted the case to continue in the hopes that it would address their concerns over tribal sovereignty and jurisdictional issues. But he said the settlement does not give the tribe jurisdiction over nontribal members.

Tribal attorney Steven Moore said the settlement has not been finalized – it still must be approved by the state Legislature – and any of the parties, including the tribe, could decide to risk the benefits in the settlement against the possible spoils of a court victory.

“One choice for them that is still on the table is walking away from this deal and litigating,” he said.

He described the decisions faced by tribal members as important as those faced before the treaties of 1855 and 1863. Likewise, the state or different water interest groups could also risk it all for a court victory. But the settlement erases any uncertainty brought by a court case, Strong said.