October 17, 2004 in City

Nez Perce water claims spark debate

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LEWISTON – The Pacific Legal Foundation claims Idaho could be endangering more rights than it is securing with a proposed settlement of the Nez Perce Tribe’s water claims.

But the Idaho Attorney General’s Office says that’s just not the case.

The foundation reviewed the proposed settlement at the request of state Sen. Skip Brandt, R-Kooskia. The foundation is a property rights public interest law firm based in Sacramento, Calif.

“We didn’t do the analysis from the point of concluding it’s a good thing or a bad thing as much as we did just provide the senator a nuts and bolts of what is in here and what the agreement does and doesn’t do and what questions may be left unresolved,” said foundation attorney Russell Brooks of Bellevue, Wash.

Under the proposed settlement, the Nez Perce Tribe has agreed to trade its claims to most of the water in the Snake River Basin for more money, land, salmon-friendly river flows and protections for salmon and steelhead.

In exchange, state and private landowners would receive some protections from lawsuits based on the Endangered Species Act.

The agreement still must be ratified by the Idaho Legislature, Congress and the Nez Perce Tribe. Some Clearwater River valley residents oppose the deal because they feel it gives too much to the tribe and doesn’t protect private property rights.

Brooks said in the analysis that parts of the deal are open-ended and ambiguous, but the agreement could be good as long as it is implemented correctly and the state vigorously defends its rights.

The foundation said there could be a problem with a provision that allows the tribe first right of refusal in future sales of Bureau of Land Management property.

But Idaho Deputy Attorney General Clive Strong said the federal government already has a policy giving tribes first shot at purchasing land that was once part of their reservations.

“This bill would do nothing to hinder Idaho’s ability to acquire or hold federal lands, should Congress ever make them available for ownership,” he said.

Brandt said he is not entirely opposed to the proposed settlement, but is leaning that way. He said he asked the foundation to review it so he could get a neutral analysis.

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