After a lengthy debate, the Senate has voted 29-6 in favor of HP 1, a proclamation urging the state’s Constitutional Defense Council to reimburse two Idaho ranchers for $600,000 in attorney fees from their successful 2007 lawsuit over stockwater rights – despite an Idaho Attorney General’s opinion, and previous Idaho Supreme Court rulings, saying private parties aren’t entitled to have public funds repay their legal fees when they go to court to defend their own private rights – and that it’s unconstitutional to spend public funds for a private purpose.

The ranchers argued that they, not the federal government, should hold stockwater rights for federal land on which they have grazing permits; the Idaho Supreme Court ruled that under Idaho water law, the rights must be held by those who put them to “beneficial use,” and that the federal agencies, lacking livestock, couldn’t do that.

“These two ranchers are literally on the verge of bankruptcy, they fought the fight for all of us,” Sen. Jeff Siddoway, R-Terreton, himself a rancher, told the Senate. “That just isn’t right.”

Sen. Mark Nye, D-Pocatello, spoke out against the proposal, saying, “This resolution, while well-intended, would open the floodgates to similar” requests from many types of litigants, who also could argue that their lawsuits served public purposes as well as private ones. “Our Constitution is very important, and I just worry about opening up the floodgates,” he said.

The resolution is non-binding. Idaho’s Constitutional Defense Fund was set up to cover legal fees when the state fights in court to protect its sovereignty; it’s mostly been used to pay court-ordered fees for the winning parties when the state has lost lawsuits over issues including same-sex marriage, abortion, anti-union laws and the like.

Decisions on spending from the fund are up to four Constitutional Defense Council members: House Speaker Scott Bedke, Senate President Pro-Tem Brent Hill, Gov. Butch Otter and Attorney General Lawrence Wasden.

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