Ruling murky on water rights

Naturally, most people assume that water is critical to the existence of wilderness fish and wildlife.

Legally, however, there are dissenting opinions.

The Idaho Supreme Court in 1999 upheld trial court decisions that maintained “federal reserved” water rights for the Sawtooth Wilderness. These water rights for specially designated federal lands — also called “Winters rights” for the 1908 U.S. Supreme Court decision that delineated them — are a major exception to the rule that states control all water resources within their borders.

But after a great public outcry, the Idaho court offered to reconsider the ruling.

“In the interim, Justice Cathy Silak, who authored the initial decision awarding wilderness water rights, lost her judicial re-election bid to a lawyer who made the wilderness water decision a campaign issue,” said Rachael Paschal Osborn, a Spokane attorney who specializes in water rights law.

In 2000, the court reversed itself and said the federal reserved rights did not apply to the Sawtooths as well as Hells Canyon.

“In reviewing these decisions, some have observed that the Idaho Supreme Court ignored or selectively analyzed the language of both the Wilderness Act and the specific Idaho wilderness designation statutes, ignored legislative history, failed to apply federal case law on Winters water rights, and developed unique theories about why wilderness areas do not require water,” Osborn said.

Of particular interest is the Chief Justice’s implication that federal water rights didn’t exist in these wilderness areas because Congress knows how to expressly reserve water rights and in failing to do so, intended not to reserve them, Osborn said.

“It does seem remarkable that a state court judge (even a state Supreme Court justice) could dispense with a century-old federal doctrine that implicates significant property interests of the United States government,” she said.

The Idaho decision also puts into question water resources in the Frank Church River of No Return, Gospel Hump and Selway-Bitterroot wilderness areas, she said.

Nevertheless, she said, wilderness advocates throughout the country should heed the judge’s reasoning, which may appeal to state courts elsewhere when confronted with wilderness water rights cases.

Unless federal legislation that designates wilderness is explicit about water rights, wilderness water resources are potentially available for appropriation under state water laws, she said.