BOISE – Debate on the multimillion-dollar Nez Perce water agreement simmered on the details during a Senate State Affairs Committee hearing Wednesday, with lawmakers peppering panel members about the legal underpinnings of the proposed settlement.
But some of the testimony focused on another Indian tribe – the Shoshone-Bannocks, who have promised to sue if the water rights agreement is approved.
The Shoshone-Bannocks claim the water rights agreement steps on their aboriginal turf and that they should have been included in negotiations.
But Michael Bogert, a spokesman for Gov. Dirk Kempthorne’s office, told the committee members he was perplexed by the Shoshone-Bannocks’ claims.
“One of the intriguing claims by the tribe is that the governor has waived sovereign immunity on behalf of the state,” something that is impossible under state law, Bogert said. “We remain a bit baffled by it, but nonetheless we look forward to talking to the tribe about their concerns.”
The Senate committee hearing marks the water agreement’s halfway point to state approval or denial. The agreement has already been approved by Congress and the Idaho House but still must pass the Senate and be ratified by the Nez Perce Tribe to go into effect. Senate committee members are expected to vote late this week or early next week.
The agreement calls for the Nez Perce to drop their claims to nearly all the water in the Snake River Basin in exchange for annual rights to 50,000 acre-feet of water in the Clearwater River, $80 million in cash and land, and a pledge from the state and federal governments to provide tens of millions of dollars for fish habitat and other environmental improvements.
Many of the roughly 100 people who gathered Wednesday reiterated the testimony they gave during a similar hearing held by the House of Representatives. Those in favor of the agreement told lawmakers that though the settlement is not perfect, it is the best option for the state. Those opposing the agreement said it gives up too much to the Nez Perce Tribe and hinders the property rights of some North Idaho residents.
Mark Pollot, representing the Water Rights Coalition, said the agreement causes more problems than it would solve and could transfer control from the state to the federal courts.
“The agreement will engender litigation. Whoever loses that litigation will take that issue up on appeal, and the court they will end up in is the 9th Circuit. And nobody knows what the 9th Circuit would do,” Pollot said.
Roger Ling with the Federal Claims Coalition said the agreement upholds Idaho’s sovereignty.
“This is a settlement of water rights claims, not a settlement of every treaty right out there,” Ling said. “I really do think we got a great deal.”
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