A U.S. judge ruled against the Department of Justice (DOJ), blocking its attempt to prevent Idaho from enforcing laws that let ranchers take control of water rights held by the federal government for public lands used for livestock grazing.
In a decision issued Aug. 28, Chief U.S. District Court Judge David C. Nye for the District of Idaho rejected the request to block the forfeiture laws, which establish that unused water rights are forfeited after five years of non-use.
The federal government and its agencies can set aside water to support lands to be used for a particular purpose, such as livestock grazing.
In 2007, the Idaho Supreme Court held that a rancher could establish a water right on federal land for livestock if the rancher had authority to access the land for grazing and that Bureau of Land Management (BLM) must put water to beneficial use itself to establish ownership.
In a 2022 suit, the DOJ challenged Idaho’s laws as unconstitutionally interfering with the government’s water rights.
Two of the challenged statutes are procedural and apply to all water rights holders. One statute establishes that unused rights are forfeited after five years of non-use, while the other sets the procedures to follow to initiate divestment for unused rights.
Nye wrote that the laws treat the federal government no differently than any other water rights owner.
“The state of Idaho, the Idaho legislature, and Idaho ranchers contend the statutes are constitutional,” Nye wrote. “Today, the court finds the Idaho parties are right about the procedural statutes: they are constitutional.”
However, the remaining statutes add new restrictions on federally owned stockwater rights, such as prohibiting changes to their purpose or place of use, requiring livestock ownership and altering who can use water tied to federally leased land.
The court found that the federal government was correct in that the remaining statutes single out the federal government and its agencies for disfavored treatment, making the statutes unconstitutional.
“Placing retroactive appurtenancy, type and place of use, and livestock ownership conditions on only federally-owned water rights inflicts constitutional injury upon the United States and its agencies,” Nye wrote.
Background
There have been questions about the Snake River Basin Adjudication and water rights on BLM land since the adjudication’s establishment in 1987. The Idaho Legislature enacted several statutes between 2017-22 modifying water rights policies that limit federal agencies’ abilities to acquire and retain water rights.
In May 2022, the Idaho Department of Water Resources (IDWR) issued orders requiring the U.S. to show why 57 federally owned stockwater rights should not be forfeited. A month later, IDWR added 11 more rights to the list.
The U.S. then filed suit to challenge the constitutionality of the Idaho statutes. After back-and-forth motions between the feds and defendants, oral arguments were held in January.
Nye ultimately ruled to uphold the statutes related to stockwater forfeiture, but enjoined the three other statutes that he ruled were unconstitutional. — Anna Miller, WLJ managing editor
