The question of who owns—or can own—stockwater rights in the West came another step closer to being answered in favor of ranchers last week.
Idaho House Bill 603—the bill that would limit stockwater rights to those using them to water livestock—advanced to the Idaho Senate last week. The bill passed the Idaho House with unanimous support at 67 votes on Feb. 27. The vote was wholly bipartisan and only three Idaho legislators were absent for the vote.
As covered in last week’s paper, the bill would amend the state’s legal code to clarify ownership rights on stockwater. Specifically, it would effectively invalidate federal agency claims on stockwater rights ownership unless the agency put the rights to beneficial use. In this case, that means using the stockwater rights for watering livestock and for no other purpose.
“If an agency of the federal government acquires a stockwater right, that stockwater right shall never be utilized for any purpose other than the watering of livestock unless otherwise approved by the state of Idaho,” reads the bill.
The bill was authored by state Rep. Judy Boyle (R-District 9), a rancher in Midvale. State Sen. Mark Harris (R-District 32), also a rancher, is listed as the Senate sponsor on the bill.
Harris told WLJ that he expects the bill to be well received in the Senate, pointing out that a similar bill passed the Idaho Senate last year.
“The new bill, House Bill 603, adds that it is the intent of the Legislature that stockwater rights acquired in a manner contrary to the Joyce decision are subject to forfeiture,” he explained.
“So, what the new section does is directs the director of water resources to gather a list of the stockwater rights held by the federal agencies and issue them show clauses to see if the stockwater is being used for beneficial use. If they’re not, they have to forfeit those stockwater rights. Then the permit holders can come in behind them if they so choose and file claims on that water.”
Harris added that the bill that passed the Idaho House will have to be amended in the Senate regarding language related to stockwater rights sources. He gave the example of surface stockwater rights versus wells drilled for stockwater.
“If [the stockwater] is in a pipe, that’s an issue. If the federal government forfeits that water, the pump shuts down and there’s no water. That lag time is a detriment because then nothing can get a drink and that’s where the language in this amendment will deal with.”
He said he was optimistic for the bill passing the Senate. He told WLJ the amended bill has a Senate resources committee hearing today and hopes to see it move to the whole Senate later this week.
Joyce v. BLM
The bill turns on the Idaho Supreme Court case of Joyce Livestock Company v. United States of America, which is cited repeatedly in the bill’s text. The case saw two Owyhee County ranches—the Joyce Livestock Co. and the Lu Ranching Co.—against the BLM over stockwater rights.
Back in the 1990s, the ranches and the BLM filed competing stockwater rights claims during the Snake River Basin Adjudication. In 2007, the Idaho Supreme Court found in favor of the ranchers on most points related to stockwater rights, saying:
“The United States claimed instream water rights for stock watering based upon its ownership and control of the public lands coupled with the Bureau of Land Management’s comprehensive management of public lands under the Taylor Grazing Act... The argument of the United States reflects a misunderstanding of water law... As the United States has held, Congress has severed the ownership of federal lands from the ownership of water rights in nonnavigable [sic] waters located on such lands.”
The Idaho Supreme Court also noted that mere ownership or management of land was insufficient to qualify for stockwater rights.
“Under Idaho law, a landowner does not own a water right obtained by an appropriator using the land with the landowner’s permission unless the appropriator was acting as agent of the owner in obtaining that water right… The Taylor Grazing Act expressly recognizes that ranchers could obtain their own water rights on federal land.”
Unfortunately for the petitioning ranches, the Idaho Supreme Court upheld the lower court’s decision not to award attorney’s fees, despite their successful challenge of the federal government. They appealed to the U.S. Supreme Court in hopes of getting their estimated $1.5 million in attorney’s fees paid. The Supreme Court refused to hear the case, however, leaving the Idaho Supreme Court’s ruling on the attorney’s fees standing. — Kerry Halladay, WLJ editor