A big year in water rights

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SHAWN GUST/Press file A sailboat makes its way across Lake Coeur d’Alene in this file photo. Coeur d’Alene Tribe officials, cities along the lake and thousands of other stakeholders are waiting to see how an Idaho Supreme Court decision will affect their water rights claims on the largest lake in Kootenai County.

COEUR d'ALENE — The Coeur d'Alene Tribe is looking for a resolution to the North Idaho water adjudication process.

The Tribe hopes a decision by the Idaho Supreme Court this year will give it more leverage to negotiate an outcome, but for now, tribal legislative liaison Tyrel Stevenson said the Tribe is waiting on the state's highest court to consider granting the Tribe a series of water rights. These include claims to streams outside the reservation, claims to Lake Coeur d'Alene water, and a series of claims for commercial use that were denied by a lower court.

“Hopefully once the Supreme Court reviews it, that will put us in a position where we have more certainty in how the case goes,” Stevenson said. “We're confident we will prevail in the Idaho Supreme Court.”

In a process that has spanned almost a decade, nearly 12,000 water rights claims have been filed by stakeholders in the central part of Idaho's Panhandle, mostly private citizens affected by the Coeur d'Alene-Spokane River Basin Adjudication process.

Many of the claims, about 4,000, have been adjudicated and water rights have been awarded to claimants from the Silver Valley to St. Maries and west to Tensed and Worley. But applications from the largest pool of claimants, mostly in Kootenai County — part of subbasin 95 — are still being reviewed. A decision on who gets what won't be forthcoming until the end of this year.

Even then, courts must consider objections and the entire process could take another couple of years to wrap up.

As part of the North Idaho adjudication process that began in 2008 on the heels of southern Idaho's Snake River Adjudication — which lasted almost 30 years — one of the big questions is how the end result will affect use of the lake, its tributaries and its Spokane River outflow.

Large stakeholders, including the city of Coeur d'Alene, as well as mining and timber companies, have filed objections to claims by the Coeur d'Alene Tribe, another North Idaho heavy hitter, which was denied more than 50 claims to water sources outside the boundary of its 524-square-mile reservation.

That decision by the Fifth District “water” court, as well as a decision to deny 12 additional claims for domestic, commercial, municipal and industrial purposes that could affect water at the Coeur d'Alene Casino and golf course, was appealed by the Tribe and will be considered by the Idaho Supreme Court later this year.

The North Idaho process is divided into three basins, including the Palouse River Basin, the Clark Fork Pend Oreille River Basin and the Coeur d'Alene Spokane River Basin Adjudication (CSRBA), which are considered separately.

The CSRBA is split into a series of subbasins numbered 91 through 95. The last basin for which adjudication is set (95) includes the most claims — about 7,800 — and the region's largest players including the Coeur d'Alene Tribe and the cities of Post Falls and Coeur d'Alene.

In the latest adjudication of water rights, each of the entities started on the same playing field.

By filing for water rights, municipalities, industry and the Tribe — along with residents with domestic wells, agricultural operations and timber companies — had to convince a Fifth District judge, the acting water judge, that they were entitled to their water rights claims.

Each entity had to start from scratch and file claims for the water it deemed necessary for its operations.

A common misconception, Stevenson said, is that the Tribe, through its appeals of the District Court's decisions, is attempting a water grab.

“The Tribe can't take someone's domestic well away from them,” Stevenson said. “The Tribe has no intention of doing that anyways.”

The appeal focuses on what water rights the Tribe is entitled to, he said.

“This case at this point is only about the rights the Tribe gets,” he said.

The claims aren't limited to wells. The District Court allowed water rights inside the reservation for purposes of hunting and fishing, but denied the Tribe a claim for “plant habitat for Tribal gathering.”

Tribal water claims extend to “fish propagation, lake level maintenance, water storage, power generation, religious, cultural, and ceremonial, transportation, stock water and wildlife, aesthetics, and recreation,” according to one of its claims to Windfall Creek, a tributary to Benewah Creek in the southern portion of subbasin 95.

In a judgment filed last spring which has been appealed, District Judge Eric Wildman, the “water judge,” denied claims filed by the U.S. on behalf of the Tribe for water rights outside the boundaries of the reservation. And Wildman denied a claim for lake level maintenance for Lake Coeur d'Alene.

Norm Semanko, the Boise attorney representing The North Idaho Water Alliance, a conglomeration of Panhandle property owners and claimants, said the court's ruling limited the Tribe's water rights to the reservation.

More than 50 claims that the Tribe has appealed are for water rights, primarily tributaries, that lie outside reservation boundaries.

Lake levels, which are affected by inflows such as creeks, streams and rivers, are dictated by state law, Semanko said.

In the late 1920s, water rights to Lake Coeur d'Alene were set aside by the state for the people of Idaho.

“The lake level is protected under state law,” Semanko said.

Because the lake is held in trust by the state for the people of Idaho, “It's already protected,” Semanko said. “That isn't going to change.”

Once the Supreme Court rules on the appeal, a second quantitative process, to determine how much water is allowed under each claim, will take place.

As the big issues get hammered out in the echoing halls of the judiciary, Carter Fritschle, a senior water agent for the Idaho Department of Water Resources, oversees smaller, less politically fueled claims.

Fritschle, who began with the agency a year before the Snake River Adjudication began, is so well-versed in the process he percolates.

His agency has waded through the claims, and objections to claims, which can be filed by neighbors or entities downstream of where a claim was filed, for subbasins 91 through 94. The process, in part because there are fewer claims and fewer players than there were in the Snake River Adjudication, has moved along steadily.

“We've been able to stay pretty well focused on getting it done,” Fritschle said. “For the most part it's gone pretty smoothly.”

He anticipates the majority of the claims for subbasin 95 will be handled by the end of the year.

“Four-fifths of the basin have been decreed,” he said.

During the Snake River Adjudication, the Nez Perce Tribe asked the court to hold off on its ruling regarding Nez Perce Tribal claims until that tribe and objectors hammered out their own agreements through negotiations.

Semanko said agreements derived through mediation, something the Coeur d'Alene's are vying for, is a standard remedy in what can be a long adjudication process.

“There's more possible outcomes than the Tribe's right, or the state's right,” Semanko said. “There's certainly been discussions.”

At this point, though, the parties including the state, the cities and stakeholders including the Tribe want to get answers to the issues before the court.

“All those parties will have an opportunity to put briefs in front of the Supreme Court, then they will have oral arguments where they will state their case in front of the court,” Semanko said.

That should take place this fall.

After that, there will be a pause.

“And then the court will make a decision,” he said.

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