Thursday, March 20, 2008

Ranchers Fight for Water Rights

By Sean Ellis, Idaho Farm Bureau Federation

MURPHY--In Idaho apparently you can trample your foe in battle but still lose the war. Sadly, that could turn out to be the case in a landmark water-rights battle between two Idaho ranching families and the federal government.In that case, the Idaho Supreme Court ruled this year the federal government does not hold federal rangeland water rights. However, the court also ruled the ranchers were not entitled to recover attorney fees, a decision the families have appealed to the U.S. Supreme Court.

The two ranches in Owyhee County have challenged the government in state court for a decade and have refused to back down in a case they see as an issue of right vs. wrong. But the financial future of both operations is in jeopardy as the case now heads to the highest court in the land.For the families of LU Ranching Co. and Joyce Livestock Co., there’s no backing down now, and surrendering was never an option for them.“No. Never,” says Tim Lowry, owner of LU Ranching, when asked whether he ever considered giving up. “There have been times when we have been awfully discouraged, but we knew when we went into this we were right and what the federal government was doing was absolutely wrong.“It was a fight that needed to be fought.”

The implications of the case for other landowners are huge. A victory would give other farmers, ranchers, landowners, and small businesses the assurance they can stand up for what’s theirs and not risk losing everything, he said. A loss means individuals litigating against the federal government in state water-rights adjudications would be better off abandoning legitimate claims simply because they can’t afford to defend their rights against the government.

“Though we knew the expense of time, effort and attorneys’ fees would be great, we continued on, fighting for justice and to set a precedent for all public land users that private parties do have rights on public land,” said Paul Nettleton, managing partner with Joyce Livestock.The two families earned a significant court victory earlier this year that could assist hundreds of thousands of property owners in the West in their battle with the federal government over natural resources.The Idaho Supreme Court ruled in their favor in February on virtually every point in their long-running battle with the federal government over water rights on land covered by federally administered grazing allotments.But the court also ruled they could not recoup attorneys’ fees from the United States.

If the U.S. Supreme Court doesn’t take the case or rules against them, both ranches will be in deep financial trouble. Legal fees for the two families combined are nearing $1.5 million.Lowry says the attorney fees are about equal to the value of his ranch. If they aren’t allowed to recover them, the ranch will be in big trouble financially, he said.“If the Supreme Court will not take this case or takes it and rules against us, I’m not real sure what we’ll do,” he added.

The two ranches ended up fighting the government in state court after the Bureau of Land Management challenged their stock watering rights during the Snake River Basin Adjudication.During the SRBA, the U.S. filed overlapping claims to Idaho ranchers’ stockwater rights. The SRBA court ordered the parties to try to reach a settlement. Most ranchers accepted a settlement because they feared the financial risk of fighting the deep pockets of the government.Virtually every rancher in Idaho was forced to compromise their water rights to avoid a protracted fight with the government.While others gave in because of the risk, LU and Joyce decided to defend their rights against long odds.

Nettleton said they knew the government’s claims were baseless and went against Western water law. “The Bureau of Land Management never owned a cow,” he says. “How could they claim beneficial use?”The odds are great, he adds, “but we haven’t been here for 142 years by rolling over and letting folks walk on us when we know we are right.”Lowry said the settlement meetings were intimidating. Whereas ranchers walked into them alone, not thinking they would need an attorney to defend themselves against their own government, the government had a fleet of BLM water rights personnel and Justice Department attorneys present.When the government realized they weren’t going to give in, they resorted to what Lowry calls extortion tactics. He said they very pointedly told him they would contest his claims all the way up to the U.S. Supreme Court and that it would cost him the value of his ranch in attorney fees.

“In essence, they said, ‘You’ll be broke at the end of this court battle,’” Lowry said. “It was very pointed: ‘If you want to go down this route, we’ll break you.’”Instead of intimidating the two ranching families, however, it made them dig in.“It just made you mad,” Lowry says. “The government must not be allowed to run over private citizens because citizens cannot afford to protect themselves.”

An SRBA judge ruled in 2005 that the ranchers did have water rights but he issued priority dates later than 1934, which made the ranchers’ stockwater rights junior to the BLM. The ranchers then appealed, and the cases were litigated and appealed through state courts up to the Idaho Supreme Court.Affirming a district court ruling, the Idaho Supreme Court ruled the operations’ predecessors staked their water claims by grazing livestock beginning in 1898. That predates the 1934 Taylor Grazing Act.

“Joyce Livestock’s predecessors obtained water rights on federal land for stock watering simply by applying the water to a beneficial use through watering their livestock in the springs, creeks and rivers on the range they used for forage,” the Supreme Court ruled.They said the BLM couldn’t put the water to beneficial use because it doesn’t own cattle. Therefore, it can’t have a stockwater right.The court overwhelmingly rejected the United States’ position and ruled in favor of the two ranches on all of their substantive water rights claims. It said the government’s argument “reflects a misunderstanding of water law.”However, the court denied the families’ request to recover attorneys’ fees.

Now the two ranches have appealed that decision to the U.S. Supreme Court.The ranchers base their claims to be allowed to recover attorneys’ fees on the Equal Access to Justice Act, which provides for the award of attorneys’ fees to individuals and small entities that prevail in litigation against the government.The court ruled the EAJA does not authorize state courts to award attorney fees against the United States.

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