NARF Legal Review 29-1

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NARF Legal Review 29-1 Alter 16 Years Nez Perce Tribe Water Rights Settlement Framework Announced The Native American Rights Fund has repre­ way for a long-term public water policy for sented the Nez Perce Tribe in its water rights Idaho and enables the United States to fulfill claims in the State of Idaho's Snake River Basin trust responsibilities for the Tribe," said Adjudication ("SRBA") since January 1988. The Secretary Norton. Tribe's claims to water rights for instream flows Nez Perce Tribal Executive Committee in the Snake River and its primary tributaries, Chairman Anthony Johnson commended the the Salmon and Clearwater Rivers, to springs on hard work of the mediating parties. "We are lands ceded by the Tribe in 1863, and to on­ pleased at the progress that has been made in reservation consumptive uses of water, were filed resolving these difficult issues. The process can in the SRBA in 1993. The Nez Perce claims now move forward to closure with new momen- dispute has been the tum, for the benefit of all biggest outstanding dispute concerned." Idaho Governor in the SRBA, which includes a legal inventory ~ Nez Perce Tribe Water Righ~ ..•. p4ge l . f~~: "~~~~~~~::en~ta!~~ of about 180,000 water ~ The 'fribaLSupreme Court Pr()ject enable the State of Idaho to rights claims in 38 of .. ·.:.:~ .. ,:.~ .. ,.: ... ~; ..•. ~:; ....... :.... :.:., .. :: .. :. page 6 more effectively address its Idaho's 44 counties. Since responsibilities for water 1998, however, the Nez ~ CASE UPDATES · ·. •. ·.. ··. resource management and BJAGrant to· Fund Indian LegaL Perce Tribe, the United the needs of protected fish" ServiCes <''''.' ............... :... :...... ,: page I? States, the State of Idaho, Among the major initia­ and local communities f>residentSigns Executive Order.on. tives, the three sovereign and water users in Idaho Indian Education·"···~ ......... :.: page 12 ·. parties and Idaho water have engaged in court- users have agreed to a long­ ordered mediation, led by ~ Indian Law Library ............. ,.... page 14 term flow augmentation Duke University Law plan for the Snake River Professor Francis McGovern, above Hells Canyon, a to resolve the claims of the major instream minimum Nez Perce Tribe. flow plan for important streams and rivers in the In a press release issued by the U. S. Salmon and Clearwater River basins, and an Department of the Interior on May 15, 2004, agreement to use 200,000 acre-feet of water in Interior Secretary Gale A. Norton, Idaho Dworshak Reservoir for a flow augmentation Governor Dirk Kempthorne and Nez Perce plan benefiting listed species in the Clearwater Tribal Executive Committee Chairman Anthony and Snake Rivers. The United States also will Johnson announced an agreement to settle the agree to tribal management of Kooskia National Nez Perce water rights claims in the Snake River Fish Hatchery and tribal co-management of Basin. "This framework agreement clears the Dworshak National Fish Hatchery, establishment ~ VOLUME 29, N0.1 WINTER/SPRING 2004 of a $50 million fund for the Tribe to restore and The settlement also will include the transfer of =z improve fish habitat, develop water resources scattered parcels of federal Bureau of Land ....= and other agricultural projects, and a $23 million Management lands within the present Nez Perce U) fund for improvements to the Tribe's drinking Reservation to the Tribe. The transferred units ....:z: water and sewage systems. will be subject to all valid existing mineral c:s The Nez Perce Tribe is located in northern claims, grazing leases, rights of way and other -a: Idaho near the confluence of the Snake and rights and permitted uses. The parcels, valued at z Clearwater Rivers. The current reservation $7 million, will assist overall management and cc u boundaries contain approximately 700,000 provide valuable compensation and benefit to the -a: acres, or about one-tenth of the original seven Tribe without incurring additional appropriations LI.I million acre reservation reserved in the Treaty of or costs. The Tribe's share of the settlement is E 1855 with the United States. That treaty also about $93 million over 30 years. This agreement cc reserved to the Tribe off-reservation fishing is the first major step in the settlement process. ~ rights at all "usual and accustomed" sites on and State and federal legislation, final Nez Perce - off the reservation. Subsequent treaties and tribal approval, a court consent decree, and the =:i: agreements reduced the size of the reservation, drafting of ESA and NEPA documents also are Z but expressly left intact the Tribe's on and off- needed. Reservation treaty fishing rights. These rights are exercised by the Tribe's members at ceremonial, Agreement Background subsistence and commercial fisheries. The Snake River Basin Adjudication (SRBA) is In May of this year, all parties to the negotiations a water rights adjudication of the Snake River signed on to a comprehensive term sheet agree­ within the State of Idaho. As a part of that ment, which also calls for the suspension of all adjudication, the Nez Perce Tribe and the United litigation regarding Nez Perce claims in the States, as trustee for the Tribe, filed a variety of SRBA. The parties created a coordinating claims to water rights, based on treaties entered committee and drafting subcommittees to into between the United States and the Nez implement a plan which included drafting federal Perce Tribe. Among these, water rights were and state approval legislation. The Idaho claimed for instream flows to protect the Tribe's Supreme Court and the SRBA Court both agreed treaty-reserved fisheries. Those claims were to suspend all litigation to permit settlement contested by the State of Idaho and certain negotiations to proceed. The parties asked the Idaho water users because they could have SRBA Court and the Idaho Supreme Court to affected the rights of Idaho water users to extend the stay of all appeals and litigation until continue to divert water. By order of the SRBA March 31, 2005. Court in 1998, the parties have been attempting The agreement will launch a habitat restoration to resolve the issues. Negotiations to resolve the and management initiative in the Salmon and instream flow water right claims have focused Clearwater River Basins to improve instream on finding ways to protect fish habitat, including flows and fish habitat and passage to benefit both flow and non-flow related issues, while ESA-listed fish. The parties will agree on minimum preserving existing water uses. flows pursuant to a state law process for 184 The claims for the Tribe include not only the Tribal Priority Rivers and Streams that are instream flow water right claims, but also claims important for anadromous fish. These flows will to support the Tribe's consumptive water needs be established in a manner that protects all and claims to springs in the area ceded by the existing uses of water and provides for limits to Tribe in 1863. The proposed settlement includes future water development. A Habitat Fund will provisions resolving all of the issues relating to support improvements under this program and the Tribe's water right claims. the state will administer innovative cooperative The parties to the mediation included the agreements under the ESA to enhance riparian United States and the Tribe as claimants, as well habitat. as parties to the SRBA who filed legal objections PAGE 2 NARF LEGAL REVIEW z !:; -<m :l:li ==m :a n- :l:liz :a- ~ =:c .....en c:.... z c::ll to the Tribal claims. These objectors include the The proposed settlement agr~ement would State of Idaho, Idaho Power Company, and water finally and fully determine the Tribal claims to users throughout the Snake River basin within water rights, set out the understandings and · Idaho. After several years of negotiations, the criteria necessary to provide long-term ESA parties have developed a framework for a proposed compliance for water use in the Snake River settlement agreement (although not a party to basin in Idaho and for timber land management the settlement, Idaho Power participated in the activities on state and private lands, and protect mediation and is expected to continue working existing water uses. with others on issues associated with the Hells Canyon Complex). Nez Perce Tribal Component Specifically, the Agreement's framework is The Tribal component resolves water and divided into three separate components: (1) the other natural resource concerns raised by the Nez Perce Tribal component to resolve issues Tribe in the SRBA. These resource concerns relating to its water claims as well as related include water rights, development of water land and natural resource issues; (2) the resources, hatchery management, certain BLM Salmon/Clearwater component to protect flows lands, and fisheries habitat. In exchange for the and habitat within the Salmon and Clearwater Tribe's agreement to resolve their water right River basins; and (3) the Snake River flow com­ claims, as well as to resolve any other Tribal ponent to resolve issues involving the use of the water-based claims, the United States will provide Snake River above the Hells Canyon Complex. financial compensation to the Tribe. NARF LEGAL REVIEW PAGE 3 Cll The specific prov1s10ns of this component selected streams of importance to the Nez Perce Z include: (1) The Tribe's multiple-use water Tribe. These flows will provide for future domestic, ~ rights will be decreed in the amount of 50,000 commercial, municipal, and industrial uses and ~ acre-feet per year, primarily from Clearwater will allow for a certain level of future develop­ !ii: River sources. Water from other sources will be ment of other water uses. The State will admin­ ca decreed only to the extent water is unappropriated ister a cooperative agreement(s) under the -a: and existing water rights are not injured. (2) The Endangered Species Act to enhance riparian z Tribe's "springs or fountains" water rights claims habitat and protect existing and future State­ ::§ on federal lands within the 1863 Nez Perce permitted uses.
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