By Sean Ellis
Idaho Farm Bureau Federation
POCATELLO – U.S. Bureau of Land Management officials are asking Idaho ranchers who water livestock on BLM land to sign voluntary agreements stating that they are limited agents of the federal government.
Idaho Farm Bureau Federation officials are advising ranchers to think long and hard before signing the agreement, cautioning them that doing so would allow the BLM to maintain water rights in their name and would prohibit the rancher from filing for in-stream stock watering rights on federal land in the future.
IFBF leaders say the issue rehashes some of the main points of a landmark 2007 water rights ruling known as the Joyce Livestock Decision.
In that decision, the Idaho Supreme Court ruled in favor of two Owyhee County ranchers in their battle with the BLM over who owns in-stream stock watering rights on federally administered land.
During the state’s Snake River Basin Adjudication process, southern Idaho ranchers and the BLM filed thousands of overlapping claims to in-stream stock watering rights on federal land.
All but two of the ranchers, Paul Nettleton and Tim Lowry, backed off or negotiated with the BLM when they realized fighting the federal agency in court would cost a lot of money.
Agreeing with Nettleton and Lowry, the state’s supreme court ruled that BLM didn’t own the rights because it doesn’t own cows and couldn’t put the water to beneficial use.
During the SRBA process, the water adjudication court ended up conveying 17,000 stock watering rights to the BLM prior to the Joyce ruling. However, since BLM cannot put the water to beneficial use, they are now in jeopardy of forfeiting these rights through non-use.
The Idaho Legislature passed a bill a few years ago that codifies the Idaho Supreme Court’s 2007 decision into state law, which paves the way for thousands of ranchers in Idaho to file competing claims for those in-stream stock watering rights on BLM land.
In an effort to keep those water rights, BLM is now encouraging permittees to sign agreements stating that they are agents of the federal government and that their livestock are putting the water to beneficial use for the agency.
In an email response to IFBF questions on this issue, BLM officials said the agency is “encouraging permittees to sign the voluntary (agreements) to help ensure that they can continue to utilize the state-based stockwater rights obtained by the BLM for the term of their permit and any subsequent renewals. A signed agreement helps protect the stockwater rights in the permittees’ allotments from a possible future forfeiture proceeding.”
BLM said the agreements “ensure regulatory certainty for permittees and ensure that all stockwater rights in an allotment remain available for the permittee.”
During the court case, the BLM argued that they must hold the water rights to ensure the current and future grazers on federal lands had access to the water.
In its ruling, the Idaho Supreme Court rejected that assertion and it also said the BLM’s argument reflected a serious misunderstanding of Idaho water law.
But now BLM is asking ranchers who graze cattle on federal allotments to sign voluntary agreements that say they are “acting as a limited agent of the United States for the purposes of establishing and maintaining water rights solely in the name of the United States on federal public lands….”
If a permittee signs this agreement, “He is saying, I am an agent of the federal government and as such, my cattle are putting this water to beneficial use for the BLM so they can hold stockwater rights in their name,” said IFBF Director of Governmental Affairs Russ Hendricks. “There is no other way the BLM can have a stockwater right unless they have an agent who is putting the water to beneficial use for them.”
Speaking at an IFBF water rights conference in 2015, Justice Dan Eismann, who wrote the court’s decision, said, “People did not come West to be agents of the federal government, so that was easily rejected.”
He also said that “water rights on federal land are appurtenant to the person who is watering the stock.”
Hendricks said Congress has made it clear that stock owners are authorized to seek and receive stockwater rights on federally administered land.
By signing the BLM agreement, “The rancher would then have no opportunity to file for those stockwater rights in his name because the BLM would already have them,” Hendricks said.
If a permittee does not sign the agreement, Hendricks said, the BLM could potentially forfeit a water right that was decreed to them during the SRBA because they are not putting it to beneficial use. Meanwhile, the rancher would be free to file for that water right in their name with the Idaho Department of Water Resources.
“Under the Joyce Livestock decision by the Idaho Supreme Court, if the permittees own and manage the livestock, they should own the water rights,” said Paul Arrington, executive director of the Idaho Water Users Association. “They are the ones putting the water to beneficial use.”
He said that permittees’ deferred claims are valid water rights recognized under Idaho water law and therefore, even if BLM’s adjudicated water rights are forfeited, the permittees still have a valid, underlying water right that they are entitled to file upon.
“A water right is based on beneficial use – you have to actually use the water,” Arrington said. “The water cannot be claimed by anyone who has not actually used that water.”
“Our advice at this point is to think long and hard about it before signing,” Hendricks said. “The down side of signing the agreement is you are eliminating any possibility of obtaining that stock water right in your name in the future as long as the agreement is in force.”
Lowry, one of the ranchers who prevailed in the Joyce Livestock Decision, said BLM’s recent attempt to get ranchers to sign these voluntary agreements “looks like a back-door scam. It looks like they are trying to stampede people into signing up by essentially using scare tactics.”
“I don’t like it at all,” he said. “It rubbed me the wrong bloody way.”
Updates can be found at https://www.idahofb.org/stockwater2020