Ranchers cautioned against signing 'voluntary agreements'

By Sean Ellis

Idaho Farm Bureau Federation

POCATELLO – The U.S. Forest Service has joined the U.S. Bureau of Land Management in asking Idaho ranchers who water livestock on federal land to sign agreements stating that they are doing so as limited agents of the federal government.

Idaho Farm Bureau Federation officials and others are cautioning ranchers against rushing to sign the agreements, which imply that ranchers could lose access to in-stream stock watering on federal land if they don’t sign.

IFBF Director of Governmental Affairs Russ Hendricks said the Forest Service is trying to scare people into signing the voluntary agreements by telling them their water could be in jeopardy if they don’t.

“It certainly appears from an outside observer’s standpoint that they are using pressure, deception and scare tactics to try to get permittees to sign the agreements,” he said. “There is no legal way anyone can take away the water but they are implying that, if you don’t sign this, you are not going to have any water for your cattle. That is not true and it’s deceptive.”

The U.S. Bureau of Land Management is also asking ranchers who water their stock on BLM ground to sign similar agreements.

Hendricks said if a rancher signs the agreement, it would prohibit the rancher from filing for in-stream stock watering rights in his own name on federal land in the future.

The issue is basically a rehash of a landmark 2007 water rights ruling by the Idaho Supreme Court that is known as the Joyce Livestock Decision.

In that decision, the Idaho Supreme Court ruled in favor of two Owyhee County ranchers, Tim Lowry and Paul Nettleton, 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 and Forest Service filed thousands of overlapping claims to in-stream stock watering rights on federal land.

All but two of the ranchers, Nettleton and 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 couldn’t own the rights because it doesn’t own cows and couldn’t put the water to beneficial use.

In its ruling, the Idaho Supreme Court said BLM’s argument reflected a serious misunderstanding of Idaho water law.

The court’s ruling also applies to in-stream stock watering rights on Forest Service land.

The USFS in 2014 withdrew 36 claims for stock watering rights during the North Idaho Water Adjudication process after the Idaho Department of Water Resources sent the agency a letter requiring it to show evidence of beneficial 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 claims for in-stream stock watering rights on federal land.

But Idaho Farm Bureau Federation officials say that in an effort to keep their illegitimate water rights, Forest Service and BLM are now encouraging permittees to sign agreements stating that they are acting as limited agents of the federal government and that their livestock are putting the water to beneficial use for the agency.

According to the letter that the Forest Service is asking ranchers to sign, the agreement “establishes a limited agency relationship with the Forest Service to help ensure that you can continue to utilize the state-based stockwater rights obtained by the Forest Service for use on the grazing allotment(s) associated with your … grazing permit(s).”

“A signed agreement helps protect the stockwater rights on your allotments from possible forfeiture petitions that might be filed with the Idaho Department of Water Resources,” the USFS letter adds. “Water rights that are not covered by an agreement face a greater risk of forfeiture proceedings.”

Paul Nettleton, one of the Owyhee County ranchers who prevailed against the BLM in the Joyce decision, said the opposite is true: if a rancher signs the agreement, they are essentially giving the water right to the federal government.

“This is kind of a last-ditch effort from the BLM and Forest Service to get our water rights,” he said. “They couldn’t do it through the courts so they are asking you to voluntarily give it to them.”

Hendricks said that under Idaho water law, there is not a legal way a rancher who is putting the water to beneficial use can lose that water right, but Forest Service and BLM “are implying that, if you don’t sign this, you are not going to have any water for your cattle. That is simply not true.”

Forest Service representatives in Idaho did not respond to questions about this issue before this article was written.

Sen. Mark Harris, a Republican rancher from Soda Springs who runs cattle on BLM and Forest Service land, has received letters from both agencies asking him to agree that he is acting as a limited agent of the federal government when he waters his livestock on federal land.

His advice to other ranchers: Don’t sign.

“I would tell them – and I have told people – not so sign,” Harris said. “The whole purpose in codifying the Joyce decision into state law was to stop the federal government from taking water rights from ranchers. (The BLM and Forest Service) found a way to take it anyway by asking permit holders to sign these agreements.”

Rep. Judy Boyle, a Republican rancher from Midvale, also strongly cautioned people against signing the agreements.

“Everybody is disgusted that this is happening,” she said. “It’s unbelievable to me that we had the ruling in the Idaho Supreme Court case 13 years ago and we are still going through this and fighting with the feds over this issue.”

Idaho Cattle Association Executive Vice President Cameron Mulrony said ICA is trying to educate ranchers on the issue and ensure they have the correct information they need to make an informed decision that is right for their operation.

“Until you understand exactly what your permit is and what your water right is, do not get in a hurry to sign,” he said. “Understand where your water is at and what your water rights are and then make the best decision for your operation.”

Hendricks said the Idaho Supreme Court was very clear in the Joyce Livestock Decision that the federal government cannot own stockwater rights because it doesn’t own livestock.

“Their whole effort in trying to get ranchers to sign these agreements is to legitimize the illegitimate rights that they are holding by getting the permittees to say, ‘Yes, I’m an agent of the federal government. My livestock are putting the water to beneficial use for them,’” he said. “Why would anybody agree to that when they can get the water right in their own name?”