Idaho and Western Water Wars

Idaho and Western Water Wars


It’s all about who will control the water and subsequently the land.

After over one hundred years of settling the west, the water wars of yesteryear are once again alive and well. What has changed is who and how the water fight is being played out 100 years later and what the end goals are for each side. In the past, it was for the landowner to merely have water to use for domestic households use, livestock and crops without those upstream keeping it all for themselves by damming the flows. In yesteryear, the fight was between settlers played out in gunfights. Now we are in a war fought against us using class warfare with our own government as the weapon of choice and using our own legal system against us. Non-tribal Americans are not allowed to have a protected source of unlimited income in the form of Casinos and taxpayer monies to fund the war against us.

Today we are surrounded by water, but tribes are gaining control and jurisdiction over the waters of the west to the abject disadvantage of landowners whose families have lived and worked the lands for generations. Sadly this year the abuse of the control of water was poignantly highlighted in the Klamath Basin of Oregon when during record water flooding, the Klamath Tribe placed a water call on the waters of major drainages essentially stopping the ranchers and farmers from using water for their livestock or crops through irrigation systems, and limiting all water use by non-tribal land persons for the purpose of fish habitat maintenance. All because the State of Oregon Water Resources Dept. arbitrarily and unilaterally gave, by administrative decree, super priority water rights to the Klamath Tribe because they wanted it. No citizen input was solicited or accepted.

In 2005 in northern Idaho, the State commenced a general water adjudication for the Coeur d’Alene River Basin (CSRBA). At first I was opposed to going through an adjudication after witnessing the outcome of the 27 year battle with Nez Perce Tribe during the Snake River Basin Adjudication (SRBA) for the waters that encompassed all of the southern part of the State from Lewiston Idaho south and from the border of Oregon on the west to the borders of Montana and Wyoming to the East.

WE MUST REMAIN VIGILANT AND INVOLVED, ESPECIALLY WITH LEGISLATORS

Today, 12 years later as northern Idaho is embroiled in its own water war with the Coeur d’Alene Tribe I am thankful for the wisdom of the Idaho legislature in commencing this adjudication. It would have been far easier to capitulate to the demands of the tribes in Idaho as have our neighboring states of Montana, Oregon, and Washington. At least the citizens have a chance, unlike those who reside in those states. Their property rights have been stripped from them and they are akin to the slaves on the plantation, subject to the whim of their master who holds all the political cards and the keys to the essential water needed for sustaining life and economic vitality.

As a witness to the outcome of the Snake River Basin Adjudication our small fledgling organization stood by and kept a vigilant eye on what seemed like a process that would never begin. And we came so close to losing the battle before it began when the Coeur d’Alene Tribe attempted to sneak by the general citizens of the area a fast-tracked resolution through the Idaho State Legislature which would have removed the tribe from the general adjudication and put their claims in a closed-door private negotiation with only the Governor, The Attorney General, and the Tribe. Sounds like what transpired in Montana years ago. But we caught it at the last minute and started working with our local legislators to stop it. This is where being involved with legislators, in their campaigns and elections and communication with them regularly pays in dividends. I personally pushed for killing it but the AG and Governor wanted something at the request of the tribe. So I worked with the legislators to cobble the resolution up so that the tribe would choke on it. And that is what we did.

Instead of the closed door secret negotiations, Idahoans within the CSRBA are now equally at the table and all negotiations must be held in open and transparent meetings. And no deals can be struck without the citizens and their representatives being fully engaged and signing off. The Tribe hated it but they requested such a document and had to swallow it. We also had been given a golden opportunity to illustrate to the legislators how the tribe had been deceiving and manipulating them.

The first attempt by the Tribe to control individuals’ access to water was to step into the court at the 11th hour for the first sub-basin segment and halt the partial decrees of a water rights for domestic well use by households until all of the tribes water claims were decreed to see what was left for anyone else. Since the tribe and the other federal agencies, as well as the Avista Corporation (operator of the Post Falls Dam who filed claims for the tribe as a condition of the tribe signing off on their FERC relicensing), filed claims to claim about 220% of all the water within the basin, we are sure they were not too worried they would not be in utter control of the water and the lands and non-tribal residents in the end.

IT HELPS TO HAVE THE RIGHT ATTORNEYS

Because we were in the court by virtue of filing objections to every single claim by the Coeur d’Alene Tribe, the USFS and Avista Corporation when they came in to get an injunction to issuing decrees for domestic wells we successfully stopped the tribe in its tracks, Our attorney went on to work with the State AG’s office and filed further court action to stop any further attacks on domestic determined water right claims in the other sub-basins by the tribe, and again we were successful. From the very first ‘negotiation’ meeting the Coeur d’Alene Tribe’s attorneys informed the rest of us that they had more money than we had and they were entitled to and were going to get what waters they wanted and we might as well give up. Then the tribe’s attorney dropped the bombshell at the conclusion of the meeting informing us that the tribe was filing objections to individual water rights claims.

Never before in any adjudication has that ever been done. Our organization found out who was filed against and we formed a cost share coalition of those affected persons. The tribe’s goal was to deny water rights to those individuals and in the process bankrupt them financially if they fought them. That tactic has always worked for the tribe in the past and we were determined to break the cycle. By developing the cost share model those 60 individuals successfully beat back the tribe and got their water rights decreed and instead of each water right claim defense costing $50-60K it cost each less than $2500.00. Since the US Govt. was not involved in this legal action by the Tribe it ended up costing the Tribe financially and they did not like it. By the time the 4th sub-basin came up they limited their objections to just a few and when they were losing ground gave up and those court cases were settled rapidly.

While we have made some successful headway in these skirmishes our major battle is still ahead of us. The assault of the Coeur d’Alene tribe upon its neighbors began in earnest back in the late 1980’s early 1990’s when the tribe informed the residents that owned property around Lake Coeur d’Alene and the St Joe River that they owned the lake and it was for their exclusive use. The Lake had been developed recreationally for about 80 or so years and even though the tribe had ceded 2/3rds of the lake in the 1891 ratified agreement and was paid handsomely for it initially and in the Indian Court of Claims, it sought to gain it back as it was an obvious cash cow. The US and the Tribe filed suit to quiet title of the lake asserting that the land was never conveyed to the State or other landowners since it was set aside (reserved) from public sale in Ulysses S. Grant’s 1873 executive order.

The tribe is not a treaty tribe because when the US and tribe started negotiations in 1873 Congress had already removed the ability of the US President to make a treaty and execute it, instead of treaties now the tribes had to have agreements ratified by both houses of Congress and for the Coeur d’Alene tribe that did not happen until 1891. Idaho became a state in 1890. So that is the background of Idaho I and Idaho II. The courts bifurcated the lake and decided the case on what remained within the exterior boundaries of the current reservation. Unfortunately, the people of the area trusted their state government way too much and did not mount their own fight by intervening on their own behalf; they left it up to the State of Idaho to fight for them.

LACK OF DILIGENCE BY IDAHO’S AG

The AG’s lawyers never talked to or visited the area to understand why it mattered to not lose this. The Tribe had no land ownership on the St Joe River or around Lake Coeur d’Alene since long before 1906 when the Reservation was opened to allotments. When Sandra Day O’Conner asked the Idaho Attorney no less than 4 times ‘what difference does it make who owns the beds and the banks?” And the only answer Idaho’s attorney gave was “Fishing licenses and life jackets”, Idaho lost the case and the beginning of the nightmare of unintended consequences began for the people in and around Lake Coeur d’Alene and the St Joe River.

For years after what is locally dubbed “The Lake Case”, the tribe started to assert legal and financial jurisdiction. They would harass boaters and hunters, demand tribal fishing licenses, use their tribal police to stop non-tribal motorist on state highways and county roads, citing them into tribal courts or often offering to go away for a sum of money on the spot and accepting payment along the side of the road. The tribe tried to get the legislature to give them full police powers usurping the authority of the elected Sheriff. It took a massive effort where we launched a statewide campaign to stop that bill and we won by one vote. The tribe managed to get the still sitting governor to give them the fuel tax dollars that are collected from gas stations within Indian Reservations in the state with no accountability. Predictably, as a result, the transportation budget took huge hits and several years later the non-tribal residents of Idaho now pay higher fuel taxes, double plus increases in automobile license fees, increased or new fees added to operating vehicles in the state. This is the same governor we did not want in the back room making a water right deal with the tribe.

TRIBAL EXTORTION

The tribe instantly started a dock fee permit program taking it from the jurisdiction of the State. What once cost a landowner about 100.00 for a lifetime now is charged ever increasing permit fees up to about $250.00 per year currently. Boathouses are having to be largely dismantled and owners are forced to sign away the rights of their children to inherit the property but instead, they are forced to destroy or give it to the tribe. Currently, the tribe has ratcheted up the demands. New owners are being extorted for fees from the time the Lake Case was decided even though they may have just acquired property. One event recently highlights the goal of the tribe in this venture.

The new landowner tried to get a permit for the pilings upon which his house sits. The tribe denied him 3 times. Then they came to visit this summer and wanted control of his domestic well and demanded he pay dock/piling permit fees going back 12 years in which he did not own the property, When they were told no way, they got hostile and told the landowner that eventually he would be forced to give into their demands as they planned on clouding the titles of all the properties along the river and lake and no one would be able to sell. They told him they would own all this property eventually.

To understand the issue at hand with the docks and pilings the court in Idaho II made note that they were only deciding what land the US retained title to in 1873. n 1907 the Post Falls Dam was completed and it artificially raised the summer pool level 6.5 to 8 ft. Summer pool is maintained for recreational benefits during the summer months, The tribe in their water rights claim for the lake is seeking to claim water in the lake to the artificial level of 2128 outside of the summer pool created by closing up the dam. After the summer season, the dam operates essentially open and the lake level will drop to as low as 2120 and all the pilings and docks are high and dry on land, land that was sold and patented to homesteaders by the US government.

The tribe asserts that the lake case gave them land when water touches it no matter how it got there. The tribe is levying huge fines upon those brave souls who have decided not to pay the extortion to the tribe.

There are two cases before the courts right now. The first case is now in the Idaho Supreme Court awaiting the Courts decision. The tribe sued an elderly couple for not paying the dock fees, then they filed against them in their tribal court, which the couple did not accept tribal jurisdiction on them and did not show up and submit to the tribal court, then the tribe went to the local district court (with a newly appointed judge). The tribal court allowed a penalty to be levied of $17,400.00 and the right of the tribe to trespass upon private property to forcibly remove the dock and pilings. The district court agreed to accept the tribe’s decree as a foreign judgment. We believe this to be in error and contrary to Idaho laws so our attorney working for the couple appealed it to the Idaho Supreme Court.

The second case was filed in federal district court, same issue. This time the tactic was to not give the tribe the ability to use the argument of failure to exhaust tribal court remedies to get a default judgment. That case is grinding through the Tribal appeals court. Not surprisingly the non-tribal defendant lost and the decision was predictable, the tribal appeals court will result in the same outcome, then the case can move back into our court system in a stronger position. With each opportunity such as these two cases we are bringing up the arguments to the court that the tribe does not own the pilings and docks that are in the banks above 2121′. If we can prevail upon that principle a lot of the jurisdictional issues and never-ending extortion of landowners and control of properties will significantly be reduced.

THE TRIBE WANTS IT BOTH WAYS

The Coeur d’Alene tribe voted to reject the Indian Reorganization Act of June 18, 1934 (IRA). Our county has been suffering under land acquisitions by the tribe using the Albeni Falls Wildlife Mitigation Program though the Bonneville Power Administration (BPA). The tribe would then have the lands put into trust as if they were an IRA tribe, taking valuable lands out of production and off the tax role. By working together (Local government and our citizen’s group) we successfully beat back the BPA from continuing to buying land within our County.

After the 2009 U.S. Supreme Court Carcieri ruling and the success with the BPA the tribe decided they might be unable to use that vehicle and very quietly convinced the State Legislature to pass a bill that removed all land owned by an Indian off the tax rolls whether it was owned in fee or not. This has financially devastated our small county, shifts to the non-Indian property taxpayer has increased the tax burden upwards of 300% yet property values dropped or remained the same. Our county struggles to maintain essential services. The tribe uses the garbage collection system but refuses to pay the fees, leaving it up to the County to find dollars to cover the costs.

Not to be forgotten is the ultimate land grab by the tribe in the confiscation of private property along the Coeur d’Alene Lake using the Rails to Trails act illegally. That is discussed in Elaine Willman’s book, Going to Pieces: The Dismantling of the United States of America. (Video Below.)

WE MUST FIGHT FOR OUR SURVIVAL

We are in a fight for our very existence. If we do not fight to protect our right to use the abundant water that surrounds us and capitulate to the demands for jurisdiction and control of water and thereby the lands the tribe will accomplish their ultimate end goal which is to take back their aboriginal territory long ago ceded. There are many fronts of attack by the tribe; the challenge is to be able to watch for the latest land grab, jurisdiction abdication by a state agency, taking of grants from needed communities for critical infrastructure repairs, and a whole host of other opportunities not available to the non-Indian American.

Our goal is to be able to live in this beautiful place and to pass our land to our children as have many generations before us. The local tribe’s goal is to take it from us. We cannot afford to not push back and fight. If the nation as a whole laid down to the demands being made by the tribes that exist now and those that are awaiting new recognition status, we will become refugees in some other country. I find that an unacceptable option for me, my children and grandchildren here now and those to come. We must stand together for united we stand as one nation but divided we fall into the ruins of a once great nation. The corporate tribal greed and hatred of non-tribal American’s fail to understand the ultimate reality that when the parasite kills the host the parasite dies too. When the American people are unable to pay the increasing financial demands of the tribal nations within the Country, they will cease to exist in the opulence they have become accustomed to and most likely perish as well. We need to be one nation united not one nation with 567 foreign and separate nations acting against America as a whole.


Pam Secord
North Idaho Water Rights Alliance
St Maries, Idaho
Email: niwra@emidavalley.com