The Justice Department argues that the federal government’s permit system for ranchers whose livestock graze on public land counts as beneficial use of its water rights.
(CN) — Idaho defended its laws governing water rights before a panel of federal district court judges Tuesday as the U.S. government asked the court to declare a state statute that created a new forfeiture procedure for seawater rights unconstitutional.
A three-judge panel of the Ninth Circuit heard arguments on cross-appeals from the state and federal government in Pioneer Court in Portland, Oregon.
Under Idaho law, the federal government must document the “beneficial use” of water on land it owns on which it allows ranchers to graze livestock. The state can issue forfeiture proceedings for reserved water rights whenever it appears that the US is not watering its livestock in a federal grazing allotment (which is always the case), unless the Idaho Department of Water Resources receives written evidence that a “principal/agent” relationship exists between the owner of a water right and the “agent using the water.”
The US argues that the law unlawfully discriminates against its interests. On Thursday, Justice Department appellate attorney John Smeltzer said the federal government sued the state to protect water rights for Idaho farmers who are legally allowed to use federal grazing lands.
“If we own the water rights, we own the land and we’re allowing the use of the land, that’s the use, that’s all you need to know,” Smeltzer told the panel. “There is an agency relationship in the permission relationship.”
Idaho Deputy Attorney General Michael Orr said there is no federal water law and enacted water rights are administered by the states. Orr argued that the statutes passed by the Idaho legislature were not discriminatory against the US
“Federal land use is not the same as water use,” Orr told the panel. “And simply allowing the lessee to use the water on the land is not enough to establish an agency relationship between the landlord and the landowner.”
“This is against Idaho law,” Orr continued.
Answering questions from the judges on the panel, Orr acknowledged that the federal government could develop “some more evidence” to establish the use of water rights if the case were to move forward.
But he said having a livestock grazing permit does not automatically grant a water right permit.
After being asked by U.S. District Judge Jennifer Sung, a Joe Biden appointee, about the creation of a water right, Smeltzer offered a different view.
“Once the US owned the right, it could allow its proxies to use the right and that would qualify as beneficial use, whether they were acting as an agent or not?” Sung asked.
“What I’m saying is there’s an agency relationship within the permission relationship,” Smeltzer responded.
In 2024, U.S. District Judge David Nye, an appointee of Donald Trump, rejected federal claims of unconstitutionality related to the forfeiture law and blocked the Justice Department’s attempt to stop Idaho farmers from seeking forfeiture of water rights on public lands. The ruling made clear that the federal government must make productive use of the water rights within five years or be subject to forfeiture under Idaho law.
Statutory changes by the Idaho Legislature created “an orderly process to address claims that a water reservoir has been lost to impoundment,” according to Orr, and were determined after an Idaho Supreme Court ruling in 2007 DECISION ruling that if a rancher’s livestock used water on federal land, the rancher could establish a water right.
But the Idaho Supreme Court’s decision left unanswered questions about water rights and public lands.
In 2022, DD unsuspecting to block the confiscation of its reserve water rights. The federal government argued that it does not own any livestock and the permit system is the only way to enforce the use of its water rights.
Orr said the Idaho Legislature, Idaho farmers and the Idaho Department of Water Resources will be directly affected by the outcome of the Ninth Circuit case.
Sung questioned whether some of the statutes enacted by Idaho in the U.S. that Nye found unconstitutional would ultimately push the U.S. away from ownership of its water rights.
“It seems to me that the purpose of this statutory scheme as a whole was to strip the US of these tights that the state claims were essentially decreed to it in error,” she said.
U.S. District Judge John Owens, an appointee of Barack Obama, and U.S. District Judge Holly Thomas rounded out the panel.
In its appeal, among other things, the state asked the court to overturn Nye’s finding that a statute related to the transfer of grazing permits and seawater rights is unconstitutional.
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