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For the week of Nov. 17, 1999 through Nov. 23, 1999

New water war in Custer and Lemhi counties

Commentary by Anna Means

The recent Idaho Supreme Court ruling on wilderness waters is the latest crisis for Blaine County’s northern cousins in Custer and Lemhi counties.

The ruling is perceived by Custer and Lemhi residents as another case of the federal government rubbing salt in a wound, even though it was a state court that did the rubbing.

The wound springs from the time-honored conservative view that the biggest landowner, the feds, are ruining the economy and future of this part of central Idaho.

Custer and Lemhi counties are third and fourth, respectively, in size in the state, but there’s little private land within those borders. While that may keep neighbors out of the backyard it's hell on the economy. There's not much land to tax and industry (as in decent-paying jobs) is often limited to working on federal lands.

Now the feds have been granted all the unappropriated waters in three wilderness and one recreation area effective on the dates of designation. One place affected is the Frank Church River of No Return Wilderness which was created in 1980.

At first glance it’s hard not to yawn. So what? How much commerce goes on around Marsh or Bear Valley creeks?

A quick trip to the map illustrates the problem: the main Salmon River glides past Stanley, Challis and Salmon before it runs through the wilderness.

Compounding the problem is that the feds claimed all groundwater in addition to surface water.

In reaction to the high court's decision, the Idaho Department of Water Resources (IDWR) declared a moratorium on all unprocessed and any future claims to groundwater in the affected area. About 60 of the 90 claims are in Custer and Lemhi counties. Though the IDWR has exempted domestic wells from the moratorium, on the grounds that they provide "non-consumptive" water use, wells drilled for municipal water supplies since 1980 are included. Challis, for example, has two such wells.

If you follow IDWR's logic, no new development can occur within these two counties in perpetuity.

IDWR is also saying if the feds declare they need all their wilderness water, those with a junior right have to hand over their water. There’s debate as to whether this is as devastating as the locals claim. It’s not likely the feds will call a priority. Still, it does seem like an imposition to be told that while the rest of the West feverishly develops remaining open space, Custer and Lemhi have to stay rural and rustic.

The feds are now arguing that management of the main Salmon falls under the Wild and Scenic Rivers Act, so is not affected by the wilderness ruling. Fifth District Court ruled last summer that Congress had intended the Salmon to be managed under the Wild and Scenic Rivers Act, and not under wilderness restrictions. To that end the feds were granted qualified (they have to prove how much they need) rights. A look at the actual water claims shows language saying "waters within" the wilderness, not "feeding into" or "eventually passing through."

IDWR refuses to budge or even discuss the Wild and Scenic vs. Wilderness point of contention. They stick to the director’s decision that says the state Supreme Court didn’t make it clear that the main Salmon was excluded. True, there’s some glitchy language in the district court decision that could muddy one’s interpretation. And if the feds weren’t including the main Salmon, why did they file on some of its tributaries?

Still, one has to wonder if IDWR didn't jump the gun in issuing the moratorium.

If the Idaho high court refuses to reconsider its decision, the argument will move on to the U.S. Supreme Court. States don’t always fare well in that venue.

Meanwhile, we Salmon River guys and gals won't know if the next flush is ours. Some believe living as a pawn in limbo has become a way of life around here.

Anna Means is a reporter for the Challis Messenger.



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