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Western Water

It’s All About Water, Stupid!

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With apologies to James Carville, the political consultant who came up with Bill Clinton’s campaign mantra – “it’s the economy, stupid,” the future in the American west is all about water, its allocation, its cost and its rapid depletion.

Scientists, naturalists, writers, farmers and ranchers, politicians are all too aware of its scarcity beyond the 100th Meridian especially as duly noted and popularized by John Wesley Powell, famed explorer of the Grand Canyon and first head of the U.S. Geological Survey.

Layer on the issue of global warming and many scientists think the arid west will become even hotter and drier, and that the desertification process will accelerate.  Cities that we had neither right nor common sense in building, such as Phoenix and Las Vegas, are requiring ever increasing amounts of water, and are willingly paying farmers and ranchers princely sums to surrender their water rights, while pipelines hundreds of miles long are constructed to get the water to these thirsty cities.

This growing need for ever more potable water has fueled the drive for even more impoundments to store winter run-off and capture what little largess drops from the skies on occasion.  The late Marc Reisner captured the illogic of much of this in his seminal study, Cadillac Desert, a must read for all who want to understand what has shaped the politics of the west for years and will continue to shape its politics.

It doesn’t take rocket science to foresee the coming conflict between agricultural use and culinary and human use.  Determining highest and best use will be decided by the market place, not in board rooms of large corporations or the committee meeting rooms of state legislatures.

Nor does it take rocket science to predict two major developments regarding water and the future:

1)      Those that have an abundance of water, ground water or a sizable underground aquifer, are going to prosper and those that don’t are going to flounder.  Thus, 100 years from now Spokane with the vast and so far unmapped and unplumbed Rathdrum Prairie Aquifer will be a thriving city with lots of manufacturing transplanted from California.  And Las Vegas, with its dwindling sources of water, may become a mere shadow of what it was during its glory days.

2)      Congress will repeal the so-called Winters Doctrine of 1908.  Why, because Congress will conclude the Supreme Court vested too much power in indigenous Native American tribes by in effect placing their water rights “first in time” and therefore “first in right.”

I pondered all this while traveling to Fort Peck Dam (learn more) and Glasgow, Montana, recently to attend a conference on the future cost of water sponsored by Montana State University’s Wheeler Center.  Along the way the highway ran beside and at times crossed the Milk River (learn more), the very river the subject of litigation that lead to the so-called Winters Doctrine proclaimed by the U.S. Supreme Court in 1908.

Without going into a dissertation on western water law, the ruling in the Winters case grew out of a section of the 1902 Water Reclamation Act that created the Bureau of Reclamation within the Department of the Interior.  Lower courts ruled that a section of that law gave implied power to the federal government, “federally reserved water rights” was the key phrase, to among other things establish first in time rights to water even though most water is in a state’s purview (Most states own outright the beds of rivers and navigable streams and sometimes their lakes while the Federal government regulates most activities especially interstate commerce upon those waters.).

Within the Interior Department its various bureaus concluded that rights to water for Indian nations were established at the time the various tribes signed their first treaty with the U.S. government.  In the Winters case a group of ranchers and farmers who settled in and around the Milk River challenged the first in time first in right designation for the Gros Ventre and Assiniboine (learn more) tribes, and I’m sure to their stunning surprise lost not only in two lower courts but before the Supreme Court, 8 to 1.

Ironically, despite the Wheeler Conference’s proximity to the Milk River, no one mentioned the Winters Doctrine or its potential impact on water cost.  The doctrine gives prior right and first right to ALL the water arising on or passing through an Indian reservation.

Needless to say state water departments try hard to have tribes quantify their needs so downstream allocations can then be made, especially in times of water shortages.  Idaho is in fact going through a series of water basin adjudication processes, and in the case of the Snake River Basin Adjudication (learn more) the Nez Perce Tribe (learn more) received a multi-million dollar settlement to quantify its rights.

On the Spokane-Coeur d’Alene River Basin adjudication (learn more) the Coeur d’Alene Tribe (learn more) has thus far not filed its claim nor thrown out a negotiating number, but one can expect it too will be hefty.

As water grows scarcer in the west, bidding for unused water rights will grow astronomically.  Water could turn out to be truly liquid gold for some tribes, and perhaps generate more dollars ultimately than even lucrative gaming ventures.

Pessimists will look at that and conclude that history will repeat itself and the majority culture will once again figure out a legal way to extinguish an Indian right.  Anyone want to make a wager and put it in a time capsule?