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Carlson: It’s the water, stupid

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Chris Carlson
Carlson Chronicles

With apologies to political consultant James Carville, who famously coined the expression “it’s all about the economy, stupid,” the future in the west is all about water, its allocation, cost and rapid depletion.

Scientists, naturalists, writers, farmers, ranchers, and politicians are all too aware of its scarcity beyond the 100th Meridian, as duly noted and popularized in the late 19th century by John Wesley Powell, famed explorer of the Grand Canyon and Colorado River and first head of the U.S. Geological Survey.

Lay on the issue of global warming and many scientists believe the arid west will become hotter and drier, accelerating the desertification process. Cities that had neither right nor common sense in their expansion, such as Phoenix and Las Vegas, are requiring ever increasing amounts of water. They willingly pay farmers and ranchers princely sums to surrender their water rights to pipelines hundreds of miles in length to slake their thirst.

This growing need for potable water has fueled the drive for more impoundments to store winter run-off and rain. The coming conflict between agricultural use versus culinary and human use is clear. Determining highest and best use will be the marketplace, not board rooms of large corporations nor the committee meeting rooms of state legislatures.

Nor does it take rocket science to predict two major aspects 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 manufacturing transplanted from California. And Las Vegas may be a mere shadow of 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 placing their water rights “first in time” and therefore “first in right.”

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

In the Winters case, lower courts ruled the law gave implied power to the federal government; “federally reserved water rights” was the key phrase which, among other things, establishes first in time rights to water even though most water is in a state’s purview. (Most states own 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 various bureaus concluded that rights to water for Indian nations were established at the time 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 Assinboine Indian tribes. To their stunning surprise, they 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 water arising on or passing through an Indian reservation.

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, in fact, is going through a series of water basin adjudication processes, and in the case of the Snake River adjudication, the Nez Perce Tribe received a multi-million dollar settlement to quantify its rights.

On the Spokane-Coeur d’Alene River Basin adjudication, the Coeur d’Alene Tribe has thus far not filed its claim nor thrown out a negotiating number, but one can expect it 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 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?

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