Writings and observations

idaho RANDY

A reader points out that Idaho voters next month will decide whether to pass an amendment to the state constitution, and “The only info I have is in the “Idaho Voters’ Pamphlet” and it’s not enough”: She requests some guidance.

Okay: On this one, you can feel comfortable throwing a dart blindfolded at your ballot. Whether you pass it or fail it, it will make no difference whatsoever, not to Idaho voters, their government, or anything else. When I read that one of its main floor backers, Senator Curt McKenzie of Nampa, said it was among most significant pieces of legislation he’d dealt with, I hoped that his legislative career has amounted to more than that.

What House Joint Resolution 2, which passed both chambers with not a single vote opposed, does say is that the Legislature can authorize and holds final effective approval power over all agency rules and regulations. That would be significant if the legislature already had not been doing that. Legislatures take varying roles in dealing with agency regulations, but the Idaho Legislature has been overseeing and accepting and rejecting rules for decades – to my knowledge at least since the 70s, and probably long before that.

For many years, the legislature gave the rules a quick look, maybe throwing out two or three controversial ones in a normal session. Since the mid-90s, it has been applying a microscope to them, spending the first quarter or so of each session hunkered down over not legislation but administrative rules to decide whether they will stay there, or should be kicked out, or amended. Some studies have concluded that the Idaho Legislature has, for a couple of decades, had more power over and more closely reviewed the rules than any other legislature in the country.

So what is the new proposed amendment intended to accomplish? Basically, to allow the system Idaho has had for a couple of decades to stay in place.

Is there any reason to think it won’t? Legislative backers point out a couple of challenges to legislative rule approval at the Idaho Supreme Court; but the court has each time upheld the legislature. That’s too much locked-in precedent for such a change to happen easily.

But even if it did, the practical difference would be, as a lawyer would say, de minimis. Administrative rules can be set up only within the terms of state law, so the legislature sets the parameters to start with. If the rules color outside the lines, they can be challenged and thrown out in court. Legislators can also change state law as they please to rein in regulatory ideas they don’t like or impose those they do; there’s not a lot of limit on how specific law can be. (Laws can be held unconstitutional for vagueness but generally not for specificity.) Legislators also hold the power of the purse, and can (and often do) include statements specifically describing what money cannot be used for, or must be used for – which amounts to sweeping control of what an agency does. A legislator might argue that a governor can veto a bill, even a budget bill; but two-thirds of the legislature can override vetoes.

In an opinion article against the amendment Jack McMahon, a former chief deputy attorney general with deep background in how state government works, also points out that “the Legislature has inserted a ‘poison pill’ in the law making it virtually impossible to take away its power to review agency rules. The power is said to be so ‘critical and integral’ that if it is ever struck down, every agency rule adopted in the last quarter-century ‘shall be deemed null, void and of no further force and effect’.”

Given all this, the idea of administrative rules running riot over a helpless Idaho Legislature begins to sound almost a little paranoid.

So vote for it or vote against it and either way worry about it not at all. Fret if you will over your vote for irrigation company or sewer district; that may matter a lot more.

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Idaho Idaho column


Here’s what public affairs news made the front page of newspapers in the Northwest today, excluding local crime, features and sports stories. (Newspaper names contracted with location)

Time capsule found in old statute (Boise Statesman)
Police observing rail crossings (Boise Statesman)
IF city officials start strategic planning (IF Post Register)
Lewiston, Orchards Sewer, hit impasse in talks (Lewiston Tribune)
Washington initiative on class size has costs (Lewiston Tribune)
Palouse city has mass of public record requests (Moscow News)
UI Dean Bruce Pitman departing (Moscow News)
Balukoff school backer never voted in Idaho (Idaho Press Tribune)
Library Square tenants evaluate options (Idaho Press Tribune)
New ads up in race for governor (TF Times News)
Options considers to cut auto-wildlife collisions (TF Times News)

New UO fundraise goal set at $2b (Eugene Register Guard)
Debate rages on driver license ballot issue (Eugene Register Guard)
State student endowman plan on ballot (Eugene Register Guard)
Voters asked for $36 million for KF high school (KF Herald & News)
Judge says cities can bar medical pot retailing (KF Herald & News)
Circuit judge contest renews at Jackson Co (Medford Tribune)
Reviewing Jackson Co commission 1 candidates (Medford Tribune)
On future of Umatilla-area school service district (Pendleton E Oregonian)
Senator Hansell blasts Kitzhaber on water spills (Pendleton E Oregonian)
Pot dispensary access becoming easier in OR (Portland Oregonian)
Ferrioli blasts negative campaign ads (Salem Statesman Journal)

Kilmer heavily outspends opponent (Bremerton Sun)
Bainbridge Island gets new park (Bremerton Sun)
King home values rise, and so do taxes (Seattle Times)
Looking at frequent turnover in neighborhoods (Seattle Times)
Examining reduced-class-size initiative (Spokane Spokesman)
Spokane council member partner in pot business (Spokane Spokesman)
New museum planned for Point Ruston (Tacoma News Tribune)
Vancouver school board may expand meeting notice (Vancouver Columbian)
Controversial prayer breakfast with Boykin held (Vancouver Columbian)
Looking at the problem of hoarders (Yakima Herald Republic)
Yakima schools may see athletic upgrades (Yakima Herald Republic)

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Idaho Idaho column

idaho RANDY

The 9th Circuit Court of Appeals decision on Idaho’s same-sex marriage ban is one of those court decisions worth the read – you can find a copy at www.ridenbaugh.com/14-35420 opinion.pdf. It’s worth doing for understanding exactly what the state is arguing, and what the court said in response.

Part of it is a technical analysis relating to the Nevada part of the case, and not relevant to Idaho. But read the rest and you come away with a sense of just how thin Idaho’s legal ground here is.

The Idaho argument has the advantage of proceeding in the wake of decisions by the U.S. Supreme Court, paring the legal case down to the core. The main dispute: Whether there exists a clear and strong rationale for the Idaho rule (which includes both constitutional provisions and state law) – something beyond simply disliking the idea of gay marriage. Or declaring gay couples as second-class, which as the court said (following up on Supreme Court decisions) it cannot legally do.

The state argued, naturally, that there was. It said children raised in opposite-sex marriages would be better off. But the court found no specific evidence of that. The circuit also noted Idaho hasn’t blocked gay couples from adopting children.

“Idaho focuses on another aspect of the procreative channeling claim,” it added. “Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children. This makes some sense. Defendants’ argument runs off the rails, however, when they suggest that marriage’s stabilizing and unifying force is unnecessary for same-sex couples, because they always choose to conceive or adopt a child. As they themselves acknowledge, marriage not only brings a couple together at the initial moment of union; it helps to keep them together, ‘from [that] day forward, for better, for worse, for richer, for poorer, in sickness and in health.’ Raising children is hard; marriage supports same-sex couples in parenting their children, just as it does opposite-sex couples.”

And: “Just as ‘it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,’ Lawrence, 539 U.S. at 567, it demeans married couples—especially those who are childless—to say that marriage is simply about the capacity to procreate.”

The state also took a pass at the idea that allowing same-sex marriages would damage opposite-sex marriage, but that argument was so thin that the court actually made light of it in a footnote: “[Governor C.L. “Butch” Otter] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”

The court noted that, “As one of the Nevada plaintiffs’ experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm—or indeed, affect—opposite-sex marriages or relationships.”

Idaho’s case was linked to Nevada’s, but the Republican governor there opted not to defend the law, essentially having concluded (as Oregon officials did) that under current rules of the Supreme Court, it’s basically indefensible.

These points and others like them were not central in the state’s successful request for a temporary stay of the circuit’s order, but focused on “(1) Governor Otter’s likelihood of success on the merits; (2) the possibility of irreparable harm absent a stay; (3) the possibility of substantial injury to the other parties if a stay is issued; and (4) the public interest. ” The first is an interesting legal argument that runs counter to many of the judicial decisions on the subject so far; the fourth was largely dispensed with by the 9th circuit.

As to who is harmed, you might get the clearest answers from the people who have been turned away from the marriage license counter.

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Idaho Idaho column

idaho RANDY

All 105 Idaho state legislative seats are up for election next month, and if that was all you knew, you might assume wholesale change at next year’s session. The legislature isn’t all that popular, right?

There will be, of course, few changes. Many seats are unchallenged, or barely challenged. Even by the modest standards of recent elections, we’ll see few Idaho legislative races even of much interest, let alone competitive. Surprises happen, and every election features a few. But a handful (all for House seats, none in the Senate) are worth your attention as the campaign rounds the last turn.

Just one district has as many as two of these notable races: District 5, for both of its House seats. This is a rare legislative district where the House delegation is split. Republican Cindy Agidius and Democrat Shirley Ringo, both of Moscow, hold those seats. Ringo’s is open, with her run for the U.S. House instead, while Agidius is running for re-election.

This Latah-Benewah area is a politically marginal district. Moscow provides one of the stronger Democratic bases in Idaho, and Democratic votes can emerge from the Coeur d’Alene Reservation in Benewah, but the rest of the counties run Republican. Substantial campaigns here have to be taken seriously, and both seats are seriously contested. Democrat Paulette Jordan, who lost to Agidius by only 123 votes in 2012, is back again, working hard and apparently outspending the incumbent. The open seat race, between Republican Caroline Nilsson Troy of Genesee and Democrat Gary Osborn of Troy (with independent David Suswal of Deary in the mix), also has a competitive feel.

The single most significant legislative race in Idaho surely is for House A in the west Boise District 15, where third-time legislative candidate Democrat Steve Berch is opposing incumbent Lynn Luker. You could point out that Berch has lost twice before and Luker is a well-established four-term incumbent Republican, liked in his party, in a district that has elected only Republicans for two decades.

But Berch earlier this year won a seat on the Boise Auditorium District board, which strengthens his hand, and he is a relentless campaigner building on a strong campaign effort two years ago. His particular skills, and intensity, may work better aimed at an incumbent; and Luker has become more controversial recently with his introduction of bills he describes as promoting religious freedom. All this is important because District 15 may be on the cusp of becoming a purple district, located as it is next door to the string of deepening blue Boise districts. If Berch wins, the door could be kicked open.

Three other races merit quick mention.

One is the open House B seat in District 10, where Republican Greg Chaney, whose legal issues over the years were severe enough that he withdrew from the race before the primary election. His name appeared unopposed on the ballot, however (two write-ins were unable to gather more votes) and he is his party’s standard-bearer in a deep red Canyon County district. Is the R enough? Probably, but this will be a serious test.

Another is in District 24 at Twin Falls, where prominent incumbent Republican Stephen Hartgen is being challenged by a well-connected and energetic Democrat, Catherine Talkington; her husband Chris is a veteran Twin Falls City Council member. North of there, in the Democratic-leaning District 26 centered around the Wood River Valley, Republican Steve Miller won an upset two years ago and this year will be challenged by Democrat Richard Fosbury, a former Olympic gold medalist (high jump) and an engineer by profession.

Idaho’s legislative races overall may not grab a lot of attention on election night. But the outcomes are likely to have something to say.

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Idaho Idaho column

idaho RANDY

In the mid-70s my reporting included the courts at Canyon County, overseen at the time by three district judges. Everyone I knew who was familiar with the court system – lawyers, clerks, journalists, parties to cases and others – shorthanded the three judges in the same way.

All were professional, capable judges. But: One was the judge you wanted if you were the defendant. Another was the one you wanted if you were a victim or a prosecutor; in relative terms, he was the hangin’ judge. And then there was the one in the middle, the one the consensus figured most likely to meet most people’s idea of fairness most often. That was District Judge Edward Lodge.

Judges matter. Last week Lodge, now a federal district judge, said that next summer he plans to take senior status – a sort of semi-retirement – and time seems right for some reflection on that.

By the time I started watching him on the bench, Lodge was a veteran already, appointed in 1965 at the age of 31; he is said to still hold the record for youngest district judge in Idaho. He has had his share of high-profile cases (the Claude Dallas murder case, for one), but in his nearly half-century on the bench, he never has become especially controversial and often has drawn praise. He has been a federal district judge since 1989 – about a quarter-century.

The work of judges isn’t as easily summarized as that of, say, legislators or members of congress, and most people not associated with the courts may have little way to figure which are better and which are less so. But it is crucial work. The decisions of federal judges like Lodge, and Idaho’s current senior federal judge, Lynn Winmill, from time to time have as much impact as legislation, and can change the direction of legislation. Federal judges like Lodge, after all, have been the people making decisions on such hot buttons as Obamacare and same-sex marriage.

Lodge’s move to senior status is something a number of people in the Idaho legal system have wanted for some years, not as a criticism of Lodge but because it would open a slot for a new federal judge. The need has been great for some time; this column addressed the subject late last year. Idaho has fewer federal judges per capita than a number of other states (Wyoming, for one example, is flush with federal judges by comparison). The docket is almost overwhelming at times.

But here we will see before long a political battle royal, because federal judgeships are filled by the president, usually in some consultation with the state’s local congressional delegation, especially if it is of the same party as the president. Since Idaho’s delegation is all-Republican and the president is a Democrat, and the job will need a sign-off from the Senate as a whole, the negotiations will be difficult.

There will be some Republican temptation to hold off on the appointment until after the next presidential election. That would be a purely partisan consideration; Idaho has a job that needs filling, and the legal work of the state will be jammed until it is filled.

So there is a need to choose soon. And as the tenure of Judge Lodge has shown, there are also clear benefits to choosing well.

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Idaho Idaho column

idaho RANDY

This is a call to do your own political investigations.

If you have an Internet connection, you can do it from where you are right now.

In the next few weeks you’ll see more news stories about campaign finance contributions and spending, since reporting deadlines are coming up. For Idaho state races, campaign finance reports – the “pre-general” – will be due at the Secretary of State’s office on October 10. (The next after that will be due October 28.) For federal, congressional, races, the next big one, the quarterly report, will be due at the Federal Election Commission on October 15. Spend a little time looking these over, and you can track the money trail yourself .

I spend some time each cycle checking out this information. You can too.

The secretary of state’s web site has an old-fashioned look, but the information is there and easy to get. Go to http://www.sos.idaho.gov/elect/finance.htm, which is about statewide constitutional offices, legislature and political action committees (and spending on ballot issues too). The information base here really is massive, covering elections back to 2000. Lobbyist reporting information is available through this page too.

The state database, allowing for name lookups and the like, is only available through 2012. But scanned copies of the reports filed by the candidates are available right away; click on the “2014” link. Following links in the next couple of pages takes you to pdf scanned copies of candidate reports. At present, the most recent are the “post-primary” reports (through May); the October 10 reports, which will bring the money picture up to present, should be available before a month from now.

Pull a candidate’s scanned report and you get what looks a little like a tax form, with spaces filled in with numbers, names and, often, addresses. You’ll see the amounts raised and spent (and still in the bank), and individual donors and recipients. In the most recent report for Otter for Governor, for example, you find donor number one was Paul Anderson of Potlatch, who donated $100; he was followed by CenturyLink Idaho PAC at $5,000, and on down through the pages. Some of the names are familiar, some not, but all are linked to the campaign with cash.

The official place for federal – congressional this year, but including presidential – campaign reports is the Federal Election Commission, through their “disclosure portal” at http://www.fec.gov/pindex.shtml.

It can be a little complicated to navigate, but a lot of useful data can be found there. You can click on Idaho in the House and Senate Campaign Finance Map, and campaign data for this year’s one Senate and two House races pop up. How much has, say, Representative Mike Simpson received for this election cycle? According to the FEC, that would be $2.3 million. The FEC also has attractive pie charts showing how much of that money came from individuals, political action committees, their party or the candidate himself. And you can pull up as much detail beyond that as you want.

There’s another federal campaign web site I also often check out, even if much of the information duplicates the FEC’s: The Center for Responsive Politics, at www.opensecrets.org. It is packed with additional information and analysis, and the information is thoroughly cross referenced.

All good material to consider as you prepare to mark your ballot. It often helps in politics to know who someone’s friends are.

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Idaho Idaho column

idaho RANDY

Noted here: The quote within the next paragraph is not mine originally. I came across it in an online New Yorker piece, dated July 29.

It follows a note that the term plagiarism evolved from a gang of ancient-times Romans called the plagiarii, who were known for kidnapping slaves. The poet Martial, who made the connection, wrote, “If you allow them to be called mine, I will send you my verses gratis; if you wish them to be called yours, pray buy them, that they may be mine no longer.”

He was suggesting a level of seriousness that politicians ought to observe. Others too of course. Students have flunked out when caught cheating by way of copying. Teachers have been fired (such as, a year ago, a Brown University professor said to have used unattributed material in a book). Journalists have lost their careers. Bloggers get sued.

Some politicians have wriggled past records of plagiarizing. Russia’s Vladimir Putin got away with an extravagant 16-page copying incident because – well, who was going to nail him for it?

In this country, things are a little different. Then-Senator Joe Biden, who in 1987 had launched a credible campaign for president, saw his political advancement derailed for 20 years after he was caught using unattributed language from a British politician’s speech.

Earlier this summer, Montana Democratic Senator John Walsh was found to have, years ago in graduate school, used writing from others without attribution in one of his papers. He soon after withdrew from the Senate race. Kentucky Senator Rand Paul has been accused of a string of smaller-scale unattributed copies; whatever consequences may arise from that are yet to come, but if he runs for president they will dog him and weigh him down.

That history of taking the offense seriously is one reason it has become a big deal in the Idaho superintendent of public instruction race, where Republican Sherri Ybarra’s campaign lifted about a web page’s worth of material from the site of her opponent, Democrat Jana Jones.

This rises to the truly bizarre. That Jones’s campaign wasn’t even the first to point it out (the IdahoEdNews site was) is a little surprising. Copying from obscure sources or even from personal heroes is one thing, and in most of those cases (like those of Biden, Walsh and Paul) the problem would not have arisen had they simply acknowledged the original source of the words. In the Ybarra case, even that doesn’t help: Should she acknowledge her opponent as the source to aspire to?

A speculation here on what happened: When time came (late in the cycle) for Ybarra’s campaign to develop a website, someone may have grabbed web code from Jones’ campaign site with the idea of using it as a technical framework, a starting point, with all the publicly-visible words and some of the rest of the code intended to be replaced; and then, no one followed through and did the rewrite. Probably nothing nefarious was intended. Such an error doubtless feels minor; who’s really hurt?

In this case, as a matter of politics, the copying may feed into a narrative that Ybarra’s campaign is too undisciplined, low-energy, low-effort and even sloppy to suggest competence at the level of a statewide office whose job is overseeing the public schools. It doesn’t help that Jones’ campaign has run smoothly and that her background includes serving as the chief deputy in that same office.

This incident, coming after a series of other campaigning missteps, could derail the campaign. It might not be politically fatal, but it may be.

Plagiarism is serious stuff. Ask Martial.

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Idaho Idaho column

idaho RANDY

Here’s a concept to get your mind around: On-line physical education in schools. That is, taught from outside of school. Or something.

This unlikely idea surfaced at the Lapwai School District after voters there on August 26 turned down a quarter-million dollar one-year levy. It wasn’t close; just 41 percent of voters approved it. It was the second recent levy failure, after voters rejected a larger one in May.

Afterward, District Superintendent David Aiken said the effects will include elimination of in-person physical education. The school gym and equipment will remain available but, he told the Lewiston Tribune, “the teacher is on the other side of the computer.”

Try for a moment to imagine how well this is going to work.

Threats to athletics traditionally have been one of the last-ditch and most successful maneuvers to get patrons to cough up additional school money, but the Lapwai example suggests that in Idaho, at least in some places, even that isn’t enough.

Levies and bonds failed in a number of other places as well, but Lapwai was one of the few places in Idaho where a financing proposal failed to pull well over 50 percent of the vote. That’s all most levies need to pass, but bonds (because of longer-term indebtedness) require two thirds. In Lapwai, a majority opposed the tax increase. In how many other districts last month was that true?

Voters in just one district passed bond issues with the required two-thirds-plus: New Plymouth. But others cleared the 50 percent mark, sometimes easily. West Ada (formerly Meridian) proposed a truly massive bond measure, $104 million for a range of projects broad enough voters could be forgiven for not wrapping their minds around all of them. The bond plan failed – but it picked up 63 percent of the vote, a strong majority.

A few miles west at the little Notus district, another bond measure (to replace a 90-year-old school) also failed, but again 63 percent of the voters supported it.

In Wendell, a double-header bond and levy proposal failed; but here too, a strong majority of voters were in favor of them (65% and 63% respectively).

Pro-funding majorities actually turned up in many places around the state. Wilder, by some measures the poorest school district in Idaho (based on the number of students qualifying for free or low-cost lunches), passed a $598,000 levy with 67% in favor. Another poor district by any economic measure, Bruneau-Grand View, passed a $600,000 levy with a big margin. At Madison County, a measure raising nearly $2 million got 62% support. At Council, a two-year levy was approved with 63%.

The people at Lapwai schools probably shouldn’t give up. Support for schools is out there, especially when voters can be persuaded to, you know, vote. If turnout can be raised, even Lapwai may be able to bring live teachers back to their PE classes.

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Idaho Idaho column

idaho RANDY

Why did it work in Idaho?

It’s really improbable, the idea that this massive governmental-legal project called the Snake River Basin Adjudication would be an Idaho effort demonstrably more successful than any others of its kind anywhere in the country.

On Monday, when panels discussed and the final decree was signed, there was that cause for wonderment, of how it happened. In the new oral history book of the SRBA “Through the Waters” (disclosure: I published and helped edit it) this was a recurring theme. In their interviews, judges, attorneys, administrators and water users took a stab at how Idaho succeeded in this thing when other states have done less well or failed outright.

The answer boils down to trust, cooperation, and luck.

The trust and cooperation go together, of course. One recurring point (in interviews, federal attorneys especially told me this repeatedly) has been Idaho’s collection of adjudication parties and attorneys who were willing to cooperate and trust each other enough not to challenge the process in fundamental ways that might have ground it to a halt or shut it down. Just that sort of thing has happened in other states. In Idaho, the need to accomplish the adjudication was taken as a given. The cooperation extended to the legislature, which kept the adjudication funded well enough to keep it rolling without interruption.

The principle applied in legal ways too. When the adjudication launched, the state Department of Water Resources was a party to the case just like each of the water users, which meant it was adversary to the people for whom it was filing records and conducting field investigations. It also was limited in how it could communicate with the court. In the mid-90s the department was removed (by the legislature) as a party, which meant it could work with the court in exchanging critical information, and work with the water claimants on a friendly basis. Most people in the middle of the SRBA today say that change was a turning point.

Luck was a piece of this too.

Two pieces of terrific luck come especially to mind. One is technology. When the adjudication began, its managers quickly saw they were looking at an impossible mission: Producing, copying, distributing and storing hundreds of millions of pages (or maybe more) in court documents not only at the SRBA court but at courthouses across most of Idaho. In 1987 there seemed to be no way to process all that material: It was just too much. At the right moment, then, computer storage became available and cheaper by orders of magnitude, data storage on CD-ROMs became practical, and the Internet made sharing of masses of information almost easy. Technology galloped to the rescue. A decade earlier, the SRBA might have foundered on a mountain of paper.

The adjudication was lucky in its judges, too. Not all judges are good judges (nor all people in any other category), but the SRBA’s five judges all have been highly capable and well-suited to the job. And a stroke of luck: The adjudication not only got good judges, but also in the order it needed them. The first of the judges, Daniel Hurlbutt, probably was the only judge in Idaho really well suited to cresting the architecture of the adjudication court, and his talents might have been wasted later in the process. The current judge, Eric Wildman, has had the best sweeping education (working as a court counsel for years before becoming judge) in the details of how the adjudication works – perfect for winding it down.

Could Idaho bring such trust, cooperation and a dash of luck to bear elsewhere?

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Idaho Idaho column

idaho RANDY

Thirty years ago Idaho was locked in a political civil war. The stakes could not have been higher: Water, and who got to control Idaho’s.

I remember the politics of that season, when what mattered was less budget and taxes, or even whether you were a Republican or Democrat. The big deal was about whether you were for or against subordination.

This now obscure debate, which had to do with the water rights held by Idaho Power Company, is still pertinent. It is so much so that it can be said to be drawing to a conclusion, for the time being at least, only this month, with the August 25 celebration of the conclusion of the Snake River Basin Adjudication. The SRBA is the massive yet surgically precise instrument by which that battle over a few specific water rights got hammered into shape, through the settling of everybody’s.

For many decades, the water flowing down the Snake River has been heavily used. Much of it has been used by irrigators, and Idaho Power Company long has had hydropower rights which entail not diversion of water from the river but rather an assurance that a certain amount will flow down the river past its various dams, especially the oldest, Swan Falls, south of Boise. This could conflict with the water used by irrigators and others, but most people in Idaho thought that Idaho Power had long ago given up its first-in-time priority so that irrigators had first call on it. A 1982 Idaho Supreme Court decision on the rights at Swan Falls said that in fact Idaho Power had the senior rights. Soon after, Idaho Power sued about 7,500 farm water users, demanding they quit using water Idaho Power claimed to power its dams. The war was on.

As everyone quickly realized, there was no sensible winner-take-all answer to this. If Idaho Power prevailed absolutely (as it mostly did in the short run), massive reaches of Idaho agriculture, and large chunks of Idaho’s economy, could be ruined. But Idaho Power couldn’t simply give in, either; it had responsibilities to stockholders, and a need to supply the state with cheap power. A wrecked Idaho Power was not in the state’s interest either.

Still, Idahoans swiftly picked sides. A majority seemed to favor “subordination” – that is, a legal determination that Idaho Power’s rights would be secondary to those of many of the irrigators.
But Idaho Power had its defenders, too, and long-standing deep political clout in the state. The state’s politicians in both parties were deeply split. Attorney General Jim Jones, one of the leading subordinationists, recruited Republican primary election challengers to several of the key pro-Idaho Power legislators, and knocked out a couple of them.

The subordination war went on for about a year and a half. It was resolved after months of closed-door meetings in which Jones, Idaho Power CEO Jim Bruce, and Governor John Evans and their surrogate negotiators worked out a complex settlement. Its essential pieces, they decided, has to include a complete accounting of who held rights to what water in the whole Snake River basin. An adjudication, in other words.

It has taken a long time, and along the way some of the premises of the original settlement have been challenged anew. But now, 30 years after that big political battle, water rights in the Snake River Basin essentially are settled.

Such efforts in many states have foundered, never reaching completion, stuck for a whole complex of reasons.

Against all the odds, in Idaho it got done. There’s some cause for celebration.

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Idaho Idaho column