"The Bureau That Changed the West"
Judge Dan Hurlbutt Explains Water Policy
Judge Hurlbutt The following interview was conducted in April of 1999 with Dan Hurlbutt. He was the first presiding judge of the Snake River Adjudication, a lengthy process to inventory all the water rights on the Snake River and its tributaries. The Snake River Adjudication is one of the largest of its kind in the nation. Hurlbutt was appointed by the Idaho Supreme Court in 1987. He stepped down in December of 1998.

WHAT IS THE BASIC WATER LAW OF THE WEST?

The first settlers in the West were miners. Miners needed water to process ore and their mines were generally not on rivers. They needed to transport the water. Therefore, the operative law in the West is that you put water to beneficial use wherever. It doesn’t matter if you have your property next to the water as in the eastern part of the United States (where water is governed by the riparian doctrine). Therefore, the first to take water out of the stream and put it to beneficial use has a prior right or a senior right. Those who follow have junior rights, and in a time of scarcity the senior right has the ability legally to make a call on the junior water right’s use to stop that use so that the senior right can have its water right fulfilled.

The “Prior Appropriation” doctrine is really quite simple. It is “first in time, first in right.” This can work very easily, simply by cataloging priority dates, places and purposes of use, in an inventory, which is what the Snake River adjudication has been doing.

IF IT’S SO SIMPLE, WHY IS IT SO COMPLICATED?

There is no question that water law has its complications. Part of the complication is that for 100 years, we’ve turned water law on its ear to avoid the very nature of the Prior Appropriation doctrine. Prior Appropriation, while it’s been the basic law and has been applied sporadically in isolated and small situations, has not been the driving force for regulation of Idaho water.

The regulation has not proceeded so much on the Prior Appropriation doctrine simply because whenever major water disputes arose, there was always more water somewhere, somehow made available to solve the major problem.

In this day and age the system would appear to be, if not fully appropriated, perhaps over-appropriated.

Additionally, the legal fiction that surface and ground water were different sources in other words, they were not interconnected -- has now been discarded, because everyone knows that the Snake Plain aquifer surface and groundwater are interconnected, that ultimately they are one source. Therefore, we have to dovetail the relative priorities of the surface water system and the ground water system so that they will work together. This has created the need then to turn back to the doctrine of Prior Appropriation, which unfortunately, is a very harsh doctrine. It simply says, “first in time, first in right.”

It really seems evident to me, after 10 years as a presiding judge, that one of the policy goals of the state of Idaho, the Dept of Water Resources, was to minimize or cut back the rights of older surface irrigators as much as possible; not to take their water right away from them entirely, but to reduce the potential for a call by those senior surface irrigators.

But the long and short of it is, if Prior Appropriation means anything, “first in time, first in right” governs. And the state is simply going to have to come to grips with that. People should not be fooled, though. There is no area of law that in the main is as simple as water law. Securities law, anti-trust law, are all very complex. Water law, while it has its complexities, I think people have been disadvantaged by being persuaded that it’s too complex for them to understand, and they’re to defer to others. Water users and the public need to come to terms with water law, understand its basic simplicities, and hold people accountable for what’s going on in the water area. It’s not just the province of the privileged few who deem themselves to be all knowing.

WHAT HAVE YOU LEARNED AS THE STATE’S WATER JUDGE FOR TEN YEARS?

What I have learned is that, unfortunately, Idaho has created some of the intractable problems we’re trying to deal with right now. The interconnection between surface and ground water has historically been determined to be separate sources. They are not. They have to be managed together.

They have to be managed probably with the harsh, harsh impact of the Prior Appropriation doctrine, and a lot of people would like to avoid that impact. What I’ve learned is you either apply the Constitution or you amend the Constitution and we’ve really in our history tried to amend the Constitution with judicial decrees, with regulations, with statutes, and it can’t be done that way.

Maybe the most severe challenge the state faces right now is how it’s going to get along in the world. The state has taken the position that Idaho water is for Idahoans -- perhaps certain privileged Idahoans -- but for Idahoans, and that the federal government has no reserve water rights, on any basis, anywhere, for any purpose.

The federal government essentially owns 68% of the land mass of the state. To suggest that they have no reserve water rights anywhere seems a little extreme. And in that extremity the state has isolated itself from the federal government and has begun to isolate itself from surrounding states.

Idaho is the odd state out. We’re the hole in the donut. Other states have been able to figure out how to deal with the federal government, to protect state water rights and water users but at the same time reach compromises and settlements with those interests in their states, with the federal government.

In court the State has said when it comes to mediation of Native American tribal rights, the state will sit down in a mediation session only if the issue of a reserve water right is never placed on the table. This is extraordinary, it is unusual and it’s the only place in the West where that position has been taken by a state as solidly and across-the-board as Idaho has. I think this isolation has led the federal government to conclude there is little utility in trying to negotiate with the State.

We’re going to be left with the very expensive task of litigating these rights and it will cost the citizens of Idaho millions if not tens of millions of dollars to litigate just the Indian water rights. Over a million dollars has been appropriated already to do that and we’re not even finished with discovery yet. It will be a legal battle that will be unending, it will be expensive, and I can’t predict who might prevail, but I am unaware of any Native American reservation in the United States that has not either by settlement or litigation been granted some amount of a federal reserve water right.

WHAT DOES THE FUTURE HOLD FOR THE SMALL FARMER?

The small Idaho farmer may become an endangered species much in the same sense that salmon are, and I think it’s regrettable and unfortunate. I think some of the state’s policies have helped to drive this into fruition and current policies have helped to push the consolidation of farming in Idaho.

There are a lot of family farms that will ultimately be turned into corporate farms and a lot of large water users are the only ones who can afford to deliver water, protect their water rights, and I think you’ll see tremendous consolidation of farming in Idaho.

The small family farmer is going to be put to a real test and not just because of the economy but because of Idaho water policies that simply have let them down, let them down by allowing for over-allocation of the resource, let them down by taking positions vis a vis the federal government that are expensive. And
Ultimately, it will be the little guy whose pocket gets picked. The big knowledgeable interests will probably protect themselves. Idaho’s agricultural future in the main is bright, but it’s going to be reserved to more powerful economic interests, sadly.

HOW REAL IS THE FEAR THAT THE FEDERAL GOV’T MAY “TAKE” OUR WATER?

When you talk about the federal government taking water from Idaho, it really breaks down into two components. The first is federal claims in the Snake River adjudication to water rights, primarily federal reserve water rights. The second area would be what’s been called regulatory takings.

The basic law of water has always been that water and water law is governed by the State, by the state constitution, by the state legislature. The federal government begins with the premise that their use of water is circumscribed by state statute.

There is, however, an exception, and that exception is what I call the Congressional “trump card.” All water is state water, all water law is state water law, unless the U.S. Congress takes certain specific actions legislatively. What are those actions?

As we all know, the federal gov’t owned tremendous tracts of land in the West, including in Idaho, and for a period of time, all of that land was open to settlement. However, around the turn of the century those policies changed, and what occurred is that the federal government, through the Congress, would withdraw certain land from settlement, from the general public domain. In addition to withdrawing that land, the Congress can reserve water for that land under certain circumstances. Congress can explicitly reserve water in specific amounts for certain purposes on the land. And where they do, then Congress has taken a reserve water right for those purposes. What has happened is that, more often than not, Congress hasn’t explicitly reserved water but a doctrine has grown, called the implied reserve water right. Originally this was created by the U.S. Supreme Court. It’s known as The Winters doctrine.

…So the basic test is, has there been a withdrawal of land? Has there been a reservation, either explicit or implied? If it’s implied, then what are the specific purposes of the (Indian) reservation? Do those specific purposes require water and if they do, would the reservation be entirely defeated absent that reservation of water. And while it sounds complicated, it really isn’t. All we’re saying is all water is state water unless Congress plays their trump card, which they can do, and they do it by making the necessary withdrawal in reservation.

The other type of taking that I know people in Idaho are concerned about is a regulatory taking. That is where the federal government, through whatever agency feels that to effectuate the purposes of the Clean Water Act, that a certain amount of flowing water must be maintained in certain reaches or sections of the river, requiring that water be let out of reservoirs or not used by certain water users in order to maintain a certain water quality that could be related to cleanliness or water temperature. They could, in effect, be said to take water from either appropriation or by taking water from those who already appropriated water.

Now, why some people are concerned about these potential regulatory takings is that even existing water rights could, at least in theory, be subject to some amount of takings perhaps. That chapter has not yet been written. It’s much discussed. There’s a lot of fear out there, and it’s not for me to say how ultimately it’s going to be resolved. It’s a new and growing issue.

ANY ADVICE FOR THE NEW ADJUDICATION JUDGE?

I think the challenge to the new interim presiding judge is to avoid the pressure and temptation of being a rubber stamp for certain special interests, to be appropriately independent, to rule on cases based on their legal and factual merit, rather than political and economic clout, and to do so in a way that is fair and appropriate and certainly in a cooperative effort with other branches of government to the extent that’s appropriate to carry out the requirements of the case.