From the March 2002 Idaho Observer:

Four hundred plus attend water rights rally

by Dick Lawson
Watchmen on the Wall

A water rights meeting sponsored by Watchmen on the Wall (WOW) was held Feb. 19 in Kooskia. The meeting, which was hosted by WOW Chairman Tom Simmons of Kamiah, was held to help inform water rights holders of recent activities by various agencies with regard to water in the region.

Idaho Department of Water Resources (IDWR), Idaho Department of Agriculture, and the Idaho Attorney General's office were represented. Tribal claims against springs on the original Nez Perce reservation were the main topic of conversation.

Though IDWR officials claim that to perform their duties is in the best interest of Idahoans, one growing public concern was the authoritarian manner with which state agency personnel, particularly IDWR, demand access to private property.

IDWR representatives answered questions on IDWR's presumed right to legally trespass on private property by citing Idaho Code 42-237a, Section d., which states, “(IDWR) is empowered to go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, and fittings, including wells used, or claimed to be used, for domestic purposes.”

A kinder, gentler IDWR

When the public present expressed dissatisfaction with the fact that IDWR agents had entered their lands without so much as even asking permission, IDWR Administrative Director Norm Young explained that new guidelines were being issued. He then used a PowerPoint presentation to show a skeptical audience a 10-point set of property access guidelines which he said would be issued agency wide.

1. Assume that entry will be through voluntary permission.

2. Make an appointment in advance.

3. When an appointment has not been made, find the owner to ask permission before entering the property.

4. Don't enter any residence or other closed-in building without the permission of the owner.

5. If a reasonable effort has been made, but the owner can't be located, enter private property only if:

a. You have arranged in advance with the owner to do so without the owner being present.

b. You are merely collecting data, and do not need to enter a building, or other area that has an expectation of privacy.

c. The property is not marked with signs forbidding entry, or, you have not otherwise been told to not enter the property.

6. Respect the owner's right to refuse entry.

7. If entry is vital, refer to IDWR administration.

8. Carry a photo ID and leave a dated business card.

9. Be prepared to put the owner in contact with a supervisor.

10. Do no damage. Leave property as you found it.

Young could not say when his agency would adopt its proposed policy. Young also explained that if property owners adamantly refused IDWR access to their private property, they would turn the case over to the attorney general's office and obtain a court order to gain access to the property in question.

Who “owns” the water?

State and federal entities from previous decades claimed that navigable rivers, lakes and streams belonged to the public and administered them as such. In recent years state and federal governments began to term their administration of such navigable waterways as “ownership.”

IDWR agent Mike Tuthill explained that the state of Idaho now believes it “owns” all the water in the state -- including the wells and springs on private property.

Tuthill's admission provides insight into how the state justifies its perceived right to trespass on private property.

A woman who bought property in the area last July found out that her water rights are being challenged by the Nez Perce Tribe. Though the tribe had filed its claim against the water on her property before she bought it, the claim did not appear in the title search. Young explained that the county does not necessarily record such claims.

State support of such activity will have a negative impact on the sale of land in the region. If people refuse to buy land that is for sale because they cannot be assured that the water on it belongs to them, then property values will decline drastically. The counties will subsequently have diminished tax bases from which to fund the activities of government.

What can be done?

WOW is currently exploring various avenues for the citizenry to utilize in defense of their water rights. The mission of Watchmen on the Wall is to have an informed citizenry. To this end, it is the intention of Watchmen on the Wall to provide whatever assistance they can to help defend the rights of citizens in this matter.

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