Water rights protected
Whiskey’s for drinking, and water’s for…handing over to the federal government so that they’ll issue you the permits you need to keep your ranching operation going. At least, this appears to be the U.S. Forest Service’s catchy new variation on the old adage. But much as the agency might like to change it, the truth can’t be denied: water’s still for fighting. In this instance, the instigative first punch came several years ago when the Forest Service began aggressively pursuing a policy where water rights had to be forked over to the agency before it would grant special use permits. This policy kicked off a series of heated debates between the agency and the livestock industry; congressional hearings; private-sector litigation of the Forest Service; and state and federal legislation aimed at bolstering private water rights on federal land.
On March 13, the U.S. House of Representatives passed a bill (H.R. 3189) that would stymie the federal land management agencies’ attempts to wrest water rights from the private sector in exchange for federal land use permits. The bill, titled the Water Rights Protection Act, has a Senate companion bill (S. 1630), introduced last fall by Wyoming Sen.
John Barrasso (R). Water rights advocates hope to see the bill pass that chamber, as well.
Indeed, recent policies and actions of the federal land management agencies (primarily the Forest Service) have given water rights holders and the states good reason to ask Congress for backup. In a letter dated August 15, 2008, the Forest Service’s Intermountain Regional Forester stated that it was “the policy of the Intermountain Region that livestock water rights used on national forest grazing allotments should be held in the name of the United States.” The Intermountain Region covers Nevada, Utah, and good portions of Idaho and Wyoming— where livestock grazing is a prevalent use of Forest Service lands. The letter went on to state that “the United States must have a water right” before any federal funds would go toward “construction or reconstruction of any livestock water development or facility.”
Under this policy, Forest Service has in many cases been withholding the permits ranchers need to build and maintain new water structures, existing waterlines, stock tanks, and other water improvements. This is making it difficult for some ranchers to make beneficial use of their water rights (i.e., water their livestock). Under most western states’ water law, beneficial use of the water is necessary in order to maintain the water right.
According to Joe Guild, a Nevada rancher and a regional vice-president for the National Cattlemen’s Beef Association (NCBA), the Forest Service’s demand for stockwater rights poses a particularly bad problem in Nevada. That’s because, he said, it is in direct conflict with Nevada state water law. In Nevada, only parties that own livestock can hold and make beneficial use of a stockwater right. This excludes the federal government. Thus, Guild said, the Forest Service’s policy of denying water improvement permits until they get ownership of the water rights is akin to telling ranchers that no improvements to water sources will ever be made again—at least until Nevada changes its law.
“This means curtains for most operators out here in Nevada,” Guild said in an interview. “Attacking Nevada citizens in this manner is an irresponsible way of trying to strong-arm the state into handing over its primacy over the water.”
Guild told WLJ that the government has, in fact, been pursuing this goal of water rights attainment for probably 100 years. According to congressional testimony of the Forest Service, the agency has indeed secured thousands of livestock water rights on National Forest System land, in states where that acquisition is legal.
“What is new about this 2008 Forest Service policy position is that it runs directly counter to Nevada’s water law, causing a standoff where ranchers are getting caught in the crossfire,” Guild explained.
Guild said that, upon learning of the new regional directive in 2008, the livestock industry, led by Public Lands Council and NCBA, immediately brought their concerns to the agency. In meetings with Forest Service officials, they explained that western water law requires water-right holders to make beneficial use of their water in order to retain ownership. The new Forest Service policy, industry argued, was a Fifth Amendment taking of property, since it gave Forest Service the power to deny ranchers’ ability to make full beneficial use of the water. Industry also pointed out that the states have primacy over water law, and that this policy appeared to be an attempt at superseding the states’ jurisdiction.
As the livestock organizations’ talks with the agency went on and the policy went unchanged, industry’s concerns found their way to Congress. By mid-2011, congressional hearings were being scheduled and witnesses were preparing testimony.
Ranchers wouldn’t be the only ones to testify to Congress. The ski industry was in a parallel battle with the agency. The Forest Service had issued a directive requiring all ski areas on Forest Service land—over 120 of them—to turn over part of their water rights to the agency in exchange for the permits they needed to keep operating. In a November 2011 hearing before a U.S. House subcommittee, a National Ski Areas Association (NCAA) representative stated: “Congress has not delegated to the Forest Service the authority to require the ski areas to transfer ownership of water rights to the U.S. as a permit condition. Likewise, the Property Clause of the U.S. Constitution does not give the agency the authority to use permitting conditions as a basis to obtain federal ownership of privately owned water rights without the payment of fair compensation.”
Ranchers and ski areas have thus found themselves in the same boat. Multiple state and national congressional hearings have ensued, and several western states are entertaining legislation to bolster stockwater and other privately-held water rights.
In September of 2013, Rep. Scott Tipton (R-CO) introduced at the national level the Water Rights Protection Act. It would prevent both the Forest Service and the Bureau of Land Management (BLM) from demanding water rights in exchange for special use permits. The bill would also prohibit the agencies from imposing other conditions that require the transfer of water rights without just compensation. In principle, the bill “upholds longstanding federal deference to state water law,” according to Rep. Tipton’s office. Also according to Rep. Tipton’s office, BLM was included in the legislation because the agency has, similarly to Forest Service, pursued an agenda of water rights ownership in several states. On at least one occasion, they said, a BLM official has stated the agency would like to adopt a policy similar to that of the Forest Service’s ski area policy.
As efforts in the legislative branch have been ongoing, the ski industry has taken the Forest Service to court on its new ski area water clause—and won, in part. Judge William Martinez of the U.S. District Court for Colorado ruled that the agency had violated procedural laws by not allowing public input in the development of this sweeping new policy. While he vacated the rule, calling for the agency to rework it— this time with public input—he did not rule on the ski industry’s substantive claims. In other words, he did not make an official ruling as to whether the agency’s demand for water rights in exchange for ski area permits constituted a Fifth Amendment taking of property. However, in his ruling, Judge Martinez did indicate that he thought the agency had far overstepped its bounds under current law and the U.S. Constitution. In his decision, he wrote that the policy did “impose new rights and obligations. [The Forest Service] could point to no prior water clause that compels permit holders to waive constitutional rights as to compensation. Nor could [the agency] point to any prior clause compelling permit holders to grant the United States a power of attorney for the purposes of transferring water rights to itself. These are just two clauses in the 2012 Directive, among others, that cut against [Forest Service’s] position.”
Michael Berry, President of the NSAA (the plaintiff), said the ski area industry was “pleased that the court has stopped this unreasonable and unlawful policy in its tracks.”
NCBA’s Guild echoed Berry’s enthusiasm for the ruling. While he acknowledged there had been no ruling on whether the ski area water clause constituted a taking of property, he said the court “definitely slapped the hands of the Forest Service for exceeding their authority.” He said the ski area policy would have had dire implications for all water right holders on public land.
A Washington, D.C. Forest Service official told WLJ that the agency is revising the ski area water rights clause and it is expected to be out for public review and comment in the next few months. Meanwhile, efforts to remedy the Intermountain Region’s stockwater policy have begun to pay off. In an interview with WLJ, Terry Padilla, Range Program Manager for the Intermountain Region, indicated the Forest Service is “seriously considering reversing the stockwater policy” in the region.
“We need to quit holding our permittees and our agency people hostage with an unworkable policy,” said Padilla, referencing the Nevada situation specifically.
“We want to allow for maintenance and reconstruction of existing improvements,” he said, “although we would probably continue to stand down on new water developments pending resolution of ongoing stockwater rights discussions with Nevada.”
He said that Forest Service’s goal is to keep the water with the land, as water is crucial to the continuation of multiple uses such livestock grazing, wildlife use, recreation and others. He said the Forest Service fears that the water could instead be sold by the water right owners and diverted to, for example, urban centers like Las Vegas.
But NCBA’s Guild told WLJ this reasoning was illogical. “You’ve seen stockwater springs—it’s a trickle.
We’re talking between 5 and 20 gallons per minute—you can’t even take a bath in 20 gallons per minute. It’s a ridiculous and almost comical statement [by the Forest Service]—but that’s their justification. It’s really a red herring argument, I think.”
But Guild did say that industry talks with Forest Service have honed in on a possible solution: a “nonseverability” clause that would ensure that ranchers’ water stayed with their grazing allotments. He said the livestock organizations had talked with the agency about making the clause a part of ranchers’ grazing permits—if ranchers voluntarily agree to it.
“We question the Forest Service’s logic that we’re going to sell off the water, but if this helps us come to an end to the impasse, we’re for making this non-severance clause a voluntary part of a grazing permit,” Guild said.
While Forest Service’s Padilla told WLJ he was “really in favor” of a non-severability clause and that it was “on the table,” he said that the agency was still considering retaining the policy of demanding partial water rights ownership. He acknowledged this would keep Forest Service policy in direct conflict with Nevada State water law. “We are putting all options on the table,” he said. “We have a draft policy in front of the new regional forester right now, and should have final approval this spring. When we come to a decision, we’ll be meeting with the Nevada Cattlemen’s Association, the state of Nevada, and other stakeholders to discuss it.”
“This policy—where water’s not available and we can’t manage and maintain it—goes against our imperative objectives: care for the land, serve the people. We’re not doing either one right now,” said Padilla.
Guild said he was glad the Forest Service acknowledged the current policy “for what it is: an anti-resource policy. If we can’t manage our water, we can’t manage our livestock.” He continued, “We hope that the new policy they come up with discards the conflict-ridden ‘partial ownership’ policy— which I really don’t think is going to fly in Nevada,” Guild said. “Let’s hope the new regional forester takes up something that’s actually feasible.”
Meanwhile, Guild said the legislation passed by the House this month would clear up the conflict at hand. “Because it tells the agencies they cannot withhold a permit in exchange for a transfer of the water right to the U.S.,” he said. “Let’s hope Senator Barrasso’s bill moves through the Senate. I urge people to call their senators and encourage them to support S. 1630, the Water Rights Protection Act. If Forest Service refuses to change its policy, we’d far rather see a resolution come through legislation than through costly litigation, as we saw our friends go through in the ski industry. And that court battle was just one step in the fight to change the policy—it’s far from over.” — Theodora Dowling, WLJ Correspondent