Thursday, May 23, 2024

OPINION: County commissioners colluding with the Tribe?

by BRUCE E. MATTARE/Guest Opinion
| July 28, 2023 1:00 AM

That’s the allegation made by retired Brigadier General Blaine Holt in his July 20 CDA Press My Turn piece titled, “Theft by any other name is still theft.” In it he wrote, “is it fair for three commissioners and a 2,600-member tribe to collude to shred your net worth.” That’s a tall claim from a person who achieved the prominent rank of Brigadier General. As one of those three county commissioners, I’d appreciate seeing the General’s proof.

There’s no doubt that the prospect of “downzoning” privately owned land on the Coeur d’Alene Indian Reservation is a hot issue. A lot of people are framing it as a “Takings” on the premise such downzoning would severely reduce the value of their land on the Reservation. But that’s not always the case.

The reality is this issue is significantly more complex than a simple zoning change from rural to agricultural and limiting the minimum lot size from five acres to 20. Landowners are suggesting this would significantly reduce the value of their land or, as the retired General suggests, amount to theft. The primary problem not being addressed by the loudest voices — the one that impacts every property owner on the Reservation — is water.

Few people realize that the primary city well in Worley just ran dry. It once produced about 70 gallons per minute. Now there’s not enough water to properly recharge the well pump. The city of Plummer has five wells total. Both cities are severely restricting water use as a result.

As the old adage goes, “whiskey is for drinking and water is for fighting.” Few people understand and appreciate the seniority accorded Indian water rights, which typically pre-date (or are concurrent) with the establishment of the Indian reservations.

When water rights of fee landowners within an Indian reservation conflict with such federally reserved Indian rights, it doesn’t matter how long a family has owned their Reservation land, as the Tribe’s reserved rights are often accorded precedence. This has already been adjudicated in the Supreme Court.

For every new five-acre lot created 13,000 gallons of water per day are allotted to it. It won’t take long before enough five acre lots are developed that the water needed and used will run up against the Tribe’s long-established water needs and rights. And when that happens it will become a difficult and likely expensive proposition for homeowners who are facing water restrictions.

As for retired General Holt, I would suggest that he look at the events in our country that have occurred since the drafting of our United States and Idaho Constitutions. A good place to understand the context of this modern-day issue is a quick review of the Dawes Act of 1887 to better understand how the reservation lands were opened up to non-Indian settlers. Next, it would be prudent to review the Supreme Court’s 1908 decision in the Winter’s case, which recognizes federally reserved water rights on Indian reservations and the priority of such rights existing well before non-Indian settlement.

Then there is the McCarran Amendment in 1952, which waives the United States' sovereign immunity in suits concerning ownership or management of water rights and has led to the modern era of western water rights litigation, which is occurring right now in northern Idaho. And then it would be prudent to review our County Comprehensive Plan, which correctly discourages downzoning simply for the sake of it, but also recognizes that zoning plays a role in preserving the integrity and property rights of our community.

Restricting density when water is already a scarce resource is arguably a reasonable approach to preserving property rights and land values. County Commissioners recently downzoned Cougar Gulch and it can be argued that those property values were preserved because the new growth was leading to long-established wells failing.

There’s no doubt that land values could be affected by how this issue is handled. You just have to decide if your land value is enhanced by the prospect of subdividing so more people can live there. Or is your land value enhanced by restricting subdividing so water is preserved, and you can confidently remain living on your open-space land.

If the county simply ignores population growth and the inexorable water use demands of that growth, those owning Reservation fee lands may well face severe water restrictions or expensive and prolonged litigation over available water. The impact of this could greatly reduce their land values.

With respect to General Holt’s comment suggesting that the county commissioners have colluded in any way with the Coeur d’Alene Tribe, please provide proof of your claim or retract that statement and thank you for your service.