December 13, 2020
Debate continues over the irrigation district's special warranty deed.
As we recently reported, the Forest Service has reversed its position at Eightmile Lake because of rights reserved in a May 17, 1990 special warranty deed from the Icicle Peshastin Irrigation District to the federal government. The Forest Service now agrees with the irrigation district that keeping the proposed outlet from Eightmile dam within the area covered by that deed allows the irrigation district to proceed without Forest Service approval.
The irrigation district conveyed its Eightmile Lake property to the federal government as part of an extensive program that the Forest Service launched to acquire private inholdings within the Alpine Lakes Wilderness after Congress created that wilderness in 1976. The deed covers lands not only at Eightmile Lake, but also at Klonaqua and Colchuck lakes, where the irrigation district operates other dams within the wilderness.
The four-page deed lists the water rights that the irrigation district purported to reserve, as well as reserving a perpetual easement to maintain, operate, and upgrade these dams, and to regulate the water level, specifically the right to "overflow and inundate" the "bed and shore" of the three lakes.
The irrigation district also agreed in its 1990 deed that it would not "materially increase the size or scope of the facilities" without written consent from the Forest Service, "which shall not unreasonably be withheld." In addition, the irrigation district agreed that it would not unreasonably interfere with use of the area or cause substantial damage to it.
Finally, the irrigation district purported to reserve to itself a right of access across federal lands to reach the lake, and to do so by "any means reasonable for the purposes described" including "motorized transportation and equipment, or aircraft."
According to Tony Jantzer, irrigation district director, these terms were the subject of lengthy and sometimes tense negotiations between the irrigation district and Forest Service. The public was not involved or informed. As is customary in a deed, the document was only signed by the irrigation district.
Some years later we understand that the Forest Service undertook an internal review into its authority to accept the terms in this deed. Neither that review nor its results were publicly disclosed. Nonetheless, it is apparent from the current Forest Service position that it now regards the deed as valid.
Interpreting its terms, however, remains a source of dispute. When emergency repairs were needed at Eightmile dam in 2018, the Forest Service denied the irrigation district permission to drive a loader through the wilderness to access the lake. Instead the loader was flown in by helicopter.
The Forest Service has not publicly elaborated on its reasons for that decision, but it may have concluded that the irrigation district could not reserve for itself more access rights than the law actually gave it, and in this instance, limiting access to helicopter was justified under existing law. In other words, purporting to reserve rights does not create them.
Another major question stems from the dispute between conservationists and the irrigation district over the extent of the latter's water rights. Does the irrigation district's reservation of water rights include rights that were not exercised before the area was added to the wilderness and which may have been relinquished under state law? Section 4(c) of the Wilderness Act prohibits structures or installations within a wilderness, "subject to existing private rights." Is a right "existing" when its extent has not yet been determined?
The 1990 deed does not and cannot address these questions.