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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 33669 ) ) ) ) ) ) Appellant, ) ) v. ) THE STATE OF IDAHO, UNITED STATES ) ) OF AMERICA and THE SHOSHONEBANNOCK TRIBES, ) ) Respondents. ) _______________________________________ ) IN RE SRBA, CASE NO. 39576 SUBCASE NO: 29-11609. -----------------------------------------------------CITY OF POCATELLO,

Boise, January 2008 Term 2008 Opinion No. 28 Filed: February 19, 2008 Stephen W. Kenyon, Clerk

Snake River Basin Adjudication, District Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Hon. John M. Melanson, District Judge. The district court's summary judgment order is affirmed. A. Dean Tranmer, City of Pocatello, Pocatello, and White & Jankowski, Denver, Colorado, for appellant. Sarah A. Klahn argued. The Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent State of Idaho. David J. Barber argued. David Negri, U.S. Department of Justice, Boise, and Todd S. Aagaard, United States Department of Justice, Washington, D.C., for respondent United States of America. William Lazarus argued. Wolfley Law Office, Pocatello, for respondents Shoshone-Bannock Tribes. Jeanette Wolfley argued. ____________________

J. JONES, Justice The City of Pocatello filed a claim in the Snake River Basin Adjudication (SRBA), asserting it had been granted a federal water right under an 1888 Congressional act. A special

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master in the SRBA determined that no such right existed. The district court affirmed on appeal, as does this Court. I. President Andrew Johnson designated the Fort Hall Indian Reservation for the use of certain bands of the Shoshone and Bannock Tribes ("Tribes") by virtue of an 1867 executive order. The boundaries and terms of the Reservation were established the next year in the Second Treaty of Fort Bridger. The Treaty contained provisions for providing services on the

Reservation, education for the Tribes, and allotments of land for farming by tribal members. The Treaty specifically required the written consent of a majority of adult male Indians for the cession of any portion of the Reservation. In 1878, the Utah Northern Railway Company (the "Railroad") built a north-south line across the Reservation without permission from either the Tribes or the United States government. A few years later, the same company negotiated with the Tribes to build an eastwest railroad line. The Tribes granted a right-of-way, which Congress approved. The lines intersected in the middle of the Reservation at a site called Pocatello Junction. A settlement of non-Indian residents sprang up at the intersection. The settlers were trespassers, being on the Reservation without permission. In 1885, officials from the United States Department of the Interior ordered the removal of the trespassers, to no avail. The settlement continued, and federal authorities eventually came to realize they would not be able to remove the settlers without violence and bloodshed. A group of citizens from the town sent a petition begging not to be removed from the site, as many of them were railroad employees who would lose their jobs if forced to move. As the situation grew ever more tense, the Railroad asked the Secretary of the Interior to assist in negotiations with the Tribes. In 1887, the Secretary of the Interior assigned Inspector Robert S. Gardner and Indian Agent Peter Gallagher, the agent in charge of the Reservation, to negotiate with the Tribes. Together, they negotiated a Cession Agreement in an intense one-day session. The Agreement was not without dissent. The Tribes were reluctant to cede any reservation land to non-Indians. However, Agent Gallagher persuaded the Indians that the cession would give them enough money to build irrigation ditches and shore up their farming industry, so a majority of male members of the Tribes voted to approve the Agreement. The Agreement transferred the

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Pocatello Townsite to the citizens of Pocatello and a right-of-way to the Railroad for its existing tracks. The Agreement made no mention of water or water rights. After the Cession Agreement was approved by the Tribes, but before it was enacted into law, the question arose as to how the new city would obtain a water supply. In late 1887, the Commissioner of Indian Affairs, J.D.C. Atkins, began discussions with Agent Gallagher in this regard. Commissioner Atkins wrote to say, "The source of the water supply thus being,

according to your statement, outside the limits of the proposed town-site . . . [and] on the reservation lands, I have construed your suggestion to mean that some guarantee in regard to water privileges, should be provided so far as the Indians and the reservation are concerned. . . " He proposed language to address this issue for inclusion in the legislation approving the Cession Agreement. In a message to Congress, dated February 3, 1888, Commissioner Atkins called attention to the need to secure a water supply for the newly-formed City of Pocatello. In pertinent part, the message states: Inasmuch as conflicting opinions seem to prevail as to the source or sources from which the town will derive its supply of water, I have deemed it advisable, as a matter of precaution, to insert in the bill a clause providing for the use by the citizens of the town, in common with the Indians, of the waters of any river, creek, stream, or spring flowing through the reservations lands in the vicinity of the town, with the right of access at all times thereto, and the right to construct, operate, and maintain all such ditches, canals, works or other aqueducts, drain and sewerage pipes, and other appliances on the reservation, as may be necessary to provide with proper water and sewerage facilities. Atkins provided Congress with the proposed legislation to approve the Cession Agreement. The legislation included the following provision: That the citizens of the town hereinbefore provided for shall have the free and undisturbed use in common with the said Indians of the waters of any river, creek, stream, or spring flowing through the Fort Hall Reservation in the vicinity of said town, with right of access at all times thereto, and the right to construct, operate, and maintain all such ditches, canals, works, or other aqueducts, drain, and sewerage pipes, and other appliances on the reservation, as may be necessary to provide said town with proper water and sewerage facilities. This language became Section 10 of the bill approving the Cession Agreement. September 1, 1888, ch. 936, 25 Stat. 452 (the "1888 Act"). Act of

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One hundred and two years after passage of the 1888 Act, the City asserted Section 10 of the Act as the basis for its present claim. In 1990, the City filed a claim in the SRBA for a federal reserved water right, as an alternative to 38 separate prior claims based on state law. The United States, the State of Idaho, and the Shoshone-Bannock Tribes (the "Opposing Parties") filed objections to the City's federal claim. All took the position that the 1888 Act did not create a federal reserved water right. All parties moved for summary judgment before a Special Master of the Snake River Basin Adjudication. In its motion, the City departed from its notice of claim and stated Section 10 gave the City "an express grant of a water right" via the Property Clause of the U.S. Constitution, rather than a reserved water right. The Special Master granted summary judgment to the Opposing Parties. The Master recommended the City's claim not be confirmed in a partial or final decree and denied the City's motion to alter or amend the recommendation. The City challenged the Special Master's decision in district court. The district court affirmed the Special Master. The SRBA court determined Section 10 granted, at most, a right of access for appropriating water, not a water right. The court disallowed the City's claim for a water right and certified its order for appeal. The City appealed to this Court. II. The question presented is whether Section 10 of the 1888 Act granted a federal water right to the City of Pocatello. We hold the Act created no such right. Rather, it granted the City access to surface water sources on the Reservation, along with the opportunity to establish a water right under state law. A. This Court employs the same standard of review as the district court when ruling on a motion for summary judgment. Watson v. Weick, 141 Idaho 500, 504, 112 P.3d 788, 792 (2005). Summary judgment is proper when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Idaho R. Civ. P. 56(c). If there is no genuine issue of material fact, "only a question of law remains, over which this Court exercises free review." Watson, 141 Idaho at 504, 112 P.3d at 792. Interpretation of a statute is a question of law over which this Court exercises free review. Gooding Cty. v. Wybenga, 137 Idaho 201, 204, 46 P.3d 18, 21 (2002). Where a federal statute grants privileges it must be strictly construed

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favorably to the government and "nothing passes but what is conveyed in clear and explicit language

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