The Rule of Law Applies to All, Even the Federal Government

Mountain States Legal Foundation ^ | November 2025 | Staff

[Twotone]

Everyone should play by the same rules. That’s the basic idea of fairness most Americans understand. When it befits them, the federal government loves to hold people accountable to its rules, but the feds hate it when they’re forced to obey state law. This is especially true in the case of water rights, where the US Government would see itself as some legally exempt land baron over the state governments. This is why Paul Nettleton, Tim Lowry, Don Pickett, and the Idaho Farm Bureau Federation—represented by Mountain States Legal Foundation—stood up and said enough is enough.

Case Background

Twenty years ago, in an obscure and little-known process, the state of Idaho decreed, or assessed, that the federal government had thousands of rights to stockwater (water suitable for livestock consumption) on federal land in Idaho. The federal government received many of these stockwater rights because those who would be affected by such a decree did not know how the federal government’s claims would affect them, or did not understand the need to have legal representation to object.

Why did the federal government need Idaho law to give it those rights in the first place? In 1978, the Supreme Court of the United States ruled that Congress did not reserve stockwater rights to the federal government on National Forests. Instead, those rights are properly subject to state law, even if the water is on land allotments the federal government has issued grazing permits. That case, US v. New Mexico, confirmed the states are best suited to allocate stockwater.

In 2007, Joyce Livestock—the 150-year-old, fifth-generation Nettleton family ranch—won a critical case against the federal government. According to Idaho law, stockwater rights must be put to “beneficial” use, or be forfeited. Joyce v. US affirmed that the federal government is not exempt from Idaho’s beneficial-use law. Perhaps more importantly, the Idaho Supreme Court also ruled that in order for anyone to put the stockwater to beneficial use, including the federal government, they must water their own livestock or that of their “agents.” Simply allowing private third-party permit-holders—such as the Idaho ranchers who actually use these water rights—to water their own stock does not qualify as a beneficial use by the federal government.

In response to the case, the Idaho legislature codified its holdings and established an administrative process to determine whether stockwater rights had been put to beneficial use or forfeited. The federal government balked at such scrutiny of its (likely forfeited) stockwater rights, and has sued the state of Idaho on shaky and bizarre grounds to prevent enforcement of these laws. Its fanciful reasoning includes the idea that such a law undermines the supremacy of federal law—despite the Supreme Court’s 1978 ruling.

Simply put, the federal government could easily lose its stockwater rights under the laws of Idaho—backed by the Supreme Courts of both Idaho and United States—and it doesn’t like those laws. It doesn’t want to play by the same rules as everyone else, so it’s trying to blindfold the umpire.

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What’s at Stake

It has been the well-known and unambiguous law for decades that stockwater rights on National Forest lands are subject to state law, not federal whim. The US Government is trying to unfairly wrest control of stockwater rights away from Idaho by declaring Idaho’s administrative process unconstitutional. If the federal government succeeds, the ranchers who have superior claims to the waters will have a difficult to impossible time vindicating their rights.

Paul Nettleton, who operates the Joyce Livestock ranch, was there back in 2007 when he successfully forced the federal government to play by rules in Idaho. Tim Lowry of the LU Livestock Company was plaintiff in a companion case decided the same day, and both are once again helping keep the feds out of their water. Joining the duo is Don Pickett, whose ranch has been in operation since 1881. These three ranchers—and the rest of Idaho’s ranchers as represented by the Idaho Farm Bureau Federation—have stepped up to stop the federal government because their livelihood is threatened by federal control of water.

Paul’s ranch, the oldest family ranch in the state, is in its fifth generation (and perhaps soon a sixth with his grandchildren). During the summer, their grazing allotments by the Bureau of Land Management are heavily dependent on stockwater. They know firsthand the dangers of letting the federal government avoid scrutiny of its efforts at appropriating stockwater rights.

Don and his ranch support more than workers—many have been with the Pickett Ranch since Don was born. Years ago, they had to cede to the federal government significant control over how and when their own stockwater rights could be used in order to avoid the sort of expensive and lengthy litigation that Joyce Livestock and LU Ranching endured. He’s in this fight to finally have the freedom to utilize his water in the most efficient way possible.

As for Tim, his family’s ranch has stockwater rights decrees that are senior to the federal government’s overlapping decrees, but the feds successfully fought off—based on nothing more than sheer technicalities—his efforts to object to their claims. Tim wants Idaho to have the ability to scrutinize federal government’s competing claims to the rights they have forfeited by lack of beneficial use.

This case, though, is not limited to Idaho. The federal government is almost certainly using Idaho as a test case that could be repeated in states across the American West, to the extent their stockwater laws parallel that of Idaho. The goal of the federal government, if it is successful, is to establish a precedent that when the US Government is decreed water rights under state law, it becomes practically impossible for those rights to be forfeited under the veil of national supremacy. Such a precedent could be catastrophic to the ability of western states to govern themselves, and of ranchers to earn a living.

As MSLF attorney Joseph Bingham said, “In the long run, the federal government’s fanciful legal theory threatens Idaho’s sovereignty, its ranchers’ livelihood, and the sovereignty of other states. The law is crystal clear—Idaho’s waters belong to the people of Idaho, who have entrusted it to their state government, not Washington, D.C.”

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TOPICS: Government; News/Current Events; US: Idaho
KEYWORDS: federalland; idaho; usvsidaho; waterrights

[sauropod]

Bkmk

[Carry_Okie]

Is William Perry Pendley still with MSLF?

[Twotone]

I’m afraid I couldn’t tell you.

[bertmerc1]

According to the Federalist Society website: “William Perry Pendley is president and chief operating officer of Mountain States Legal Foundation and has litigated against the United States at the U.S. Supreme Court and numerous federal courts of appeal. Mr. Pendley is a former Marine officer, Capitol Hill lawyer, and Reagan administration official.”

[TBP]

Except Democsrats.