June 27, 2005
IN RE SRBA
NEZ PERCE TRIBE OFF RESERVATION INSTREAM FLOW CLAIMS. NEZ PERCE TRIBE; UNITED STATES OF AMERICA, APPELLANTS,
STATE OF IDAHO; ET AL., RESPONDENTS.
IN RE SRBA
NEZ PERCE TRIBE INSTREAM FLOW CLAIMS. UNITED STATES OF AMERICA,
STATE OF IDAHO, ET AL.,
Supreme Court No. 26042 Supreme Court No. 26128
CASE NO. 39576, SUBCASE NO. 03-10022
ORDER GRANTING MOTION FOR REMAND
Ref. No. 05S-118
A JOINT MOTION TO REMAND APPEAL NOS. 26042 AND 26128 AND DELEGATE JURISDICTION TO THE SNAKE RIVER BASIN ADJUDICATION DISTRICT COURT FOR APPROVAL OF FINAL SETTLEMENT AND ENTRY OF CONSENT DECREE AND PARTIAL DECREES was filed on March 30, 2005 and an OBJECTION TO MOTION TO REMAND was filed by Respondent Shoshone-Bannock Tribes on April 8, 2005.
WHEREAS; Idaho Supreme Court Nos. 26042 and 26128 (hereafter referred to as Nez Perce claims) stem from the appeal of the Nez Perce Tribe of a summary judgment issued against them by the Honorable Barry Wood on November 10, 1999. The Shoshone-Bannock Tribe filed a Notice of Appearance on December 29, 1999, and filed fifty-six (56) objections in the district court as a Respondent.
On January 3, 2003, this Court gave notice to all Respondents in case Nos. 26042 and 26128 that the Nez Perce appeal would be heard using only Respondents' briefs already filed, unless other Respondents filed briefs within twenty-one (21) days. The Shoshone-Bannock Tribe did not submit a brief or a response and a further order against all non-complying Respondents including the Shoshone-Bannock Tribe was entered on February 3, 2003. This order stated that any Respondent failing to have filed a brief "may not present oral argument or appear further in this appeal without appropriate Order from this Court."
Certain parties filed a motion in the Idaho Supreme Court for remand to the Snake River Basin Adjudication and for a hearing to implement a stipulation reached by those parties. The Shoshone-Bannock Tribe filed its Objection to Motion to Remand in this Court without first being granted permission pursuant to this Court's previous order of February 3, 2003. Irrespective of this violation, the Court will address the Motion's substantive issues.
The fifty-six (56) objections of the Shoshone-Bannock Tribe to the Nez Perce claims have never been litigated nor are they the subject of this appeal. Technically, they are still in the trial court. If there are questions concerning their efficacy in light of the Nez Perce Settlement Mediator's Term Sheet, those are proper matters for the trial court to create appropriate factual and legal records.
In the Supreme Court's original Order Appointing District Judge and Determining Venue of Petition for General Adjudication of Water Rights in the Snake River Basin (general order), any aggrieved party may apply for permission to appeal to the Idaho Supreme Court from any "order approving or disapproving a negotiated agreement between the State and a federal claimant." Therefore, any due process issues are best left in the trial court as to approving or disapproving the Nez Perce Settlement Mediator's Term Sheet and the status of the Shoshone-Bannock Tribe's objections. Any alleged aggrieved party may then ask for permission to appeal from the trial court's decision. As a result, the Shoshone-Bannock Tribe's claims of lack of due process are premature. Therefore, good cause appearing,
IT IS HEREBY ORDERED that this Court DENIES the Shoshone-Bannock Tribe's objection to Motion to Remand, and GRANTS other parties' motions to remand to the Snake River Basin Adjudication for review of the stipulation and ratification, if appropriate.
For the Supreme Court
Stephen W. Kenyon, Clerk
cc: Counsel of Record District Court Clerk
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