Bridge Over Troubled Water
Jeffrey Fereday makes environmentalists and businesses play nice
Published in 2007 Mountain States Super Lawyers magazine
By Marcia Franklin on June 21, 2007
“This is sick!” shouts Jeff Fere-day, as he jumps up and down to keep warm. “I’m going to be so dead!”
And no wonder. It’s 23 degrees and dark, as Fereday and 30 other Nordic skiers—including his two sons, ages 14 and 18—get ready to challenge each other in an evening race under the solar-powered lights at the Bogus Basin ski resort near Boise.
A snow aficionado, Fereday, 57, spends his days representing clients who want their share of the white stuff once it melts. At Givens Pursley in Boise, Fereday specializes in environmental law and has participated in some of the most complex water rights cases in Idaho’s history.
It’s his passion for the outdoors that inspired the career choice in the first place. A native Idahoan, Fereday grew up skiing and hiking in the nearby mountains and traipsing around the high desert surrounding the Boise Valley. He left to go to Columbia University, but knew he’d return.
“I always had this love for the public lands and for the truly open-space feel that you get growing up in Idaho,” he says.
Having been at Columbia during the heady years of the Vietnam War and the first Earth Day, Fereday brought home a sense of responsibility to do something about the land he loved. “I realized, ‘Hey, from where I come from, I can really point out some very valuable resources and some very good reasons why this whole question of preserving the environment is legitimate,’” he says.
The environmental movement in Idaho was maturing, and Fereday got in on the ground floor, eventually becoming the executive director of the nascent Idaho Conservation League. As he learned more about the field, he realized a law degree could help him fight more effectively. So he graduated from the first environmental law program in the country, at Lewis & Clark Law School in Portland.
A stint at the U.S. Department of the Interior led Fereday to his mentor, Clyde Martz, the former solicitor of that agency. Martz asked him to join his Denver firm, Davis Graham & Stubbs, where he practiced from 1981 to 1984.
After that, Fereday returned to Idaho to head up the natural resources, environmental and energy group at Givens Pursley. Today, although he does some pro bono work for environmental groups, he’s more likely to represent land developers and groundwater pumpers. His background in the environmental movement directs the advice he gives his clients, which he admits sometimes can be “pretty tough.”
“I am not one who approaches an environmental issue for a client from the standpoint that the ‘enviros’ are out of their minds and unreasonable and extreme,” says Fereday. “My point of view is that there are legitimate arguments on both sides and there are legitimate environmental constraints that need to be met.”
“He got us through some very difficult times when we were being sued by environmental groups,” says Scott Turlington, director of external affairs for Tamarack Resort in Donnelly, Idaho, which struggled for years to develop its land.
“I’ve never known Jeff to back off of his convictions,” says Ed Squires, president of HydroLogic, a groundwater consulting firm, who has worked with Fereday on many technical projects.
“The thing I like about Jeff is not only does he understand the so-called common law, administrative law and statutory law, but he also understands the laws of nature,” says Squires. “For most people, being able to envision things in three dimensions under the ground is very difficult, [but] Jeff sees it.”
Fereday developed his leadership skills in his six years as a smokejumper, during and after college. Several times he had to make split-second decisions to keep his crew out of harm’s way. “Just about anything you do in life at some point requires courage,” he says. “And being a lawyer really requires that. Because a lot of times you’re faced with a set of facts or a legal argument that’s tough … you have to fight. You have to fight to win.”
In March, Fereday scored a major win. The Idaho Supreme Court ruled in a contentious suit pitting Fereday’s clients—groundwater pumpers—against surface water irrigators. The pumpers argued that even though their water rights were junior to those of canal companies, the canals could not call for more water than they could put to beneficial use, and that the use question had to be answered before junior irrigators can be shut off.
Fereday and his partner, Mike Creamer, argued that the well-established “first in time, first in right” principle of Idaho law extended only to those actually “using” the water. The court agreed with them that the state must determine whether surface irrigators were hoarding extra water. The decision was hailed as a major victory for junior irrigators, and Idaho Governor C. L. “Butch” Otter convened a water summit to plan for the ramifications.
“It’s enormous,” Fereday says. “It’s a ringing endorsement of the position we took. It confirmed bedrock principles of water law that a few senior water users somehow believed did not apply to them.”
“We’re just ecstatic,” says Clive Strong, Idaho deputy attorney general and chief of the Natural Resources Division. “We couldn’t have asked for a better opinion.”
More than anything else, Fereday hopes the decision will lead to more accountability for water in one of the fastest-growing states in the country. “There’s extra water out there in my view, and we need to find a way to make sure we account for it,” he says. “I’m very interested in accountability for this resource, which belongs to the public.”
Back up on the mountain, the water everyone wants is still snow, and very cold. Fereday returns from his race, out of breath but in sixth place, beating some racers half his age.
“Well, that was fun,” he laughs. “In a sick kind of way.”
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