water rights

Ninth Circuit Restores Navajo Nation Trust Breach Claim in Colorado River Water Rights Matter

Matthew L.M. Fletcher

Here is the opinion in Navajo Nation v. Dept. of the Interior.

An excerpt:

The panel held that the Nation’s breach of trust claim was not barred by sovereign immunity, and remanded to the district court to consider the claim on its merits. The panel held that the broad waiver of sovereign immunity found in § 702 of the Administrative Procedure Act (“APA”) waived sovereign immunity for all non-monetary claims, and § 704 of the APA’s final agency action requirement constrained only actions brought under the APA. The panel concluded that the Nation’s breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in § 702 applied squarely to the claim.

Lower court materials here.

Cultures Under Water: Climate Impacts on Tribal Cultural Heritage CLE

Sarah M Donnelly

December 6* -8, 2017
8 a.m. – 7:30 p.m.
Memorial Union, Ventana Ballroom
1290 S. Normal Ave., Tempe, AZ 85287
Tempe campus

Extreme weather and climate events have increased over the past 50 years and Indigenous peoples are among the most vulnerable to the adverse effects because they are often inextricably tied to their land. As a result, climate change not only threatens the landscape, but also cultural identity. Indigenous peoples have used traditional knowledge to mitigate climate disruptions and to adapt to the changing environment. However, policy discussions have failed to adequately address climate impacts on cultural heritage, and the rapid rate of climate disruptions continues to threaten indigenous cultures and communities with alarming speed. This conference will build on the discussions of climate change, adaptation, and traditional knowledge by focusing specifically on climate impacts on tribal cultural heritage.

We will bring together tribal leadership and members, scientists, scholars, attorneys and activists to discuss climate change threats and challenges faced by indigenous communities. The goal is to share knowledge and resources with tribal representatives to respond to threats to cultural heritage by addressing: Is cultural heritage a human right, and why is tribal cultural heritage important? How does climate change impact tribal cultural heritage? How can tribal communities maintain cultural heritage in the face of changing climate risks? Attendees will participate in sessions that focus on identifying obstacles and proposing solutions to these challenges.

*Note: December 6 is evening only and will feature Before The Flood by Fisher Stevens. This film features Leonardo DiCaprio with contributions by many scientists and researchers from around the world, who meet and discuss the reality of climate change in various locations on five continents as they witness climate change firsthand.

On the evening of December 7, there will be a staged reading of nationally acclaimed playwright Mary Kathryn Nagle ’s play, Fairly Traceable. This play tells the story of two young attorneys – one a citizen of the Ponca Tribe of Oklahoma, the other a citizen of the Pointe-au-Chien Indian Tribe in southern Louisiana – who are both fighting to save their Tribal Nations and families from climate change.  Click here to read reviews.

  • State Bar of Arizona does not approve CLE activities, however, this activity may qualify for approximately 7 credit hours, plus 1.5 credit hours for the Fairly Traceable play. Total of 8.5 credit hours.

Register at: law.asu.edu/climateimpacts
Questions? Contact Jennifer Williams at jennifer.h.williams@asu.edu or 480-727-0420

SCOTUS Denies Cert in Agua Caliente Water Rights Case

Matthew L.M. Fletcher

Here is the order list.

Here are the cert stage materials.

Montana SCT Affirms Constitutionality of CSKT Water Rights Compact

Matthew L.M. Fletcher

Here is the opinion in Flathead Joint Board of Control v. State.

Briefs:

Board brief

State brief

Tribe brief

Board reply

State reply

Cert Stage Briefs in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians

Matthew L.M. Fletcher1 Comment

Here:

Coachella Cert Petition

States Amicus Brief

Agua Caliente Cert Opp

US Cert Opp

Coachella Reply

Desert Water Agency Reply

Agua Caliente Supplemental Brief

Cert Opposition Briefs in Coachella v. Agua Caliente

Matthew L.M. Fletcher

Here:

Agua Caliente Cert Opp

US Cert Opp

Cert petition here.

Federal Court Concludes Spain Extinguished Jemez, Santa Ana, and Zia Pueblo Water Rights

Matthew L.M. Fletcher

Here are the available materials in United States v. Abousleman (D.N.M.):

4383 Magistrate Report

4384 Jemez and Santa Ana Pueblos Objections

4385 US Objections

4386 Zia Pueblo Objections

4388 Coalition Response

4389 State Reponse

4390 US Reply

4392 Pueblo Reply

4397 DCT Order Adopting Magistrate Report

Montana SCT Holds Water Rights Associated with Former Crow Allotment but Now Held by Others are Not Part of Tribal Water Right

Matthew L.M. Fletcher

Here are the materials in In re Scott Ranch:

Opinion/Order 

Amicus Curiae Brief 

Appellant Brief 

Pyramid Lake Paiute Wins More Water in Ninth Circuit

Matthew L.M. Fletcher

Here is the unpublished memorandum in Pyramid Lake Paiute Tribe of Indians v. Board of Directors of the Truckee-Carson Irrigation District.

Briefs:

Pyramid Lake Opening Brief

Response Brief

Reply Brief

Oral argument video is here.

New Scholarship on Indigenous Water Justice

Matthew L.M. Fletcher

Jason A. Robison, Barbara A. Cosens, Sue Jackson, Kelsey Leonard, and Daniel McCool have posted “Indigenous Water Justice” on SSRN.

Here is the abstract:

Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self-determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major transboundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins with a novel conceptualization of indigenous water justice rooted in the historic United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)—specifically, UNDRIP’s foundational principle of self-determination. In turn, the Article offers overviews of the basins and narrative accounts of enduring water-justice struggles experienced by Indigenous Peoples therein. Finally, the Article synthesizes commonalities evident from the indigenous water justice struggles by introducing and deconstructing the concept of “water colonialism.” Against this backdrop, the Article revisits UNDRIP to articulate principles and prescriptions aimed at prospectively realizing indigenous water justice in the basins and around the world.