water rights

Aamodt Case Finally Concludes

Matthew L.M. Fletcher

Here is “Santa Fe County water rights suit reaches milestone after 51 years.”

Ninth Circuit Affirms Dismissal of Crow Allottees Challenge to Water Compact

Matthew L.M. Fletcher

Here is the order in Crow Allottees Assn. v. Bureau of Indian Affairs:

Crow Allottees Memorandum Opinion

Briefs:

Opening Brief

Federal Answer Brief

Reply

Lower court materials here.

Water District Files Cert Petition in Agua Caliente Water Rights Matter

Matthew L.M. Fletcher1 Comment

Here is the petition in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians:

Coachella Cert Petition

Question presented:

Whether, when, and to what extent the federal reserved right doctrine recognized in Winters v. United States, 207 U.S. 564 (1908), preempts state-law regulation of groundwater.

Lower court materials here.

UPDATE (8/14/17):

17-40 -42 Agua Caliente Amicus Brief

Ninth Circuit Decides US v. Gila River Irrigation District

Matthew L.M. Fletcher

Here are the materials, including the opinion:

USA v Gila Valley Irrigation District Opinion

US Opening Brief

GRIC and SCAT Appellants Brief

Freeport Minerals Brief

Irrigation Districts Brief

US Reply

San Carlos Apache Tribe Reply

Gila River Indian Community Reply Brief

Freeport Minerals Reply

Amicus Brief Supporting Appellees

Appellees Supplemental Brief

Appellants Supplemental Brief

Federal Court Orders Agua Caliente Indian Reserved Water Rights Case to Phase II

Matthew L.M. Fletcher

Here is the order in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (C.D. Cal.):

Doc 180 Order. Granting Plaintiff’s Motion to Lift Stay and Proceed with Phase (IN CHAMBERS) 

Federal Claims Court Dismisses Crow Creek Sioux Water Rights Takings Claim

Matthew L.M. Fletcher

Here are the materials in Crow Creek Sioux Tribe v. United States (Fed. Cl.):

6 Motion to Dismiss

12 Response

17 Reply

22 DCT Order

An excerpt:

Plaintiff Crow Creek has sued the United States through the Department of the Interior alleging a Fifth Amendment taking of its reserved water rights. See Winters v. United States, 207 U.S. 564, 576–78, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Its motion has several bases, including standing, ripeness, and issues related to the statute of limitations. Defendant also contends that the Government’s bare trust relationship with Crow Creek does not provide the “money-mandating” statute or regulation necessary for jurisdiction in this court. See United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).
Plaintiff’s pleadings do not show how damages from an alleged taking could have accrued currently, and oral arguments did not clarify this threshold issue. Nevertheless, plaintiff urged the court to permit sufficient discovery for it to address defendant’s jurisdictional arguments. Given the opportunity to inquire into the extent of defendant’s diversion of its rights in the waters of the Missouri River, the Tribe argued it would be able to definitively establish damages. Plaintiff believes that granting defendant’s dispositive motion at this stage would be premature.
Crow Creek would pursue expensive and time-consuming litigation to find some evidence that defendant has taken an amount of water that the Tribe could have used for another, unnamed purpose. For example, counsel stated during oral arguments that plaintiff could hire experts to submit reports on various methods of obtaining appraised values for those waters. Plaintiff believes that those values would supply evidence of the damages that its case now lacks.
The relationship between Native American tribes and the United States is a special one in this court; plaintiff is entitled to every latitude in its efforts to establish a cause of action. In this case, however, opening discovery in response to defendant’s motion to dismiss would result in a waste of resources for both parties. We must grant defendant’s motion for the reasons described below.

DOI Consultation Notice on DOI Reorganization

Sarah M Donnelly

Download(PDF): Tribal Listening Sessions on E.O. 13871: Reorganization of the Executive Branch

Acting Assistant Secretary for Indian Affairs, Michael S. Black, invites Tribal leaders to attend one of the listed listening sessions to provide input on improving “efficiency, effectiveness, and accountability” at the Department of the Interior.

DATES

Central Arizona Water Conservation District Responds to Ak-Chin Suit; Seeks Federal Joinder

Matthew L.M. Fletcher

Here are the new materials in Ak-Chin Indian Community v. Central Arizona Water Conservation District (D. Ariz.):

AnswerCC

motion

Complaint is here.

Federal Court Dismisses Havasupai Water Rights Claim

Matthew L.M. Fletcher

Here are the briefs in Havasupai Tribe v. Anasazi Water Co. (D. Ariz.):

15 Anasazi Motion to Order Joinder

18 Halvorson-Seibold Motion to Dismiss

62 Tribe Response to Motion for Joinder

63 Tribe Response to Motion to Dismiss

64 Tribe Additional Response

72 Anasazi Reply

73 Halvordson-Siebold Reply

103 DCT Order

We posted the complaint here.

Michelle Bryan on Sacred Water within Prior Appropriation

Matthew L.M. Fletcher

Michelle Bryan has posted “Valuing Tribal Sacred Water within Prior Appropriation,” published in the Natural Resources Journal. Here is an excerpt from the abstract:

Much has been written in the area of waters to support fishing rights under treaty. This article does not address these rights, but rather focuses on the sacred nature of the water resource itself. While the two may be complementary, a sacred water use may also exist separate from a recognized treaty fishing right. There are other places where these values should further be reflected, such as federal lands management plans, local land development codes, and environmental assessment review. This piece, however, will focus on the notable absence of sacred value within prior appropriation. This shift is important not only for the legal protections it might afford, but just as importantly as a signal that our water laws can stretch to protect the many interests of our time.