water rights

“Tribes Win Big on Major Water Dispute in Nevada”

Matthew L.M. Fletcher

Here.

An excerpt:

Indian Tribes in eastern Nevada received a great victory in a long-standing fight to protect their sacred lands and water from being drained and converted into a barren dust bowl by Las Vegas and the Southern Nevada Water Authority (SNWA).

Since the late 1980s, Las Vegas water officials have pushed plans to import groundwater from across eastern Nevada to supply future growth and provide a backup supply to the Las Vegas Valley, which gets 90 percent of its drinking water from an overtaxed and drought-stricken Colorado River. Water authority officials hope to deliver water to the valley from as far north as Great Basin National Park through a network of pumps and pipelines stretching more than 300 miles and costing as much as $15 billion. The attorney for SNWA has aptly called this the “largest water case in Nevada’s history”.

On December 10, 2013 the Seventh Judicial Court of Nevada in Ely reversed the Nevada State Engineer’s decision to grant SNWA virtually all of the groundwater in eastern Nevada water basins (about 84,000 acre feet annually). The Court ruled that the amount of water awarded had to be reduced and recalculated. Importantly, the Court also agreed with the Tribes that the monitoring and mitigation approved by the State Engineer had to be revised to include more participants and have more detailed standards to protect against environmental damage from draining groundwater from the basins.

Colorado SCT Water Rights Ruling

Matthew L.M. Fletcher

Here is the opinion in Pawnee Well Users Inc. v. Wolfe (Colo.).

The court’s summary:

2013 CO 67. No. 12SA13. Pawnee Well Users, Inc.v. Wolfe, State Engineer.
Ground Water Regulation—Administrative Law and Procedure—Rules, Regulations, and Other Policymaking—Judicial Review of Administrative Proceedings.

The Supreme Court held that the water court erred in invalidating a basin-specific rule of the final Produced Nontributary Ground Water Rules (Final Rules) known as the Fruitland Rule, based on a stipulated agreement between the State Engineer and the Southern Ute Indian Tribe. Another Final Rule—known as the Tribal Rule—states: “These Rules and regulations shall not be construed to establish the jurisdiction of either the State of Colorado or the Southern Ute Indian Tribe over nontributary ground water within the boundaries of the Southern Ute Indian Reservation.”

The Tribal Rule does not and cannot divest the State Engineer of his authority to promulgate the Final Rules governing water extracted during oil and gas production throughout the state, including nontributary groundwater. By passing HB 1303, the General Assembly authorized the State Engineer to adopt rules to assist with the administration of nontributary ground water extracted in the course of coalbed methane production and other oil and gas development in Colorado, thus authorizing the State Engineer to promulgate the Fruitland Rule. Because administrative agencies powers and duties as given by the legislature, the State Engineer cannot establish or disestablish his own jurisdiction.

Further, because the Fruitland Rule was issued pursuant to the authority granted in HB 1303—authority that was not divested by the Tribal Rule—it follows that the water court erred in labeling the Fruitland Rule an “advisory” rule and requiring the State Engineer to obtain a judicial determination that he had authority to administer nontributary ground water within the Southern Ute Indian Tribe’s Reservation’s boundaries. The Court therefore reversed the water court’s order and remanded the case for further proceedings.

Squaxin Island Loses Groundwater Rights Appeal in Washington COA

Matthew L.M. Fletcher

Here is the opinion in Squaxin Island Tribe v. Washington State Dept. of Ecology.

Briefs here:

State Brief

Tribe Brief

Reply Brief

Swinomish Prevails in Washington COA Challenge to State Dept. of Ecology in Matter Affecting Treaty Rights

Matthew L.M. Fletcher1 Comment

Here is the opinion in Swinomish Indian Tribal Community v. Washington Dept. of Ecology (PDF).

An excerpt:

This case involves the validity of an amended rule from the Department of Ecology (Ecology) that reserves water from the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows these uses will impair established minimum instream flows necessary for fish, wildlife, recreation, navigation, scenic and aesthetic values. Ecology relies on RCW 90.54.020(3)(a) for authority to make the reservations of water despite the existing minimum flows. This statutory provision allows impairment of stream base flows when overriding considerations of public interest are served. The Swinomish Indian Tribal Community (Tribe) petitioned for review in superior court, challenging the validity of Ecology’s amended rule reserving the water.

Available briefs here:

Press Release on Aboriginal Water Rights & Title

Kate Fort

Here. From the Union of BC Indian Chiefs.

Separate story here from APTN about a blockade by the Tahltan Nation in BC to protect headwaters.

Ninth Circuit Decides Pyramid Lake Paiute v. Nevada — Water for Wetlands Appeal

Matthew L.M. Fletcher2 Comments

Here are the materials in Pyramid Lake Paiute Tribe of Indians v. Nevada Dept. of Wildlife:

CA9 Opinion

Nevada Dept. of Wildlife Opening Brief

Nevada State Engineer Opening Brief

Nevada Water Fowl Assn Opening Brief

Federal Answer Brief

Pyramid Lake Paiute Answer Brief

The court’s syllabus:

Affirming the district court’s judgment, the panel held that the district court correctly  concluded that diversion of water for waterfowl habitat is not “irrigation” within the meaning of the federal court Alpine decree governing water rights in the Newlands Reclamation Project.

This appeal concerns applications filed by the Nevada Department of Wildlife and the Nevada Waterfowl Association to transfer water rights from agricultural  land in the Newlands Project to the Carson Lake and Pasture, a wildlife refuge located within the Lahontan Valley wetlands at the terminus of the Carson River. Because the  applicants proposed to use the transferred water to support the growth of plants used by wildlife, they argued that the intended use of water at Carson Lake and Pasture  constituted irrigation. The Pyramid Lake Paiute Tribe and the United States protested the applications.

Determining that the Tribe had standing, the panel held that both the Alpine Decree and the Nevada water code speak of irrigation solely in the context of agriculture and distinguish such use from the application of water for recreational, aesthetic, and wildlife purposes. Therefore, the panel agreed with the district court that the State Engineer’s approval of the applications to transfer the non-consumptive use portion of the applicants’ water rights violated Administrative Provision VII of the Alpine Decree because the applications sought a change in the manner of use to a non-irrigation purpose.

New Scholarship on San Carlos Apache Water Rights

Matthew L.M. Fletcher

Daniel Lee has published his note, “Statutes of Ill Repose and Threshold Canons of Construction: A Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States” in the Seattle University Law Review.

Here is the abstract:

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and awarded significant water rights to private parties and other Indian tribes. In particular, this Note focuses on the Federal Circuit’s decision in 2011 that the San Carlos Apache Tribe could not seek damages against the United States for improperly diminishing the Tribe’s reserved water rights to the Gila River under the Decree because the court determined that the statute of limitations had run. This Note argues that the case was wrongly decided. It then proposes two new analytical devices to overcome the recent trend of courts denying remedies to tribes based on supposedly unambiguous language of treaties, statutes, and decrees.

New Scholarship on Winters Rights

Matthew L.M. Fletcher

Jesse H. Alderman has posted his paper, “Winters and Water Conservation: A Proposal to Halt ‘Water Laundering’ in Tribal Negotiated Settlements in Favor of Monetary Compensation,” on SSRN. The final version of the paper appears in the Virginia Environmental Law Journal. Here is the abstract:

In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior — the same agency tasked with a fiduciary duty to hold all tribal assets in trust — constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the pace of development has placed unsustainable strain on the groundwater aquifers and surface waters of the parched Interior West, all while untold millions of acre-feet of water are still owed to Indian tribes under Winters. As state courts and the U.S. Supreme Court have proven hostile to Indians, tribes have increasingly settled their Winters claims through negotiation with states, cities, and other junior appropriators. The benefits of these negotiated settlements have proven illusory. While tribes turn their “paper rights” into “wet water,” they are often shortchanged, and bound by agreement to market water to competing municipal economies off-reservation. The linchpin of most negotiated settlements is federal investment in otherwise politically unpalatable water delivery projects, made possible by the purported necessity of settling senior Indian claims. This form of exchange might critically be called “water laundering.” This Article argues that negotiated settlements are bad public and environmental policy. As an alternative to those negotiated settlements, this Article proposes that tribes should instead seek financial compensation for their inchoate Winters rights by suing the federal government for a century of abject breach of its fiduciary duty to hold water in trust for the benefit of tribes. This suit should be modeled on the recent Cobell class action litigation, where Congress ratified a $3.4 billion settlement with the Departments of Interior and Treasury for similar mismanagement of Indian allotment lands. A class action approach would allow the tribes to receive the maximum financial value, and vindicate rights long neglected by the federal fiduciary, all while averting further overconsumption of the West’s perilously scarce water resources.

A Historic Assertion of Water Rights by the Klamath Tribes

Adrea Korthase

An excerpt from the Oregonian

In March, after 38 years of work, the state found that the tribes’ water rights dated to “time immemorial,” making them by far the most senior. That means the tribes will get water to protect fish in traditional fishing grounds, including two species of suckers on the endangered species list.

Farmers irrigating through the federal government’s 1905 Klamath Reclamation Project, covering roughly 200,000 acres that draw from the lake, will also get water, though they’ll face restrictions, too.

But “off-project” irrigators on about 150,000 acres above the lake generally have junior water rights to reclamation-project irrigators. They’ll have to tap wells if they can or see their water supplies reduced or shut off.

The AP story is here.

The administrative law decision and other materials can be found here.

Agua Caliente Sues for Water Adjudication

Matthew L.M. Fletcher2 Comments

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

Complaint for Declaratory and Injunctive Relief (conformed)