Here are the new materials in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (C.D. Cal.):
62-1 US Complaint in Intervention
News coverage here.
Prior post with tribe’s complaint here.
And the DOJ media release: Continue reading
Coverage here.
Chief Ed Champion of the Nacho Nyak Dun First Nation said his community is not against mining and development.
“We have lived closely with mining for over 100 years. Many of my people are miners or work in the mining industry. We have excellent relationships with mining companies that we work hard to maintain,” Champion said.
“That said, we do not want to see mining in the Peel watershed. To us, that land and water is sacred and should be preserved for future generations.”
The government’s decision created uncertainty for mining and industrial developers, as well, the groups said.
Here are the materials in Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Black (D. Kan.):
248 Watershed District Motion for Summary J
291 Kickapoo Motion for Summary J
An excerpt:
As is evidenced by the briefing, this case has a long and complex factual background. However, the facts material to the pending motions are few and uncontroverted. The Kickapoo Indian Reservation (“Reservation”) lies almost entirely within the District’s boundaries. The Tribe and the District entered into the Watershed Plan and Environmental Impact Statement for the Upper Delaware and Tributaries Watershed (“Agreement”) in 1994 to serve as co-sponsors of a project aimed to carry out works of improvement for soil conservation and for other purposes, including flood prevention. The parties agreed to co-sponsor the project after failed attempts by each party to sponsor the project on its own. The parties reached the Agreement following a procedure established by the United States Department of Agriculture’s Soil Conservation Service (“SCS”), now known as the National Resource Conservation Service, under what is referred to as P.L. 83–566 (the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1001 et seq.). Many years of planning and negotiation by both parties and numerous other contractors, government officials, and agencies preceded the Agreement. In addition to twenty floodwater retarding dams and other various improvements, the Agreement included plans for a multipurpose dam with recreational facilities, otherwise known as the “Plum Creek Project.”
On multiple occasions, the Tribe asked the District to exercise its power of eminent domain to condemn non-Indian-owned land for the Plum Creek Project that the Tribe had been unable to acquire on its own. The District declined the Tribe’s request each time. The Tribe filed this water rights action on June 14, 2006, seeking declaratory relief, injunctive relief, compensatory damages, and specific performance. In essence, the Tribe claims that the Agreement is a binding contract that obligates the District to condemn 1,200 acres of land on the Tribe’s behalf to build the Plum Creek Project.The parties agree that the issue before the court in both summary judgment motions boils down to this: Does the Agreement unambiguously require the District to exercise its eminent domain powers on the Tribe’s behalf to acquire non-Indian land necessary to build the Plum Creek Project? The Tribe contends the answer is yes, and the District argues that the answer is no.
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.
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.
Here is the opinion in Squaxin Island Tribe v. Washington State Dept. of Ecology.
Briefs here:
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:
Here are the materials in Pyramid Lake Paiute Tribe of Indians v. Nevada Dept. of Wildlife:
Nevada Dept. of Wildlife Opening Brief
Nevada State Engineer Opening Brief
Nevada Water Fowl Assn Opening 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.
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.
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