water rights

North Dakota Law Review Article on Missouri River Basin Compact

Matthew L.M. Fletcher

Jeffrey T. Matson has published “Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider an Inter-Sovereign Approach to Accommodate Federal and Tribal Interests in Water Resources” in the North Dakota Law Review.

The abstract:

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of Indian reserved water rights and tribal sovereignty. As States and Tribes contemplate a rebalancing of power in the MRB, it is essential that any water resources management solution provide a forum in which affected States, Tribes, and the Federal government might work together in pursuit of interconnected interests. Accordingly, it is time for stakeholders to think beyond the dualistic “federal-interstate” compact arrangement and seriously consider a pluralistic “federal-interstate-tribal” approach – even if Indian reserved water rights are not yet quantified. Although such a tripartite approach is a departure from traditional compacting practice, the great weight of Indian reserved water rights warrants tribal representation on any commission charged with implementing a twenty-first century MRB water resources compact. Further, it would be unrealistic to expect a federal commissioner to represent tribal interests until such time as rights are quantified, given the Federal government’s conflict of interest in operating the System for other consumptive users. This Article concludes that the Federal government’s interests in flood protection, navigation, and national security, and the Tribes’ interests in protecting reserved water rights and tribal sovereignty, warrant an inter-sovereign approach whereby power is shared equally among signatories to this compact.

Havasupai Tribe, Conservation Groups Challenge Uranium Mine Threatening Grand Canyon

Matthew Campbell1 Comment

The complaint can be seen here.  The Center for Biological Diversity’s News Release can be seen here.

A snippet of the complaint:

After initial approval of the Canyon Mine, the Forest Service formally designated Red Butte and surrounding areas as a Traditional Cultural Property. This designation means Red Butte is eligible for inclusion in the National Register of Historic Places and meets the definition of a “historic property” under the National Historic Preservation Act (NHPA). The Forest Service also recognized that Red Butte is a sacred site to the Havasupai Tribe. The Forest Service’s 1986 approvals did not analyze the Canyon Mine’s potential effects to Red Butte as a historic property under the NHPA. The Forest Service recently commenced consultation with the Havasupai Tribe concerning the Canyon Mine’s impacts to Red Butte, and claims that it intends to continue consultation. The Forest Service is refusing to undertake and complete a NHPA Section 106 Process relating to adverse impacts to the Red Butte TCP, including consulting with the Tribe for the purposes of developing a Memorandum of Agreement, prior to allowing Canyon Mine to restart mining operations, as required under NHPA and its regulations, 16 U.S.C. § 470f, 36 C.F.R § 800.13(b)(1).

Washington Supreme Court Decides Water Rights Case Involving Yakama Indian Nation

Matthew L.M. Fletcher1 Comment

Here is the opinion in Dept. of Ecology v. Acquavella:

Wash SCT Opinion

And the briefs are here:

Leonard Masten on why PacifiCorp should remove its Klamath River Dams

Ann Tweedy

Here.

Ongoing Litigation Regarding Uranium Mining around the Grand Canyon

Matthew Campbell1 Comment

Information can be found here and here.

Motion to Intervene

KBIC, Eagle Rock, and Kennecott Mine in Scientific American

Kate Fort

The article is Part 5 in a series called “Pollution, Poverty and People of Color”

“A Michigan Tribe Battles a Global Corporation”:

An abundant resource, this water has nourished a small Native American community for hundreds of years. So 10 years ago, when an international mining company arrived near the shores of Lake Superior to burrow a mile under the Earth and pull metals out of ore, the Keweenaw Bay Indian Community of the Lake Superior Band of Chippewa had to stand for its rights and its water.

And now, as bulldozers raze the land and the tunnel creeps deeper, the tribe still hasn’t backed down.

“The indigenous view on water is that it is a sacred and spiritual entity,” said Jessica Koski, mining technical assistant for the Keweenaw Bay community. “Water gives us and everything on Earth life.”

The Keweenaw Bay Indians are fighting for their clean water, sacred sites and traditional way of life as Kennecott Eagle Minerals inches towards copper and nickel extraction, scheduled to begin in 2014.

It’s a good longreads article. Our previous coverage, including the multitude of lawsuits the article mentions, is here.

Kansas Kickapoo Water Rights Claim Partially Dismissed

Matthew L.M. Fletcher1 Comment

Here are the materials in Kickapoo Tribe of Indians of the Kickapoo Reservation in Kan. v. Black (D. Kan.):

DCT Order Dismissing Individual Defendants

Individual Defendants Motion to Dismiss

Kickapoo Opposition

Individual Defendants Reply

And:

Proposed Second Amended Complaint

Long Read on Goshute Water Issues

Kate Fort

Here. From the Salt Lake City Weekly.

H/T @pechohawk

United States Removes Oklahoma’s Water Rights Case to Federal Court

Matthew L.M. Fletcher

Here is the notice of removal and all the accompanying documents:

Fed Govt Removal Notice

And the news coverage.

 

Release: Important Victory in the Klamath Tribes Water Rights Adjudication

Matthew L.M. Fletcher1 Comment

Important Victory in the Klamath Tribes Water Rights Adjudication

Chiloquin, OR- Today was a milestone in the lengthy Klamath Basin Water Rights Adjudication. The judge hearing the part of the Adjudication that deals with the claims of the Klamath Tribes issues six Proposed Orders quantifying the Tribes’ water rights. In each case he ruled largely in favor of the Tribes’ claims.

“The Proposed Orders give everyone in the Basin plenty to think about,” said Jeff Mitchell who leads the Klamath Tribes’ Negotiating Team. “These rulings highlight the role that the Klamath Basin Restoration Agreement can play in resolving Basin water issues. The Tribes will be evaluating the rulings and discussing them with others in the Basin to determine the best path from here on.”

Some interests in the Basin advised people that the Tribes’ water rights are minimal, but those interests have been proven wrong. People who followed that advice have obviously been misled in a situation where they are risking a lot.

The rulings encompass the Williamson, Sycan, Sprague, and Wood Rivers along with many of their tributaries, as well as the Klamath Marsh and springs scattered throughout the former Klamath Reservation. Cases involving Upper Klamath Lake and the Klamath River are expected to have decisions handed down in April.

“These rulings emphasize the need for Basin water interests to work together to find ways to share the water, share the pain of drought, and share the bounty of our waterways,” said Tribal Vice-Chairman Don Gentry. “The Tribes are committed to restoring fisheries and water bodies in the Basin, and we believe that agricultural and other water dependent communities can be restored at the same time. That is what the KBRA can do,” he said.

The ruling is welcomed by the Tribes who have fought for their treaty rights for many decades, and are prepared to fight many more. The Tribes’ commitment to the Adjudication reflects their commitment to restoring the health of Basin fisheries and water bodies. “Our commitment to these bounties provided by the Creator will never end,” said Mitchell.