Indian reserved water rights – Page 2

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.

Montana SCT Affirms Constitutionality of CSKT Water Rights Compact

November 13, 2017Matthew L.M. Fletcher

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

Briefs:

Crow Allottees Challenge to Crow Water Compact Dismissed on Federal Immunity Grounds

July 2, 2015Matthew L.M. Fletcher4 Comments

Here are the materials in Crow Allottees Association v. Bureau of Indian Affairs (D. Mont.):

35 BIA Motion for Judgment on the Pleadings

38 Response

42 BIA Reply

59 DCT Order

New Scholarship in Wyoming’s Big Horn River General Stream Adjudication

January 4, 2015Matthew L.M. Fletcher

Jason Robison has posted his forthcoming paper, “Wyoming’s Big Horn General Stream Adjudication, 1977-2014,” on SSRN. It is forthcoming in the Wyoming Law Review.

An excerpt:

Aimed at addressing water rights in the State of Wyoming’s portion of the Wind/Big Horn Basin, including those held by the Eastern Shoshone and Northern Arapahoe tribes on the Wind River Indian Reservation, the Big Horn general stream adjudication is currently poised to draw to a close after 37 years. This article offers an overview of this complex and often contentious legal proceeding, relying mainly on primary sources contained in a digital archive, and situates the adjudication within the broader context of western water law.

Federal Judge Awards Remaining Truckee River Water to Pyramid Lake Tribe

October 3, 2014Matthew L.M. Fletcher

Here is the order in United States v. Orr Water Ditch Co. (D. Nev.):

1173 Motion to Modify

1512 DCT Order

News coverage here.

North Dakota Law Review Article on Missouri River Basin Compact

March 19, 2013Matthew 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.