Water District Files Cert Petition in Agua Caliente Water Rights Matter

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

Federal Claims Court Dismisses Crow Creek Sioux Water Rights Takings Claim

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.

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

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

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

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.

Ak-Chin Indian Community files suit against Central Arizona Water Conservation District (CAWCD)

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

Complaint

Ninth Circuit Rules in Favor of Agua Caliente Reserved Groundwater Claims

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

CA9 Opinion

 

An excerpt:

The Coachella Valley Water District (“CVWD”) and the Desert Water Agency (“DWA”) (collectively, the “water agencies”) bring an interlocutory appeal of the district court’s grant of partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians (the “Tribe”) and the United States. The judgment declares that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe’s reservation in California’s arid Coachella Valley. We agree. In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater. However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.

Briefs here.

Ninth Circuit Materials in Navajo Nation Water Rights Claim to Colorado River

Here are the briefs in Navajo Nation v. Dept. of Interior:

Navajo Opening Brief

BIA Brief

Arizona Brief

Nevada Brief

Water Districts Brief

Navajo Reply

 

Oral argument video here.

Lower court materials here.

US Moves to Recuse Federal Judge from Indian Water Rights-Related Matter Due to Bias against Federal Government

Here is the motion in United States v. Walker River Irrigation District (D. Nev.):

1414 US Motion to Recuse

Crow Allottees v. Dept. of Justice Cert Stage Briefs

Here:

Crow Allottees Cert Petition

Cert Opp Brief

Cert Cert Stage Reply

Lower court materials: briefs, Mont SCT Opinion.
Related federal court materials here.