Indian water rights

New Scholarship on Arizona v. California

Matthew L.M. Fletcher

Amy Cordalis and Daniel Cordalis have published “Indian Water Rights: How Arizona v. California Left an Unwanted Cloud over the Colorado River Basin” in the Arizona Journal of Environmental Law.

The abstract:

The Colorado River is one of the most important rivers in the world. The river’s 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters are allocated through a complex body of laws collectively referred to as the “Law of the River,” which includes an international treaty, two interstate water compacts, numerous federal and state statutes, and more than a dozen Indian water rights settlements. For thousands of years before the Law of the River, however, American Indians lived and irrigated within the Colorado River Basin, making due with its characteristically seasonal rains and difficult growing conditions. Today, in a cruel but all-too common twist for tribes, twelve of the basin’s twenty-eight tribes have not had their water rights completely quantified, leaving many of the basin’s oldest inhabitants without a legally secure source of water. This begs the question of how the Law of the River developed such that the Colorado River is already over-allocated but Indian water rights are to a large extent unaccounted for, and tribes—occupying and using water in the basin since time immemorial—are left struggling for whatever remaining drops they can squeeze out of the basin. And, perhaps more to the point, the question arises how Arizona v. California recognized this exact issue in the Lower Colorado River Basin and could not to fully resolve it. This article finally takes the position that tribes, the states, and the federal government must work together to settle Indian water rights claims to provide certainty to all Colorado River basin water users amidst growing undertainty from polulation growth and climate change.

Federal Court Dismisses Navajo Colorado River Water Rights Claims

Matthew L.M. Fletcher2 Comments

Here are the materials in Navajo Nation v. Dept. of Interior (D. Ariz.):

240-1 Interior Motion to Dismiss

253 Hopi motion to dismiss

282 Navajo Response

293 Interior Reply

305 DCT Order Dismissing Claims

Anishinaabe Nibi Inaakonigewin (water law) Report by Aimée Craft

Matthew L.M. Fletcher

Amazing material. Here.

Montana SCT Materials on Failed Challenge to Flathead Reservation Water Compact

Matthew L.M. Fletcher

Here are the briefs and opinion in Western Montana Water Users Assn. v. Mission Irrigation District (Mont.):

Opinion

Appellant Brief

Appellee Brief

CSKT Amicus Brief

Montana Reserved Water Rights Compact Commission Amicus

Montana Water Resources Assn Amicus

Reply Brief

News coverage here, via North Dakota Supreme Court site.

NYTs on “Water War” on Flathead Reservation

Matthew L.M. Fletcher

Here.

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:

Tom Schlosser’s New Paper on Klamath River Hydroelectric Restoration Agreements

Matthew L.M. Fletcher

Tom Schlosse’rs new article was published by the Washington Journal of Environmental Law & Policy: “Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements.” You can download it here.

Here is the abstract:

In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application process to prevent the Federal Energy Regulatory Commission from issuing a properly-conditioned license for dams in the Klamath River that will protect the passage of vital fish populations. This article argues that the agreements prioritize the water rights of non-Indian irrigation districts and utility customers over first-in-time Indian water and fishing rights.

Colorado Supreme Court Rules against Southern Ute Tribe in Water Claims Case 4-3

Matthew L.M. Fletcher

Here is the opinion in Southern Ute Tribe v. King Consolidated Ditch Co.

The court’s syllabus:

The Supreme Court affirmed the water court’s ruling that the application in this case, which was filed to determine whether an adjudicated priority decreed in a prior case encompasses wintertime stockwater use, qualifies as a determination of a water right under CRS § 37-92-302(1)(a) and was properly published via the résumé notice procedures of CRS § 37-92-302(3). Publication of the résumé gave notice of the application to the Southern Ute Tribe, along with the holders of all other water rights on the stream. The late-filed verification of the application related back to the date of the original application pursuant to C.R.C.P. 15(c), and the water court did not abuse its discretion in disallowing the Tribe’s untimely statement of opposition and denying the Tribe’s motion to intervene.

San Luis Rey Indian Water Authority Dispute

Matthew L.M. Fletcher

News article here, via Pechanga.

Here is the brief in the California appellate case: San Luis Rey Indian Water Authority Amicus Brief.

Here is the docket for the case.

 

 

Nevada Supreme Court Decision in Pyramid Lake Paiute Water Rights Suit

Matthew L.M. Fletcher

Here is the opinion in Pyramid Lake Paiute Tribe of Indians v. Ricci.

Excerpts:

In this appeal, we review the State Engineer’s decision to grant Nevada Land and Resource Company, LLC’s (NLRC), change application for its water rights in Washoe County’s Dodge Flat Hydrologic Basin.  In 1980, NLRC obtained permits to appropriate Dodge Flat groundwater for temporary use in a mining and milling project.  That project failed to materialize, but NLRC kept its water rights valid and in good standing.  Twenty years later, NLRC applied to change its use from temporary to permanent and from mining and milling to industrial power generating purposes.[1]  The Pyramid Lake Paiute Tribe (the Tribe) opposed the application.  After the State Engineer granted the application, the Tribe filed a petition for review in district court.  The district court denied the petition, and the Tribe now appeals to this court.

***

Substantial evidence supports the State Engineer’s conclusion that Dodge Flat Basin contains unappropriated water and that any harm to existing water rights or the public’s interest is the result of the Tribe’s unpermitted use.  We therefore affirm the State Engineer’s ruling.