D.C. Circuit Rejects Property Owners Challenge to Tribal Regulation of Tribal Water Rights on Klamath River — Incidentally, the First Case Caption with Secretary Haaland’s Name

Here is the opinion in Hawkins v. Haaland.

Briefs:

Opening Brief

Answer Brief

Reply

Lower court materials.

Oregon Court Affirms Klamath Tribes’ Water Rights

On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather.

Klamath Tribes Chairman Don Gentry responded to the order, “We are pleased that Judge Wogan upheld the rulings from the administrative phase of the KBA. He reaffirmed that the 1864 treaty entered into between the Klamath Tribes and the United States reserved to the Tribes sufficient water to keep our fisheries and other aquatic resources healthy so that we can protect our natural resources and cultural traditions.”

NARF Staff Attorney Sue Noe explained, “Judge Wogan correctly affirmed quantification of the Tribal water rights based on the habitat needs of the fish, wildlife, and plants. Although he ruled that opponents of the Tribal rights will have another chance to try to reduce the amounts by showing the Tribes don’t need all the water awarded by OWRD to meet their livelihood needs, Judge Wogan made clear in no uncertain terms that the amounts cannot be below what is necessary to provide healthy and productive habitat.”

Importantly, like all other courts that have considered the issue, Judge Wogan ruled that the Klamath Tribes’ water rights extend to Upper Klamath Lake. Upper Klamath Lake forms part of the border of the former Reservation and provides critical habitat for the endangered c’waam and koptu (Lost River and shortnose sucker fish), which are sacred fish species traditionally harvested by the Tribes.

Represented by NARF, the Klamath Tribes successfully achieved recognition of their treaty-reserved water rights in federal court litigation in the 1970s and 1980s in United States v. Adair, but the federal courts left quantification of the water rights to the state adjudication in the KBA. After the successful conclusion of the KBA’s 38-year administrative phase, the Tribes were able to begin enforcing their water rights for the first time in 2013. The administrative determinations are presently on review in the Klamath County Circuit Court and Judge Wogan’s ruling is the latest to come out of that process.

Tribes and States Sue to Block Sale and Removal of National Archives in Seattle

Here is the complaint in State of Washington v. Vought (W.D. Wash.):

1 Complaint

15 Motion for Preliminary Injunction

30 Amended Complaint

32 Opposition

37 Proposed Findings of Fact and Conclusions of Law and Proposed Form of Injunctive Relief

40 Reply

News coverage:

Washington AG press release: https://www.atg.wa.gov/news/news-releases/ag-ferguson-announces-coalition-lawsuit-save-national-archives

Indian Country Today: https://indiancountrytoday.com/news/tribes-sue-to-stop-relocation-of-rare-documents-3wsWTPg0fka-vOAV1Uoj2g

Seattle Times: https://www.seattletimes.com/seattle-news/ag-ferguson-with-tribes-and-historic-groups-sues-feds-over-seattle-national-archives-closure/

Spokesman Review: https://www.spokesman.com/stories/2021/jan/04/ag-bob-ferguson-sues-to-stop-sale-of-seattle-natio/

Yakama Nation press release:

Press Release_YN_OMB_Seattle Archives Lawsuit (1.4.21) (002)

Federal Court Turns Down Yurok Effort to Enjoin Federal Action Threatening Salmon

Here are the materials in Yurok Tribe v. Bureau of Reclamation (N.D. Cal.):

908 DCT Stay Order

910 Yurok Motion

914 Klamath Water District Amicus Brief

916 Klamath Tribes Opposition

917 Klamath Water Users Opposition

919 US Opposition

922 Yurok Reply

924 DCt Order

Prior post here.

Update in Klamath River Flow Litigation [Rule 19 Motion]

Here are updated materials in Klamath Irrigation District v. Bureau of Reclamation (D. Or.):

Dkt 89 Magistrate Findings and Recommendation of Dismissal

ECF 70 Second Amended Complaint

ECF 73 Shasta 2nd amended complaint

ECF 74 HVT Motion to Dismiss

ECF 75 Klamath Motion to Dismiss

ECF 76 Feds Response to Motion to DIsmiss

ECF 83 Hoopa Reply Re Dismissal

ECF No 77 ShastaViewOppMotDismiss

ECF No 78 KIDopposMotDismiss

Here is a new pleading in a related case, Yurok Tribe v. Bureau of Reclamation (N.D. Cal.):

909-1 Yurok Motion

Cert Petition by Western Ranchers and Farmers Challenging Reserved Water Rights [updated]

Here is the petition in Bales v. United States:

baley-cert-petition.pdf

Question presented:

Whether, against the legal backdrop of Congress’s and this Court’s recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the Endangered Species Act to constitute the adjudication and administration of water rights for tribal purposes.

Lower court materials here.

Update:

05142020-1 PacificCoastFedFishermen Opposition Brief

OpposBriefUSA-20200514173954985_19-1134 Baley

Federal Circuit Decides Baley v. United States [Indian reserved water rights to Klamath River water predate farmers]

Here is the opinion.

Here are the briefs:

baley-opening-brief.pdf

us-brief.pdf

baley-reply-brief.pdf

hoopa-amicus-brief.pdf

klamath-tribe-amicus-brief.pdf

yurok-tribe-amicus-brief.pdf

indian-law-professors-brief.pdf

nrdc-brief.pdf

oregon-amicus-brief.pdf

pacific-coast-federation-of-fishermen-brief.pdf

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Klamath Tribes

Water Attorney(RFQ). The Tribes is accepting “Qualification Statements” from attorneys or law firms that are active members in good standing of the Oregon State Bar (or is willing to obtain admission into the Oregon State Bar at own expense) and have experience in Oregon water law and Indian Water Rights. The primary purpose is to provide legal advice and represent the Klamath Tribes on a number or critical natural resource and water-related issues ongoing in the Klamath Basin. RFQI’s will be accepted up to 4PM on October 10, 2017.

Ho-Chunk Nation

Tribal Prosecutor, Black River Falls, W.I. The position hours are Monday-Friday 8 AM-4:30 PM. Pay depends on qualifications. Interested applicants should submit an application, resume, and transcripts if they are within 2-5 years of graduating law school. Applicants may visit the Ho-Chunk nation website to apply.

Confederated Tribes of the Colville Reservation

Managing Attorney, Office of the Reservation Attorney. Requires JD/LLM from ABA accredited law school, licensure and membership in good standing in any State Bar; must be licensed by the Washington State Bar Association within 2 years of hire. At least 10 years’ experience as an attorney required, with at least 5 years’ experience supervising legal office attorneys/staff. Requires experience/expertise in Indian Law, excellent legal research and writing skills, budgeting and organizational skills. Requires expertise and experience in Indian Law and tribal government operations. Must have at least a substantial working knowledge in applicable federal and state laws, regulations and rules related to tribal governmental operations. Must be familiar with the applicable laws, rules and regulations pertaining to tribal jurisdiction/sovereignty. Salary DOE; provides generous health and retirement benefits. Requires completed application, cover letter, resume listing at least three professional references and writing sample. Contact Human Resources at www.colvilletribes.com for application materials and more information. Open until filled. First round applications review Sept. 15, 2017.

Navajo Nation Washington Office

Government and Legislative Affairs Associate. Assists the Nation with protecting its interests by assisting on proposed and pending congressional legislation and policy initiatives. Visit the Navajo Nation website to apply. Open until filled.

DNA-People’s Legal Services

Medical Legal Partnership Attorney, Tuba City, A.Z.  In collaboration with hospitals and health systems, we provide free, comprehensive legal services to low-income children and their families in the medical home setting. Provide trainings, resources, and technical assistance to medical and social service providers on the full range of health care programs and services that benefit patients. Conduct systemic advocacy to improve access to health care and reduce barriers to support programs for low-income children and their families. This position reports to the Managing Attorney. The MLP program is a client referral program from doctors, who have been trained by the MLP
attorney to identify legal issues. Closes October 13, 2017.

Staff Attorney, Hopi Public Defender. Visit the DNA-People’s website to apply. Also closes October 13.

Hobbs, Straus, Dean & Walker, LLP

Associate Attorney, Portland, O.R. Qualifications for candidates include: (1) superior research and writing skills; (2) strong academic performance; (3) strong communication skills; and (4) a commitment to tribal representation. We are looking for candidates who have between 1-4 years of legal experience. Prior experience in the field of Indian law is strongly preferred. Hobbs Straus Dean & Walker, LLP, a national law firm with offices in Washington, DC, Portland, OR, Oklahoma City, OK, Sacramento, CA and Anchorage, AK, specializes in Federal Indian Law and has worked for over 30 years to realize positive change in Indian Country. Our attorneys are dedicated to promoting and defending sovereign rights, expanding opportunities for tribes, and improving the lives of American Indians and Alaska Natives. Interested candidates should submit a cover letter, resume, law school transcript, and writing sample to Tim Erdman at tim.erdman@hobbsstraus.com.

Berkey Williams LLP

Indian Law Fellowship, Berkeley, C.A. The one-year Fellowship offers a competitive salary, full benefits, training, and the opportunity to work with experienced attorneys in a firm focused exclusively on serving Indian tribes and tribal organizations. The Fellowship begins in September, 2018, with some flexibility depending upon the candidate’s schedule. Interested law school graduates or 3rd year law school students should send a cover letter, resume and a writing sample to Gloria Coronado, ICWA/Administrative Assistant, at gcoronado@berkeywilliams.com. No phone calls please. Deadline to apply is October 6, 2017.

California Indian Legal Services

Staff Attorney, Sacramento office. The Staff Attorney will assume a varied case load that may include: brief counsel and services to low income Indian individuals; state and federal court litigation; contract negotiation; advising tribal clients; developing and implementing constitutions, codes, and policies for tribal clients; making presentations; and ICWA related dependency cases. Submit a resume, cover letter, and writing sample to Patricia De La Cruz-Lynas, Director of Administration, California Indian Legal Services, Re: Sacramento Staff Attorney, 117 J Street, Suite 300, Sacramento, CA 95814. E-mail hiring@calindian.org. We will accept applications until the position is filled. All applicants will be notified when a final hiring decision is made.

Last Friday Job Announcements9/1/17

Ninth Circuit Decides Klamath-Trinity River Flow Dispute in Favor of Feds and Tribes

Here is the opinion in San Luis & Delta-Mendota Water Authority v. Haugrud.

From the court’s syllabus:

The panel affirmed in part and reversed in part the district court’s judgment, and held that the Bureau of Reclamation had the authority to implement the 2013 release of Trinity River water from the Lewiston Dam, above and beyond the amount designated in the applicable water release schedule.

Reversing the district court, the panel held that the Act of August 12, 1955, gave the Bureau the authority to implement the 2013 flow augmentation release to protect fish in the lower Klamath River. Affirming the district court, the panel also held that the 2013 flow augmentation release did not violate Central Valley Project Improvement Act (“CVPIA”) section 3406(b)(23), which called for a permanent water release that would serve only the Trinity River basin. The panel further held that the 2013 flow augmentation release did not violate California water law and, in turn, did not violate the Reclamation Act of 1902 or CVPIA section 3411(a), both of which require the Bureau to comply with state water permitting requirements.

Briefs here.