Winters rights – Turtle Talk

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

June 5, 2017Matthew L.M. Fletcher

Here are the materials in Crow Creek Sioux Tribe v. United States (Fed. Cl.):

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.

Ninth Circuit Briefs in Agua Caliente Band Water Rights Case

October 12, 2015May 18, 2016Matthew L.M. Fletcher2 Comments

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

Water Districts Opening Brief

Agua Caliente Brief

US Briefpdf

2016-02-18 – Dkt 035-1 – Brief Amicus Curiae of the SCA Tribal Chairmen’s Association, et al. in Support of Appellees

2016-02-18 – Dkt 036 – Brief of Amici Curiae Law Professors in Support of Appellee

Lower court materials here, here, and here.

Update in Agua Caliente Band v. Coachella Valley Water District

September 21, 2015Matthew L.M. Fletcher1 Comment

Briefs filed by the Tribe and the United States to obtain summary judgment on the water districts’ equitable defenses asserted in response to the Tribe’s claim for a declaration of its federally reserved rights to groundwater.

Here:

2015-09-18 – Dkt 137 – US Notice and Motion for Partial Summary Judgment…

2015-09-18 – Dkt 138 – ACBCI Notice and Motion for Partial Summary Judgm…

Prior materials here.

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