Law Commons^™

A New Moment For Indian Water Rights Settlements, Max Clayton

Natural Resources Journal

Indian water rights settlements have been the primary mechanism to resolve water conflicts between tribal governments and state, municipal, and non-governmental parties. Although scholars have for decades roundly criticized settlements for their many shortcomings, this paper suggests that a combination of forces has altered the conditions for Indian water rights settlements. Settlement remains a difficult process, but a new moment for Indian water rights settlement may have arrived. This paper explains how political conditions have changed and makes a novel legal argument to supply a strategy for tribal governments to advance their bargaining position in settlement discussions.

Brief Of Tribal Nations And Indian Organizations As Amici Curiae In Support Of The Navajo Nation, U.S. Supreme Court Docket No. 21-1484, Monte Mills, Heather D. Whiteman Runs Him, Dylan R. Hedden-Nicely, John E. Echohawk, Steven C. Moore, David L. Gover, Joe M. Tenorio, Ada Montague Stepleton, Morgan E. Saunders, Wesley James Furlong, Sydney Tarzwell

Court Briefs

SUMMARY OF ARGUMENT: The Winters Doctrine recognizes and gives effect to the promises made by the United States in treaties, congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and viable homelands. These promises, made in exchange for the Tribal Nations’ cession of billions of acres of land, paved the way for the non-Indian settlement of the West. Although every tribal homeland is unique, invariably, each requires water to be livable. Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the …

A Bold Plan For Saving The Colorado River, Mark Squillace

Publications

No abstract provided.

New Strategies For Groundwater Litigation In Texas, Amy Hardberger

William & Mary Environmental Law and Policy Review

This Article evaluates the evolution of the understanding of groundwater rights since the Day decision and assesses the relative power of property rights in groundwater that have emerged and what can be done to equalize resulting inequities. Part I reviews the current state of groundwater ownership rights and includes a brief history of litigation that led to that point. Part II explains the authority and obligations of groundwater conservation districts, which create a regulatory overlay on the common law vested rights through permitting rules and the statewide planning process. Part III summarizes the history of constitutional challenges litigated after the …

Groundwater Exceptionalism: The Disconnect Between Law And Science, Christine A. Klein

UF Law Faculty Publications

Most judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and …

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

From Loon Lake To Chuckanut Creek: The Rise And Fall Of Environmental Values In Washington's Water Resources Act, Rachael Paschal Osborn

Washington Journal of Environmental Law & Policy

The year 2021 marks the 50th anniversary of the Water Resources Act of 1971, Washington’s program to protect instream flows in state rivers. Implementation has been controversial and, even a half century later, incomplete. Part 1 introduces the Act. Part 2 examines its legislative history, and administrative development by the Department of Ecology. The Act innovated water allocation, putting instream flows and public uses of rivers on par with out-of-stream water rights. But river protection labors under serious limitations, chief among them the subordination of instream flows to pre-existing water rights. And, although only half of Washington’s watersheds are protected …

Australia's First Nations Community And The Right To Water, Maya Martin Tsukazaki

Human Rights Brief

No abstract provided.

Aamodt Litigation Settlement Completion, United States 116th Congress

Native American Water Rights Settlement Project

Amends the Aamodt Litigation Settlement Act (Pub. L. 11-291) to increase funding for Pueblo Water Facilities from $106.4 million to $243.4 million and making available $137 million for Regional Water System funding.

Brief Of Amici Curiae Professors Ronald A. Cass, David F. Forte, James L. Huffman, Donald J. Kochan, Jesse J. Richardson And Reed Watson In Support Of Petitioners, David F. Forte, Ronald A. Cass, James L. Huffman, Donald J. Kochan, Jesse J. Richardson, Reed Watson

Law Faculty Briefs and Court Documents

The Court of Federal Claims ruled that the Klamath, Yurok and Hoopa (hereafter Tribes) reserved water rights in the Klamath River Basin are of a volume at least equal to the amount of water the Environmental Protection Agency has determined to be necessary to trigger endangered species protection. In the absence of an adjudication in state or federal court and contrary to the long history of federal deference (both by Congressional enactment and judicial precedent) to state adjudication of water rights, the Federal Circuit affirmed and thus preempted, without the participation of affected parties including petitioners, the State of Oregon’s …

Navajo Nation V. United States Department Of The Interior, Adam W. Johnson

Public Land & Resources Law Review

The Navajo Nation sued the United States government alleging the government breached its trust obligation over the allocation of water rights in the Colorado River Basin. On remand, the district court denied the Navajo Nation leave to file its third amended complaint for futility, holding that the general trust relationship was insufficient to support the Nation’s breach of trust claim.

Don't Go In The Water: On Pathological Jurisdiction Splitting, Jamison E. Colburn

Journal Articles

Waters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind.

Water For Fish And Farms: An Examination Of Instream Flow Programs In Montana Using Spatially-Explicit Water Rights Data, Anna Leigh Crockett

Graduate Student Theses, Dissertations, & Professional Papers

The state-level institutions governing water use in the western United States have increasingly come under pressure and scrutiny related to their inability to navigate water use conflicts in recent decades. Rapid population growth and shifting public values towards leaving water instream for recreational and environmental purposes pose challenges to Montana water supplies which are predominantly allocated for irrigated agriculture. Additionally, while water scarcity and unpredictable availability are not new dilemmas in Montana, the rate at which climate change is driving shifts in the distribution, timing, and availability of water supplies is unprecedented. Current water policies may not be nimble enough …

Fighting On Behalf Of The Salish Sea, Cloie M. Chapman

American Indian Law Journal

Despite the wealth of data that suggests climate change will disrupt our ecosystems, key political actors have declined to take action to mitigate the anticipated effects. Further, we have seen deeper investment into the fossil fuel industry, an industry that has been a substantial contributor to climate change. Community-led movements have proven more successful in engaging with these issues on the ground. Creative legal strategies could aid in this movement and allow for strengthened enforcement of rights that are closely dependent on the health of the environment.

The Salish Sea is a body of water that reaches from Western Canada …

Pure As Running Water: A Constitutional Argument For Utah’S Public Trust Doctrine, Brandon S. Fuller

Utah Law Review

Water rights in America, particularly in western states, have been a pervasive source of legal contention. The histories of these water rights, and the public trust doctrine more broadly, have created a tremendously complex area of law. This field of law is very old and draws on policy concerns stretching back to 100 B.C., overlapping federal and state powers and precedents, and what can only be described as one of the longest games of jurisprudential telephone in existence. As a result, anyone seeking to challenge a state statute, court opinion, or regulation, which they believe impermissibly restricts the public’s right …

Specialization Trend: Water Courts, Vanessa Casado-Pérez

Faculty Scholarship

Definition of property rights is not useful unless there is an enforcement system, either public or private, that backs it up. While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked. Water is becoming scarcer and conflict is rising. As a result, the need for an efficient and fair enforcement system is more necessary than ever due to climate change.

Given the complexity of water law and the backlog in the judicial system, introducing specialization in the resolution of water cases …

1901 - Irrigation In The United States - Testimony Of Elwood Mead Before U.S. Industrial Commission, June 11-12, 1901

Miscellaneous Federal Documents & Reports

Professor Elwood Mead, expert in charge of the Irrigation Investigations of the United States Department of Agriculture, appeared before the United States Industrial Commission on June 11 and 12, 1901, to testify on the subject of irrigation in the United States. His testimony presented a review of the irrigation situation in the United States, including not only the arid region of the West, but also the humid sections of the South and East, where in two States alone more land had been brought under irrigation during the past five years than in any single State in the arid region during …

The Role Of Creative Language In Addressing Political Asymmetries: The Israeli-Arab Water Agreements, Itay Fischhendler, Aaron T. Wolf, Gabriel E. Eckstein

Gabriel Eckstein

International water agreements are often used as mechanisms for fostering and institutionalizing political cooperation. Yet, since water resources in many places are being driven to the edge of their natural limits, a number of international organizations have formulated legal principles and norms aimed at helping states resolve water disputes. While states have been urged to adopt these principles, it seems that they often embrace other less-traditional alternatives that may better address their own political needs. The aim of this study is to examine why states fail or decline to adopt several of the general principles of customary law formulated by …

1977 - Appropriative Water Rights In California, Background And Issues

Water Statutes

This paper was part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. The background material was intended to assist persons who might lack detailed knowledge of California's water rights law and procedures. The issues were listed as a basis for discussion by the public and the Commission when it considered various legislative options in response to the 1976-1977 drought which had resulted in increased attention to the value of water as a public resource.

Maine Principles Of Ownership Along Water Bodies, Knud E. Hermansen, Donald R. Richards

Maine Law Review

This Article provides a summary of the Maine common law of riparian boundaries. It is geared toward practitioners who practice or provide counsel in the area of real property law or who must litigate boundaries and title rights involving water bodies. This Article also includes recommendations for fixing previously undefined boundaries across water. However, readers should be aware that this Article does not attempt to provide an exhaustive survey of all riparian law. In recent years state and federal legislation has further limited or restricted specific landowner common law rights along water bodies.

Weed And Water Law: Regulating Legal Marijuana, Ryan Stoa

Ryan B. Stoa

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close. At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. …

Drought And Public Necessity: Can A Common-Law "Stick" Increase Flexibility In Western Water Law?, Robin Kundis Craig

Texas A&M Law Review

Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to reallocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival. In addition, pure market solutions run the risk that “survival water” will become too expensive …

Compact Compliance As A Beneficial Use: Increasing The Viability Of An Interstate Water Bank Program In The Colorado River Basin, Emily Halvorsen

University of Colorado Law Review

There is a looming problem facing the Colorado River Basin: an increasing likelihood of a compact call on the Upper Basin due to projected climate change and population growth stresses on the Colorado River. To address this problem, water resource managers and natural resource management organizations throughout the Upper Basin have proposed a leading approach of an interstate water bank program. There are three main shortfalls to this though, which do not make the program a viable approach in addressing the problem: (1) legal uncertainty regarding individual water rights; (2) concerns regarding speculation; and (3) lack of incentives for state …

Instream Flow Regulation: Plugging The Holes In Maine's Water Law, Bradford R. Bowman

Maine Law Review

States East of the Mississippi River have long relied on the traditional common law of riparian rights to manage their water resources. Towards the end of the Twentieth Century, rising demand for consumptive water use due to population growth, modern agricultural practices and industrialization began to conflict with environmental concerns. Throughout the East, states recognized the riparian doctrine's failure to provide a reliable means for allocating water during times of scarcity. In response, most of these states replaced common law water rights with regulatory water management systems. Maine is the only state that has not followed this trend. It is …

City Of Helena V. Community Of Rimini, Molly M. Kelly

Public Land & Resources Law Review

After twenty years of adjudication, the Montana Supreme Court affirmed the City of Helena’s right to 13.75 cfs from Ten Mile Creek, the city’s primary water source. The Court found a statute allowing cities and municipalities to exercise water rights that have gone through extended periods of nonuse did not need a retroactive clause.

Water, Water, Nowhere: Adapting Water Rights For A Changing Climate, Caleb Hall

Sustainable Development Law & Policy

No abstract provided.

1872 - Appropriation Of Water In California, Civ. Code, §§ 1410 – 1422.

Water Statutes

Enacted in 1872, California Civil Code 1410-1422 provided, in part, the right to the use of running water for useful or beneficial purpose, as well as the right to change the place of diversion if others were not injured by the change. In order to appropriate water, a written notice had to be posted in a conspicuous place at the point of intended diversion setting forth the particulars of the diversion. The notice had to be filed with the county recorder within ten days after posting the notice. The works that would divert the water had to begin within 60 …

United States V. Barthelmess Ranch Corp., Jonah P. Brown

Public Land & Resources Law Review

Application of water to a beneficial use is the decisive element of a perfected water right in Montana. The BLM claimed rights to five reservoirs and one natural pothole under Montana law. The agency did not own livestock, but instead made the water available to grazing permittees. In United States v. Barthelmess Ranch Corp., the Montana Supreme Court affirmed the Montana Water Court’s holding that the BLM’s practice of making water available to others constituted a beneficial use and a perfected water right.

International Law And Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Although international law applicable to transboundary aquifers is still in an early stage of development, ground water resources on nation’s frontiers are now garnering growing international attention. This article examines the chief formal and informal mechanisms that have been proposed or implemented for the assessment, use, allocation, and protection of transboundary aquifers and identifies the legal trends and priorities emerging from these instruments. It also considers gaps and shortcomings in the emerging administrative regime and offers recommendations for the further development of the law.

Save Some For The Fishes: Analyzing The St. Jude's Co. Decision And What It Means For Beneficial Use In Colorado, John Sittler

University of Colorado Law Review

No abstract provided.