Tuesday, September 26, 2017

Why Does the Colorado River Need to Sue For Rights?

https://sandiegofreepress.org/2017/09/why-does-the-colorado-river-need-to-sue-for-rights/ San Diego Free Press By Will Falk On Tuesday, September 26, the Colorado River will sue the State of Colorado in a first-in-the-nation lawsuit requesting that the United States District Court in Denver recognize the river’s rights of nature. These rights include the rights to exist, flourish, regenerate, and naturally evolve. To enforce these rights, the Colorado River will also request that the court grant the river “personhood” and standing to sue in American courts…Because our legal system currently defines nature as property, “resourcism” is institutionalized in American law. While climate change worsens, water continues to be polluted, and the collapse of every major ecosystem on the continent intensifies, we must conclude that our system of law fails to protect the natural world and fails to protect the human and nonhuman communities who depend on it. Jensen, while diagnosing widespread ecocide, observes a fundamental psychological principle: “We act according to the way we experience the world. We experience the world according to how we perceive it. We perceive it the way we have been taught.” Jensen quotes a Canadian lumberman who once said, “When I look at trees I see dollar bills.” The lumberman’s words represent the dominant culture’s view of the natural world. Jensen explains the psychology of this objectification, “If, when you look at trees you see dollar bills, you will act a certain way. If, when you look at trees, you see trees you will act a different way. If, when you look at this tree right here you see this tree right here, you will act differently still.” Law shapes our experience of the world. Currently, law teaches that nature is property, an object, or a resource to use. This entrenches a worldview that encourages environmental destruction. In other words, when law teaches us to see the Colorado River as dollar bills, as simple gallons of water, as an abstract percentage to be allocated, it is no wonder that corporations like Nestle can gain the right to run plastic bottling operations that drain anywhere from 250 million to 510 million gallons of Colorado River water per year. The American legal system can take a good step toward protecting us all – human and nonhuman alike – by granting ecosystems like the Colorado River rights and allowing communities to sue on these ecosystems’ behalf. When standing is recognized on behalf of ecosystems themselves, environmental law will reflect a conception of legal “causation” that is more friendly to the natural world than it is to the corporations destroying the natural world. At a time when the effects of technology are outpacing science’s capacity to research these effects, injured individuals and communities often have difficulty proving that corporate actions are the cause of their injuries. When ecosystems, like the Colorado River, are granted the rights to exist, flourish, regenerate, and naturally evolve, the obsolete causation theory, en vogue, will be corrected. ************ American history is haunted by notorious failures to afford rights to those who always deserved them. Americans will forever shudder, for example, at Chief Justice Roger Taney’s words, when the Supreme Court, in 1857, ruled persons of African descent cannot be, nor were never intended to be, citizens under the Constitution in Dred Scott v. Sanford. Justice Taney wrote of African Americans, “They had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect…” And, of course, without rights that white, slave-owning men were bound to respect, the horrors of slavery continued. The most hopeful moments in American history, on the other hand, have occurred when the oppressed have demanded and were granted their rights in American courts. Despite centuries of treating African Americans as less than human while defining them as property, our system of law now gives the same rights to African Americans that American citizens have always enjoyed. Once property, African Americans are now persons under the law. Similarly, despite a centuries-old tradition where women were, in the legal sense, owned by men, our system of law now gives the same rights to women that American citizens have always enjoyed. Once property, women are now a person under the law. It’s tempting to describe this history as “inevitable progress” or as “the legal system correcting itself” or with some other congratulatory language. But, this glosses over the violent struggles it took for rights to be won. The truth is, and we see this clearly in Justice Taney’s words, the American legal system resisted justice until change was forced upon it. It took four centuries of genocide and the nation’s bloodiest civil war before our system of law recognized the rights of African Americans. While the courts resisted, African Americans were enslaved, exploited, and killed. Right now, the natural world is struggling violently for its survival. We watch hurricanes, exacerbated by human-induced climate change, rock coastal communities. We choke through wildfires, also exacerbated by human-induced climate change, sweeping across the West. We feel the Colorado River’s thirst as overdraw and drought dries it up. It is the time that American law stop resisting. Our system of law must change to reflect ecological reality. ************ Colorado River between Marble Canyon (Source: Alex Proimos/Flickr/CC-BY-NC-2.0) This is ecological reality: all life depends on clean water, breathable air, healthy soil, a habitable climate, and complex relationships formed by living creatures in natural communities. Water is life and in the arid American Southwest, no natural community is more responsible for the facilitation of life than the Colorado River. Because so much life depends on her, the needs of the Colorado River are primary. Social morality must emerge from a humble understanding of this reality. Law is integral to any society’s morality, so law must emerge from this understanding, too. Human language lacks the complexity to adequately describe the Colorado River and any attempt to account for the sheer amount of life she supports will necessarily be arbitrary. Nevertheless, many creatures of feather, fin, and fur rely on the Colorado River. Iconic, and endangered or threatened, birds like the bald eagle, greater sage grouse, Gunnison sage grouse, peregrine falcon, yellow-billed cuckoo, summer tanager, and southwestern willow flycatcher make their homes in the Colorado River watershed.  Fourteen endemic fish species swim the river’s currents including four fish that are now endangered: the humpback chub, Colorado pikeminnow, razorback sucker, and bonytail. Many of the West’s most recognizable mammals depend on the Colorado River for water and to sustain adequate food sources. Gray wolves, grizzly bear, black bear, mountain lions, coyotes, and lynx walk the river’s banks. Elk, mule deer, and bighorn sheep live in her forests. Beavers, river otters, and muskrats live directly in the river’s flow as well as in streams and creeks throughout the Colorado River basin. The Colorado River provides water for close to 40 million people and irrigates nearly 4 million acres of American and Mexican cropland. Agriculture uses the vast majority of the river’s water. In 2012, 78% of the Colorado’s water was used for agriculture alone. 45% of the water is diverted from the Colorado River basin which spells disaster for basin ecosystems. Major cities that rely on these trans-basin diversions include Denver, Los Angeles, San Diego, and Salt Lake City. Despite the Colorado River’s importance to life, she is being destroyed. Before the construction of dams and large-scale diversion, the Colorado flowed 1,450 miles into the Pacific Ocean near Sonora, Mexico. The river’s life story is an epic saga of strength, determination, and the will to deliver her waters to the communities who need them. Across those 1,450 miles, she softened mountainsides, carved through red rock, and braved the deserts who sought to exhaust her. Now, however, the Colorado River suffers under a set of laws, court decrees, and multi-state compacts that are collectively known as the “Law of the River.” The Law of the River allows humans to take more water from the river than actually exists. Granting the river the rights we seek for her would help the courts revise problematic laws. The regulations set forth in the 1922 Colorado River Compact are the most important and, perhaps, the most problematic. Seven states (Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming) are allotted water under the Compact. When the Compact was enacted, the parties assumed that the river’s flow would remain at a reliable 17 million acre-feet of water per year and divided the water using a 15-million acre feet per year standard. But, hydrologists now know 17 million acre-feet represented an unusually high flow and was a mistake. Records show that the Colorado River’s flow was only 9 million acre-feet in 1902, for example. From 2000-2016, the river’s flow only averaged 12.4 million acre-feet per year. So, for the last 16 years, the Compact states have been legally allowed to use water that isn’t there.

Thursday, September 21, 2017

Aamodt Settlement Act Signed into Law by Interior Secretary Zinke

Aamodt Settlement Act Signed into Law by Interior Secretary Zinke by lajicarita By KAY MATTHEWS On September 15 Interior Secretary Ryan Zinke took a few minutes out of his attack on our national monuments to announce in the Federal Register that all conditions of the Aamodt Litigation Settlement Act have been met and it is officially a done deal. This adjudication determines both ground and surface water rights of the four Pojoaque Basin pueblos, Nambe, Tesuque, San Ildefonso, and Pojoaque, and all non-pueblo residents. As I’ve laid out in previous La Jicarita articles, these conditions stipulate that 1) the necessary water supply that must be delivered to the Pueblos via the Pojoaque Basin Regional Water System—2,381 afy—has been permitted by the State Engineer; and 2) “The State has enacted necessary legislation and has provided funding as required under the Settlement Agreement.” As I’ve also laid out in previous La Jicarita articles, Taos County has filed an appeal of its protest of the Top of the World water transfer that supplies part of that water to the Pueblos. And the County of Santa Fe passed a resolution in 2015 stating that it will not appropriate its share of the $261 necessary to fund the Regional Water System “until the legal status of County Roads running through the Settling Pueblos has been resolved.” San Ildefonso Pueblo is claiming that county roads that cross through its “external boundaries” belong to the pueblo and is seeking easement payments. The county claims that it has rights of way on all the roads in question. There has been no resolution of this controversy that has pitted the Pueblos against the non-Pueblo residents of the affected county lands. Dave Neal, an officer of the Northern New Mexicans Protecting Land, Water, and Rights (NNMProtects), a group of Valley residents who have fought both the Aamodt Settlement and to resolve the road easement issue, told La Jicarita that Zinke has extended the deadline for this road resolution from September 15 to November 15, but that the county remains determined that no funds will be released until county residents are assured easements. Even with this extension, could this mean that the Settlement may actually come up short on its requisite water supply and funding and fail to be implemented (the State also failed to pass a required $9 appropriation in last year’s legislative session)? Another possible roadblock would be the failure to complete the Regional Water System by 2024, the deadline stipulated for completion in the Settlement Act. None of this seems to bother the powers that be behind this 51 year old adjudication who have pushed this controversial project through the legal process with little regard for fairness, cost, burdensome bureaucracy, the abrogation of the transfer protest process, the cumulative impacts of moving paper water from basin to basin, dipping one more straw into the Rio Grande, and most importantly, the changing nature of our environment and climate that could easily render water supply inadequate or even nonexistent. The legal process does allow for a challenge to the Final Decree, which is being mounted by many of the 300 plus non-Pueblo Pojoaque Valley residents who objected to the terms of the settlement but whose objections were dismissed by the court overseeing the adjudication. They have now filed a notice of appeal to the Tenth Circuit Court of Appeals, represented by Blair Dunn of the Western Agriculture, Resource and Business Advocates law firm. This will be an uphill battle considering the forces deployed against it. Just one last note about Interior Secretary Ryan Zinke. While questions should always be raised about how local communities are consulted when public lands are assigned certain restrictions, such as national monument designation, that’s not really what Zinke’s agenda is about. His aim is to aid and abet the movement within the Republican Party to privatize as many public lands as possible in order to turn them over to the extractive industry. As Outside Magazine reported on Zinke’s secret memo to Trump on his review of the monuments, which was leaked to the press, the GOP’s official platform states: “Congress shall immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” The American Lands Council, based in Utah, is spearheading the movement, which makes the Bears Ears and the Grand Staircase-Escalante national monuments the most vulnerable. lajicarita | September 21, 2017 at 11:02 am | Tags: Aamodt Adjudication Settlement, American Lands Council, Bears Ears National Monument, Department of the Interior Secretary Ryan Zinke, Grand Staircase-Escalante National Monument, NNMProtects | Categories: Acequias, Climate Change, Groundwater, New Mexico Office of the State Engineer, Private Property, Public Lands, Water Adjudication, water and acequias | URL: http://wp.me/p2bCkq-1JR

Monday, September 18, 2017

Texas vs. New Mexico water lawsuit now pending in the U.S. Supreme Court could take as long as another decade to be resolved

LAS CRUCES - The Texas vs. New Mexico water lawsuit now pending in the U.S. Supreme Court could take as long as another decade to be resolved, a consultant water attorney for the city said during a recent meeting. "It's going to be much longer than four years," Jim Brockmann said in response to a question posed by Las Cruces City Councilor Ceil Levatino. "It's very complex litigation. The state of New Mexico hasn't even filed counterclaims or cross claims. "If I was really going to take my best guess, I'd say closer to 10 years than to four." What's next? The litigation has pitted the state of Texas against New Mexico in a U.S. Supreme Court battle over groundwater use in southern New Mexico. The case has consumed the attention of major water users in the region, including cities, farmers and irrigation districts, many of whom could see ramifications from the eventual outcome. In particular, many are worried about a curtailment of water use that could result. In February, the Supreme Court agent who is overseeing the lawsuit declined a request by the state of New Mexico to throw out the case. Las Cruces city councilors also heard Monday from Assistant New Mexico Attorney General Tania Maestas, who gave an update on the litigation. She said there could be oral arguments related to the motion to dismiss, but if not, the case will proceed with New Mexico filing its formal response to the lawsuit and possibly making its own allegations, known as counter-claims. "This is when we actually get to state points that we feel are especially important to the citizens here and the water users here in New Mexico," she said. City-AG's office partnership The city, as a major groundwater user in Doña Ana County, is "very clearly aligned" with the New Mexico Attorney General's Office in the lawsuit, Brockmann said. The lawsuit boils down to control over groundwater in south-central New Mexico, he said. The city believes the state of New Mexico is the controlling authority. "So it's absolutely critical for us that we communicate and coordinate with the state Attorney General's Office to make sure that those groundwater rights that are administered under state law are protected under state law," he said. "And that is a primary position for the attorney general in that litigation." The Las Cruces-based Elephant Butte Irrigation District, which delivers river water to farmers throughout Doña Ana County, has opposed the state of New Mexico's position in lawsuit. Maestas said current Attorney General Hector Balderas has talked with EBID about their stance in the case, which hadn't been done previously. Also, EBID has started having technical-oriented discussions with a group of groundwater users known as the Lower Rio Grande Water Users Organization. That group has been carrying out work on the technical information that would be key to any settlement of the lawsuit. Brockmann said the water users group, which includes the city of Las Cruces, had been working not only because of the Supreme Court litigation but also because of an ongoing water adjudication case in state district court. That long-term proceeding will legally define water rights for water users throughout Doña Ana County. Origins The lawsuit arose out of 1938 Rio Grande Compact, which apportioned river water among three U.S. states, experts have said. New Mexico’s measuring point for delivering water to Texas was the Elephant Butte Reservoir — roughly 100 miles north of the actual Texas state line. The river water released from the reservoir serves farmers in the New Mexico-based Elephant Butte Irrigation District and the Texas-based El Paso County Water Improvement District No. 1, as well as in Mexico. Groundwater pumping in that same 100-mile stretch, however, has been the purview of the New Mexico State Engineer’s Office. The groundwater and river water systems are connected. Texas has argued that New Mexico has allowed over-pumping of groundwater, undermining El Paso irrigators’ share of river water. A 2010 agreement between EBID and the El Paso irrigation district attempted to resolve a longstanding dispute over apportioning water. Former New Mexico Attorney General Gary King challenged the agreement in federal district court, which onlookers said prompted Texas to file its lawsuit against New Mexico at the U.S. Supreme Court. EBID has continued to back the operating agreement of 2008. Diana Alba Soular may be reached at 575-541-5443, dalba@lcsun-news.com or @AlbaSoular on Twitter.

REQUEST FOR QUOTES TO CONDUCT WATER QUALITY MANAGEMENT PLANNING

Surface Water Quality Bureau Our mission is to preserve, protect, and improve New Mexico's surface water quality for present and future generations. ________________________________________ REQUEST FOR QUOTES TO CONDUCT WATER QUALITY MANAGEMENT PLANNING Purpose The Surface Water Quality Bureau (Bureau) of the New Mexico Environment Department (NMED) requests quotes from regional public comprehensive planning organizations to conduct water quality management planning as defined under sections 205(j) and 303(e) of the Clean Water Act (CWA). These funds are made available through a Request for Quotes (RFQ) as this is the appropriate approach through the State of New Mexico Procurement Code given the duration and amount of an award. In response to this RFQ NMED seeks detailed quotes (i.e. proposals) to conduct water quality management planning. While all quotes focused on water quality management planning are welcomed, those which will fund activities that clearly address the State’s water quality goals to preserve, protect and improve the water quality in New Mexico are likely to be rated highest. In this respect, NMED encourages quotes focused on Total Maximum Daily Loads (TMDLs), Use Attainability Analyses (UAAs), or other water quality management planning activities that will directly address identified water quality impairments but do not overlap with development of watershed based plans that are eligible for funding through NMED’s 319(h) program. Funding for the work program is dependent on the receipt of federal grants authorized under Section 604(b) of the federal Clean Water Act. The New Mexico Environment Department anticipates having funds available for award in early 2018. Contact Person The contact person for this request for quotes is: Heidi Henderson, Monitoring, Assessment and Standards Section, Surface Water Quality Bureau, N.M. Environment Department, Harold Runnels Building - 1190 St. Francis Drive, N2109, P.O. Box 5469, Santa Fe, NM 87502. Telephone: 505-827-2901. E-mail Address: heidi.henderson@state.nm.us. A complete copy of the RFQ can be requested from the contact person or downloaded from the Bureau website: https://www.env.nm.gov/surface-water-quality/. All inquiries regarding the RFQ or its supporting documentation must be made to the contact person. Submission of Quotes Any questions regarding the RFQ must be submitted to Heidi Henderson by October 2, 2017. The Bureau will prepare a response to any questions received and will post the responses to the Bureau website for review by all offerors before the final submission of quotes is due. An original and three copies of the quote must be submitted by registered mail or delivered in person for review to the contact person at the above address by 4:30 PM, MDT on October 18, 2017. Electronically mailed quotes and hardcopy quotes received after this deadline will not be accepted. ________________________________________ NMED does not discriminate on the basis of race, color, national origin, disability, age or sex in the administration of its programs or activities, as required by applicable laws and regulations. NMED is responsible for coordination of compliance efforts and receipt of inquiries concerning non-discrimination requirements implemented by 40 C.F.R. Part 7, including Title VI of the Civil Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1973; the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, and Section 13 of the Federal Water Pollution Control Act Amendments of 1972. If you have any questions about this notice or any of NMED’s non-discrimination programs, policies or procedures, you may contact: Kristine Pintado, Non-Discrimination Coordinator New Mexico Environment Department 1190 St. Francis Dr., Suite N4050 P.O. Box 5469 Santa Fe, NM 87502 (505) 827-2855 nd.coordinator@state.nm.us If you believe that you have been discriminated against with respect to a NMED program or activity, you may contact the Non-Discrimination Coordinator identified above or visit our website at https://www.env.nm.gov/non-employee-discrimination-complaint-page/ to learn how and where to file a complaint of discrimination. ________________________________________ TMDL AND ASSESSMENT TEAM CONTACT: Heidi Henderson 505-827-2901 https://www.env.nm.gov/surface-water-quality/tmdl/

Tuesday, August 29, 2017

Small Water System Partnership Workshop

Small Water System Partnership Workshop December 12, 2017 | Santa Fe, NM | 9:00AM-12:00PM Santa Fe Community College (Health Sciences Building Room 487) 6401 Richards Ave, Santa Fe, NM 87508 Register Online OR Download the Mail-In Registration Form CEUs: This workshop has been submitted to the state for CEUs. This workshop is complimentary. Please register to reserve your spot. Small systems face a variety of issues and concerns related to increasingly strict regulatory compliance, aging infrastructure, affordability, lack of economy of scale (it costs more to serve small communities than large ones on a per capita basis), decreasing population base, and many others. One strategy that can help small communities meet these challenges more economically is collaborating with other utilities. Learn more about formal and informal collaboration approaches including: sharing operators or bookkeepers, forming buying consortiums to purchase chemicals or equipment, sharing a water source, developing emergency interconnects, or forming a group to share information. Trainer: Heather Himmelberger, Director - Southwest Environmental Finance Center Contact: Francine Stefan, mfstefan@unm.edu Who Should Attend: This workshop is designed for water systems serving 10,000 or fewer people (though systems of any size may attend), especially targeting local government systems facing financial challenges. Owners of privately owned systems, consultants and technical assistance providers serving water systems are also invited to attend. Link to register on line is http://efcnetwork.org/events/new-mexico-small-water-system-partnership/

Monday, August 28, 2017

Udall, Heinrich Announce $3.4 Million for Restoration Projects in the Carson, Cibola, Gila, and Lincoln National Forests

Udall, Heinrich Announce $3.4 Million for Restoration Projects in the Carson, Cibola, Gila, and Lincoln National Forests WASHINGTON — U.S. Senators Tom Udall and Martin Heinrich announced $3.4 million in funding from the U.S. Forest Service for restoration projects in four of New Mexico's national forests. The projects will aim to promote healthy watersheds, reduce the threat of wildfires, and improve the functioning of forest ecosystems by reducing the number and density of small diameter trees on public forest lands in New Mexico. The funding comes from the U.S. Department of Agriculture's Forest Service Collaborative Forest Restoration Program (CFRP) for ten projects in the Carson, Cibola, Gila, and Lincoln National Forests. "These projects will be instrumental in helping restore some of the most high priority areas in New Mexico's national forests," said Udall, a member of the Appropriations subcommittee that funds the Department of Agriculture. "With New Mexico facing more severe wildfires every year, it is imperative we focus on strategies to prevent future wildfires, increase the health of watersheds, and improve the overall forest ecosystems. I was proud to help secure funding that helps the U.S. Forest Service invest in the long-term health of New Mexico's forests." “Forests in New Mexico provide us with drinking water, space for traditional activities like hunting and fishing, and boost our outdoor recreation economy. This critical funding will help restore New Mexico’s forests and protect our communities from the threat of wildfires, provide support to promote healthy watersheds, and improve the forest ecosystem,” said Heinrich. “I will continue to work to ensure these restoration projects remain a priority.” Recipients of this year's grant money include private forest sector businesses, conservation organizations, Soil and Water Conservation Districts, and the Pueblo of Santa Ana. Of the total funding, $955,651 will go toward three projects in the Carson National Forest, $1.76 million will go toward five projects in the Cibola National Forest, $315,119 will go toward one project in the Gila National Forest and $360,000 will go toward one project in the Lincoln National Forest. Projects by the CFRP conduct forest landscape restoration planning and analyses; develop products, markets and capacity for the utilization of small-diameter forest materials; conduct community outreach and youth education programs; and complete critical on-the-ground forest and watershed restoration activities.

Tuesday, August 22, 2017

How a California groundwater case could affect Nevada and the West The Nevada Independent By Daniel Rothberg

How a California groundwater case could affect Nevada and the West The Nevada Independent By Daniel Rothberg …The case looks to clarify what rights Native American tribes have to groundwater on reservations. In 1908, the Supreme Court said tribes possessed a federal right to surface water, but lower courts have since clashed over whether or not those rights extend to groundwater. …For nearly 100 years, courts have differed and danced around the issue of whether reservation rights include groundwater. But in March, the Ninth Circuit Court of Appeals gave a definitive answer in the affirmative, extending groundwater rights to a California tribe in the Coachella Valley around Palm Springs. The three-judge panel said the federal government, in establishing reservations, had impliedly earmarked groundwater for tribal use. The court took the additional step of explicitly saying a tribe’s federal groundwater rights preempt state law. Tribes applauded the Ninth Circuit ruling in Agua Caliente Band of Cahuilla Indians vs. Coachella Valley Water District, et. al. And several attorneys who work on Native American resource issues said they expected to see a maelstrom of litigation as tribes act on the ruling. But the decision left many questions unanswered, and that uncertainty worries arid states where water is scarce. Where do the states’ water laws fit into the Ninth Circuit’s decision? That is the central question in the amicus brief from Laxalt on behalf of attorneys general in Arizona, Arkansas, Idaho, Nebraska, North Dakota, South Dakota, Texas, Wisconsin and Wyoming. Authority over water traditionally belongs to the states. They decide how water is regulated and allocated. States are concerned that losing any control over management could further endanger aquifers that provide drinking water and often support ranching, mining and farming operations. New claims to unaccounted groundwater rights — rights that would preempt state law — could disrupt an already strained system, they argue. And the recent ruling might indirectly affect water rights on federal land that’s been reserved for national parks or military bases. Some have even argued it could affect the Southern Nevada Water Authority’s proposed pipeline project. The case history – May 2013: A Palm Springs-based tribe, the Agua Caliente Band of Cahuilla Indians, sues two California water agencies to assert a priority right to groundwater. The tribe, with more than 400 members and 31,000 acres, criticizes how the public agencies have managed the aquifer and said they want to play a greater role in its governance. The two agencies publicly question its motives, suggesting there might be a financial incentive. – June 2014: The U.S. government joins the case and argues that the tribe’s priority rights — under what is known as the “reserved rights doctrine” — extend to groundwater. – March 2015: A district court judge rules that reserved rights include groundwater. – March 2017: The Ninth Circuit upholds the ruling. – July 2017: The agencies appeal to the Supreme Court. – August 2017: Nevada, with nine states, files a brief urging the Court to hear the case. About the reserved rights doctrine The basis for federal water rights stem from a 1908 Supreme Court case, Winters v. United States. In the Winters case, the court ruled that through establishing an Indian reservation, the federal government had impliedly allocated enough water necessary to fulfill the reservation’s purpose. In a 1963 Supreme Court case, these rights were applied to all public lands, including national monuments and wildlife refuges. The court has refined the doctrine since then, but it has never conclusively answered the question of whether reserved rights include groundwater. The Supreme Court hasn’t entirely avoided the issue. In a 1975 case involving the Death Valley National Monument, the court said that the U.S. government could protect groundwater on federal land from over-pumping. (In the case, pumping threatened the pupfish at Devils Hole.) The Ninth Circuit cited the case in its March opinion: “If the United States can protect against groundwater diversions, it follows that the government can protect the groundwater itself.” There were three significant findings in the appellate decision: 1) Tribes have a federal reserved right to groundwater on their land. 2) As federal water rights, they preempt conflicting state law. 3) The rights are not lost even if they haven’t been used in the past. What that means is up for interpretation. “It’s not clear what that would mean, for state law to be preempted,” said Leon Szeptycki, an attorney who leads a water policy group at Stanford’s Woods Institute for the Environment. The potential impact on Nevada and other states Laxalt writes of “potentially devastating consequences” if the Supreme Court decides to let the Ninth Circuit decision stand. Giving preemption to federal rights could disrupt the state’s ability to manage water and impact economies that have relied on groundwater for years, he argues. Since almost all of Nevada’s groundwater is allocated or over-allocated, he argues that the “longstanding and settled appropriation regime will be disrupted by new, unaccounted-for federal reserved groundwater rights claims that are suddenly asserted for the first time.” The result is that the new claims could push out people who have already built communities or businesses around their water rights. “Existing groundwater users may lose their established right to use that water, or be subject to curtailment in the inevitable times of scarcity,” he wrote. Given that 85 percent of Nevada land is owned by the federal government, Laxalt said that the state includes a large portion of land where possible claims could be made. When the case was pending before the Ninth Circuit, two Nevada tribes signed onto a brief supporting the Agua Caliente tribe. The Agua Caliente case was also cited during a recent hearing on the water authority’s proposed pipeline, which would convey billions of gallons of groundwater to Las Vegas. A lawyer for the Confederated Tribes of the Goshute Reservation raised the Ninth Circuit ruling during a hearing on the 263-mile pipeline project that has been held up by several legal actions. Tribes could assert reserved rights in areas where SNWA would want to pump groundwater. “There is a potential that it could apply to the pipeline project as well,” said Howard Watts, a spokesman for Great Basin Water Network, which is leading the legal fight against the project. Nevada’s opposition to the Ninth Circuit ruling taps into a larger debate about the role that the federal government should play in managing land. When the attorney general announced the amicus brief, he framed it as “challenging federal overreach on groundwater rights.” In a press release, Laxalt said he was taking “necessary steps to clarify states’ groundwater rights and ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference.” Throughout the brief, Laxalt argued that favoring federal water rights would also undermine the state’s ability to make its own choices. The ruling, Laxalt wrote, “has left the states with great uncertainty in an area of paramount sovereign importance.” Is the Supreme Court likely to hear it? That depends on who you ask. Lawyers in the “yes” camp say that the Ninth Circuit decision has national implications and would settle a topic that has led to conflicting outcomes. In the past, state courts have reached differing conclusions on how these rights fit in with state water law. Wyoming’s Supreme Court said tribes did not have a federal groundwater right. In a later case, the Arizona Supreme Court said there was a right, just within the framework of state law. Others are skeptical. Monte Mills, an assistant professor at the University of Montana’s Indian Law Clinic, said he thinks the Supreme Court will be reluctant to hear the case until the lower courts decide how much groundwater should be allocated to the Agua Caliente tribe. Supporters and opponents agree on one thing: if the Ninth Circuit opinion stands, a flood of litigation is coming.