Larry MacDonnell
Prospective Panel
September 12, 2014
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Question: To what extent have general
stream adjudications succeeded or failed in
accomplishing the goals they have been
implemented to achieve?
(1) confirm existing decreed or adjudicated
rights;
(2) confirm the status of uncancelled permits
and adjudicate those that had been perfected;
and
(3) determine the extent and priority date of
any other right to use water and adjudicate
such rights.
1.
2.
3.
All certificated/decreed water rights
incorporated in decree without examination
About 30% of the 4,600 surface water
permits were adjudicated; about 8,200 gw
permits included in decree (out of 10,600)
Tribal “historic lands” reserved rights of
290,000 acre-feet; “future lands” of 209,000
acre-feet; about 3,000 federal lands claims
included in decree
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From state perspective, probably yes though
costly and time consuming
From state-law-based water user perspective,
probably mixed; clarity about extent of federal
and tribal claims; limited other benefits
From federal lands perspective, probably yes
since worked out through settlement
From tribal perspective, probably no because of
limitations on future uses
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Long ago replaced by expert administrative
processes (see Farm Investment Co v.
Carpenter (1900))
Can require anyone, either permitted or not,
using water to obtain certification (or
equivalent) using existing state process
Make clear there is no vested water right
without certification
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Ok’d by U.S. Sup. Ct. in Colorado River
District and San Carlos Apache decisions
Basis: avoid “duplicative litigation, tension
and controversy between the federal and
state forums, hurried and pressured decision
making, and confusion over the disposition of
property rights.”
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Justice Stewart in dissent in Colorado River
District:
-issues of federal law better decided in
federal courts; federal circuit court review
rather than just by certiorari in U.S. Supreme
Court
-” federal court is a more appropriate
forum than a state court for determination of
questions of life-and-death importance to
Indians”
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Justice Stevens in dissent in San Carlos:
“Not all of the issues arising from the application
of the Winters doctrine have been resolved,
because in the past the scope of Indian reserved
rights has infrequently been adjudicated. The
important task of elaborating and clarifying these
federal law issues in the cases now before the
Court, and in future cases, should be performed
by federal rather than state courts whenever
possible.”
1.
Reserved rights based on Multiple UseSustained Yield Act
-Colorado: no
-Idaho: no
2. Reserved rights for Public Water Reserves
-Colorado: yes, for stockwatering and
domestic
-Idaho: yes, for stockwatering only
3. Reserved rights for wilderness areas
-Idaho: initially yes, then no
4. Reserved right for national recreation area
-Idaho: no, based on interpretation of
primary purpose and need for water
5. Reserved rights for national wildlife refuge
-Idaho: no, based on interpretation of
primary purpose and need for water
Does U.S. Supreme Court precedent for
federal reserved rights apply to Indian
reserved rights?
-Big Horn – as “guidance,” but effectively
adopted the primary/secondary purposes
analysis of New Mexico
-Montana – no, distinctive kinds of rights
(ownership; purposes; quantification)
-Arizona (Gila) – the primary/secondary
distinction does not apply to Indian rights
1.
2. Do Indian reserved water rights extend to
groundwater?
-Big Horn Adjudication (Wyoming) – no
-Gila River Adjudication (Arizona) – yes
3. Purposes of Indian reservations
-Big Horn Adjudication – agriculture
-Montana Statewide Adjudication – Indian
self-sufficiency
-Gila River Adjudication – Indian selfsufficiency
4. Standard for quantifying Indian reserved
water rights
-Big Horn Adjudication – practicably
irrigable acreage
-Gila River – multiple factor analysis (land
use plans, tribal history, tribal culture,
geography, topography, natural resources,
economic base, past water use, population)
-Montana – amount necessary for Indian
self-sufficiency
5. Dispute management
-Big Horn – State Engineer and then courts
-Washington (Yakima) – courts
6. Issuance of new permits/change of use
authorization for on-reservation uses
-Montana – initially not allowed, pending
quantification of Indian reserved rights
-Montana – now allowed
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Some form of state process necessary to
incorporate valid but
uncertificated/unadjudicated uses
Burden should be on water user to obtain
certification
GSA’s a problematic forum for determining
federal and Indian reserved water rights