Rethinking GeneralStream Adjudications
Larry MacDonnellProspective PanelSeptember 12, 2014
Question: Towhat extent have general stream adjudications succeeded or failed in accomplishing the goals they have been implemented to achieve?
Overview
(1) confirm existing decreed or adjudicated rights;(2) confirm the status ofuncancelledpermits 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.
Stated Purposes of the Big Horn Adjudication
All certificated/decreed water rights incorporated in decree without examinationAbout 30% of the 4,600 surface water permits were adjudicated; about 8,200gwpermits 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
Outcomes – Big Horn
From state perspective, probably yes though costly and time consumingFrom state-law-based water user perspective, probably mixed; clarity about extent of federal and tribal claims; limited other benefitsFrom federal lands perspective, probably yes since worked out through settlementFrom tribal perspective, probably no because of limitations on future uses
Goals Achieved?
Long ago replaced by expert administrative processes (seeFarm Investment Co v. Carpenter(1900))Can require anyone, either permitted or not, using water to obtain certification (or equivalent) using existing state processMake clear there is no vested water right without certification
General stream adjudications:a 19thcentury tool
Ok’d by U.S. Sup. Ct. inColorado River DistrictandSan Carlos ApachedecisionsBasis: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.”
General adjudications and federal/Indian reserved rights
Justice Stewart in dissent inColorado 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 fordetermination ofquestions of life-and-death importance toIndians”
Concerns
Justice Stevens in dissent inSan Carlos:“Not all of the issues arising from the application of theWintersdoctrine 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.”
Concerns
Reserved rights based on Multiple Use-Sustained Yield Act-Colorado: no-Idaho: no2. Reserved rights for Public Water Reserves-Colorado: yes, forstockwateringand domestic-Idaho: yes, forstockwateringonly
StateSupreme Court rulings re:federalreserved rights
3. Reserved rights for wilderness areas-Idaho: initially yes, then no4. Reserved right for national recreation area-Idaho: no, based on interpretation of primary purpose and need for water5. Reserved rights for national wildlife refuge-Idaho: no, based on interpretation of primary purpose and need for water
State Supreme Court rulingsfederal reserved rights
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 ofNew Mexico-Montana – no, distinctive kinds of rights (ownership; purposes; quantification)-Arizona (Gila) – the primary/secondary distinction does not apply to Indian rights
State Supreme Court rulings onIndianreserved water rights
2. Do Indian reserved water rights extend to groundwater?-Big Horn Adjudication (Wyoming) – no-Gila River Adjudication (Arizona) – yes3. Purposes of Indian reservations-Big Horn Adjudication – agriculture-Montana Statewide Adjudication – Indian self-sufficiency-Gila River Adjudication – Indian self-sufficiency
State Supreme Court rulings on Indian reserved water rights
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
State Supreme Court rulings on Indian reserved water rights
5. Dispute management-Big Horn – State Engineer and then courts-Washington (Yakima) – courts6. 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
State Supreme Court rulings on Indian reserved water rights
Some form of state process necessary to incorporate valid but uncertificated/unadjudicatedusesBurden should be on water user to obtain certificationGSA’s a problematicforum for determining federal and Indian reserved water rights
Summary
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