United States v. Washington, 827 F.3d 836 (9th Cir. 2016) (holding: (i) the fishing clause in the Stevens Treaties guaranteed Indian tribes the right to off-reservation fishing, with an inferred promise that sustainable fish populations would be available for tribal harvest; (ii) the State violated the fishing clause by constructing and operating barrier culverts that interfered with fish migration; and (iii) the permanent injunction appropriately ordered the State to correct barrier culverts).

In 1854 and 1855, multiple Pacific Northwest Indian tribes (“Tribes”) entered into the Stevens Treaties (“Treaties”), in which, inter alia, tribes relinquished land known as the “Case Area” to what is now the State of Washington (“State”) in exchange for a guaranteed right to off-reservation fishing.  Pursuant to this “fishing clause,” tribes had the right to take fish “at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”  These Tribes rely on salmon fishing and engage in commercial salmon fishing, consume salmon to meet dietary needs, and use salmon in cultural and religious ceremonies.  Tribes and the State have long been in conflict over these fishing rights.  This case stems from a United States suit brought on behalf of Tribes in 1970 to resolve these persistent conflicts.

When building roads over streams, State road builders historically constructed culverts under the roads to allow natural stream flow.  However, these culverts interfere with salmon migration.  The culverts prevent juvenile salmon from migrating to sea where they mature, prevent mature salmon from returning to their spawning grounds, and prevent young salmon from freely locating food and avoiding predators.  As a result, salmon numbers diminished.

In 2001, the Tribes filed a request for determination with the United States District Court for the Western District of Washington (“district court”), which sought to impose a duty upon the State to abstain from constructing culverts that degraded fish habitat and reduced adult fish populations.  The United States joined the Tribes’ request for determination and sought declaration from the district court that the fishing clause in the Treaties imposed a duty upon the State to abstain from constructing or maintaining culverts that interfered with the fishery resource in way that “deprive[d] the Tribes of a moderate living from the fishery.”    Additionally, both the Tribes and the United States individually sought a permanent injunction from the district court requiring that the State open culverts that interfered with salmon migration, and requiring the State to remedy culverts that substantially reduced fish migration, respectively.

The district court ruled against the State on two grounds: (i) that the fishing clause imposed a duty upon the State to abstain from constructing or operating culverts that interfered with fish migration in a manner that reduced salmon that would “otherwise be available for Tribal harvest”; and (ii) that the State operated culverts that violated this duty.

In 2013, after failed settlement efforts, the district court issued a Memorandum of Decision, in which it found that the Treaties purported to assure Tribes that they would forever have an adequate salmon supply.  The district court reasoned that culverts, in part, degraded salmon habitat by inhibiting the free migration of adult and juvenile salmon, which resulted in reduced Tribal harvests that prevented tribal members from earning a living and caused “cultural and social harm to the Tribes in addition to economic harm.”  On the same day, the district court issued a permanent injunction ordering the State, in consultation with the United States and Tribes, to compile a list of state-owned barrier culverts within the Case Area and required the State to correct all listed culverts in a manner that provided fish passage.  The State appealed.

On review in the United States Court of Appeals, Ninth Circuit (“court”), the State contended that the Treaties did not impose a duty on the State to abstain from constructing barrier culverts, and objected to the scope of the district court’s injunction

First, the court determined the State’s duties under the Treaties.  The court found that the State misconstrued the Treaties by characterizing their primary purpose as “opening up the region to settlement”; the court instead deemed the primary purpose as establishing a reliable means to sustain tribal livelihoods once the Treaties took effect.  The court, relying on Supreme Court precedent, construed treaties between tribes and the United States in favor of the tribes. Along that vein, the court reasoned the Tribes understood that the Treaties would provide not only access to usual and accustomed fishing places, but also to sustainable salmon populations; thus, regardless of explicit language, the court would infer that promise.

The court then reviewed the facts presented to the district court regarding the State’s culverts and recognized their effects within the Case Area as “block[ing] approximately 1,000 linear miles of streams suitable for salmon habitat.”  Therefore, the culverts precluded sufficient salmon populations that would maintain a moderate living for the Tribes.  The court further reasoned that replacing or modifying culverts to increase salmon migration would render more mature salmon available for Tribal harvest.

Next, the court addressed the appropriateness of the district court’s injunction and rejected the State’s contentions.  The State contended that the Tribes did not provide sufficient evidence that the culverts significantly caused the salmon’s decline. However, the court determined that the Tribes had presented extensive evidence.  Specifically, the Tribes presented a report prepared by state agencies, which acknowledged culverts as a type of barrier to fish migration and as “correctable obstacles.”  The State also contended that the district court’s injunction ordered the State to correct almost all state-owned barrier culverts without evidence that such corrections would improve salmon migrations.  However, the court reiterated that the State’s own evidence illustrated that once salmon habitat is accessible by un-blocking barrier culverts, “hundreds of thousands of adult salmon” would be available to Tribes.

Accordingly, the court affirmed the district court’s holdings and concluded that the district court did not abuse its discretion by issuing the permanent injunction.

Gia Austin

Image: A coho salmon spawning on the Salmon River in the Pacific Northwest. Flickr User BLMOregon, Creative Commons.


Rangen, Inc. v. Idaho Dep’t of Water Res., 371 P.3d 305 (Idaho 2016) (affirming the district court’s ruling that: (i) the Idaho Department of Water Resources’ approval of a mitigation plan that deferred consideration of injury to other water users was not an abuse of discretion; (ii) a mitigation plan that included curtailment and insurance as contingencies was adequate to assure protection to senior priority rights; and (iii) construction of a water pipeline across private land to a place of beneficial use did not constitute an unlawful taking under Idaho’s eminent domain laws).

On December 13, 2011, Rangen, Inc. (“Rangen”) filed a petition for a delivery call with the Idaho Department of Water Resources (“IDWR”), alleging groundwater pumping by junior appropriators in the Eastern Snake Plain Aquifer (“ESPA”) materially injured its water rights.  In response, IDWR’s director (the “Director”) issued an order that curtailed some junior-priority groundwater pumping in the ESPA.  The order allowed junior-priority groundwater users to avoid curtailment by participating in an approved mitigation plan providing 9.1 cubic feet per second (“cfs”) of water to Rangen.  Idaho Ground Water Appropriators, Inc. (“IGWA”), who represented junior priority users in ESPA, submitted several mitigation plans to IDWR.  On October 8, 2014, the Director conditionally approved IGWA’s Fourth Mitigation Plan (the “Plan”), which required IGWA build and maintain a pumping station, pipeline, and other necessary facilities for the transport of water (“the “Magic Springs Project”).  Under the Plan, SeaPac of Idaho, Inc. agreed to sell or lease 10 cfs of water to IGWA.  IGWA would then pump that water to Rangen through the Magic Springs Project.

The conditional plan hinged on IGWA obtaining approval for its Application of Transfer from SeaPac of Idaho, Inc.  The Director declined to rule on the Application of Transfer in the order.  The Plan also required IGWA to purchase an insurance policy that covered Rangen’s losses of fish attributable the Magic Springs Project’s failure.  Last, the Director ordered Rangen state in writing that it would accept the water delivered and the construction of the Magic Springs Project on its land.  If the conditions failed, IDWR would suspend the Plan.  Nevertheless, IGWA constructed the Magic Springs Project’s pipeline during the conditional period.

After approval, Rangen petitioned the district court to review the Director’s decision.  The district court affirmed the decision.  Rangen then appealed to the Supreme Court of Idaho, challenging that: 1) the Director abused his discretion when he deferred consideration of potential injury to other water users until proceedings on IGWA’s Application for Transfer; 2) the Director erred by approving a plan with inadequate contingency provisions; and 3) the Director’s order constituted an unlawful taking of Rangen’s property and should be set aside.

First, the Supreme Court of Idaho held the Director did not abuse his discretion by deferring consideration of potential injury to other water users until the proceedings on IGWA’s Application for Transfer.  Here, Rangen argued the Director did not have discretion to defer consideration of injury to water users under Conjunctive Management Rule (“CMR”) 43.03j and that it was unreasonable to ignore those factors.  CMR 43.03 and subsection j state the Director “may” consider “whether the mitigation plan is consistent with the conservation of water resources, the public interest or injures other water rights, or would result in the diversion and use of ground water at a rate beyond the reasonably anticipated average rate of future natural recharge.” The Court began its analysis by interpreting the CMR’s regulatory language.

The Court found that a plain reading of the CMR gave the Director discretion to defer consideration because the word “may” was permissive rather than imperative.  The Court compared the regulatory language to its interpretation in another case that required the Director consider several factors in determining injury prevention.  The case was distinguishable as it referred to a different subsection that stated, “the mitigation plan must include. . . .”  After undertaking this analysis, the Court turned to Rangen’s assertion that it was unreasonable to ignore the factors under CMR 43.03j.

Rangen claimed it was unreasonable for the Director not consider CMR 43.03j for two reasons.  Rangen first claimed the Director would not find injury to other users because IGWA had completed construction of its pipeline and accordingly had failed to consider potential injury to other users.  The Court rejected this argument, finding it unclear how potential injury to users would occur without consideration, as the Plan provided other users with the opportunity to raise issues at the later proceeding.  Furthermore, Rangen failed to submit any evidence to the court showing the Direct would allow construction based on the pipeline’s construction and IGWA bore the risk burden when it built the pipeline early.  Rangen also argued the Director should have conducted the injury analysis in the Plan because the later transfer proceeding went forward under a different regulatory provision than CMR 43.03j.  In response, the Court again pointed to the Director’s discretion provided by the CMR.  After determining the Director did not abuse his discretion by delaying Application of Transfer Proceedings, it turned to Rangen’s challenge that the Plan did not include adequate contingency provisions.

The Court found the contingencies were adequate because the IDWR did not avoid curtailment of junior-priority rights in the event that the Plan became unavailable.  CMR 43.03c requires mitigation plans “assure protection of the senior priority right in the event the mitigation water sources becomes unavailable.”  Under this regulation, Rangen argued curtailment was not a contingency because it was a natural and legal consequence that occurs without mitigation, and that the benefits of curtailment can take years to materialize and would not immediately remedy its injury.  The Court rejected this argument, finding the Plan offered sufficient protection to Rangen’s right through the combination of a curtailment and insurance.  It noted the insurance policy would provide as a safeguard if curtailment failed to provide a remedy.  Rangen then challenged that the insurance plan’s adequacy for compensating potential losses it would suffer if a shortage occurred.  The Court allayed these concerns by stating the insurance policy covered exactly the type of injury Rangen discussed.

Finally, the Court turned to Rangen’s argument that IDWR’s order constituted an unlawful taking of senior owner’s property.  Rangen argued the Director’s order amounted to an unlawful taking because it forced senior owners to choose between granting IGWA an easement or risk losing water that they were entitled to because the order allowed IGWA to suspend its mitigation obligation if Rangen did not allow the pipeline’s construction.  The Court found that even if it interpreted the Director’s order to require Rangen to grant IGWA an easement because Idaho’s constitutional eminent domain power extends to property of public use after just compensation.  Under the Idaho Constitution, right of ways for the construction of pipelines to convey water to the place of beneficial use fall under that power.  This would allow the state to take the property after just compensation.  Since Rangen did not allege that it was not provided just compensation, the Court rejected this claim.

Accordingly, the Court upheld the district court’s partial affirmation of the Director’s order conditionally approving the Plan.

Dalton Kelley

Image: No Trespassing sign in Idaho. Flickr User Makis Siderakis, Creative Commons.


New Mexico, ex rel. State Engineer v. Trujillo, 813 F.3d 1308 (10th Cir. 2016) (holding that a special master in a general stream adjudication properly granted summary judgment against an individual who objected to a district court’s proposed order limiting her water use to 0.5 acre-feet per year (“AFY”)).

This case came before the Tenth Circuit Court of Appeals as an individual challenge to a general stream adjudication initiated by New Mexico to determine water rights in the Nambe-Pojoaque-Tesuque Basin (“Basin”), which originates in the Sangre de Cristo Mountains.  Elisa Trujillo held a domestic well permit allowing her to divert underground water in the Basin.  The individual adjudication of water rights led to the conflict between Trujillo and New Mexico.  In 1983, the United States District Court for the District of New Mexico prevented the state from issuing domestic well permits in the Basin unless the water was used for household purposes only.  This permit provision specifically excluded using water for irrigation.   In 1985, Trujillo’s predecessor-in-interest received a domestic well permit in accordance with the 1983 injunction (prohibiting irrigation) and was granted a maximum use of 3.0 AFY.

In 1994, the district court directed a special master to determine the appropriate amount of water rights for all permits granted after 1982, including Trujillo’s.  The doctrine of beneficial use controls how much water is granted to each permit, and under the New Mexico Constitution, is the amount of water that can be used beneficially and with purpose; water rights are limited based on that use.

Because of the 1994 order by the district court, Trujillo’s permit was amended to limit water use to either 3.0 AFY or the historic, beneficial use, whichever was less.  The court allocated 0.5 AFY for domestic wells unless permit holders showed a greater beneficial use.  In 2006, the district court required permit holders to show (1) why the permit should not be adjudicated to 0.5 AFY and (2) why the water rights should not be otherwise adjudicated consistent with the terms of the domestic well permit in order to obtain more AFY.  Essentially, the burden was placed on the permit holder to prove a need for more than 0.5 AFY in keeping with the doctrine of beneficial use.

Trujillo’s permit was originally designated for domestic use, and in 1985, the permit allowed for up to 3.0 AFY of water.  The state’s proposed order restricted Trujillo’s water use to indoor purposes and limited the amount to 0.5 AFY based on historic beneficial use.  Trujillo objected to her permit’s prohibition on outdoor use and the limitation of 0.5 AFY.  The State offered into evidence an affidavit by an expert witness stating that, on average, permits for a domestic well use 0.4 AFY per household. Trujillo failed to prove that she had the right to use more than 0.5 AFY under the doctrine of beneficial use for a purpose other than as allowed in the permit. In 2010, the Special Master granted summary judgment in favor of New Mexico.

After the Special Master issued the order, Trujillo filed several motions, including an objection to the 2010 order of summary judgment, two motions to quash the 1983 injunction, and a motion to reconsider the district court’s overruling of her objection to the order of summary judgment.  In 2015, the district court issued an order adjudicating Trujillo’s domestic water rights as part of a regional general stream adjudication.  The 2015 order issued by the district court imposed identical conditions on Trujillo’s domestic water rights as had been stated in the 2010 order: a limit of 0.5 AFY with a prohibition on outdoor use including irrigation.  The Court did not find this to be a final ruling subject to its jurisdiction because Trujillo and other permit holders may object to the order during the inter se stage before the district court enters a final judgment on September 15, 2017.  Therefore, the Court did not have jurisdiction under 28 U.S.C. § 1291 to review 2015 order by the district court.  The pragmatic finality doctrine is an exception under § 1291 and may be applied in order to expedite appellate review. However, the Court did not apply the pragmatic finality doctrine to Trujillo’s appeal, instead finding jurisdiction under 28 U.S.C. § 1291(a), which permits interlocutory appeals.

Accordingly, the Court had jurisdiction to review the Special Master’s summary judgment order issued in 2010.  The Court upheld the district court’s ruling from 2010 and the subsequent order in 2015. On appeal, Trujillo did not present the court with evidence of her beneficial indoor use.  Trujillo failed to raise an argument against the 2010 decision upon which the 2015 decision was based.  Contrary to New Mexico law, Trujillo argued that her permit alone created the water right.  Beneficial use is the basis from which all water rights within the state may be legally measured and limited, and Trujillo gave no evidence of her beneficial use for indoor purposes in excess of the allocated 0.5 AFY.

Therefore, the Court affirmed the district court’s order for summary judgment in favor of the state of New Mexico.

Margaret Casey

Image: The Río Grande del Norte National Monument, which is west of the Sangre de Cristo Mountains in New Mexico. Flickr User Bureau of Land Management, Creative Commons.

 

 


Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (holding that three federal agencies managing a dam did not violate the requirements of NEPA when they decided to fluctuate the level of a reservoir without filing an environmental impact statement because that decision was within the range of action originally available when the dam was first operational, and therefore, was not a major federal action).

The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”  An EIS is a detailed study that examines the environmental consequences of an agency’s action.  To determine whether an EIS is necessary, Agencies prepare environmental assessments (“EA”).  In this case, the United States Court of Appeals for the Ninth Circuit decided whether the Bonneville Power Administration (“BPA”) violated the requirements of NEPA when BPA concluded in an EA that no EIS would be necessary to raise and lower the level of Lake Pend Oreille to generate power through the Albeni Falls Dam.

The Albeni Falls Dam (“Dam”) lies on the Pend Oreille River and operates to balance a variety of competing objectives including flood control, power generation, navigation, and wildlife conservation.  Lake Pend Oreille (“Lake”) serves as the Dam’s reservoir.  The Dam’s electricity output corresponds with the amount of water released from the Lake.  Higher output lowers the Lake and causes its shoreline to recede.

The Army Corps of Engineers (“Corps”), the BPA, and the Bureau of Reclamation jointly manage the Dam.  Since its completion in 1957, the Corps fluctuated the level of the Lake to generate power as needed during the winter months.  However, from 1997 to 2011, the Corps maintained the Lake at a constant level to mitigate adverse effects on the kokanee salmon population.

In 2009, the BPA advocated for more “flexible winter power operations.”  The operating agencies developed a new plan (the “Plan”), which preserved the Corps’ discretion to raise and lower the level of the lake by up to five feet during the winter.  Along with the Plan, the agencies published an EA in which they concluded that fluctuating the level of the Lake had no significant environmental impact.  The agencies moved forward without preparing an Environmental Impact Statement.

The Idaho Conservation League (“Petitioner”) challenged the agencies’ decision to move forward without preparing an EIS as a violation of the requirements of NEPA.  The Petitioner requested the court to require the BPA prepare an EIS.  The Petitioner also challenged the EA’s finding of no significant impact, claiming the agencies failed to consider the Plan’s impact on the spread of the flowering rush, an invasive species.  The court held the Plan did not violate the requirements of NEPA.

First, the court rejected the Petitioner’s EIS request, explaining that an action is not a major federal action when an agency operates a facility “within the range originally available to it,” and that the EIS requirement only applies where the proposed action is major.  Actions regarding ongoing projects can be major when agencies make changes that “themselves amount to major Federal actions.”  There was no change in the Plan.  In other words, the plan “did not change the status quo” because if the agencies had before consistently fluctuated the levels of the Lake during the winter, then formalizing the approach to fluctuation would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Dam] was first operational.”  The court concluded the Corps never relinquished its discretion to fluctuate the level of the Lake from 1997 to 2011 when the agency maintained the Lake at a consistent level.  The court reasoned that because the agencies decided to maintain the lake at a consistent winter level on a year-to-year basis, that they had always retained the authority to respond to annual changes in power demands.  By rejecting Petitioner’s request, the court held all other challenges to the EA were moot.  Since the Plan did not trigger a major federal action, the agencies had no need to further consider the flowering rush.

Finally, the court noted that the Petitioner may have had a separate colorable claim if they had argued that the agencies must have supplemented an existing EIS with an analysis of how year-round dam operations affect the spread of the flowering rush.  Agencies have a duty to supplement if there are “significant new circumstances or information relevant to environmental concerns” that were not considered in an earlier EIS.  However, the court found that issue was outside the scope of the case and only raised on appeal.

Accordingly, the court held that the agencies’ decision to move forward with the Plan without preparing an EIS did not violate NEPA.

Trevor C. Lambirth

Image: Photo taken by Roland Taylor of Lake Pend Oreille in Northern Idaho. Flickr user U.S. Department of the Interior, Creative Commons.


Upper Eagle Reg’l Water Auth. v. Wolfe, 371 P.3d 681 (Colo. 2016) (holding that an owner of multiple water rights can choose to divert and make absolute any of its in-priority, conditional water rights and is not required to make absolute a senior conditional water right before a junior conditional water right, so long as the owner lives with his or her choice and does not injure the rights of other water users).

Effective as of March 25, 2004, the Upper Eagle Regional Water Authority (the “Authority”) formed a water service agreement with the Edwards Metropolitan District and the Cordillera Metropolitan District.  Under the agreement, the Cordillera Metropolitan District gave certain water rights and facilities to the Authority, which in turn provided water services to the Cordillera area.  The rights conveyed to the Authority included the SCR Diversion Point No. 1 conditional water right (the “Senior Lake Creek Right”), with a priority year of 1989, and the Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”), with a priority year of 1991.  Pursuant to the agreement, the Authority would limit use of both conditional water rights to irrigation, domestic, commercial, and fire protection purposes, with diversions to occur at the Edwards Drinking Water Facility.

On July 4, 2004, a day on which there was no call on the Colorado and Eagle Rivers, the Authority diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River for beneficial use in the Cordillera area.  The Authority allocated 0.47 cfs of this diversion to its Junior Eagle River Right.  On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (“Application”).  The Application requested confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right at the Edwards Drinking Water Facility for irrigation, domestic, commercial, and fire protection purposes during free conditions.  The State and Division Engineers (the “Engineers”) opposed the Application.

The Engineers initially argued the Authority must make diversions in accordance with the “seniors first” policy, requiring that users first attribute diversions to senior absolute water rights, then to senior conditional rights, and finally, junior conditional rights.  A Water Court granted the Engineers’ motion for summary judgment in part and denied the Authority’s claim for making 0.47 cfs of the Junior Eagle River Right absolute.  The court held the Authority did not have discretion to choose a junior water right over a senior water right when both rights decreed the same point of diversion for the same purposes at the same place of use.

The Authority appealed the Water Court’s decision, arguing that it should have the discretion to choose the conditional water right it wants to divert and use.  The Colorado Supreme Court reviewed de novo the Water Court’s conclusions of law.

The Court only examined whether Authority had to attribute its diversion to a senior water right.  The Engineer partially based its argument on a previous Colorado Supreme Court holding, which required that applicants seeking to make a conditional water right absolute first show they appropriated water in excess of an existing absolute decree.  The Court rejected that argument by distinguishing the facts of this case as involving a choice between two conditional rights rather than a choice between a conditional right and an absolute right.  The Court reasoned that the previous case was not compatible, because the Authority had to attribute one of its conditional rights to a needed water diversion.

The Engineers then argued that application of a “seniors first” policy here would help effectively administer the prior appropriation system and “correctly express” the Colorado Constitution and state statutes.  The Engineers believed that if the Court allowed the Authority to freely select among its conditional water rights, the Authority could change its attribution of diversions from one day to the next.  The Engineers claimed that this potential behavior was dangerous because it could allow the Authority to make absolute more water rights than it actually needed.  The Court did not accept the Engineers’ argument.

The Court ruled that once the Authority makes 0.47 cfs of the Junior Eagle River Right absolute, it must live with that choice; the only way the Authority could later perfect its other conditional water rights is through showing with quantifiable evidence that it requires more water than 0.47 cfs of the Junior Eagle River Right to fulfill the need of the Cordillera area.  The Court summarized that, absent any evidence of waste, hoarding, or injury to the rights of other water users, the Authority may choose which of its conditional water rights it wishes to divert and make absolute.

Accordingly, the Court reversed the order of the Water Court that the July 4, 2004 diversion must be allocated to the Senior Lake Creek Right, and remanded the case with instructions to make 0.47 cfs of the Junior Eagle River Right absolute.

Tina Xu

Image: Flowing water on the way up to Hanging Lake located in Glenwood Canyon, Colorado. Flickr User Zach Dischner, Creative Commons.


Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134 (1st Cir. 2016) (holding that a real estate developer and home builder failed to state facts sufficient to establish a facially plausible claim to relief in their complaint, which alleged that a water district and its superintendent deprived them of federal and state constitutional rights when the superintendent raised valid objections of public concern against the construction of a subdivision).

In 2012, Najas Realty, LLC (“Najas”) purchased a ten-acre parcel of land (the “Property”) in Seekonk, Massachusetts (the “Town”) and filed a preliminary subdivision plan application to develop a ten-lot subdivision (the “Pine Hill project”).  The Seekonk Board of Health met to discuss the application.  The Seekonk Water District’s Superintendent, Robert Bernardo, attended the meeting and expressed concerns that Pine Hill project could potentially impact one of the Town’s wells, Well GP-4.  Bernardo asserted that a malfunctioning septic system servicing a nearby middle school caused high nitrate levels in the soil around GP-4.  As a solution, the Board of Health required that Najas perform a nitrate loading analysis.

After the Seekonk Board of Health initially met, Bernardo expressed concerns at two other meetings that the Pine Hill project’s septic system could increase nitrate levels and expose unborn babies and nursing infants to “Blue Baby Syndrome,” and that nitrate contamination requires high clean-up costs.  Najas rejected these claims.

After these meetings, Najas completed its nitrate loading analysis and submitted a definitive subdivision plan. Najas claimed the plan satisfied regulatory requirements for septic systems and kept nitrate levels in the GP-4 area within regulatory limits.  The Board of Health initially voted to approve the analysis.  After approval, the Planning Board held a public hearing. At the hearing, Bernardo claimed the nitrate loading analysis’ data was false.  In response, the Planning Board reviewed and denied the Pine Hill project.  Najas then appealed to the Massachusetts Land Court.

The appeal led to a settlement allowing Najas to proceed if it reduced the number of lots from ten to nine and shortened the subdivision’s road length.  The Planning Board reviewed the revised plan at another public meeting.  Bernardo again attended and voiced concerns about water contamination issues.  The Planning Board approved the revised Pine Hill project.  The Seekonk Water District then filed a petition to the Planning Board to rescind or modify the approved plan.  The Planning Board denied the petition, and the Pine Hill project continued in accordance with the revised plan.

Najas, joined by Petra Building Corporation (“Petra”) (collectively, “Plaintiffs”), filed a complaint in the United States District Court for the District of Massachusetts against the Seekonk Water District and Bernardo (collectively, “Plaintiffs”), asserting claims under the United States Constitution and analog claims under the Massachusetts Constitution.  The complaint asserted: (1) Defendants retaliated against the Plaintiffs for asserting First Amendment rights to petition and freedom of speech; (2) Defendants violated Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out; (3) Defendants violated Plaintiffs’ Fourteenth Amendment due process rights by opposing the plan; and (4) Defendants tortuously interfered with Plaintiffs’ business.  The district court granted judgment on the pleadings in favor of the Defendants, stating that Najas and Petra failed to state a viable claim.  Subsequently, Plaintiffs submitted a second complaint, which the district court also dismissed in a final judgment.

Plaintiffs appealed to the United States Court of Appeals for the First Circuit, claiming the district court required too much at the pleading stage and the complaint was sufficient to deny a motion for judgment on the pleadings.  The court reviewed the appeal de novo.

The court started its analysis noting that for constitutional claims under 42 U.S.C. § 1983, plaintiffs must prove the conduct complained of was committed under color of state law and that the conduct worked as a denial of rights secured by the United States Constitution.  The court accepted that Bernardo acted under the color of state law, and proceeded by determining whether he encroached on the Plaintiffs’ constitutional rights.

To begin, the court analyzed whether Bernardo had retaliated against the Plaintiffs’ First Amendment right to petition and freedom of speech.  The court stated a cognizable retaliation claim under the First Amendment requires plaintiffs show the conduct was constitutionally protected and that a causal connection existed between the protected conduct and the retaliatory response.  The court found it was unclear whether Najas’s conduct was protected petitioning conduct or free speech comprising commentary on a matter of public concern.  Instead, the court evaluated the test’s second prong, whether the Plaintiffs had established a causal connection between the protected conduct and the retaliatory response.

For this element, Najas pointed to Bernardo’s accusation that the data submitted for the Pine Hill project was “fabricated, false, inflammatory, and baseless.”  The court first discussed the retaliatory conduct and found the record offered no indication that Bernardo did not genuinely hold his concerns.  Graphs revealed “variable and sometimes excessive” nitrate levels from in the monitoring the area dating back to 1995.  The record also showed that members on the Board of Health previously expressed concerns regarding nitrate levels before Bernardo spoke at the initial meeting.  The court also took judicial notice that the Environmental Protection Agency has linked excessive nitrate levels to Blue Baby Syndrome and that nitrate contamination requires high clean-up costs. Therefore, the court found the Plaintiffs’ allegations of retaliatory conduct were conclusory and that Bernardo had a duty to raise objections about potential public health impacts that he believed were valid.

The court then discussed whether Bernardo violated the Defendants’ protected First Amendment right to free speech on a matter of public concern.  Matters of public concern are those “relating to any matter of political, social, or other concern.”  The court found Bernardo had not committed such a violation because, as superintendent, he had an obligation to speak out on matters of public concern.

Next, the court analyzed the claim that Bernardo violated the Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out for unique reasons.  To prevail on this claim, the complaint had to show the Defendants were motivated by bad faith or malicious intent to injure when they treated the Plaintiffs differently from others similarly situated and without a rational basis for doing so.  However, the court found the Plaintiffs failed to explain how other developers and builders were similarly situated because they did not provide basic information, such as when other projects were located, and when they were built.

After the equal protection claim, the court examined the Plaintiffs’ substantive due process claim under the Fourteenth Amendment.  To assert a viable substantive claim, plaintiffs must prove deprivation of an established life, liberty, or property interest, and that the deprivation occurred through governmental action that shocks the conscience.  The court found it unclear what deprivation occurred, and noted the Plaintiffs “oddly” claimed that by opposing the project, Defendants deprived them of life and liberty.  The court instead analyzed the claim as a deprivation of property.

Substantive due process claims regarding deprivation of property cases are only available in “horrendous situations.”  The court found that, at worst, the Defendants actions were “doggedly persistent,” and this did not amount of “brutal, meaning, and harmful” conduct as is necessary in such a claim.

Finally, the court analyzed the Plaintiffs’ claim that Bernardo intentionally interfered with a business expectation, opportunity, and advantage.  Here, the court addressed whether Bernardo’s actions directly attempted to interfere with business relations.  The court granted Bernardo immunity for his actions under Massachusetts common law, where public officials who act in good faith and exercise judgment and discretion are not liable for errors in making decisions.  Here, the court again stated that the Plaintiffs’ complaint failed to state a plausible claim for bad faith or malice intent.

Accordingly, the court affirmed the order of the district court.

Kole Kelley

Image: Drawbridge on the Seekonk River, a tidal extension of the Providence River. Flickr user rprata, Creative Commons.

 


24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference

Denver, Colorado                                October 5-8, 2016

A Glass Half Empty – Flint, Environmental Justice, and America’s Drinking Water Infrastructure Problem

At the 24th Annual American Bar Association Environmental, Energy, and Natural Resources Law Fall Conference in Denver, a panel of three professionals in the field of environmental justice tied themes of environmental justice to the history, issues, and lessons learned from the recent drinking water crisis in Flint, Michigan.

Randy Hayman, from Beveridge & Diamond in Washington, D.C., opened by stating that the Safe Drinking Water Act (“SDWA”) is the most important piece of legislation the United States Congress has ever passed, because “water is life.” The SDWA gave U.S. citizens assurance that their water would not be contaminated by anything that could cause serious health problems. Considering the necessity of water to human survival, Hayman said the SDWA is inherent to environmental justice.

The majority of Hayman’s statements were about the history and execution of the SDWA. Many regulatory checks were put in place by Congress to ensure that everyone is confident their water is safe to drink and use for everyday needs. Other than wells serving fewer than twenty-five people, every public water system is subject to the rules of the SDWA, and failure to meet the standards set forth by the law can result in fines of $25,000 per day. The damage does not just end at the fine, however. Public confidence in officials erodes when a community violates SDWA rules. Therefore, public officials face the dilemma of whether to publicize the existence of a water crisis, because failure to solve the problem swiftly result in the public’s trust quickly diminishing.

The moderator asked Hayman to elaborate on the Lead and Copper Rule, a health standard that minimizes the amount of those contaminants in public pipelines. Lead and copper particles enter the water stream from pipes, pollution, and natural processes. As long as the amount of either remains below a specified “action level,” the water is still considered safe for human consumption. An action level is an amount of contamination that will require additional action from water system administrators, including treatment, public notification, or exposure minimization. Exceeding an action level is not a violation itself—nor is it necessarily a health and safety hazard—but it could indicate the existence of a water-pollution problem. According to Hayman, because education about safe contaminant levels is insufficient, news of a community’s water getting contaminated at all sometimes causes panic. Hayman suggested officials should take greater steps to inform the public about lead and copper, since it is only when those measurements rise to very high levels that they become a potential threat to health.

The second speaker was Quentin Pair, a professor of environmental justice at Howard University School of Law who also works in the environmental justice division at the Department of Justice. According to Pair, environmental justice is the civil rights of the Twenty-First Century. In his discussion, Pair said the themes of the civil rights movement are tied directly to modern environmental justice because the Environmental Protection Agency’s definition of environmental has very similar language to Title VI of the Civil Rights Act – equal treatment is emphasized in both. He mentioned how critical it is to consult the general public first about environmental issues, rather than waiting for elected officials to take notice. He believes grassroots organizing can begin to solve environmental problems much more efficiently and effectively than any other public resource because local community members know which issues are most important to their neighbors than elected officials.

As part of his discussion, Pair shared the story of the beginning of modern environmental justice in Warren County, North Carolina. Beginning in 1973 a large landfill was used to dispose of contaminants without the knowledge or consent of one of the poorest counties in the state, the populations of which were more than seventy percent black at the time. This controversy was addressed in several lawsuits, including United States v. Ward in 1982. This trend has since continued, and three out of every four disposal facilities in the country are located in minority and low-income communities. According to Pair, race is the most significant determinant of the location of these disposal facilities across the country. He said that in order to talk about environmental justice, it is impossible not to consider how much damage environmental racism has caused.

Michelle Wilde Anderson, a law professor at Stanford who focuses on state and local government, was the final speaker on this panel. She brought the discussion full-circle by connecting what the other speakers discussed to the Flint crisis. She described the professionals who initiated the documentation of the contaminated drinking water in Flint, including a pediatrician who investigated the doubling and tripling of lead levels in her patients’ blood. Those professionals did what Pair criticized public officials for not doing: they listened to the community and learned what was wrong.

Wilde Anderson also described how the cause of the crisis was a revenue problem rather than a spending problem. Because of an abundance of deferred spending and loans in the 1970s, Flint did not have the resources to meet local needs. Public infrastructure suffered as a result of the lack of resources, and old systems that were not properly maintained grew more vulnerable to leaking contaminants over time. Ultimately, she said, the decision to rebuild these outdated infrastructure systems is left to the taxpayers, and the longer those systems go without repair the more likely health hazards are to occur in the near future. Wilde Anderson views Flint as a warning or a wake-up call to the nation because old pipeline systems will fail without better and more regular maintenance.

The panel then accepted questions from the audience. One audience member asked how federal agencies, including the Environmental Protection Agency (“EPA”), could do a better job dealing with environmental injustice. Pair suggested those problems could not be solved without providing more funding for environmental justice, which Congress has denied. He further noted that many communities do not trust the federal government to solve all of their problems, so the EPA currently has neither the political nor the financial support needed to tackle those issues. Another audience member asked how local communities can recognize access to safe drinking water as a basic human right. Wilde Anderson answered by saying that leaders do not try hard enough to make water available to communities that cannot afford it, so communities fall short of recognizing access to safe drinking water as an essential human right. The costs associated with delivering water to these communities are high, and not many cities have completed these critical delivery infrastructure projects.

Travis Parker

Image: “There’s Something in the Water.”  Property of Live Once Live Wild, Creative Commons.


6th Annual Carver Colloquium

Denver, Colorado                                September 29, 2016

Water for Sale: Prior Appropriation or Free Market Trade?

The Rocky Mountain Land Use Institute hosted the sixth annual Carver Colloquium on September 29, 2016. Former Colorado Supreme Court Justice, Gregory Hobbs, and Professor Gary Libecap, of the University of California, Santa Barbara Bren School of Environmental Science and Management, compared the relative merits of the prior appropriation system and the free market system of water allocation.  The debate over which system of water allocation is better suited for today’s environmental realities quickly evolved into an in-depth discussion about the advantages and disadvantages of the doctrine of prior appropriation, as well as an insightful comparison between Colorado’s use of prior appropriation and California’s hybrid utilization of prior appropriation and riparianism. University of Denver Sturm College of Law professor Jan Laitos moderated the event, which consisted of a ten-minute opening comment by each speaker, followed by three discussion questions from Professor Laitos, and a thirty-minute session in which the speakers answered questions from the audience.

Justice Hobbs began by reciting a poem and providing a brief history of water law in Colorado.  He discussed how the terrain of the American West requires the prior appropriation system of water allocations because the riparian system is not realistic in a place where the few sources of water are scattered across an arid landscape.  Water rights, he said, are for the beneficial use of the people, and Colorado’s historical use of the prior appropriation doctrine reflects that reality.

Professor Libecap followed Justice Hobbs’ introduction with a brief explanation of California’s current approach to water allocation.  In California, the riparian doctrine is still used in conjunction with the prior appropriation system.  The state owns the few large water projects that serve the main metropolitan areas, and contracts between water rights holders in the water-rich north and the water-scarce south tend to result in unfair distributions to the detriment of southern water users.  This complicated situation has led to heavy reliance on groundwater supplies, which has caused severe shortages.  Professor Libecap noted that the doctrine of prior appropriation is not to blame for California’s drought situation.  Instead, Mr. Libecap pointed to the ill management of water supplies by state legislators and municipalities.

After the introductory remarks, Professor Laitos directed his first question to the two speakers: Could a “water markets” system or “water capitalism”—where water rights are bought and sold like a commodity—ever replace the prior appropriation system?  Justice Hobbs began by stating that water rights are a type of property right and such rights cannot be bought and sold like a product or commodity.  He said he did not believe system in which water was bought and sold like a commodity could be successful, especially in Colorado because water rights are a public good determined by beneficial use, and although water rights can be owned, the use of such a right is dependent on use by all other owners.  While prior appropriation is an adaptable system and could promote a “water market,” water rights could never be traded like other commodities.  Professor Libecap did not view the prior appropriation system as significantly different from a “water market.”  He noted that there have been many water contracts created in California, and said water acting as a commodity in a water market promotes a more versatile system, with more cooperation between water-rights owners.  Legislators in California are considering the use of legislative mandates to control the current water shortage, but Mr. Libecap insisted that this kind of approach would be unmanageable and inflexible for responding to market and climate changes.

Professor Laitos then asked whether it is old fashioned that in 2016, when our society is more technologically advanced, the largest and most senior water rights holders are still ranchers and farmers as opposed to factories and production sites.  Justice Hobbs argued that Colorado should remain true to its roots, saying that although Coloradans need to find a way to meet the growing water demands of booming urban areas, they should not do so at the detriment of older agricultural water rights holders.  Professor Libecap claimed that the media is misinformed about the actual amount of water used by agricultural producers.  Californian farmers are not opposed to trading or sharing water rights with the urban population; their main concern is that the state legislature will see them as old fashioned and outdated, and will proceed to forcefully take their rights away and reapportion them to others.

Professor Laitos’ final question was whether the speakers believed that the prior appropriation system is equipped to accommodate the countervailing needs of the environment—keeping water in the stream to protect water quality and aquatic wildlife—and of making sure a senior appropriator has enough water—even if it means dewatering that stream? Justice Hobbs responded that prior appropriation is equipped to deal with environmental concerns but that it comes at a cost.  He pointed out that federal legislation has created permitting regulations that overlay Colorado’s prior appropriation system for any new major water projects, but those processes can take fourteen to eighteen years.  Because of the increasing difficulty and uncertainty associated with getting those supplies through new transbasin or storage projects, Front Range municipalities are forced to turn to accelerated water-market acquisition, stoking the fears of buy and dry on the Eastern Plains. Professor Libecap agreed that prior appropriation is perfectly set up to deal with environmental flows. Nevertheless, he cautioned against states like California turning to solutions that involve issuing mandates to protect stream flows, which he called a tax on senior rights holders and one that causes endangered species to become the enemy, thus creating a conflict between local and environmental objectives. Instead, he argued, if states really want to protect stream flows in the long term, they need to turn to market solutions like leases, option contracts, or outright sales to protect that water. That way the environment “owns” it and the farmers benefit financially, both of which prevent the type of conflicts mandates will have down the road.

In the final portion of the debate, the audience asked questions of the speakers. Justice Hobbs clarified that the prior appropriation doctrine used in Colorado does not create the “use it or lose it” problem because the key concept of the prior appropriation system is beneficial use. Applicants are only required to show actual use (historic consumption) and what is left over returns to the stream for the public; thus, nothing is lost.  Then, Professor Libecap commented that the hybrid system currently used in California, when compared to the much more streamlined Colorado system, lacks the clear statutory structure and direction required to create an active and effective “water market.”  Professor Libecap also assuaged the general fear that recreational or aesthetic water use in times of drought are frivolous by noting that such uses are so minuscule that they do not have much impact on broader water issues.  Finally, Justice Hobbs advised that the only problem with the prior appropriation system is management and enforcement of the system; he felt that the government sometimes gave in to pressure from private parties, which decreases the effectiveness of the system.  Justice Hobbs proposed that more administrative control in the future should combat this governmental failing and make the prior appropriation system more successful.

Tina Xu

Image: The Colorado River. Flickr User Rennett Stowe, Creative Commons