In Water is for Fighting Over, John Fleck[1] takes a positive outlook on the future of the Colorado River, despite its decreasing quality and flow. As a recurring theme, Fleck sets his sights on debunking the titular assertion and a variety of other Western water myths that propagate scarcity, conflict, and disaster. He highlights different instances of collaboration, conservation, and collective water-share efforts by communities utilizing the river that put these myths to bed. Fleck spends the pages convincing readers that fighting over scarcity of water resources never eradicates issues, but utilizing less water collectively could help save the flow of the Colorado River for years to come.

Chapter one, “Rejoining the Sea,” describes how water distribution should be handled in the Colorado River Basin. Fleck makes observations about different areas of the U.S. drying up through drought or over-allocation of water resources and the ways in which cities make do with less water in these circumstances. As a solution to this issue, he points to the role “the network” can play in resolving difficult water disputes. Fleck believes this informal group of experts—engineers, lawyers, environmentalists, and water managers who all deal with the river and its allocations, conservation, and management on a daily basis—is essential to better management of the Colorado River. This sort of collaboration is what Fleck believes will alleviate the multitude of allocation issues facing the Colorado River Basin year after year.

Chapter two, “Water Squandered on a Cow,” outlines water apportionment disputes and wasteful irrigation practices in Colorado, specifically highlighting improved farming routines associated with the alfalfa crop. Fleck begins the chapter by explaining where the Colorado River’s water actually comes from: snowmelt. The issue with the Colorado River is that most of the time there is not enough snowmelt water to fulfill every entity’s legal entitlements. When there is not enough water, the Colorado River Compact first fulfills its duty of water allocation to those senior rights holders who put their allocations to beneficial use. This means the agricultural communities are characteristically safe in times of water shortage because their rights are first priority when the water is short. Yet, studies show that alfalfa is still able to produce a crop without water for a season (albeit at a lower yield). This means cities and other essential—but more junior—water users can “borrow” water in times of dire shortages from alfalfa farmers and compensate for the loss in crop yield. Fleck takes issue with the fact that farmers and municipalities only take advantage of this preservation tactic when all parties need to take a huge cut in their allocations for conservation purposes. Instead, he would like to see protection practices such as these taking over the agricultural industry by choice rather than necessity. In light of the senior rights system and the ability of crops to survive with little water for a season or two, the myth of farmers and crop-growers running out of water is, in most cases, exaggerated.

Chapter three, “Fountains in the Desert,” highlights the triumphs of Las Vegas’ water management system despite its dry climate and miniscule allocation of the Colorado River. The focus of conservation has been so effective that Las Vegas does not use its full apportionment of water from the Colorado River, and while its water use decreases, the city’s population continues to grow. Surprisingly, in a city known for its hedonistic qualities, the community managed to reduce its water usage by twenty percent because of its willingness to participate in government conservation efforts without fighting back. Las Vegas accomplished these reduction efforts during a significant population boom, further debunking the myth that a population increase compels an increased need for water.

In chapter four, “Negotiating the Rapids,” Fleck points out the value of informal conversations to river management. He identifies how many of these types of interactions are so successful because, in these informal settings, individuals speak as individuals, not stakeholders for their place of employment. Fleck provides one example of a group created as a result of an informal conversation: the Yuma Desalter Working Group. One of the federal government’s senior water managers formed this group during a rafting trip on the Colorado River. After a weekend of hanging out by the river, drinking beer, and casually discussing current water issues, the group met later on and came up with plans to reduce the dry-up risk of lower Colorado River Basin users while, at the same time, maintaining the wildlife and habitat at the Cinega de Santa Clara. Fleck credits the accomplishments of this group to a breaking down of professional conversational barriers before digging into the issues, obviating the worry that people of different backgrounds and beliefs will refuse to compromise.

Chapter five, “Arizona’s Worst Enemy,” provides an example of the consequences of unwillingness to compromise. Fleck describes Arizona’s various actions that denote its historical belief that “water is for fightin’ over,” the main myth that this book aims to engage. This contentious attitude continues to cause issues for Arizona beyond the original refusal to sign the Colorado River Compact in 1922, the agreement that created an interstate Colorado River share system. After officials refused to compromise, Arizona received its first break from detrimental allocation sizes in court: Arizona sued California and prevailed in obtaining the water it believed it needed to survive, even though Arizona would soon find itself trading water for California’s help transporting it into the state. The ongoing lawsuits between Arizona and California are still long from over, and the outcome of this suit only amplifies the allocation issues the Colorado River Compact presented. Fleck believes compromise will be even more imperative if redistribution occurs in terms of allocations, and he does not predict Arizona will be willing to cooperate in the future either.

Chapter six, “Averting Tragedy,” describes how compromise, rather than fighting, alleviated the first instance of potential groundwater exhaustion in Los Angeles County’s West Basin (“West Basin”). Finding new solutions to groundwater pumping and finding an imported water supply to replace the salty groundwater were proving to be difficult tasks for city water managers. The difficulty came about because each community continued pumping groundwater without regard for its neighbors. Political scientist Elinor Ostrom studied the disregard for neighboring communities that plagued this situation, and she found that it caused severe interstate agency rivalries. She believed, much like Fleck, that informal conversation, or what she called “cheap talk,” was the best technique for getting communities to come together and compromise. As a result of “cheap talk,” the West Basin Water Association materialized, and all but one of the communities joined together to combat the issues as a team. Not until the court ordered the lone holdout community to participate did the reckless groundwater pumping completely stop. Fleck concluded that sometimes the courts are the only entity that can successfully set rule-breakers in their place for the greater good, further proving that fighting over water is not the best solution to large scale problems.

Chapter seven, “Turning off LA’s Tap,” details another successful instance of compromise over conflict in California. The state has a historical tendency to claim upper basin states’ unused water allotments without permission. While this forms a temporary fix for California’s drought issues, eventually upper basin states needed to save water rather than spend it. This trend caused conflict between California and upper basin states, and eventually all seven states banded together to address and resolve the conflict in 1990. With the input of all seven states regarding California’s request to receive the surplus water each year, a protocol for handling river allocation proposals was born, and the states agreed that nothing would pass as law without approval from all seven states. When the compact states did not approve the surplus request, California needed to create a soft landing for itself by decreasing its river use, starting with the places it used water the most: local agricultural or urban communities. Despite its efforts, California failed to reduce usage, and the government stepped in and slashed the overused allocation to its originally defined amount. Although this action was a harsh wake-up call for California, the other six states felt the original allocations were fair, proving once again that compromise, albeit as a result of a little government intervention, is often necessary to drive revolutionary changes.

Chapter eight, “So Cal Cuts Back,” shows California’s efforts to dial back water usage as demanded by the government. As a fix for this, the metropolitan communities formed a management system. The original objective of this group was to find a way to supply the urban areas with the amount water they required. This tactic quickly failed as all three water storage areas dried. The Metropolitan Water District (“Metropolitan”) governance realized it needed to abandon the plans and changed focuses. The spotlight turned to groundwater recovery and the recycling of water previously unfit for human use. Fleck illustrated a state’s ability to manage a change in allocation or a shortage in resources by banding together with its individual communities, demonstrating the importance of exploring alternatives before succumbing to the fear of water scarcity.

Chapter nine, “The Great Fallowing,” lays out the history of the Imperial Irrigation District (“Imperial”), the district with the most water allocated from the Colorado River. In order to eliminate the frequent flooding that would jeopardize the lower river valley, the district created The Hoover Dam and the All American Canal. The dams evened out the flow, making year-round irrigation possible. Once these structures were set up, Imperial’s wasteful practices of hoarding water became more apparent among its residents: farmers continued to overestimate the amount of water they needed, creating an excess of runoff, and the sea began to rise and flood the nearest farmland. When other states expressed concern, Imperial chose to join together with the water-hungry Metropolitan, and it promised a share of its unused water if Metropolitan could come up with a way to conserve Imperial’s water. The practices soon turned a surplus into a deficit, and the agricultural community had to learn how to farm with less. This instance points us back to the notion of efficiency in agricultural techniques. Fleck once again challenges local governments with this chapter to look into this scarcity strategy, not only in times of scarcity but in everyday irrigation practices.

Chapter ten, “Emptying Lake Mead,” highlights the trials of keeping the Lake Mead and Lake Powell Reservoirs relatively full while fulfilling Mexico’s water distribution requirements. Lake Mead’s level was dropping quickly, and policy debates began about shortages that the Colorado River Basin states had never encountered. When Lake Powell surpassed Lake Mead in dry-up potential, the network of water collaborators came together just as it did to create the Colorado River Compact in 1922. It came up with a plan, to which all states agreed, that required proportional allocation cuts when the water was low for each state. When 2014 rolled around and Lake Mead was still declining, Fleck says it was apparent that the deal did not go far enough in terms of cutting back. The network had a lot more work to do to stop the depletion of both reservoirs.

In chapter eleven, “Who’s Left Out,” Fleck addresses, once again, the importance of inclusiveness. During the change in operations at the Glen Canyon Dam, electricity consumers were left out of the conversation. New water management around the Salton Sea did not think to include the public health community when making the changes would impact the surrounding air quality, and when the Bureau of Reclamation conducted its “Colorado River Basin Water Supply and Demand Study,” it failed to mention large stake holding Native communities entirely. When these issues were brought up, Fleck was careful to point out that the changes often had a sizable impact on Native American tribes, who are very rarely included in the conversation. The Colorado River Compact rarely mentions the Native communities, and decision-makers did not invite any of them to participate in water conversations. Lastly, when making influential decisions about water management, the host often fails to consult or invite environmentalist groups. Fleck believes that leaving out these groups can harm the progress that “network” groups are making by slowing down the process and requiring revision of previous decisions for inclusiveness.

Chapter twelve, “A Beaver Returns to the Delta,” further discusses inclusivity, and shows how collaboration between formally feuding groups can help to undo much of the damage we have done to the Colorado River over the years. Fleck explained that after the Colorado River Compact creators divided the river, they found that dry spots would emerge in arid seasons, and the wildlife would migrate until the river started flowing again. Most recently when the river started flowing again in the previously dry Colorado River Delta, Mexico, the United States, and environmental groups met to devise a plan to keep the water flowing through this delta. This plan, titled Minute 319, was the first of its kind that mentioned environmental implications and wildlife preservation. This collaboration felled two myths. The first was that environmentalists and water managers could not work together to achieve common goals. The second was that the delta was dead, and that rejuvenation of wildlife and surrounding communities was impossible due to the growing water demands and the consistent population booms alongside the Colorado River.

In chapter thirteen, “Conclusion,” Fleck wraps up his book by highlighting the issues with over-allocation, hoarding of rights, and “use it or lose it” laws, and by stating the major issues and providing potential solutions. He believes that every state will need to understand each other’s needs and work together to solve the problems of the Colorado River. Fleck also warns of the media’s ability to shape the viewpoints of people or the tone of events. He finally stresses the importance of communication, and he reminds us that a simple informal conversation or meeting could solve problems that the many entities of the Colorado River face each year.

In conclusion, Water is for Fighting Over serves as a call to collaborative action for those sharing and managing water stemming from the Colorado River. Fleck provides a positive outlook on the future of the Colorado River if communities find ways to come together for conservation efforts and management rather than turn to fighting over every last drop. The book supplies a comprehensive history of systematic inefficiencies and the collaborative ways that we can address them in the West. Fleck illustrates the various instances that he believes debunk the myths that create sleepless nights for many who depend on the Colorado River’s allocation system. He shows that water is not for fighting over, but it is for sharing and finding solutions to its management as the years go on.

 

Rebecca Spence

[1] John Fleck is a former journalist for the Albuquerque Journal, and the current director of the University of New Mexico’s Water Resources Program. He maintains a blog touching on topics regarding water and climate in the West, and he sends out periodic email newsletters with updates. Water is for Fighting Over is his second book. His first book, The Tree Rings’ Tale, is a book for middle-school-aged students about the climate of the West.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

The Public Trust Doctrine: A Modern Debate Over a Classic Doctrine

 

Three speakers came together to discuss their views on the public trust doctrine as it applies to the current state of water law. Jennifer Harder moderated the discussion. She is a professor of law at the University of the Pacific, McGeorge School of Law, in Sacramento, California. The first part of the discussion was led by Buzz Thompson of O’Melveny & Myers, who is also a professor at Stanford Law School. He was followed by J. Craig Smith of Smith Hartvigsen, PLLC, located in Salt Lake City, Utah. Cynthia Koehler, co-founder and executive director of WaterNow Alliance, a non-profit organization based in San Francisco, concluded the discussion.

Thompson introduced the panel topic and provided general background information regarding the public trust doctrine and its application to the area of water rights. He informed the audience that the application of the public trust doctrine to water law sports about fifty years of legal history. Yet, this doctrine remains extremely controversial as it exposes a variety of legal puzzles. Only a handful of state courts have written on the subject; for example, both the California Supreme Court and the Hawaii Supreme Court published landmark opinions regarding the public trust doctrine in water law. Generally, states recognize that water is a public resource, exclusively owned by the state, even if states also recognize a variety of water rights held by private individuals.

Thompson pointed to several concerns regarding the public trust doctrine. Some believe that the doctrine will give courts a license to engage in strong judicial intervention. Others feel that this doctrine is simply a form of broken judicial takings. Yet still, others are worried that this doctrine is anti-majoritarian because the legislature may not be able to override judicial opinions on the applicability of the doctrine. There is an even split amongst courts who have addressed this topic; states such as California have applied the public trust doctrine to their state consumptive water laws, while other states, including Colorado, have explicitly rejected the application of the doctrine to water rights. At this time, it is unclear as to whether applying the public trust doctrine will yield positive or negative consequences.

Smith followed Thompson’s introduction with his views on the public trust doctrine in the context of the prior appropriation system. He does not believe that the public trust doctrine should be applied to water law where the prior appropriation doctrine governs and private property rights are at stake. Smith feels that this public trust movement reflects the general unease the public feels about private property rights over a public resource. For example, in Utah, like in many arid western states, private water rights held by individuals or private companies are key to the value of their property holdings. The properties of many land owners would be essentially worthless if those private water rights are taken away. The value of the land is tied to the water rights that comes with it. Smith believes that the well-established prior appropriation system works well and will continue to work well, even if we are not comfortable with the idea.

A current case in Utah arose from a unique situation created by a clash between the public trust doctrine and prior appropriation. The questions posed were: whether water is a public resource; if the public has a right to access the water, to what extent would that encroach on the rights of private individuals; can a certain amount of limited trespass be allowed through private property to access water sources; and should this sort of access be limited to only navigable waters? Smith concluded that in the future, state legislatures must pick a side because the two doctrines conflict with each other on a fundamental basis. If both doctrines exist together, there will be much confusion and inconsistences in state policies and laws, which will in turn hurt those who has invested an immense amount of resources in water infrastructure and legislation.

Koehler took the opposite view in her discussion of the public trust doctrine in water law. She began by noting that the public trust doctrine is actually quite old, extending back to England and the concept of sovereign ownership – the monarchy owns resources that benefit the citizenry and hold such resources in trust. This idea immigrated to the United States and several U.S. Supreme Court cases in the Nineteenth Century established that each state, as its own sovereign, has the right and responsibility to hold public resources in trust for the benefit of its citizens. Although Koehler agrees with Craig that the public trust doctrine impose limitations on private enterprises, she believes that this is necessary to protect the interest of state citizens. The key question to ask is: to what extent is it acceptable for the public trust doctrine to limit private property rights?

Koehler demonstrated situations where the destruction or damage to natural resources and the environment is so severe and so prevalent that the state has a duty to step in and intervene. States have an obligation to preserve the value of such resources for future generations. Water, like other aspects of nature – the land, the sea, the air, is a different type of property, public property. Such property cannot be parceled out and used in the same way as other more traditional kinds of private property. To withhold access to water would have a significant impact on the general population and society as a whole. Koehler feels that to view water as a resource equivalent to other types of private property is misguided and dangerous. This kind of view, when reflected in policy and law, will only cause harm to state citizens and to the state’s natural environmental, as well as, create irreparable damage to natural resources and alter our nation’s environment permanently.

Tina Xu

Image: A walking path follows along Salt Creek in Death Valley, CA. Flickr user nate2b, Creative Commons.


People v. Davis

People v. Davis, 3 Cal. App. 5th 708 (2016) (holding that the State of California could not convict a criminal defendant of simple larceny for capturing flowing water from a natural stream, because the state did not hold a superior possessory interest in water).

In September 2009, Kenneth Davis’s neighbor told the sheriff that Davis diverted water from a stream to irrigate medical marijuana. The neighbor showed authorities a makeshift well and a 2,500 gallon tank buried nearby on a railroad company’s property. The tank captured water that Davis used to irrigate his fields. In February 2010, the California Department of Fish and Game found that Davis’s irrigation system drew from a stream that was part of the state’s water system. Davis did not receive approval from the landowner or the state to create the diversion. As a result, prosecutors charged Davis with illegally diverting the natural course of a stream, as well as petty theft of water.

At trial, the jury found Davis guilty of both charges and a judge placed him on informal probation conditioned upon a ninety-day jail term. Davis sought review by the Appellate Division of Butte County, which affirmed the lower court’s holding but later certified the case for transfer to the Court of Appeals at the defendant’s request. On appeal, the court only considered whether a court could properly convict a criminal defendant of petty theft of water.

The court first discussed whether any party held complete ownership or a superior interest in the disputed water. To bring a larceny claim, the state must show that a party stole personal property subject to ownership. Larceny claims in California require that the victim has a possessory interest in the stolen property that is superior to the defendant’s. In California, the public holds a collective vested interest in the state’s water. This collective ownership of water is a legal fiction, called the public trust doctrine, in which the state is the public trustee of its resources for use by its people. Consequently, ownership rights are usufructuary and incorporated with the needs of others to use the available water resources. Further, because the state holds water in public trust, it is legally inalienable. The state cannot grant property rights to water. However, water can be owned if it is lawfully captured. If the captured water is then released, it again becomes part of the state’s resource trust. Therefore, in common law, water could not be the subject of larceny because it would not be anybody’s personal property.

The court found that the state had not demonstrated that it, nor any other entity, had ownership of the water that was superior to the defendant’s ownership interest. Therefore, the charge was insufficient to support larceny. The railroad company who owned the land that the tank was placed on did not possess a superior interest because it made no attempt to capture the water and thus had not claimed ownership of the water. The court also rejected the state’s argument that its regulatory powers under the public trust doctrine created a superior possessory interest. The court found that, while Davis may have violated California’s regulatory powers, the state could not bring a larceny charge against him because its regulatory responsibility did not create a possessory interest in the water. Therefore, Davis’s conviction was inappropriate because the state failed to meet the ownership or superior interest requirement of a larceny charge.

The court next addressed the state’s claim that it could establish Davis’s ownership through severance of the water from the property. The court stated that water may be held as personal property once it is severed from the land through capture and storage. However, water that is diverted for irrigation is not considered to have been severed and does not qualify as personal property. The prosecution claimed that a larceny charge could be brought according to precedent regarding the severance of oil. Severance of oil converted it to personal property and subjected it to a valid claim of larceny. However, the court found that Davis used the water from the tank for irrigation, which did not create a severance of the water and did not convert the water into personal property. Therefore, the prosecution’s alternate claim was insufficient to bring a larceny charge.

Accordingly, the court reversed Davis’s conviction for petty theft, with instructions to dismiss the count. It otherwise affirmed the judgment against Davis, and ordered an amended probation order.

Ryan Hull

 

Image: Marijuana plants grow in a field. Flickr user Digital Aesthetica, Creative Commons.

 


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon         March 2–5, 2017

Film Presentation of Paya: The Water Story of the Paiute

 

Presented by: Jenna Cavelle, Director; Harry Williams, Bishop Paiute Tribal Member & Activist; Jacklyn Velasquez, Big Pine Paiute Tribal Member & Vermont Law School; and Chris Morrow, Viterbi Graduate School of Engineering.

The landscape in Owens Valley—in arid Inyo County—contains evidence of long-standing irrigation practices predating the American West’s colonial era. These dried up channels and diversions come from the people who traditionally inhabited Owens Valley. Today, the descendants of those people belong to the Bishop Paiute, the Big Pine Paiute, and a number of other tribes. The film Paya: The Water Story of the Paiute explores a series of extensive pre-historic irrigation systems in the Owens Valley and argues that evidence of early beneficial use may help establish a substantial water right for the region’s present Indian tribes. The film frames the exploration by discussing intervening historical injustices that prevented local tribes from conducting irrigation.

To establish a substantial water right, the local tribal members recognized a need to establish evidence proving long-term use. To this end, it is easy to establish that pre-historic irrigation channels actually existed, but it is much more difficult to show the water quantity used. Nevertheless, there is much evidence verifying the extent of prehistoric irrigation channels. First, there is historic evidence proving the the existence of an irrigation system from 1856, when surveyor Alexey W. Von Schmidt marked ancient irrigation channels on maps he prepared. Second, oral traditions suggest that irrigation practices occurred. Harry Williams, a Bishop Paiute tribal member, remembered hearing about the channels when he was a child. Third, various archaeological studies suggest the existence of these channels. Finally, many of these channels are still visible today. Combining data, the film estimates that native people constructed over sixty distinct networks of ditch systems in the Owens Valley.

The more difficult task for Williams and others is to prove the quantity of water that flowed through these irrigation systems. So far, the local community has only been able to gain a rough estimate of the water quantity that could flow through one of the streams. Scaling this estimate up area-wide, local tribes could have access to tens of thousands of acre-feet each year if they successfully applied for a water right. Unfortunately, estimating hydrologic flows could be cost prohibitive.

The indigenous people of Owens Valley irrigated the land until the Owens Valley Indian War, which ended in 1863 and resulted in the removal of the native populations. Even after being allowed to return home, Indians could not purchase land. As a result, the Bishop Paiute and other tribes experienced a “forced, sudden amnesia,” and lost their irrigation practices.

The rapid population growth of Los Angeles exacerbated this sudden amnesia. In 1905, the City of Los Angeles approved the Los Angeles Aqueduct and began purchasing water rights and land in Owens Valley. Since then, the City of Los Angeles has pumped hundreds of thousands of acre-feet per year from Owens Valley. Williams says that the way his elders described the land in Owens Valley is very different from the way it appears now. He links this change to the Los Angeles Aqueduct.

If tribes can establish beneficial use predating the aqueduct, they could prevent the Los Angeles from diverting massive amounts from the Owens Valley. However, Los Angeles has long been militant in its Owens Valley litigation and owns vast quantities of the area’s land. For local Indian tribes to establish a water right, they must identify and prove the existence of evidence that can accurately describe the prehistoric beneficial use of people in the area.

After the film concluded, the film’s director, Jenna Cavelle, along with Williams and two other contributors, hosted a question-and-answer session. Cavelle stated that the film has created a movement within the local community that sees this effort as chance to establish a substantial water right. Unlike many tribes, the Big Pine Paiute and others in the Owens Valley never received a federal “Winters” right to water, so the prospect of establishing a first-in-time, first-in-right beneficial use for the tribe is a first step that has invigorated many locals.

The largest issue facing the tribal communities is the funding needed to accumulate enough evidence. Developing and presenting this portfolio would require archaeologists, biologists, attorneys, hydrologists, engineers, and geologists. The cost alone of estimating water quantity flows would be astronomical. Cavelle hopes that screenings of this film will help raise awareness and encourage viewers to contribute to the tribes’ efforts.

Matthew Kilby

 

Image: A small rainstorm over the Owen’s Valley. Flickr User, JesseLeeRoper, Creative Commons.


Case Note: Concerning the Application for Water Rights of Town of Minturn,

Supreme Court of Colorado

359 P.3d 29

Supreme Court Case No. 14SA295

October 26, 2015

An Appeal from the District Court Water Division No. 5

Case No. 12CW77

Honorable Judge Thomas W. Ossola

 

I. INTRODUCTION

Generally, individuals may represent themselves in courts of law.[1] For example, a criminal defendant may choose to serve as his own counsel in his death penalty trial.[2] In the realm of water law in Colorado, any person may insert themselves into water-court proceedings.[3] However, after a recent decision, a person may not proceed pro se in water court while acting in a trustee capacity.[4] This article addresses why the ability to represent oneself in Colorado water court exists, even in the context of Tucker v. Minturn. The article will first provide pertinent background on Colorado’s water regime as well as context to the Minturn decision. Moreover, the article suggests this ruling is analogous to the way courts treat unrepresented parties in water court. Last, the article will make a policy recommendation that could potentially ameliorate the inequity that exists in the realm of water disputes.

II. BRIEF BACKGROUND ON COLORADO WATER COURTS

In order to understand how a pro se water court litigant wrote his own legal brief and argued before the Colorado Supreme Court, it is helpful to first explain the legal regime behind Colorado water law. Pursuant to Colorado’s Constitution, water rights are unique because ownership remains in the general public, subject to prior appropriation.[5] Under the Water Rights Determination and Administration Act of 1969 (“the Act”),[6] the Colorado legislature created a framework for specialized water court proceedings.[7] Unlike other states that have created administrative water agencies, under the Act, Colorado “retained a judicial system and charged it with administrative functions.”[8] The Act divided Colorado into seven water divisions, corresponding to its seven major drainages.[9]

A user must file an application with the appropriate water clerk in order to be granted a water right or to change an existing water right.[10] Every month, each water division prints resumes of pending water applications, publishing them both in newspapers and online.[11] Moreover, the resumes are sent to rights-holders potentially affected by an application.[12] If someone wishes to object to an application, he or she may file a statement of opposition.[13] A water referee, serving as a fact-finder, consults with the division engineer before making a ruling to either approve, partially approve, or deny each application.[14] Notably, “[i]nterested parties who are dissatisfied with the ruling may file a protest. A protest results in a hearing at which the water judge determines the issues [on a] de novo” standard of review.[15] These hearings are safeguards for potentially injured parties to state or restate their opposition to an application. In these protest hearings, the applicant, and all other parties who oppose the application, will generally hire lawyers and engineers, which “can be rather expensive.”[16]

Another safeguard ensuring that referees’ determinations are appropriate is that their rulings are reviewed semi-annually by the division’s water court judge, who has the statutory power to confirm, modify, or reverse the decisions.[17] Thereafter, any appeals go directly to the Colorado Supreme Court.[18]

III. FACTS OF THE MINTURN CASE

The town of Minturn is a small municipality located upstream from the confluence of Gore Creek and the Eagle River on Colorado’s Western Slope.[19] In fulfilling its duty to provide water to its residents, Minturn was originally decreed what is known as the Bolts Lake conditional water right in 1999 for 320 acre-feet in the District Court for Water Division 5 (“Division 5 Water Court”).[20]

Bolts Lake lies on a property known as Battle Mountain.[21] This property is described as “one of the most coveted, disputed, and complex pieces of land in the Rocky Mountains.”[22] Although Battle Mountain was not at issue in the Minturn case, its description serves as an appropriate primer for water rights, which could also be characterized as coveted, disputed, and complex.

In 2012, Minturn filed its sexennial application for a finding of reasonable diligence in developing its Bolts Lake water right.[23] This finding was an important step because it would be Minturn’s only storage right,[24] and without a water storage right, Minturn’s “beneficial use of water would be limited to short runoff periods.”[25]

Soon after Minturn filed its application, Mr. Jeff Tucker inserted himself into the adjudication by filing a statement of opposition, claiming an interest in affected water rights as a trustee of an express trust.[26] However, Tucker provided no evidence regarding the purported trust nor the allegedly affected water rights.[27] Notably, Tucker has previously opposed efforts by Minturn to appropriate the Bolts Lake water right.[28]

Incidentally, back in 2011, a Colorado magazine referred to Tucker as a “mysterious man” who had filed several lawsuits related to Battle Mountain.[29] Moreover, in its answer brief to the Supreme Court, Battle Mountain Entities asserted “Tucker has inserted himself into many Colorado cases, claiming various entities . . . hold an interest in the Battle Mountain Property.”[30] The answer brief also indicated that Tucker has a history of fraudulent, failed property ownership claims, casting doubt on the veracity of his trusteeship.[31]

In response to Tucker’s Bolts Lake opposition, the Water Court held a case management conference and raised sua sponte the question whether Tucker could proceed pro se in the capacity of a trustee.[32]

The Water Court ultimately held that the Tucker, a non-attorney, could not represent a trust in a water proceeding, and the court granted Minturn’s application and Decree.[33] Tucker appealed the Water Court’s ruling, which propelled the issue to the province of the Colorado Supreme Court.[34]

Oral arguments for Minturn occurred on September 30, 2015.[35] Tucker, acting as his own attorney, argued against attorneys from the well-known firm Holland & Hart, and argued first.[36] At the podium, Tucker made no mention of the unidentified beneficiaries of the trust, further exacerbating the legitimacy of his role as a pro se opposer.[37]

One notable query for Tucker came from Chief Justice Rice, who expressed her concern with the rule against the unauthorized practice of law.[38] Rice suggested that Tucker’s self-representation implicated the interests of (albeit unknown) others, which could cross that line.[39] In response, Tucker made an interesting characterization: He stated that it was his personal perspective that Americans have always had the right to represent themselves in court, and that the right to be represented by counsel is more of a secondary right.[40]

Next, Minturn’s attorney, Megan Winokur, argued before the justices. Winokur conceded that there is a unique level standing in Colorado water law.[41] Any person has a right to file a statement of opposition in a case without demonstrating any explicit interest or injury.[42] This lower threshold for standing results from Colorado’s waters belonging to the public.[43]

Nonetheless, Winokur asserted that there are good reasons to require counsel on behalf of parties in water court.[44] First, individuals are entitled to competent representation.[45] Second, attorneys are held to certain ethical standards.[46] Third, having attorneys represent the rights of clients ensures orderly and organized legal proceedings.[47] Last, Winokur stressed that Tucker’s pro se participation implicated “the time and [financial] resources of a small municipality” in defending the Water Court’s decision.[48]

A month later, the court upheld the Water Court’s determination: because Tucker was trying to represent the interests of a trust, he was acting in a capacity that involved the interests of individuals other than himself, which meant he, as a trustee, was not allowed to represent a trust pro se in a litigation matter.[49]

IV. THE ISSUE OF SELF-REPRESENTATION IN WATER COURT

An issue the court did not directly address in its short Minturn decision is whether Colorado water court proceedings are fundamentally different from other court proceedings requiring counsel.  The uniqueness of water law creates a paradox for self-represented parties. Minturn’s own attorney noted the lower threshold of standing in water disputes that entitles anyone, with or without an attorney, to file a statement of opposition, which represents “a legal system that provides stability and fairness” to all Coloradans.[50] Since “water is legally and historically a public resource,” water proceedings implicate fundamentally different values than more privatized or individualized disputes where attorneys are prevalent.[51] Thus, although Tucker may not have been the most appropriate pro se party for whom this suggestion should be made, the current framework provides a mechanism for lay people, without the resources to hire a lawyer, to challenge another’s use of water.

More broadly speaking, however, the Minturn ruling is consistent with other Colorado court decisions that hold pro se water court parties to a certain standard. For example, a non-attorney’s water lawsuit was dismissed for lack of jurisdiction because the petitioner improperly filed it in district court, not water court.[52] Thus, the court did not grant the petitioner special consideration because he lacked a law degree.[53]

Moreover, the Colorado Supreme Court has also found that merely because a pro se party “did not know of his obligations under the Water Court Rules or the Rules of Civil Procedure d[id] not excuse his failure to make . . . required disclosures.”[54] The Court further held that, “[w]hile courts may take into account the fact that a party is appearing pro se, pro se parties are ‘bound by the same rules of civil procedure as attorneys licensed to practice law.’”[55]

Thus, non-attorneys like Tucker have the right to present their own case, but Colorado courts will hold them to the same standard as lawyers because “otherwise, ignorance is unjustly rewarded.”[56] In Minturn, Tucker asserted a perplexing due process claim for the first time to the Colorado Supreme Court.[57] Tucker’s choice not to hire counsel means that he “must be prepared to accept the consequences of his mistakes and errors” in representing himself both in the water court and on appeal.[58] Therefore, there is a balancing act in keeping water courts accessible to those who may not be able to afford an attorney, while also ensuring that water court proceedings are not abused by pro se litigants.

Despite the unique public entitlement to Colorado’s unappropriated waters, when a non-attorney represents his or her own interests (or the interest of others like in Minturn) in a legal forum, issues may arise. One litigator notes that “self-represented part[ies] suffer from lack of experience, expertise, and often, basic competence.”[59] Further, unrepresented parties’ lack of training and experience creates more of a burden for courts, “which often must decipher unclear arguments, tease out unmade arguments, and parse the record to a greater extent than it would for a represented party.”[60]

V. POLICY RECOMMENDATION: PRO BONO WATER COURT PROGRAM

While there may be equally “keen competition among [all types of] water users,” [61] there is oft-times inequitable bargaining power among those users due to disparate financial resources and knowledge of Colorado’s regime governing water law. Water disputes can be highly-technical processes, involving scientific assessments.[62] It may be difficult for a person who cannot hire an engineer, let alone an attorney, to successfully bring an action in a water court. Therefore, the fundamentally complicated nature of water law often motivates interested parties to retain counsel.

However, in light of available resources for pro se litigants in other contexts, there is an opportunity to provide self-represented litigants with attorneys in water court. Notably, by way of a fairly recent Chief Justice Directive, Colorado courts are permitted to supply “limited self-help assistance to pro se litigants in non-criminal appeals, [in order] to facilitate their access to the courts.”[63] Perhaps this type of program could be extended and tailored to assist pro se water court litigants.

In the appellate context, the Colorado Bar Association has initiated the Appellate Pro Bono Program.[64] This program pairs indigent litigants, who would otherwise appear unrepresented, with volunteer lawyers.[65] A way to make water court proceedings more fundamentally fair would be to create a Water Court Pro Bono Program for the seven water court divisions, streamlining disputes involving unrepresented parties.

Another potential avenue for pro se Colorado water court litigants would be the creation of a water law clinic at the University of Denver Sturm College of Law. Given the demographic and economic difficulties associated with agricultural water users in particular, the establishment of this type of clinic could help farmers and other water users navigate the court process. For example, student attorneys could assist clients in protecting their own water rights. The University of Denver’s strong reputation for both water law and its clinical programs, coupled with its expanding water law course offerings,[66] including a Water Court Practice Seminar and a Water Transactions Seminar, would make it an ideal forum for a clinic serving pro se water court litigants who need assistance.

VI. CLOSING

While water law is complex, Minturn demonstrates it remains rife with contention as its public nature opens the floodgates for pro se parties to insert themselves into water court proceedings. However, if Jeff Tucker had been required to meet with a water law attorney, or alternatively, have law students from a Water Law Clinic work with him, perhaps his lengthy and costly appeal could have been avoided.

 

Kathleen Cecelia Cunilio*

Image: A water tower sits above the town of Minturn, Colorado. Flickr user MyEyeSees, Creative Commons.

 

Footnotes

* J.D., University of Denver, 2017. A tremendous thank you to Professor Tom Romero for his mentorship, comments, and support in the writing of this piece. Thanks also to the editors of the University of Denver Water Law Review for their work in editing this Note. Finally, thank you to the Open Courts Colorado program for providing Colorado law students like myself with an opportunity to observe appellate court proceedings, such as Tucker v. Minturn.

[1] People v. Adams, 243 P.3d 256, 265 (Colo. 2010) (“An individual has the right to represent himself pro se, as his own counsel in civil and criminal cases. . . .”).

[2] Kevin Sack, Dylann Roof to Represent Himself at Trial in Charleston Church Shootings, N.Y. Times (Nov. 28, 2016), http://www.nytimes.com/2016/11/28/us/dylann-roof-charleston-massacre.html?_r =0 (last visited Nov. 28, 2016).

[3] See Colo. Rev. Stat. § 37-92-302(1)(b) (2012).

[4] In re Water Rights of Town of Minturn, 359 P.3d 29, 30 (Colo. 2015).

[5] Colo. Const. art. 16, § 5; Colo. Rev. Stat. § 37-92-103(12) (2014).

[6] Colo. Rev. Stat. §§ 37-92-101–602 (2016).

[7] David H. Getches et al., Water Law in a Nutshell 164–165 (4th ed., 2009) [hereinafter Getches].

[8] Id. at 164.

[9] Id. at 165.

[10] A. Dan Tarlock et al., Water Resource Management: A Casebook in Law and Public Policy 203 (7th ed., 2014) [hereinafter Tarlock].

[11] Id.

[12] Id.

[13] Colo. Rev. Stat. § 37-92-302(1)(b).

[14] Tarlock, supra note 10, at 203.

[15] Id.; see also Wadsworth v. Kuiper, 562 P.2d 1114, 1119 (Colo. 1977) (noting that “persons, including the State of Colorado, might file a protest to the ruling of a referee even though they had not filed a statement of opposition to an application” for a water right.).

[16] Tarlock, supra note 10, at 203.

[17] Id.

[18] Id.

[19] Town of Minturn History, http://www.minturn.org/community/MinturnHistory/index.html (last visited Mar. 13, 2017).

[20] Brief of Applicant-Appellee at 4, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015) [hereinafter Brief of Applicant-Appellee].

[21] See Battle Mountain Resort, http://battlemountainresort.com/description/ (last visited Mar. 13, 2017) (“Bolts Lake itself was built by the Bolt brothers at the turn of the century and used for fishing and boating. They cut a channel through solid rock to feed it with a diversion from Cross Creek.”).

[22] Patrick Doyle, The Last Resort, 5280 Magazine, June 2011, at 72, available at http://www.minturn.org/pdf/PublicNotices/5280_Article_-_The_Last_Resort_06-2011.PDF [hereinafter Doyle].

[23] Brief of Applicant-Appellee, supra note 20, at 3.

[24] Id. at 4.

[25] Getches, supra note 7, at 200.

[26] Brief of Opposer-Appellee at 3, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015) [hereinafter Brief of Opposer-Appellee].

[27] Id. (“Trustee’s Statement of Opposition does not state for what entity or trust he is acting as trustee.”).

[28] See Winslow Taylor, Town of Minturn v. Tucker, 16 U. Denv. Water L. Rev. 485, 493 (Apr. 15, 2013) (“After the water court entered . . . the final decrees, Minturn discovered the stipulation decree based several consumptive use calculations on billing statements . . . which made the monthly calculations differ by one month and not reflect[ive] of actual monthly historical use numbers. Minturn petitioned the water court to correct the decrees. Tucker was the only opposer [to these decree corrections].”).

[29] Doyle, supra note 22, at 92.

[30] Brief of Opposer-Appellee, supra note 26, at 3 n.2.

[31] Id.

[32] Brief of Applicant-Appellee, supra note 20, at 10 (At this hearing Senior Water Court Judge Ossola said, “And here we have Mr. Tucker, who I understand is not a lawyer . . . and styles himself in the pleadings as trustee, but . . . I don’t know what Mr. Tucker is trustee of. The term ‘trustee’ causes me to assume that there is a trust of which he is the trustee, and that raises the question [what he is a] trustee of.”).

[33] See Minturn, 359 P.3d at 31.

[34] Id.

[35] Oral Argument Schedule, State of Colo. Judicial Dep’t (Sep. 30, 2015), https://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm?year=2015&month=9.

[36] See Oral Argument 14SA295, Tucker v. Town of Minturn, 359 P.3d 29 (Colo. 2015), https://cojudicial.ompnetwork.org/shows/14sa295 (last visited Nov. 29, 2016) [hereinafter Oral Argument Video Recording].

[37] Id.

[38] Id. at 8:07; See Colo. Rev. Stat. § 12-5-101 (2014) (In Colorado, an individual is statutorily required to obtain a law license in order to practice law).

[39] Oral Argument Video Recording, supra note 36, at 8:10.

[40] Id. at 11:10.

[41] Id. at 15:10.

[42] Id. at 15:18.

[43] Id. at 15:25; see also Colo. Const. art. XVI, § 5.

[44] Oral Argument Video Recording, supra note 36, at 22:15.

[45] Id. at 22:28; see also Colo. Rules of Prof’l Conduct r. 1.1 (2016).

[46] Oral Argument Video Recording, supra note 36, at 22:38; see generally Colo. Rules of Prof’l Conduct pmbl. (2016).

[47] Oral Argument Video Recording, supra note 36, at 22:41.

[48] Id. at 24:28. Moreover, Winokur also told the court that Tucker’s pro se involvement with the Water Court implicated the three types of concerns she listed.

[49] Minturn, 359 P.3d at 32.

[50] Getches, supra note 7, at 3; Oral Argument Video Recording, supra note 36, at 15:18; Brief of Opposer-Appellee, supra note 26, at 28 n.4.

[51] Getches, supra note 7, at 11.

[52] See People v. Spencer, 524 P.2d 1084, 1085 (Colo. 1974).

[53] Id. at 1085–87.

[54] Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009).

[55] Id. (citing to Negron v. Golder, 111 P.3d 538, 540 (Colo. App. 2004)).

[56] Knapp v. Fleming, 258 P.2d 489, 489–90 (Colo. 1953).

[57] Opening Brief of Opposer-Appellant at 14–16, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015).

[58] Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953).

[59] Marcy G. Glenn, Pro Se Civil Appeals: The Problem and Special Standards and Rules, Colo. Law., Mar. 2016, at 63, 64. [hereinafter Glenn I].

[60] Marcy G. Glenn, Pro Se Civil Appeals-Resources and Opportunities, Colo. Law., June 2016, at 57, 60 [hereinafter Glenn II].

[61] Getches, supra note 7, at 1.

[62] James S. Witwer and P. Andrew Jones, Statutory and Rule Changes to Water Court Practice, Colo. Law., June 2009, at 53, 56 (stating that “[t]oday’s water litigants arrive at the courthouse with complex hydrologic models, gigabytes of data, and a cadre of expert witnesses. Colorado has a large number of qualified, ethical professionals who fulfill this role, helping attorneys, participants, and judges understand the complexities of hydrology and related technical fields”).

[63] Glenn I, supra note 59, at 65; see generally Chief Justice Michael L. Bender, Colo. Chief Justice Directive 13-01 (June 12, 2013), https://www.courts.state.co.us/Courts/Supreme_Court/Directives/13-01.pdf.

[64] Glenn II, supra note 60, at 57.

[65] Id.

[66] See generally Course List, University of Denver College of Law Registrar, http://www.law.du.edu/forms/registrar/course-list.cfm (last visited May 8, 2017).


Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

Denver, Colorado                         April 7, 2017

“To be a Coloradan, What Water Means?” Keynote Presentation by Ken Salazar, Former U.S. Secretary of the Interior and U.S. Senator

 

At the 2017 University of Denver Water Law Review Symposium in Denver Colorado, former United States Secretary of the Interior, Ken Salazar, offered his insight into what water means as a Coloradan.

Secretary Salazar began with how his history has defined what water means to him. His family has farmed and ranched the soils of the Rio Grande and its tributaries in the San Luis Valley since 1598. His family had priority number twenty-three out of the Rio San Antonio, and good and bad years affected his family’s crop. Secretary Salazar said he did not grow up rich, but he grew up surrounded by the Sangre de Cristo and San Juan mountains and the Rio Grande and Rio San Antonio. A lot of the divine providence that guided him through the experiences of serving the people of Colorado and the United States he said started in the San Luis Valley where he learned about the nexus between humans and the planet on which we survive.

Secretary Salazar applauded Colorado for being a pioneer in dealing with water issues, but warned that the state still has a long way to go. Colorado pioneered the doctrine of Prior Appropriation, which, despite criticism, has changed and evolved to become a working system. Other historic examples of where Colorado led the way include Colorado’s efforts to integrate ground and surface water uses in the 1960s and Colorado’s creation of the Instream Flow Program in the 1970s.

Secretary Salazar next identified two major water-related challenges facing Colorado: population growth and climate change. Colorado’s population is expected to nearly double in the next forty years. The challenge Colorado faces is how to supply those additional people and still preserve the open spaces its citizens have come to love. Secretary Salazar also briefly addressed climate change. According to projections, the Colorado River and the Rio Grande basins can expect to see a significant reduction in precipitation. So, as environmental demands increase, Secretary Salazar is hopeful that society will continue to recognize the importance of protecting and restoring America’s ecosystems.

In the face of such challenges, Secretary Salazar said it is important to look back on stories where Colorado has been successful. For example, he recounted a story from 1990 when he was head of Colorado’s Department of Natural Resources. California, in the midst of a severe drought, was preparing to litigate some of the miscalculations made during the drafting of the Colorado River Compact hoping to get a greater share of the water supply. Secretary Salazar oversaw a group of Colorado officials tasked with responding to California. Just when all hell seemed ready to break loose, Secretary Salazar and the group decided to send an olive-branch in the form of a letter. In that February 21, 1991 letter, which Secretary Salazar authored and Governor Roy Romer sent to Governor Pete Wilson of California, Colorado offered to collaborate. It said Colorado understood California’s needs, and that it was willing to work with the other Colorado River basin states and the federal government to assure that California would make it through the drought. However, the letter also indicated that Colorado wanted to be sure that any ensuing agreements were addressed within the Law of the River and that the framework of the law not be changed. A quarter century later, the February letter has stood the test of time and set a precedent for collaboration among the Colorado River basin states, the federal government, and the nation of Mexico. So, if collaboration was possible on such a litigated river, then it is possible that the tradition of collaboration might continue in the future.

“In the West, when you touch water, you touch everything,” concluded Secretary Salazar, quoting the late Congressman from Colorado, Wayne Aspinall. This is true today, and will remain true in the future. So, in looking for solutions, Secretary Salazar urged the audience to look back at the past to provide lessons for the present.

After sharing his insight, Secretary Salazar provided the symposium with an opportunity for questions, during which time the symposium raised four matters: the Sangre de Cristo mountains; the 1872 Mining Law; the Senate’s recent decision to exercise the “nuclear” option for confirming Supreme Court nominee Neil Gorsuch; and, Secretary Salazar’s opinion of current Secretary of the Interior, Ryan Zinke.

Secretary Salazar finished his keynote address with a message of hope. He said that even though nothing is certain because of the current presidential administration, the United States is a strong nation and a strong democracy. Time will pass and there will be new leaders. Climate change is not going away, it is an existential issue with which someone will have to grapple. Secretary Salazar pointed to energy innovation by the private sector and explained that he is not despairing. There will be a 2020 and a 2024. The United States of America has the capacity to grapple with these tough issues that affect Colorado, the nation, and the planet.

Trevor C. Lambirth


Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) (holding: (i) the United States impliedly reserved a water right when establishing the Agua Caliente Reservation; (ii) the Tribe’s implied federal reserved water right extended to groundwater; and (iii) the Tribe’s state water entitlements to groundwater did not disqualify its implied federal reserved water right).

The Agua Caliente Band of Cahuilla Indians (“Tribe”) inhabited the Coachella Valley prior to California’s Admission to the Union in 1850. Two Presidential Executive Orders issued in 1876 and 1877 established the majority of the Agua Caliente Reservation. Today, the United States holds a series of lands that that are “interspersed in a checkerboard pattern” in trust for the Tribe.

The Coachella Valley contains an arid southwestern dessert. Rainfall averages three to six inches per year and the Whitewater River System, the only source of surface water, produces a fluctuating annual supply between 4,000 and 9,000 acre-feet that primarily occurs in winter months. Currently, the Tribe receives surface water from the Whitewater River System consistent with the Whitewater River Decree, a 1983 California Superior Court adjudication that addressed state-law water rights for river system users. The adjudication resulted in a state court order that allotted water for the Tribe’s benefit, primarily because the United States, as holder of partial Agua Caliente Reservation lands in trust, participated in the adjudication on the Tribe’s behalf. However, the adjudication reserves only a minimal amount of water for the Tribe, providing enough to irrigate nearly 360 acres of the reservation’s approximately 31,369 acres. Additionally, the river system peaks in the winter months, which leaves the allotment filled outside of growing season.

This inconsistent and “virtually nonexistent” surface water supply causes the Tribe to predominantly rely on groundwater for all consumptive use on the reservation during the year. Therefore, almost all regional water is sourced from the Coachella Valley Groundwater River Basin, the aquifer underlying the valley. The Tribe, however, does not pump groundwater on its reservation, but purchases groundwater from the Coachella Valley Water District and the Desert Water Agency (“water agencies”).

Over concern for diminishing groundwater resources, the Tribe filed an action for declaratory and injunctive relief against the water agencies in the United States District Court for the Central District of California. The Tribe requested a declaration that it had a “federally reserved right and an aboriginal right to the groundwater underlying the reservation.” The district court later granted the United States’ motion to intervene as a plaintiff to support the Tribe’s allegation that it had a reserved right to groundwater.

The parties divided the litigation into three phases. With respect to Phase I, the only phase relevant for this case, the district court held that “the reserved rights doctrine applied to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.” Subsequently, the district court certified its order for interlocutory appeal and the water agencies petitioned the Ninth Circuit Court of Appeals for permission to hear the appeal. The court, on de novo review, addressed the only issue on appeal: whether the Tribe had a federal reserved right to the groundwater underlying its reservation. In so doing, the court approached its analysis in three steps.

First, the court determined whether the United States impliedly reserved water when establishing the Agua Caliente Reservation. This question is two-pronged: (1) whether water is reserved if a reservation’s primary purpose anticipates water use; and (2) if so, whether the Agua Caliente Reservation’s primary purpose contemplated water use.

The court began its analysis by examining the Winters doctrine, and found that it established that “federal reserved water rights are directly applicable ‘to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.’” However, the Winters doctrine is limited to certain situations; it reserves water necessary to accomplish the purported means of the reservation and reserves water if it is appurtenant to the withdrawn land. Following that understanding, the court differentiated the parties’ and the district court’s application of the Winters doctrine that specifically addressed whether the Tribe’s reserved right extended to groundwater from the more overarching issue concerning whether the mere existence of a federal reserved right depended on the Agua Caliente Reservation maintaining an implicit right to use water.

The court then evaluated the first prong when addressing the Tribe’s implied reserved right to water. The court invoked United States v. New Mexico and reasoned, “the federal purpose for which land was reserved is the driving force behind the reserved rights doctrine.” Further, that the New Mexico Court patterned a consistent conclusion whenever the reserved water rights doctrine is raised—an insufficient water supply defeats the purposes of the reservation. Therefore, the court adopted New Mexico’s holding that water is reserved when the reservation’s primary purpose foresees water use. The court then evaluated the second prong, whether the Tribe’s primary purpose contemplated water use. To answer this question, the court synthesized the Executive Orders establishing the Agua Caliente Reservation and Supreme Court precedent to conclude that “the primary purpose underlying the establishment of the reservation was to create a home for the Tribe, and water was necessarily implicated in that purpose.” Therefore, the United States impliedly reserved water for the Tribe.

Second, the court addressed whether the Tribe’s implied reserved water right extended to the Agua Caliente Reservation’s underlying groundwater. The court reiterated the Winters doctrine requirements and determined that although the Tribe met the first requirement that the reservation’s purported means necessitated water use, the second requirement that unappropriated water must be appurtenant to the reservation remained. To find a resolution, the court reasoned that appurtenance is not limited to surface water and extrapolated from Supreme Court precedent that the United States can protect groundwater and, along that vein, impliedly reserved water may include appurtenant groundwater. Further, the court considered the Tribe’s reliance on groundwater when reasoning that the minimal surface water availability conditions the Tribe’s survival on groundwater access. From this line of reasoning, the court clarified that the Winters doctrine purported to provide sustainable livelihoods to Tribes inhabiting reservations in arid areas, like the Agua Caliente Reservation, and included access to both appurtenant surface water and groundwater. Therefore, the Tribe’s implied reserved water right included groundwater.

Third, the court addressed whether the above two holdings withstood the water agencies’ arguments that: (1) the Tribe received water pursuant to California’s correlative rights doctrine; (2) the Tribe did not need a federal reserved right to groundwater in light of its allotted surface water from the Whitewater River Decree; and (3) the Tribe never drilled for groundwater on its reservation. The court rejected each in turn. First, federal water rights, such as the implied federal reserved water right, preempt state water rights. Second, New Mexico did not inquire into the current necessity of water, it focused on whether the reservation’s inception purported such a necessity. Third, lacking historical access to groundwater on the reservation did not foreclose the Tribe’s current access to groundwater. Therefore, compounded with the federal primacy of reserved water rights, the Tribe’s implied federal water right to groundwater remained intact.

Accordingly, the court affirmed the district court holding that the United States impliedly reserved appurtenant groundwater when creating the Agua Caliente Reservation.

                                                                                                        Gia Austin

Image: Santa Rosa and San Jacinto Mountains National Monument, California. Flickr User Bureau of Land Management, Creative Commons.


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

The Citizens of Rockaway Beach, Oregon—How One Community Started to Fight for Their Drinking Water, and Ended Up Fighting for Us All

 

Presented by: Nancy Webster, Citizens for Rockaway Beach Watershed Protection; Kate Taylor, Frigate Adventure Travel; Steve Perry, Citizens for Rockaway Beach Watershed Protection; Jason Gonzales, Oregon Wild.

This panel featured citizens of Rockaway Beach, Oregon who experienced the destruction of their local watersheds by clearcutting. The panelists spoke about their experiences throughout the clearcutting process, including their frustrations with inaction from both the local and state governments.

Rockaway Beach, a small town on the northern Oregon coast, relies on Jetty Creek for its freshwater supply. One panelist described the creek as “a crevice between hills, but it’s our lifeline.” Yet, from 2003–2014, timber companies removed eighty-two percent of the trees around Jetty Creek. Overall, timber companies have removed ninety percent of the trees from Jetty Creek. Often, these companies performed aerial sprays of “chemical cocktails” over the trees before and after clearcutting. The State of Oregon does not require timber companies to release information about what chemicals these sprays contain, nor does the state provide notice to locals before sprays occur. The Oregon Forestry Practices Act contains almost no requirements for watershed protection. Furthermore, the City of Rockaway Beach, the municipality with regulatory authority of Jetty Creek, does not require any notification or information on the contents of chemicals.

The combination of a lack of regulatory oversight and an acquiescence to the timber industry has effectively ruined Jetty Creek. Since clearcutting began, levels of trihalomethanes in Jetty Creek have rapidly increased and are far beyond the EPA’s suggested levels. The turbidity of Jetty Creek has also increased, reducing fish populations. Further, logging has negatively impacted bird and beaver populations, forcing animals away from an otherwise seemingly wild landscape and creating a the appearance of a “Silent Spring.” The reduced water quality has also forced Rockaway Beach residents to drink from packaged water bottles. Some residents keep water dispensers in their homes. This is the only alternative the City of Rockaway Beach has to Jetty Creek, as leaky septic systems and percolating seawater have made the area’s groundwater unsafe for consumption.

These are not the only problems that locals have experienced at the hands of the timber industry. Panelist Kate Taylor, for example, commented on how the logging negatively impacts water-tourism. Taylor is a professional fishing guide who works in the area, and she recounted the negative experiences her customers have when the river they are fishing turn to “chocolate mud” because of nearby logging. When she asked the Oregon Department of Forestry about this issue, the agency became “defensive” and did not assist her. Taylor’s experience mirrored the other panelists’ struggles to bring their issues to the attention of city, county, and state government officials.

When the panelists initially sought to confront the issue, they approached their local, municipal governments, but the Rockaway Beach City Council rejected all efforts against the timber industry. The panelists believed the city is clinging on to a cultural string, instead of supporting local economic growth. After inaction by the local government, the citizens turned to the state. The state responded without any tangible policy change. The state, like the local government, seemed too tied to the cultural idea Oregon’s logging industry. This steadfast protection of the timber industry does not produce economic gain. For example, logging companies are not allowed to perform aerial chemical sprays on federal lands in Oregon. The state’s use of aerial chemical sprays is simply a concession to the industry.

Frustrated with the state and city, the citizens performed “citizen science” to prove to regulators that the logging industry has been negatively affecting watersheds. Through citizen action, the panelists and other members of the public have created a series of legislative proposals to limit aerial spraying in the timber industry. Oregon Democratic State Senator Michael E. Dembrow recently sponsored Senate Bill 892, also known as “The Timber Aerial Spray Right to Know” Bill. This bill was accompanied by Senate Bill 500, which provides agriculturalists with a cause of action for damages resulting from timber companies that conduct aerial sprays.

Overall, any short-term gains in the legislature will prove insufficient. The panelists warned that other parts of the Oregon coast, notably Short Sands Beach, are in imminent danger of succumbing to the same fate as Jetty Creek. The only true way to prevent watershed destruction in Oregon, the panelists contended, is to fundamentally reshape the state’s approach to the timber industry.

Matthew Kilby

Image: Sunset on Rockaway Beach, Oregon.  Flickr user Jake Melara, Creative Commons.