Hutton Educ. Found. v. Rein, 418 P.3d 1156 (Colo. 2018) (holding that the Commission must have first determined whether the water at issue was designated groundwater before subject matter jurisdiction could vest in the water court to review the Foundation’s constitutional challenge of S.B. 52).

This was an appeal of the Colorado Groundwater Commission’s (“Commission”) successful motion to dismiss against the Jim Hutton Foundation’s (“Foundation”) claimed challenging both Senate Bill 10-52’s (“S.B. 52”) application in the Northern High Plains Basin (“NHP Basin”) and the Management Act constitutionality.  The only issue on appeal was whether the water court properly dismissed the Foundation’s claims for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1).

 S.B. 52, the Foundation argued, made any legal redress from the Commission impossible so it sought declaratory relief in water court for three claims against the State Engineer, the Colorado Department of Natural Resources, and the Division of Water Resources.  The Commission intervened and moved to dismiss.  The court noted the Foundation’s burden to prove that the water court had jurisdiction to consider the constitutional claim.

The Foundation owned surface water rights to divert from the South Fork of the Republican River in order to irrigate its ranch lands in Yuma County, Colorado.  The sale of both the lands and water rights were relied upon to generate revenue for the Foundation.  However, in 1962 the General Assembly ratified the 1942 Republican River Compact (“Compact”) to enact the Colorado Ground Water Management Act (“Management Act”), which was intended to develop Colorado’s groundwater resources.  The Management Act also created the Commission with the authority to establish and administer procedures for groundwater permitting and use, as well as determine designated groundwater basins.  After the Management Act, the amount of water users installing wells in the NHP Basin increased and forced the Commission to curtain [AG1] surface water use in order to ensure compliance with Colorado’s annual water allotment under the Compact.

The curtailment affected the Foundation’s surface water rights.  The Foundation argued that the General Assembly limited its course of action as a surface water user to challenge the designated of groundwater basins when it enacted S.B. 52 in 2010 because prior to that year the Management Act provided that boundaries for designated groundwater basins could be changed “as future conditions required and factual data justified.”  The court reasoned that S.B. 52 provided that wells for which permits had been issued to use designated groundwater could not be excluded from designated groundwater basin that were already finalized as such action would be contrary to any original basin designations.

To settle the only issue on appeal, the court looked to the Water Right Determination and Administration Act of 1969 (“1969 Act”), which authorized water courts exclusive jurisdiction over water matters in its division but did not mention designated groundwater.  The court noted that the Management Act gave administrative authority of designated groundwater to the Commission.

            The court then considered its precedent for situations where surface water rights owners asserted that well-pumping within a designated groundwater basin injured their surface rights.  It has long held that the Commission must first determine whether designated water is at issue because only once the Commission concludes the water is not designated groundwater will jurisdiction vest in the water court.  The Foundation contended that the jurisdictional rule should not apply to its situation because the procedure prior to the 2010 amendment to S.B. 52 should control, allowing them to challenge the surface water users that were impairing its water rights.  However, the court noted that such an argument was a challenge to the constitutionality of the statute itself not to designated groundwater determinations. 

The court did not agree with the Foundation’s contention as it was contrary to its longstanding precedent that requires the Commission’s determination before any claim, even a constitutional one, can ripen.  The court reasoned that the Foundation simply asserted themselves that the water at issue was not designated groundwater absent any factual determination from the Commission but such an assumption did not give jurisdiction to the water court.  As such, the Commission must first decide one way or another before the Foundation may be able to bring a claim in the water court.

Accordingly, the court affirmed the water court’s decision to dismiss the Foundation’s constitutional challenges of S.B. 52 and the Management Act until the Commission determination can inform whether the claim is ripe for review in the water court. 

                                                                                                            Camille Agnello


 [AG1]Should this be curtail since the first word of the following paragraphs references the curtailment?


University of Denver Water Law Review Annual Symposium 2018: Forging Sovereignty, Self-Determination and Solidarity Through Water Law

 

Denver, Colorado      March 30, 2018

Enhancing Tribal Water Sovereignty

(Scroll down for full video of panel)

The second panel of the symposium included four attorneys who work with American Indians to secure their water rights.  Retired Colorado Supreme Court Justice Gregory Hobbs moderated the panel. Hobbs opened the panel by giving a brief history of the Ute Tribes in Colorado before introducing the first speaker, Ernst House Jr., to talk about what tribal sovereignty means in the context of modern water rights.

Ernst House Jr., the Executive Director of the Colorado Commission of Indian Affairs and member of the Ute Mountain Ute Tribe, works with state agencies to ensure that tribes have a voice in state decision-making.  House briefly discussed the history of the Ute Tribes’ reservations and emphasized the importance of water in tribal life.  He then covered the Ute Water Right Settlement Act of 1988 (“1988 Act”), which was signed by Chris Baker, President Reagan, and House’s father, Ernst House Sr.  Prior to the 1988 Act, no home on the reservation had running water—instead, water was delivered daily to the reservations by trucks.  House gave an example of the Ute Mountain Farm and Ranch, a sustainable farm growing alfalfa and corn, to demonstrate how water rights lead to economic development for tribes and allows tribes to have a seat at the table.

House next discussed the difference between wet and paper water rights.  For example, on paper the Ute Tribes has water rights in the Lake Nighthorse reservoir, but since the lake is a two-hour drive from the Ute Mountain Reservation, the Tribes might not see any of that water on the Reservation anytime soon.  House said that this is hardly uncommon, as only thirty-six tribes have had their federally approved water rights quantified.  He noted that collaboration is needed for large federal water projects—such as the huge lobbying effort required to get the Dolores Project passed—and that the involvement of young people is vitally important.  House closed by urging listeners to consider tribal perspectives and visit reservations.

Peter Ortego, General Counsel for the Ute Mountain Ute Tribe, worked on the Animas La Plata Project and spoke about tribal sovereignty and federally reserved tribal water rights.  When the Ute Mountain Reservation was created, the government understood that the Ute Tribes would need water in order to settle the barren land, so the government implicitly reserved enough water for the Tribes to make those lands hospitable.

However, in the context of the Animas La Plata Project, issues outside of the traditional tenets of tribal reserved water rights became apparent.  Lake Nighthorse is located directly over an ancient tribal burial site, which is obviously of large cultural significance to the Tribes.  The Bureau of Reclamation allows for four percent of a projects budget to go toward cultural mitigation, but this figure fell well short of the amount needed to repatriate the remains.  The Tribes ended up agreeing to leave the remains where they were, and cement over them to protect those remains from disturbance. Additionally, as evidence of the attempted collaboration between the city and the Tribes, when the Tribes objected to planned trails that were to surround the reservoir due to concerns about looting of cultural artifacts, the city listened by moving the trails back from the water’s edge.

However, not every issue surrounding Lake Nighthorse has been resolved regarding the tribes and the use of Lake Nighthorse., however.  When the non-Indian community around the reservoir applied for permits to use the water for recreation, the Tribes warned that such activity would disturb their ancestors.  Ortego pointed out—in an echo of House—that if we look at this issue from the Tribes’ perspective, we would not allow recreation on the lake.  According to Ortego, we would never build Disneyland over the World Trade Center and would not have to tell our children not to do so or put a law in place to prevent such action because the tragedy of the World Trade Center is part of our cultural story and identity. If we viewed Lake Nighthorse through the Tribes’ perspective, the same understanding would apply and the site would clearly be protected.  Ortego closed by saying that while he is not a tribal member, he does his best to present their concerns in a way that adequately conveys the Tribe’s perspective and respects tribal interest.

Scott McElroy, an attorney at McElroy, Meyer, Walker & Condon, P.C., who represents the Southern Utes and Ute Mountain Utes on natural resources issues, spoke about the Colorado Ute Indian Water Rights Settlements.  McElroy noted that the settlement of tribal water rights is often a long, drawn out process.  He used, as an example, another settlement he is working on in New Mexico which was started in 1966 and should be settling the final issue this year.  McElroy further stated that negotiated settlements have not historically worked out well for tribes.  While McElroy advocates for settlements over litigation, tribes may meet such a suggestion with skepticism.

McElroy next discussed the amendments made to the 2000 Colorado Ute Indian Water Rights Settlement Act (“2000 Settlement”).  The 2000 Settlement amendments eliminated some irrigation components of the Animas La Plata Project, limited depletions, and added an additional pipeline to deliver water to the Navajo Nation.  McElroy also mentioned that there are two big planning efforts relating to tribal water rights pending—the Bureau of Reclamation’s Tribal Water Study, and the Water Reservation Planning Document being spearheaded by the Ute Tribes that aims to determine how the Tribes can best maximize the use of their water rights.

The final speaker was Steve Moore, a senior staff attorney at the Native American Rights Fund who represented the Agua Caliente Band of Cahuilla Indians (“Agua Caliente Tribe”) in the Ninth Circuit case aimed at resolving the question of whether federal reserved tribal water rights extend to groundwater.  Moore gave a presentation about the exercise of tribal sovereignty in the context of groundwater and groundwater management.  Tribes have survived for millennia in the deserts around what is now Palm Springs, California by being stewards of the natural resources in the area.  The Agua Caliente Tribe, who have inhabited Coachella Valley from time immemorial, dug walk-in wells to access groundwater long before the tribe encountered white settlers in the area.  However, once the settlers moved into the area they filled in these wells and by 1900, the wells were gone.

There were eighteen treaties made with tribes in this area of California, mainly during the California Goldrush of 1849, but none of them were ever ratified.  However, Presidential Executive Orders issued in 1876 and 1877 officially created the Agua Caliente Reservation, which originally consisted of over 30,000 acres.  However, as is the case with nearly all Indian reservations, the acreage has since been greatly reduced.  In this case, land grants given to the railroads resulted in a checkerboard patterned reservation.

When the reservation was created, the United States understood that access to water would be an absolute necessity for the reservation’s establishment.  Due to the arid climate of the Coachella Valley, those living in the region are highly dependent on water from the Coachella Valley Groundwater Basin aquifer. However, the quality and depth of that aquifer, part of which is below the Agua Caliente Reservation, has been steadily declining due to water mismanagement by Coachella Valley Water District and Desert Water Agency (collectively “Water Agencies”).

After two decades of complaining about the over-drafting and degradation of the water quality in the Coachella Valley, the Tribes brought suit against the Water Agencies in 2013 to establish and quantify their federally reserved rights to groundwater. In order to establish federally reserved tribal water rights, it must be proven that water was considered a necessary component for the purpose of the reservation.  By demonstrating that water was thought of as needed for the reservation, and by providing evidence of the historical use of walk-in wells by the Tribe, the Agua Caliente Tribe successful argued before the Ninth Circuit that it had a federally reserved right to the groundwater below their reservation.  This holding is significant because it was the first time a circuit court has extended federally reserved tribal water rights to groundwater resources.  The parties are currently undertaking court-ordered mediation, but the next phase of the case is scheduled oral arguments and will decide on issues like pore space, water quality, and what standard shall be used to quantify the Agua Caliente Tribe’s water rights.

The panel concluded by taking questions from the audience.  Ortego responded to a question about how to maintain momentum in face of worsening water problems by reiterating the importance of cooperation among tribes, state actors, and local governance.  He emphasized the importance of the tribes having a seat at the table to ensure that projects executed around tribes and projects on reservations work together, rather than working at odds with each other.

Another audience member stated that an EPA Administer had accused the Animas La Plata project of “riding an Indian pony” to gain approval and wondered what the panel’s response to that might be.  McElroy handled that question by pointing out that contrary to what might be said, the Tribes had input on the Animas La Plata project from the start.  He stated that the tunnel planned from the lake to the Ute Tribes was removed from the project due to opposition to the project as a whole.  McElroy also noted that the Tribes were willing to compromise by downsizing the project’s benefits to the Tribe in return for increased storage and avoiding additional litigation.

Alexandra Tressler

 


State Eng’r of New Mexico v. Diamond K Bar Ranch, LLC, 385 P.3d 626 (N.M. 2016) (holding: (i) waters diverted from an out-of-state river into New Mexico by ditch remained unappropriated waters of New Mexico subject to the regulatory authority of the New Mexico State Engineer; and (ii) the landowners’ use of water in excess of existing permitted water rights was an illegal use of surface water).

The Animas River flows south from Colorado into New Mexico.  The Ralston Ditch, located in southern Colorado, diverts water from the Animas River into New Mexico.  The Echo Ditch Decree (“Decree”) established the rights of Petitioner, Diamond K Bar Ranch, LLC (“Diamond”) to water diverted by the Ralston Ditch.  The State Engineer of New Mexico (“State Engineer”) brought suit against Diamond for using river waters in excess of the permitted quantity under the Decree.

Diamond claimed it was entitled to appropriate more water than provided in the Decree and filed a motion to dismiss alleging (1) that the State Engineer lacked the regulatory and constitutional authority to enjoin them from the use of river waters when the water was transported by a ditch from Colorado into New Mexico and (2) that the Ralston Ditch was exempt from permitting requirements because it was a “community ditch.”  A district court denied Diamond’s motion to dismiss but certified its ruling for interlocutory appeal.  The appellate court quashed Diamond’s interlocutory appeal and the New Mexico Supreme Court granted Diamond’s petition for writ of certiorari.

The Court first considered Diamond’s argument that the Ralston Ditch was not a “natural watercourse” that flowed into New Mexico and thus not subject to the State Engineer’s authority because the water became private at the point of diversion.  The Constitution of the State of New Mexico broadly granted the State Engineer the authority to regulate the unpermitted appropriation of water of “every natural stream” within the state of New Mexico.  Diamond primarily relied on Turley v. Furman, in which the court found that the New Mexico State Engineer did not have the jurisdictional authority to grant a permit for the construction of a new diversion in Colorado.  Distinguishing Turley v. Furman, the Court noted that the State Engineer made no attempt to exercise authority over the appropriation of out of state waters or the construction of a new out of state ditch, but instead regulated the appropriation of New Mexico surface waters for use on lands in New Mexico.

The Court also recognized that New Mexico allows only a usufructuary right to water and that a person cannot have a private ownership in the corpus of the water.  Accordingly, the Ralston Ditch alone could not create a water right.  The Court rejected Diamond’s argument that waters diverted into New Mexico by ditch conveyance was “by artificial means” and thus rendered its use private because the water never flowed “in a natural stream” within the state of New Mexico.  The Court held that the waters diverted from the Animas River into the Ralston Ditch remained natural, unappropriated waters, subject to the regulation of the State Engineer.

The Court next addressed Diamond’s argument that it was not required to obtain a permit to divert water from the Ralston Ditch waters because it was an existing community ditch.  Community ditches are early New Mexico diversion that do not require a diversion permit pursuant to N.M.S.A. Section 72-5-2.  The Court recognized that the Ralston Ditch was a community ditch constructed in the 1880s and that Diamond’s pre-1907 water rights did not require a permit for the under N.M.S.A. Section 72-5-2.  However, citing several New Mexico statutes, the Court recognized that the exemption applied only to the place of diversion and not to the quantity of water appropriated, and that community ditch users remained subject to the regulation by the State Engineer.  The State Engineer alleged that Diamond had used an amount of water that exceeded its permitted right and that Diamond had used the water to irrigate lands not appurtenant to such rights.  The State Engineer also had authority to regulate Diamond’s water consumption because the Decree stated that “the State Engineer must approve any change” in water use, regardless of whether the ditch is a community ditch.  The Court acknowledged that the Ralston Ditch to the Decree.  The Court held that although Diamond had a vested water right as a community ditch user, they were still subject to regulation by the State Engineer.

Accordingly, the Court affirmed the district court’s denial of Diamond’s motion to dismiss and remanded the case for trial.

Reggie Norris

Image: A New Mexico ditch. Flickr User Mike Tungate, Creative Commons.