Posted on August 25, 2022 by Tom Sansonetti
The West’s Mega-Drought continues and in June 2022 the federal government’s Bureau of Reclamation sent notices to the Colorado River’s seven basin states requesting all to voluntarily accept cuts to their historic water uses. Negotiations over potential water cutbacks, should the river’s inflows continue to diminish and create shortage conditions, have long been scheduled for 2026. But talks will likely have to begin soon due to their complexity and current deteriorating conditions.
In fact, water shortages exist all across the fourteen Western public lands states. Statutory allocations of western water can no longer serve all who demand water, pitting water users against each other and placing pressure on the executive, legislative and judicial branches of state and federal governments to resolve these water conflicts. One form of resolution increasingly being favored by states centers on legislatively created adjudications to determine 1) who has valid water rights on a river or particular water basin; 2) the priority of that water right compared to other claimants; and 3) the quantity of water attached to each right. These adjudications of in-state water basins, conducted before state district courts or special water courts, will involve hundreds of private, tribal. state and federal claims to the available water.
The Law of Allocation of water in the West has its origins from the 1800’s when settlers in the West were largely ranchers, farmers and miners. They developed their own system based on appropriation which states later codified, proscribing water rights based on “first in time, first in right.” States granted water permits to users but only for the necessary amounts of water to fulfill their beneficial uses, entitling them to “first in time” priority based on the date of their permit.
While western water is largely governed under state laws, “federal reserved water rights” also come into play. These rights are acquired through treaty, agreement, statute, or executive order and may be implied or express. The goal of a reserved water right is to supply an amount of water from previously unappropriated waters sufficient to meet the basic needs of a particular constituency or area. The demand for federal water rights takes many forms. Among them are water rights for National Wildlife Refuges, National Parks and the 562 federally recognized Indian reservations, or under specific legislation such as the Wild & Scenic Rivers Act, the Endangered Species Act, and the Wilderness Act.
Foremost among these entities are the Indian tribes who will have an outsized impact on the state water adjudications. This is true because tribes can easily establish their being valid users of water since “time immemorial” with a priority date as of the year their reservation was established. Most reservations in the West were established in the 1800’s before many of the western territories became states. The priority date assigned to other kinds of federally reserved rights is most often the date of the legislation’s passage. Consequently, the key issue in most all state water adjudications will be “how much water will be designated for the exclusive use of a tribe,” since the tribal members will partake of the available water before any other user including thirsty municipalities and labor intensive industries.
The treaties that created the reservations contained provisions granting expressly and impliedly reserved certain rights to the tribes. Those rights subsequently have been interpreted to include fishing rights, water rights to maintain fisheries habitat and agricultural rights. In 1908, the United States Supreme Court established the Winters doctrine holding that federal reservations of land under tribal treaties implied the reservation of water rights for that land, even without explicit terms in the treaty to that effect.[1] The quantification measuring stick developed for agricultural land was “Practically Irrigable Acreage.” The factual challenge for the tribe’s expert witnesses was to show the number of acres on the reservation where crops could be grown or livestock raised and the annual acre feet of water needed to support those endeavors and thus accomplish the agricultural purposes of the reservation.[2]
While Winters Doctrine rights which deal with the consumptive use of water apply to the great majority of land locked tribes, there is another category of federal reserved water rights that deals with the non-consumptive use of water to maintain instream flows of sufficient depth and volume to sustain tribal fishing areas. These fishing-oriented claims can require enormous quantities of water that once awarded take precedent over all other water users in line to utilize water from the same steam, tributary, river or lake. Courts have adjudicated reserved rights for instream flows to support fishing rights based on treaty language that secures to signatory tribes the right to take fish at all “usual and accustomed” fishing grounds. Courts have held that the tribes were “vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off of the reservations, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.”[3] Thus, treaties were deemed to have reserved to the tribes water sufficient to support both on-and off-reservation treaty fishing rights. The instream flow right “consists of the right to prevent other appropriators from depleting the stream waters below a protected level in any area where the non-consumptive right applies.”[4] This “protected level” has been interpreted as the amount of water required to support a healthy and productive habitat for the treaty species in question.[5]
While the Practically Irrigable Acreage standard is well established for consumptive irrigation federal reserved rights, no similar standard exists for instream flow rights to support treaty-based fishing rights. Thus, one can anticipate battles among a host of experts representing both the tribes and those with lesser priority rights in attempting to establish the proper amount of water necessary to provide a healthy and productive habitat for the fish that constitute tribal resources. Determining the appropriate amount of water will be a complex factual question with the tribes having the initial burden of proof, then the other parties having the opportunity to demonstrate that the water levels can be established at a lower level and still support tribal rights.
State adjudications have already been completed in Wyoming and Idaho. In 2023 adjudications are expected to commence in Washington and Montana. No doubt other states will not be far behind as the mega-drought persists. Expect these fights over the lifeblood of the West to wind their way through State Supreme Courts on their way to the United States Supreme Court before this decade ends.
[1] Winter v. United States, 207 U.S. 564, 577 (1908).
[2] Cappaert v. United States, 426 U.S. 128, 141 (1976).
[3] Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 667
(1979).
[4] Baley v. United States, 942 F.3d 1312, 1322 (Fed. Cir. 2019).
[5] See In re Waters of the Klamath, 2020 Ore. Cir. LEXIS 3587 at 34.